Category: Special Award

K.G. v. Motor Vehicle Accident Claims Fund (20-003724)

The claimant disputed his entitlement to ACBs in relation to a 1999 accident. The Fund stopped paying ACBs in 2000 without a proper notice, and agreed to reinstate ACBs with interest at the Form 1 rate of $120.40, and paid interest at 1 percent per month. The claimant requested that the LAT award ACBs at the rate of $5,575.31 per month from 2000 onwards based on a retroactive Form 1 completed in 2019. The claimant also requested interest at the rate of 2 percent per month, and a special award. Vice Chair Shapiro agreed that the Fund improperly stopped payment of ACBs without proper notice, and that the Fund correctly reinstated ACBs with payment back to 2000 at the rate of $120.41 per month, other than two periods in which a “top-up” of $331.10 was granted when the claimant moved residences. Vice Chair Shapiro rejected the retroactive Form 1 and the suggested need for 24-hour supervision. The retroactive Form 1 was completed by an OT will no familiarity of the Form 1 as it existed in 2000; the documents reviewed by the OT were scant; the OT’s evidence was contrary to the evidence of the claimant’s family members regarding the claimant’s independence; and the OT ignored the claimant’s recovery in the year or two after the accident. Additionally, the claimant’s current treatment team did not support the need for 24 hour supervision. As to interest, Vice Chair Shapiro held that the claimant was entitled to interest at the rate of 2 percent per month, rather than 1 percent per month, based on the Court of Appeal’s decisions in Federico v State Farm, and Sidhu v State Farm. Finally, Vice Chair Shapiro granted a special award of 10 percent on all ACBs that were wrongly withheld. The Fund inappropriately placed ACBs “on hold” without any provision in the SABS allowing it to do so, and there was a delay of almost 20 years in payment of ACBs.

Singer v The Co-operators General Insurance Company (19-014099)

The claimant was seriously injured in an accident and received benefits from his insurer as a result. The claimant applied to the LAT seeking an award under s. 10 of Regulation 664, submitting that the insurer acted in bad faith to prevent him from applying for additional benefits. Specifically, the claimant argued that the insurer failed to inform him of benefits which were available and failed to advise that he obtain legal counsel. Adjudicator Evans concluded that the claimant failed to establish that the insurer acted in bad faith. The evidence before the LAT confirmed that a representative of the insurer met with the claimant after the accident and provided an information packet containing all of the necessary information to make a claim. Adjudicator Evans further highlighted that the SABS does not require an insurer to recommend legal counsel but may require that they provide notice that an insured person is entitled to legal representation at an examination under oath. The claimants application was dismissed.

Padua v. Co-operators General Insurance Company (20-005450)

The claimant brought a LAT application after various treatment plans were denied because her injuries were deemed to fall under the MIG. She also sought a special award for unreasonably withheld or delayed payments. Several months after the accident in April 2018, the claimant had voluntarily withdrawn from receiving treatment without exhausting her MIG benefits. She did not seek further treatment until January 2020. The claimant had not referenced any psychological injuries to her treatment providers following the accident. Owing to the lapse of a year and a half in which no treatment was sought, combined with the absence of any psychological complaints related to the accident prior to January 2020, the insurer denied approval of the assessment and did not conduct a psychological IE. Adjudicator Norris ruled that the claimant was entitled to a special award in the amount of $1,612.79. He found that the insurer had acted unreasonably in rejecting the conclusions of Dr. Brunshaw’s psychological assessment dated April 22, 2020, which stated that the claimant had suffered psychological injuries from the accident and required treatment. At the hearing, the claimant acknowledged that she had denied experiencing pre-accident psychological issues in her assessment, despite her family doctor’s notes indicating otherwise. However, Adjudicator Norris noted that the insurer had not produced any independent medical opinions following receipt of the claimant’s psychological report, leaving its conclusion, which included causation of the alleged injuries, uncontested. He opined that psychological injuries could develop over time and that the year and a half gap did not disqualify the claimant from receiving further treatment. She was deemed to be entitled to 50% of the amounts withheld but was awarded 30% to account for a failure to disclose pre-existing psychological issues during her psychological assessment.

O’Brien v. Intact Insurance Company (20-003729)

The claimant’s father was fatally injured in an automobile accident which led the claimant to develop psychological injuries and claim benefits pursuant to the SABs. A section 44 examination concluded that the proposed psychological treatment sought by the claimant was reasonable and necessary; however an incorrect fax number was used to send correspondence approving treatment. The claimant applied for an award pursuant to s. 10 of O. Reg 664 due to the insurer’s error. Adjudicator Norris found that the claimant was not entitled to an award as the insurer’s behaviour did not amount to unreasonable withholding or the delay of the payment. Adjudicator Norris emphasized that insurers are not to be held to the standard of perfection, and mistakes are not errors that warrant the grant of an award.

Shweihat v. Aviva Insurance Company of Canada (20-001897)

The Tribunal determined that the claimant was not entitled to an award under s. 10 of O. Reg 664. The claimant had argued that the insurer’s denial of a treatment plan was unreasonable as it had relied on an insurer examination that was contrary to the available medical records. Vice-Chair Marzinotto found that the medical evidence included in the report was consistent with the claimant’s records and that it was therefore reasonable for the insurer to rely on the report. There is a high threshold for entitlement to an award under O. Reg. 664. The claimant failed to demonstrate that the insurer had either unreasonably withheld or delayed the payment of a benefit to which he was entitled.

