Category: Special Award

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.

Kargol v. Aviva General Insurance (19-011590)

The claimant sought entitlement to pre- and post-104 week IRBs and a special award. Adjudicator Grant awarded IRBs from the date of loss and ongoing, holding that the claimant met both disability tests. The claimant had worked two jobs in the year before the accident. The first was as a sheet metal fabricator. The second was as a purchaser, processing manager, and shop helper. He quit his job two days before the accident according to a psychological report, though the claimant denied that during the hearing and said he was laid off because of downsizing. The claimant attempts to return to one of the jobs after the accident, but stopped after one week and had not returned to work any time before the LAT hearing. Adjudicator Grant accepted the opinions of the claimant’s orthopaedic surgeon and chronic pain expert that the accident related injuries prevented the claimant from engaging in the essential tasks of his pre-accident jobs, and prevented him from working in any similar jobs requiring physical labour. Adjudicator Grant awarded a special award of 10 percent on IRBs because the insurer had not shown any consideration of the claimant’s expert reports in the two years after receiving the reports and the LAT hearing.

D.C. v. Allstate Canada (19-005260)

The claimant sought entitlement to post-104 week IRBs, ACBs, and various medical benefits, as well as a special award. Vice-Chair McGee dismissed the application on the basis that the claimant had not established that the accident was the cause of the impairment giving rise to the claim. She found that the claimant sustained soft tissue injuries in the accident, from which he recovered, and that his ongoing impairments were related to a later slip and fall incident in which he injured his groin. In short, the accident was not a “but for” cause of any physical or psychological impairment. As the claimant had not established entitlement to the benefits claimed in the application, there was no basis for a special award.

Branden v. Co-operators General Insurance Company (19-008343)

The insurer sought reconsideration of the Tribunal’s decision that it was not entitled to deduct a long-term disability settlement from IRBs; the claimant sought reconsideration of the Tribunal’s decision that a special award was not payable. Vice Chair Boyce rejected both reconsideration requests. He found no error of law relating to the Tribunal’s conclusions about “gross weekly payment for loss of income” and rejected the insurer’s arguments regarding double recovery. The claimant’s receipt of LTD benefits was not a payment “under an income continuation benefit plan”, but rather a payment to settle a legal obligation resulting from litigation. The Tribunal’s decision not to grant a special award was within its discretion. The claimant was not automatically entitled to a special award simply because she recovered IRBs in the dispute. The insurer showed that it was not being “stubborn” or “inflexible” because it continued to obtain updated IRB reports as new information was received. The insurer’s position regarding deductibility of the LTD settlement was a genuine dispute that the parties had differing views on interpretation.

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