Category: Special Award

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.

Jamon v. The Co-operators (19-006256)

The claimant sought entitlement to IRBs and various medical/rehabilitation benefits, including an attendant care assessment and functional abilities assessment. With respect to IRBs, Adjudicator Parish found that the claimant had proven on a balance of probabilities that she was substantially unable to perform the essential tasks of her pre-accident employment as a supervisor at Dairy Queen, emphasizing the claimant’s ongoing post-concussion symptoms, which were not addressed in the insurer’s IE reports. Adjudicator Parish further found that the attendant care assessment was reasonable and necessary because of the claimant’s self-reported difficulty with performing her personal care tasks, and that the functional abilities assessment was reasonable and necessary as it could have assisted with the determination of ongoing entitlement to IRBs. In light of her findings, Adjudicator Parish also granted a 25 percent special award on the attendant care and functional abilities assessment due to the insurer’s failure to investigate the claimant’s concussive symptoms.

Seepersaud v. Allstate Insurance (20-000400)

The claimant sought a special award due to the insurer’s unreasonable delay in paying his IRB. Vice Chair Boyce found that the evidence demonstrated that the insurer withheld and delayed the payment of the claimant’s IRB claim for over one year of his eligibility, despite having all of the documentation reasonably required to initiate and calculate the claim. The insurer failed to communicate with its insured for several months after its section 33 requests were satisfied, did not acknowledge receipt of the documentation, and did not calculate or pay the IRBs. Vice Chair Boyce rejected the insurer’s submission that this was a situation where the insurer simply “got it wrong”, but rather found that this was a situation where the insurer “simply dropped the ball”. As such, he granted a special award representing 25 percent of the total benefits payable due to the insurer’s unreasonable withholding and delay of the payment of the claimant’s IRB.

Cox v. Wawanesa Mutual Insurance Company (19-012281)

The claimant was involved in a serious motor vehicle accident in 2014. She received IRBs for four years, until they were terminated based on multidisciplinary s. 44 opinions. The claimant applied to the LAT seeking entitlement to post-104 week income replacement benefits and a special award. As a preliminary issue, the claimant requested that the insurer’s surveillance evidence be excluded as it was served 1.5 months after the deadline for document exchange. Adjudicator Paluch declined to exclude the surveillance evidence, finding that it was relevant and that the claimant was not significantly prejudiced by its inclusion as the surveillance materials were served a month prior to the hearing. The claimant declined an offer to adjourn the hearing to allow time for her experts to review the surveillance. Adjudicator Paluch found that the insurer’s multidisciplinary assessments were greatly undermined by the fact that they did not investigate the severity of the claimant’s psychological problems and chronic pain syndrome, or fully assess the claimant’s ability to work a full workday or workweek. Adjudicator Paluch found that the claimant was entitled to further post-104 IRBs to date and ongoing. The request for a special award was denied.

Zhao v. Allstate Canada (20-000134)

The claimant filed a LAT application seeking entitlement to an attendant care assessment, various other treatment plans, and an award under Regulation 664. The claimant’s hearing submissions noted that the dispute over medical benefits other than the attendant care assessment were resolved prior to the hearing. While the case conference order referenced a claim for an award, the claimant did not address the claim for an award in the hearing submissions. The insurer requested that the claim for an award be dismissed as (1) the claimant had not provided particulars of the claim by the document disclosure deadline noted in the case conference order, (2) the claimant’s submissions were devoid of any claim for an award, (3) the claimant was barred from making further arguments relating to the award claim pursuant to Rule 9.4 of the Common Rules of Practice and Procedure, and (4) it would be breach of procedural fairness for the LAT to accept subsequent particulars from the claimant relating to the award. The claimant did not file Reply submissions. Adjudicator Parish dismissed the claim for an award because the particulars were not disclosed by the document production deadline and the claimant violated Rule 9.4. Adjudicator Parish found that it would be a breach of procedural fairness to the insurer to allow the applicant to proceed with the award without particulars being produced in advance of the hearing. Adjudicator Parish further found that the claimant was not entitled to the attendant care assessment. The insurer had previously approved attendant care based on an earlier assessment, and the claimant had not incurred any attendant care expenses. The OT in-home attendant care assessment report by Raymond Wong was not persuasive as it relied to a large extent on the claimant’s self reporting and limited objective testing. The assessment was found not to be reasonable and necessary.