J.T. v. Certas Home and Auto Insurance Company (19-001148)

The claimant was injured in an accident in which a bus was struck by a train, and he was found to suffer a catastrophic impairment. He applied to the LAT claiming $166,437 in home modifications, $839,104 for the cost of a new home, weekly housekeeping expenses, and a special award. The insurer sought repayment of $8,747.42 in IRBs related to its error in not reducing IRBs at the claimant’s 65th birthday. Adjudicator Hines found that the home modifications were deemed incurred and ordered the insurer to pay same, even though the claimant had since moved. She found that the insurer had sufficient information from medical records and its own IE reports to support the need for the proposed modifications. The claimed cost of a new home was denied. The SABS is clear that the value of a new home cannot exceed the value of home modifications that are reasonable and necessary to accommodate a person’s disability. The proposed home cost was far in excess of the modifications found reasonable by the Tribunal. Adjudicator Hines also rejected the notion that the claimant should not have to allocate any proceeds from his original home to purchase a new home; that argument was unreasonable and not supported by the SABS or case law. Housekeeping expenses of $100 per week were awarded, as the claimant was found to need assistance of 12 to 13 per week. The service provider was the claimant’s wife, who was found to suffer an economic loss in relation to attendant care in an earlier FSCO decision. The insurer argued that the service provider could not “double dip” on the economic loss, and that time spent providing 24/7 supervision (which was being paid as ACBs), could not be used to count towards housekeeping services. Adjudicator Hines rejected this argument, holding that the SABS does not bar an insured from using the same service provider for housekeeping and attendant care, nor was a separate economic loss required to be proven. A special award of 25 percent was granted on the withheld home modifications, given that the insurer had already been found to have unreasonably withheld approval and payment of same. Finally, Adjudicator Hines granted the insurer’s repayment request of $8,747.42 in IRBs. The insurer mistakenly paid the claimant $400.00 per week after his 65th birthday and did not reduce the amount per the SABS until eight months later. The repayment request was made within 12 months, and complied with section 52. The insurer was permitted to reduce ongoing IRB payments by 20 percent until the repayment was complete

DeGroot v. Licence Appeal Tribunal (2022 ONSC 6160)

The claimant appealed the Tribunal’s decision awarding IRBs of $161.11 per week up to October 6, 2020, and declining to award any IRBs thereafter. The claimant also appealed the dismissal of the special award claim. The Court dismissed the appeal, holding that the Tribunal’s weekly IRB award was accurate in light of the claimant’s accounting report, and that the $185 minimum for IRBs after the 104 week mark could be reduced by post-accident income. Regarding IRBs beyond October 6, 2020, the Court held that the Tribunal did not err in dismissing the issue, as the claimant had not put evidence of an IRB calculation beyond that date before the Tribunal, and the issue appeared to be moot as the insurer had conceded payment of $400 per week for that time period after the Tribunal’s decision was released. The Tribunal’s decision that the issue was moot was entitled to discretion. Finally, the Court held that the Tribunal’s decision to not grant a special award properly considered relevant factors in coming to the decision to dismiss the claim.

Keshavarz v. Aviva General Insurance (20-001377)

The claimant sought a special award from the insurer relating to the denial and subsequent approval of a psychological assessment prior to a LAT hearing. Adjudicator Hines determined that the insurer unreasonably withheld and delayed payment of a treatment plan for the psychological assessment. As a result, she determined that a special award of 25 percent of the treatment plan was appropriate. The Tribunal considered the length of the delay, the blameworthiness of the insurer’s conduct, the vulnerability of the insured person, the harm or potential harm directed at the insured person, the need for deterrence, and any advantage wrongfully gained by the insurer from the misconduct. The Adjudicator found the length of the delay the most aggravating factor as the insurer had denied the treatment plan without any rationale and did not approve the benefit for almost two years from the date it was submitted. Further, the Adjudicator found that the claimant was particularly vulnerable as she was a minor when the treatment plan was initially denied. An insurer ought to use extra care when handling treatment plans for minors and be clear with its rationale for denial. The Adjudicator reduced the quantum of the special award because the claimant failed to demonstrate that she had been prejudiced by the insurer’s conduct, and because the insurer approved the treatment plan eight months before the hearing.

Viran v. Aviva General Insurance Company (19-008488)

The insurer filed a request for reconsideration following a decision in which the Tribunal found that the claimant was entitled to various medical benefits and a special award. Adjudicator Grant granted the insurer’s request for reconsideration in part, and the order for a special award was set aside. Adjudicator Grant was persuaded by the insurer’s argument that section 38(11) already had a punitive measure that did not need to be overlapped by an award. He agreed that by failing to properly deny the OCF-18, the “shall pay” consequences discourage an insurer from failing to respond to an OCF-18 that it receives, and serves as an appropriately punitive result. In doing so, Adjudicator Grant noted that the threshold for an award was high for a reason, and that a penalty on top of a penalty could be reasonably construed as excessive.

Gupta v. TD Insurance Meloche Monnex (19-010353)

The claimant applied to the LAT seeking entitlement to the cost of examinations, post-104 IRBs, ACBs, and a special award. The claimant was involved in a motor vehicle accident in 2016. Her injuries were found to include post-concussion syndrome and chronic pain. She received long-term disability benefits until 2020 (when she received an advance buyout of her long-term disability benefits) and CPP Disability benefits from 2017 to 2020. Adjudicator Grant did not find the s. 44 post-104 IRB reports compelling, as the opinions were provided individually and there was no consideration of the combined impact of the claimant’s impairments on her ability to return to work. Adjudicator Grant found that the claimant was entitled to post-104 IRBs and a neuropsychological cognitive assessment. She was not entitled to a language pathology assessment. The claimant did not have the financial means to pay for attendant care services. As such, Adjudicator Grant found that the claimant had failed to prove that she incurred any ACBs, and she was not entitled to payment of ACBs. Finally, Adjudicator Grant found that the insurer’s failure to provide s. 44 assessors with all the clinical notes and records of the claimant did not meet the threshold for granting an award, and the claim for a special award was dismissed.