Category: Special Award

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.

T.A.K. v. Aviva General Insurance Company (18-008232)

The insurer sought reconsideration of the Tribunal’s decision granting a special award of 35% on IRBs. The insurer argued that the Tribunal erred in finding that the insurer received the claimant’s employment file in August of 2018, his CPP file by March 12, 2018, and his tax returns by August 2018. The insurer argued that Adjudicator Neilson made significant errors of fact in determining that it received emails enclosing these documents, when no email confirmation receipts were filed by the claimant. Adjudicator Neilson noted that, upon review of correspondence in the file, that the claimant was directed to provide documents to a specific adjuster. She further noted that, although the claimant did provide emails showing that these documents were provided, they were provided to a different adjuster. Adjudicator Neilson noted section 64(2)(e) of the SABS allows delivery of documents via electronic means. She noted that several documents had already been sent to the approved adjuster by the claimant electronically. However, the emails allegedly containing the aforementioned employment documents were sent to a different adjuster. Adjudicator Neilson cited section 22(3)(a) of the Electronic Commerce Act, 2000, which determined when an email was considered under the Schedule to be delivered. As the documents were allegedly provided to a different adjuster, rather than the adjuster who was the only one that consent had been provided to release documents to, Adjudicator Neilson ruled that she had made an error of both fact and law to have found that the other adjuster consented to receive these documents or that these documents emailed to her on the claimant’s behalf were delivered by the claimant and received by the insurer. Adjudicator Neilson granted Aviva’s request for reconsideration and rescinded the previous ruling.

Rida v. Wawanesa Mutual Insurance Company (19-013934)

The claimant was declared catastrophically impaired and sought payment of attendant care benefits and housekeeping benefits provided by her daughters. The insurer ultimately accepted that the claimant was entitled to payment of the benefits, and argued that since it agreed with the claim, there was no basis upon which a special award could be granted. Adjudicator Farlam stated that there was no evidence that the benefits had in fact been paid and therefore the issue of payment and interest were still outstanding. As a result, it was open for an adjudicator to determine the special award issue. However, Adjudicator Farlam concluded that the claimant was not entitled to a special award because the insurer’s decision to retain accountants to estimate the economic loss and the request for affidavit evidence was reasonable and prudent. She also found that a delay of 21 days in issuing a cheque was not unreasonable and did not violate the Unfair or Deceptive Acts or Practices regulation.

Williams v. Allstate Insurance Company (19-013488)

The claimant disputed the insurer’s decision to keep him in the MIG, as well as his entitlement to various treatment plans. Prior to the filing of hearing submissions, the insurer removed the claimant from the MIG and approved all of the disputed treatment plans. As a result, the only issue in dispute in the hearing was a special award. Vice Chair Boyce declined to grant a special award, finding that this was not a situation where the insurer stubbornly maintain a wrong conclusion. Rather, the insurer demonstrated flexibility and good faith to the claimant in revising its conclusion on receipt of productions that provided a clearer picture of the claimant’s impairments. Notably, Vice Chair Boyce found that much of the blame for delay in the adjusting of the claim could be laid at the claimant’s feet, given that the majority of the medical records were not submitted to the insurer until the production deadline for the written hearing.

Polidori v. Motor Vehicle Accident Claims Fund (19-009160)

The insurer sought reconsideration of a decision in which the Tribunal ordered it to pay the cost of an in-home occupational therapy assessment and a special award of 40%. Vice Chair McGee denied the insurer’s request, finding that it had not established any of the grounds for reconsideration. She noted that the Tribunal’s assessment of the issues in dispute (including causation of the claimant’s injuries and the insurer’s conduct in adjusting the claim), were set out in detail in the decision. The insurer did not identify errors in the Tribunal’s analysis, but rather disagreed with the Tribunal’s assessment, which is not a basis for reconsideration.

