Category: Special Award

R.J. v. Certas Direct Insurance Company (19-009603)

The claimant sought payment for a housing accessibility assessment in excess of the $2,000 approved by the insurer, and sought a special award on cognitive training sessions that had been denied in 2017 but approved shortly before the hearing. Adjudicator Grant held that the $2,000 limit for assessments in section 25 applied to housing accessibility assessments, and that there was no carve out created by any Guidelines. He granted a special award of $200 on the cognitive training because the insurer had approved it shortly before the hearing, and had approved a similar treatment plan only months after denial of the subject treatment plan. The insurer had not set out a clear rationale for refusing the denied fees in the first place, and its approval of similar fees a few months later suggested that the fees were reasonable and necessary.

D.Y. v. Aviva General Insurance (18-011171)

The insurer sought reconsideration of the Tribunal’s decision awarding payment of non-earner benefits, concussion management treatment and ordering a special award. Vice Chair Trojek granted the insurer’s request for reconsideration in part. With respect to the concussion management treatment, Vice Chair Trojek noted that the Tribunal made an error of law in not considering whether the claimant had failed to comply with the SABS because she did not submit an OCF-18, as raised in the insurer’s hearing submissions. Vice Chair Trojek also set aside the Tribunal’s decision to grant a special award because it misapplied the test (stating that a special award is granted “where the conduct of the insurer has been unreasonable or wrongly motivated”) and made a factual error (regarding the medical/rehabilitation benefits paid out by the insurer), which, had it not been made, likely would have resulted in a different decision.

R.K. v. Aviva Insurance Canada (17-006866 and 17-006651)

The insurer sought reconsideration of the Tribunal’s decision regarding a special award of $1,500 on ACBs on each of two claims which were granted due to unreasonably withheld or delayed payments. The insurer agreed with the quantum of ACBs, but requested that the Tribunal cancel the $1,500 award. The special award had been granted because over two years had passed since the insurer was ordered to pay ACBs to the claimants and the insurer had not submitted any other method that would result in lower payments than would the minimum award approach advocated for. The insurer argued that the initial reconsideration decision did not order it to make any payment pending the final outcome of the quantum hearing. Vice Chair Shapiro denied the insurer’s reconsideration request, noting that an award does not require a breach of an order for payment (only that payment be unreasonably withheld or delayed) and that when an amount is settled, it is payable.

J.T. v. TD General Insurance Company (19-003389)

The claimant filed a request for reconsideration to dispute the finding that he was not entitled to interest, an award, or costs related to an approved treatment plan. The request for reconsideration was denied. Adjudicator Grant found that the LAT had not made a significant error of fact or law in the hearing decision. He agreed that there was no evidence of an agreement between the claimant and the insurer that the insurer would reimburse the claimant for documents produced, and section 33 does not require an insurer to compensate an insured for producing information reasonably required to assist the insurer in determining entitlement to a benefit. Adjudicator Grant found that there was no evidence that the insurer did not pay the approved benefit within the time limit prescribed in the SABS, and without such evidence, no interest can be payable.

J.T. v. TD General Insurance Company (19-003389)

The claimant filed a request for reconsideration to dispute the finding that he was not entitled to interest, an award, or costs related to an approved treatment plan. The request for reconsideration was denied. Adjudicator Grant found that the LAT had not made a significant error of fact or law in the hearing decision. He agreed that there was no evidence of an agreement between the claimant and the insurer that the insurer would reimburse the claimant for documents produced, and section 33 does not require an insurer to compensate an insured for producing information reasonably required to assist the insurer in determining entitlement to a benefit. Adjudicator Grant found that there was no evidence that the insurer did not pay the approved benefit within the time limit prescribed in the SABS, and without such evidence, no interest can be payable.

S.K. v. Aviva Insurance Canada (19-001127)

The claimant sought entitlement to ACBs, the balance of a partially approved social work assessment (seeking a higher hourly rate), and the cost of catastrophic impairment assessments. The insurer had denied ACBs on the basis that the claimant had not received the claims services and that insufficient information was provided regarding the services allegedly provided. The insurer denied the catastrophic impairment assessments because the claimant proposed them only one year after the accident. Adjudicator Grieves concluded that the claimant was entitled to ACBs of $3,000 per month, subject to the claimant proving that the services had been incurred. She accepted that the claimant required personal care services due to post-accident ankle surgery and knee surgery. She rejected the insurer’s position that surveillance suggested that the claimant was not receiving the services claimed, as the claimant and her family members were able to explain why the claimant and personal care workers were not seen at her house on certain days. Adjudicator Grieves also rejected the insurer’s argument that the payable ACB was calculated based on the specific service provided multiplied by the hourly rate for that service set out in the Professional Services Guideline. She held that the purpose of the hourly rates was to calculate the maximum ACB payable, and that the amount payable by the insurer was based on the rate charged by the service provider (provided that it was reasonable and not excessive) for whichever services were provided, subject to the statutory maximum and/or the Form 1 total. The denied portion of the social work assessment was also awarded. Adjudicator Grieves held that $135 per hour was a reasonable rate for a social worker, rather than the $100 approved by the insurer. Finally, the catastrophic impairment assessments were denied as being not reasonable. Although the claimant was approaching her combined medical and ACBs limit, she could not apply for a catastrophic impairment until the two year mark unless her condition was unlikely to improve. The medical evidence suggested that the claimant continued to show medical improvement. Additionally, the assessors proposing the catastrophic assessments did not explain why each of the proposed assessments was reasonable or necessary.

