Category: Special Award

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.

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.