Harvey v. TD Insurance Meloche Monnex (19-008497)

The claimant applied to the LAT seeking entitlement to incurred ACBs, occupational therapy, and a special award. The insurer raised two preliminary issues: 1) Did the LAT have jurisdiction to adjudicate the ACB issue as the benefit had been suspended for non-compliance with s. 33 requests rather than denied; and 2) Was the claimant barred from pursuing entitlement to ACBs pursuant to s. 55 for failure to attend an IE assessment? Adjudicator Victor found that the LAT had jurisdiction over the ACB dispute and the claimant was not barred from pursuing entitlement to the benefit pursuant to s. 55 because the notice of assessment was deficient for failure to provide specific medical and other reasons. Adjudicator Victor found that the claimant was entitled to all the benefits in dispute and granted a special award in relation to the claim for ACBs. The special award was justified because payment of ACBs was stopped while catastrophic impairment IEs were scheduled, despite section 45(4) which required ongoing ACBs until the IEs were completed. The insurer also used the COVID-19 delays in scheduling the IEs to its advantage by not paying ACBs while IEs were rescheduled.

M.A. v. Portage La Prairie Mutual Insurance Company (18-001837)

The insurer sought reconsideration of a decision in which the Tribunal found that the claimant was entitled to NEBs and a special award of 40%. Adjudicator Grieves dismissed the insurer’s request, on the basis that the Tribunal did not make any error of law or fact in rendering its decision. In doing so, she noted that reconsideration was not available to a party simply because they believe that the Tribunal should have viewed the evidence differently.

Almayahi v. The Co-Operators General Insurance Company (20-001166)

The claimant sought entitlement to two chiropractic treatment plans and a special award. Adjudicator Grant found that the claimant was entitled to payment for the costs of both treatment plans on the basis that the medical documentation supported his reports of consistent and ongoing pain since the accident, and that the goals of pain reduction, increased range of motion, and return to activities of normal living were reasonable and necessary. Adjudicator Grant further found that the claimant was entitled to a special award in the amount of $470.74, representing 10 percent of the total amount payable on the treatment plans. He determined that the insurer unreasonably withheld treatment by failing to acknowledge or consider new medical records from the claimant’s family physician and chronic pain treatment providers which challenged the conclusions of its IE assessor.

J.T. v. Aviva Insurance Company (18-003238)

The claimant submitted a request for reconsideration arising out of a decision which granted entitlement to some benefits, interest, and an award of 25 percent of the disputed amounts for three treatment plans unreasonably withheld by the insurer. The decision determined the cost of the withheld treatment plans and the percentage to be applied, but the calculation of the award was not completed. There was a dispute over the calculated interest and the award following the decision, and the claimant subsequently retained an accountant who calculated the award to be $10,657.03. The insurer accepted the accountant’s calculation, and made payment. The claimant request payment of the cost of the accounting report, but the insurer refused. As such, the claimant filed a Notice of Motion requesting payment of the disbursement. Vice Chair Hunter denied the motion on the basis that there was no provision for the payment of disbursements within the cost regime contained in Rule 19 of the LAT Rules, and the claimant sought reconsideration. Vice Chair Hunter denied the claimant’s request for reconsideration, noting that costs are not compensatory but are rather meant to maintain civility and order during proceedings. He further noted that there had not been a single LAT decision that awarded disbursements as part of a cost award.

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

The claimant sought entitlement to physical treatment and various assessments, as well as a special award. Adjudicator Grant determined that the claimant was entitled to the disputed physical treatment plan, finding that the claimant’s pre and post-accident visit history with her family doctor was indicative of significant and ongoing accident-related pain complaints and noting that pain relief, even as the lone goal of treatment, was a legitimate and sometimes reasonable and necessary goal. He further found that chronic pain assessment payable in light of the insurer’s non-compliance with section 38(8). The insurer failed to respond to the treatment plan, even at the time of the hearing, and Adjudicator Grant advised that the door was now closed to the option of curing the defective notice. Adjudicator Grant also granted a special award in the amount of $300.00, finding that the insurer failed to meet its obligation to continue to adjust its file as new medical evidence became available that clearly contradicted its IE assessor’s finding and was also in non-compliance with section 38 of the Schedule.