Category: Special Award

Kyrylenko v. Aviva Insurance Canada (2021 ONSC 4929)

The claimant appealed the Tribunal’s decision that he was not entitled to payment for benefits related to two treatment plans that the insurer had failed to respond to within 10 business days. Despite the language of section 38(11), the Tribunal considered whether the medical benefits were reasonable and necessary, and whether the MIG applied and barred entitlement to the claimed in-home assessment. The Divisional Court granted the appeal and held that the insurer was liable for all amounts on the treatment plans related to the 11th business day onwards until the treatment plan was properly denied. The Tribunal erred in considering the “”reasonable and necessary”” test for the entitlement when section 38(11) applied, and the Tribunal erred in considering the prohibition on in-home assessments under section 25(2) for MIG claims, given that section 38(11) required payment. The Court ordered the insurer to pay the treatment amounts that relate to the period after the 11th business day following submission of the treatment plan. The Court returned to matter to the Tribunal for a decision on the claim for a special award.

Lo v. Allstate Insurance Company of Canada (20-003717)

The claimant sought entitlement to a special award in relation to a physiotherapy treatment plan, arguing that the insurer had “ample evidence as to the existence of the impairments she suffered.” The claimant further submitted that the refusal was unreasonable and caused a substantial delay in the claimant’s ability to access treatment that was recommended by her treating physicians and the IE examiners. The insurer submitted that the claimant never provided compelling medical evidence to support her claim for physical therapy, and her submissions provided no evidence that the insurer had acted in bad faith and unreasonably withheld benefits. Adjudicator Norris agreed with the insurer and stated that the insurer had insufficient evidence to support the claim for physiotherapy, and it was reasonable for the insurer to seek an IE to determine the claimant’s medical status.

Malitskiy v. Unica Insurance Inc. (2021 ONSC 4603)

The claimant appealed the LAT reconsideration in which the Tribunal held that he was only entitled to ACBs calculated by using the Form 1 hourly rate multiplied by the time received for each service (rather than the full Form 1 amount of $6,000), and the Tribunal’s decision that the claimant was not entitled to a special award. The Divisional Court dismissed the appeal. It held that the quantum of ACBs payable was properly determined using the hourly rates set out in the FSCO Guidelines and the Form 1, and that the insurer was not required to pay for attendant care services in excess of those hourly rates. The Court also held that the Tribunal’s reconsideration applied the proper principles of law (as described in Plowright v Wellington). A special award could not be granted simply because the insurer had made the wrong adjusting decision.

Aslivo v. Aviva Insurance Canada (19-004717)

The claimant applied to the LAT seeking a special award and entitlement to interest on two lump sum payments of IRBs made by the insurer. The insurer sought repayment of an overpayment of IRBs. Vice Chair Flude began the analysis by stating: “While the Schedule has been characterized as consumer protection legislation and should be given a broad and liberal interpretation, it is important to bear in mind that the obligations of the parties are mutual. No level of broad and liberal interpretation can save a consumer who simply refuses to cooperate with an insurer.” With regards to the first lump sum payment of IRBs, Vice-Chair Flude separated the issues into two distinct periods. In the first period, leading up to an IRB response letter / s. 33 request, the insurer was not in compliance with its obligations under the SABS to respond to the IRB application within 10 days. In the second period (after making the request for documents), the insurer was in compliance with the SABS. Vice-Chair Flude found that the insurer was liable to pay interest during the period it was in non-compliance with the SABS. The insurer was not liable to pay interest on the lump sum amount for the period starting when the reasonable s. 33 requests were made until the s. 33 requests were complied with (at which time the insurer paid the lump sum amount). The second lump sum payment was made for a period during which the claimant’s entitlement to IRBs had been terminated based on IE assessments. The lump sum back payment was made after the claimant was re-assessed and it was determined that her condition had deteriorated such that she met the test for IRBs. Adjudicator Flude found that although the insurer had not acted unreasonably when terminating the benefit for a period, interest was payable on the lump sum back payment. The situation was found to be analogous to a claimant being successful in an application for an IRB to the Tribunal. Adjudicator Flude found that the insurer was entitled to repayment of an overpayment of IRBs for a specific period, as claimed. The claimant was not entitled to a special award.

Cargnelli v. Aviva Insurance Company (20-001892)

The claimant applied disputed his entitlement to NEBs, two medical benefits, interest, and a special award. Adjudicator Boyce dismissed the NEBs claim, awarded the two medical benefits plus interest, and awarded a 10 percent special award with respect to the medical benefits. With respect to NEBs, Adjudicator Boyce noted that while according to Heath a total disability is not required, the NEB test is a stringent one. Aviva relied on its IE reports and the claimant’s self-reporting. Adjudicator Boyce noted that the claimant reported that he had resumed self-care tasks and basic housekeeping activities, mowed his lawn, attended social events, and could drive his vehicle and motorcycle. Adjudicator Boyce found that the claimant’s pain did not practically prevent him from engaging in his most valued pre-accident activities. As for the medical benefits, Adjudicator Boyce found that both disputed treatment plans were reasonable and necessary to help him reduce pain and improve his recovery and that pain reduction is a legitimate goal for treatment. As for the special award, Adjudicator Boyce agreed with the claimant’s submissions that it was difficult to reconcile Aviva’s denial of medical benefits during the same period it had paid a NEBs.