L.P.C. v. Aviva Insurance Canada (19-001009)

The claimant applied to the LAT requesting ongoing IRBs, removal from the MIG, various medical benefits, and a special award. Before the hearing, the insurer removed the claimant from the MIG, approved the four disputed treatment plans, and approved IRBs up to the 104 week mark. The claimant continued with the claim for post-104 week IRBs and a special award. Adjudicator Shapiro held that the claimant suffered a complete inability to engage in any employment, and awarded post-104 week IRBs. The claimant had been approved for CPP Disability Benefits and LTD benefits in relation to the same injuries. The claimant had limited formal education, worked in a physical job before the accident, and had only rudimentary English skills. The IEs the insurer relied on were form only four months after the accident, and failed to consider the psychological impairments that continued to worsen over time. The surveillance of the claimant did not demonstrate abilities in excess of what the claimant or her treatment providers were reporting. Adjudicator Shapiro also granted a special award of 30 percent on the medical benefits that had been denied based on the MIG. The insurer’s psychological IE had noted a psychological diagnosis, but also stated that it could be treated within the MIG. The insurer ought to have removed the claimant from the MIG once it was aware of the diagnosis. The IE assessor’s opinion about treatment being available within the MIG limits was a legal conclusion rather than a medical opinion, which the insurer should have known not to accept. No special award was given on IRBs as the medical evidence supporting post-104 week IRBs was only provided to the insurer close to the hearing date.

M.G. v. Echelon General Insurance Company (18-002005)

The claimant sought entitlement to a neuropsychological assessment, physiotherapy, occupational therapy, attendant care assessment, and assistive devices, a special award. As a preliminary matter, the claimant sought to exclude surveillance evidence and bar the insurer from cross-examining her on an affidavit from an earlier proceeding. Adjudicator Neilson allowed the insurer to cross-examine the claimant on the affidavit, as it was evidence and was relevant to the issues in dispute. The surveillance was permitted to be entered into evidence despite the insurer not producing the full unedited video because the insurer had attempted to obtain same and did not have the video in its possession. Adjudicator Neilson awarded the attendant care assessment, occupational therapy, and physiotherapy. However, mileage fees, transportation costs, and documentation support activities from the attendant care assessment were not payable. The neuropsychological assessment was denied as it was duplicative of an approved neuropsychological assessment, which the claimant had split into two portions to avoid the $2,000 cap on assessments. Adjudicator Neilson also granted a special award of 35 percent on the attendant care assessment. It had been denied when the claimant was in the MIG, and the insurer did not reconsider the denial after the claimant was removed from the MIG.

Viera v. Aviva General Insurance (19-007227)

The claimant sought entitlement to a chronic pain assessment, and argued that the insurer’s denial did not comply with section 38(8). Adjudicator Lake agreed that the insurer’s denial did not comply with section 38(8), as none of the denials included any specific details about the claimant’s condition forming the basis of the insurer’s decision and only generally referred to the claimant’s injuries without any details or explanation. There was also no medical reason for the denial. The final denial contained a number of grammatical errors that made it unclear to an unsophisticated person, nor did it stated that the proposed assessment was not reasonable and necessary. The special award claim was dismissed. The adjudicator held that the failure to comply with section 38(8) did not meet the burden for a special award. The insurer simply misapplied the SABS.

Baranov v. Aviva General Insurance (19-011094)

The claimant applied to the LAT disputing the quantum of IRBs he was entitled to. He also claimed the denied portions of two psychological treatment plans. The claimant was self-employed prior to the accident as a renovation contractor. He elected to use the 52 weeks of earnings prior to the accident rather than the last completed taxation year. Adjudicator Farlam accepted the accounting report of the insurer as it was based on the documentation provided by the claimant. The claimant’s own accountant used various assumptions and oral evidence from the claimant that was not supported by financial documentation. For example, the claimant did not provide purchase orders, invoices, sales summary, or time records. Adjudicator Farlam also denied the disputed portions of the psychological treatment plans. She accepted that the insurer’s decision to allow $99.75 per hour for psychotherapy was appropriate (rather than the $224.42 per hour claimed). She also held that the claimant failed to prove why “documentation support activity” was reasonable and necessary. The special award claim was also dismissed. The insurer’s delay in payment of IRBs was due to the claimant’s failure to provide financial documentation.