Manoharan v. Allstate Canada (19-010782)

The claimant sought entitlement to various medical benefits, which the insurer had denied based on the MIG. At the LAT case conference, the insurer removed the claimant from the MIG and approved some of the treatment plans. At the LAT hearing, the claimant disputed entitlement to one treatment plan plus interest on the previously approved treatment plans, and claimed a special award. Adjudicator Boyce awarded interest on incurred treatment plans and found the disputed treatment plan payable. In terms of interest, Adjudicator Boyce found that it was payable when there was an overdue benefit, and that section 51 did not allow the insurer to avoid paying interest through the actions or inactions of the claimant. With respect to the disputed medical benefit for a physiatry assessment, Adjudicator Boyce found it payable as he believed it was reasonable and necessary given the claimant had not reached maximum medical recovery 1.5 years post-accident. Finally, Adjudicator Boyce granted a special award noting that the insurer had conceded that it mishandled certain aspects of its file and its submissions focused on how it tried to mitigate these “”inadvertences.”” Adjudicator Boyce criticized the insurer for delaying payments as it caused the claimant harm. Adjudicator Boyce awarded a special award in the amount of $1,500 plus 2% interest compounded monthly, representing approximately 10 percent of the disputed benefits.

Syrovy v. Aviva Insurance Company (19-012498)

The claimant applied to the LAT seeking entitlement to a treatment plan for physiotherapy and sought a special award. Adjudicator Boyce found the claimant was entitled to the treatment plan, plus interest, and given a special award in the amount of $250.00. Adjudicator Boyce found that the insurer’s denial letter did not comply with section 38(8), as the insurer did not provide adequate medical reasons for its denial. In particular, the insurer noted in its letter that there was “”no compelling evidence”” to support treatment, however, the insurer had medical documentation in its possession where medical professionals recommended the precise treatment in dispute. Adjudicator Boyce found that per section 38(11), the treatment plan was payable. Adjudicator Boyce also found that the insurer unreasonably withheld the payments as it did not provide a proper denial. Adjudicator Boyce awarded a special award in the amount of $250 representing approximately 10 percent the cost of the disputed treatment plan.

Halstead v. Aviva Insurance Company (19-01394)

The claimant sought a medical benefits in the amount of $12,341.56 proposing that the insurer pay the cash difference between her old vehicle, a 2016 Volkswagen Jetta, and a new vehicle, a 2017 Hyundai Tucson, which was a larger and more spacious SUV. The claimant and her treating OT argued that the new vehicle was necessary as the claimant’s job as a coffee shop newspaper producer and distributor required her to drive to over one hundred locations in the province over the course of two days every week to deliver papers. They noted that her old vehicle was smaller and lower to the ground which caused a strain on her hips while driving, made it more difficult to get in and out of the vehicle, and that the lower trunk height caused a strain on her back. The insurer denied the treatment plan on the grounds it was not reasonable or necessary as a result of the accident. The insurer noted in its denial letter that an IE would be arranged, but did not follow-up up on this and had no competing medical opinion. The claimant ended up purchasing the Hyundai. Vice-Chair Boyce noted that the claimant submitted two reports by the OT in support of the new vehicle, an original report from 2017, and an addendum report from 2020. Both the claimant and the OT took measures to find cheaper alternatives when selecting vehicles. Because the insurer did not arrange an IE, the claimant made the decision to purchase the Hyundai after a lengthy delay as it was necessary for her continued employment. Vice-Chair Boyce ruled in the claimant’s favour and found the medical benefits payable. A special award in the amount of $1,200.00 was also granted for the insurer’s withholding and delay.