The claimant sought entitlement to three treatment plans. The insurer asserted the plans were not reasonable and necessary. Adjudicator Paul Gosio reviewed the medical evidence and concluded the treatment plans were reasonable and necessary. Although the claimant sought a special award, Adjudicator Gosio denied the claim and noted that “an insurer will not face a special award just because an arbitrator finds that the insurer got it wrong.”
The claimant sought entitlement to IRBs and various medical benefits. Regarding IRBs, Adjudicator Bickley held that the claimant had failed to prove a substantial inability beyond three months, and also held that the claimant had failed to provide financial records supporting a higher weekly IRB quantum. The adjudicator made an adverse inference due to the claimant’s failure to provide requested financial records. In terms of the medical benefits, Adjudicator Bickley held that the claimant’s non-attendance at two IEs barred her from seeking a chronic pain treatment plan. Two other assessments were approved as being reasonable and necessary. The remaining treatment plans were denied. Finally, Adjudicator Bickley allowed the claimant to add a special award to her claim, but denied entitlement to such an award.
The claimant sought entitlement to NEBs and medical benefits. Shortly before the hearing, the insurer removed the claimant from the MIG and agreed to pay for a disputed medical benefits. Adjudicator White held that a special award was payable on the medical benefit due to the late approval by the insurer. She did not award the claimant NEBs, noting that the claimant had not provided any evidence (as opposed to submissions) regarding the claimant’s post-accident life. Furthermore, the medical reports did not support an impairment directly linked to the accident that completely and continuously render the claimant unable to engage in a normal life.
The claimant sought entitlement to three additional assessments related to a catastrophic impairment determination. The insurer denied them as being duplicative and unreasonable. Adjudicator Johal held that the in order to be payable, the proposed catastrophic impairment assessment had to be reasonable and necessary. Each proposed assessment was to be examined on that standard. Adjudicator Johal held that two of the proposed assessments were reasonable and necessary, but that no evidence was provided supporting the third assessment. The adjudicator also held that a maximum of $2,000 was to be paid for each proposed assessment. She denied a special award, stating that the insurer had based its denial on two paper review IEs and that it was not unreasonable for the insurer to do so.
The claimant sought entitlement to further medical benefits and a special award; the insurer argued that the claimant had failed to attend IEs and that the benefits were not reasonable and necessary. Adjudicator Treksler concluded that the insurer’s request for IEs was not reasonable given that only one year had passed since the last IEs in this decade-long claim. She also concluded that the medical benefits sought were reasonable and necessary to treat the claimant’s chronic pain. Adjudicator Treksler also held that a special award was payable because the insurer had delayed payment of the claimed medical benefits by ignoring the potential pain relief that the treatment would provide the claimant and that requested assessments could provide further recommendations for pain relief.
Shortly before the hearing, the insurer accepted that the claimant suffered a catastrophic impairment, and was entitled to IRBs. The only remaining issues were the claimant’s entitlement to attendant care benefits, and a special award. In terms of the attendant care claim, the insurer accepted that the claimant was medically entitled to assistance; the dispute was whether the service provider was a professional under the “incurred” definition. The service provider was not working as a PSW at the time of the accident, but had started working after the claimant’s accident, and had worked for three weeks providing services to other individuals. Adjudicators Treksler and Hines held that the wording “but for the accident” in the “incurred” definition did not require the professional service provider to have been working as a professional at the time of the accident. Instead the wording “but for the accident” required an inquiry as to whether the professional service provider was working in that role prior to the date of the provision of services. The professional service provider had worked for three week with other individual prior to working with the claimant, and the adjudicators therefore concluded that the “incurred” definition for a professional service provider was satisfied. The adjudicator also issued a special award of $3,693.60 in relation to IRBs, on the basis that the insurer had requested too much information and refused to pay IRBs despite sufficient information to calculate the claimant’s weekly entitlement.
The parties were able to resolve the dispute during the Case Conference. The claimant sought costs and a special award. Adjudicator Makos denied both claims. He wrote that the insurer’s delay in payment of the disputed benefits was not unreasonable in light of the lack of medical information provided by the claimant prior to the Case Conference. However, he accepted that the Tribunal did have the jurisdiction to make a special award even if the insurer had paid a benefit shortly before a hearing.
The claimant brought an application for interest and a special award on IRBs that had been miscalculated by the insurer. Adjudicator Bickley awarded interest on IRBs after they were recalculated at a higher amount. A special award was denied because the parties had proceeded on the shared assumption of the weekly IRB quantum for six years, until new records were obtained by the claimant.
Rule 19.1 provides that costs may be requested during a proceeding if a party, during a proceeding, acts unreasonably, frivolously, vexatiously and/or in bad faith. Correspondence which took place prior to the LAT application cannot be considered under Rule 19.1. A special award was not given because the insurer did not “withhold or delay” payment of accident benefits while it awaited updated medical records.
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150 York Street, Suite 1800
Toronto, Ontario M5H 3S5
416.507.1850
© 2020 Thomas Gold Pettingill LLP