Dankha v. Aviva Insurance Company (19-009569)

The claimant applied to the LAT seeking removal from the MIG, entitlement to three treatment plans, and a special award. Prior to the LAT hearing, the insurer removed the claimant from the MIG and approved all the treatment plans, so the only issue at the hearing was whether the claimant was entitled to a special award. Vice-Chair Boyce found that the claimant failed to produce compelling medical evidence to support the reasonableness of the OCF-18s when they were submitted, failed to produce relevant clinical notes and records until the eve of the hearing, and delayed the completion of a s. 44 examination by failing to attend on the initially scheduled date. Vice-Chair Boyce found that there was no evidence that the insurer unreasonably withheld or delayed the payment of benefits to the claimant. The claimant was not entitled to a special award.

Manikam v. Aviva Insurance Canada (19-006126)

The claimant sought entitlement to a special award following payment of NEBs after the Case Conference. The insurer admitted that there was a two month initial delay of payment of NEBs. There was also a failure to provide IE reports within 10 days of receipt. A seven month delay in providing the IEs was due to oversight, thought the claimant received NEBs during this period. Adjudicator Ferguson denied the claim for a special award. The insurer rectified the errors as soon as it became aware of them and paid interest as required by the SABS. Regarding late service of the IE reports, the claimant continued to receive NEBs so there was no delay or withholding of NEBs during that period.

M.I. v. Coseco Insurance Company (18-000742)

The claimant sought reconsideration of the Tribunal’s decision that it did not have jurisdiction to award ongoing IRBs, and the dismissal of a claim for a special award and interest. IRBs had been reinstated prior to the initial hearing, so there was no dispute as to entitlement or quantum. Vice Chair Maedel dismissed the reconsideration request and held that the Tribunal’s decision was correct. The FSCO jurisprudence the claimant relied upon did not consider the current legislation. Vice Chair Maedel held the Tribunal could not issue declaratory relief for ongoing IRBs when the insurer was paying IRBs at the time of the hearing. He also found no error in the Tribunal’s denial of a special award.

Switzer v. Waterloo Insurance (19-011403)

The claimant disputed his entitlement to attendant care benefits, housekeeping expenses, and two chair lifts. He also disputed the weekly quantum of IRBs he was entitled to receive. The claimant also sought a special award. The insurer argued that the accident was not the cause of the claimant’s impairments, and that they all pre-existed the accident from six earlier motor vehicle accidents. The insurer also argued that the claimant made material misrepresentations in relation to his claim for housekeeping expenses. Adjudicator Lake found that the accident was a necessary cause that exacerbated the claimant’s pre-existing psychological and cognitive conditions, but did not cause the claimant any new physical impairments or exacerbate his previous physical conditions. Adjudicator Lake declined to award ACBs because the claimant failed to prove that any expenses were incurred. The claimant failed to call his alleged service provider to give evidence and could not prove that the service provider was a professional acting in the course of his employment or self-employment. Adjudicator Lake also wrote that she would have declined to award ACBs due to the claimant’s failure to prove the service actually provided to him. There were no time dockets, daily logs, job diaries, or any information about the dates and times services were performed. Regarding HK expenses, Adjudicator Lake held that the claimant failed to prove that he suffered a substantial inability to complete his home maintenance and housekeeping tasks as a result of the accident. Regarding IRBs, Adjudicator Lake held that the claimant was entitled to $711.15 per week in IRBs during 2018 and $1,000 per week from January 2019 onwards. The claimant was self-employed as a lawyer at the time of the accident, and was a partner at a law firm prior to that. The last full fiscal year worked by the claimant at the law firm was 2016. The claimant did not complete a fiscal year at either his own law firm or as a partner at a law firm in 2017. Adjudicator Lake rejected the insurer’s position that consideration of self-employment income was restricted to a business being operated at the time of the accident. The claimant continued to practice law after the accident, so the insurer was entitled to deduct post-accident earnings in accordance with the SABS. No evidence was provided of the claimant’s income from 2019 onwards. Adjudicator Lake declined to grant a special award, as the only benefit found payable was IRBs, and the interpretation of the SABS that led to the dispute was not excessive, imprudent, or stubborn. Finally, Adjudicator Lake rejected the insurer’s position that the claimant made material misrepresentations in relation to the claim for HK expenses. She agreed that the housekeeper’s testimony called into question evidence given by the claimant regarding creation of invoices, the discrepancy was not a “material fact” with respect to the application for HK expenses; the discrepancy related to the author of the invoices rather than the content.

A.J. v. Security National Insurance Co (18-007658)

The claimant sought a special award on the basis that the insurer unreasonably withheld and delayed payment of her claim for NEBs. The insurer failed to acknowledge receipt of the claimant’s OCF-3, and ignored several requests from the claimant requesting confirmation and updates on the status of payments. The insurer had no explanation as to why the OCF-3 and subsequent correspondence was never responded to. Adjudicator Hines found that the insurer was liable to pay an award in the amount of $8,598.95 (equal to 30%) plus interest. She did not find that the maximum award of 50% was appropriate because the insurer mitigated by issuing payment for past NEBs, plus interest, and its conduct was not part of a pattern of how it adjusted the claimant’s claim as a whole.