Category: Special Award

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.

K.K. v. Aviva General Insurance (18-012611)

The claimant sought entitlement to post-104 week IRBs, physiotherapy, and a special award. Adjudicator Mather granted the claim for ongoing IRBs, but dismissed the claim for further physical therapy. She also granted a special award of 50 percent on IRBs. The claimant was a self-employed taxi driver for over a decade prior to the accident. He suffered a concussion in the subject accident which led to psychological impairments. He was also in a second accident and made a claim for accident benefits with the same insurer. The insurer denied IRBs based on IEs completed with regard to the subject accident (which concluded he did not have a psychological disorder) despite having IEs from the second accident in which the claimant was diagnosed with major depressive disorder, general anxiety, panic attacks, and vehicular phobia. The psychological IE in the subject accident ignored various relevant factors and cherry-picked evidence that was supportive of denying IRBs (such as the claimant attempting a return to work for a few hours per day). Given the claimant’s lack of other relevant job experience and poor English skills, there were no other potential types of employment that were suitable for him. Adjudicator Mather found the insurer’s denial of IRBs to be unacceptable. She held that the insurer failed in its adjusting of the claim by ignoring the psychological diagnoses in its own IEs related to the second accident. She also noted that the insurer continued to approve psychotherapy while taking the position the claimant did not have a psychological impairment preventing him from working. The claimed physiotherapy was dismissed as the claimant did not provide evidence of the need for further physical therapy. He also failed to provide evidence of treatment received to date or the progress that physical treatment provided.

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

The claimant sought entitlement to an in-home assessment and a special award. The insurer had an occupational therapy IE to address the proposed assessment. The questions posed to the occupational therapist were suggestive of the answers the Fund wished to receive. The occupational therapist assessed the claimant’s abilities, but was unable to diagnose the cause of his impairments. The Fund then sought an orthopedic IE, which was then changed to a physiatry IE. The claimant did not attend the IE and argued that the insurer could not request the further IE, and should have made the request at the same time as the occupational therapy IE. Vice Chair McGee awarded the proposed in-home assessment, finding that the medical records from the claimant’s family physician made clear that the assessment was reasonable and necessary. She held that the Fund’s request for the physiatry IE was not reasonable. The Fund should have known from the outset that an occupational therapist could not diagnose the cause of the claimant’s impairments. She also held that the Fund had tried to have the occupational therapist opine on matters it knew were outside of her expertise. Vice Chair McGee granted a special award of 40 percent against the Fund. She found the Fund’s decision to maintain the denial of the assessment was unreasonable and that its dealings with the claimant and the requested IEs was blameworthy conduct. The claimant was an elderly man struck as a pedestrian, and more vulnerable than the average car accident victim, warranting a higher special award.

E.Z. v. Co-operators General Insurance Company (19-006441)

The claimant applied to the LAT disputing entitlement to IRBs. The insurer paid IRBs prior to the hearing. The claimant requested a special award. Adjudicator Maleki-Yazdi granted a special award of 15 percent on the late payment of IRBs. She held that the insurer’s decision to not pay IRBs until after an EUO almost 12 months after the accident (and eight months after submission of the OCF-3 and OCF-2) was not reasonable. The main basis was not paying IRBs earlier was the insurer wanting to know the reason for the four month delay in applying for accident benefits. The insurer knew that the claimant was self-represented and knew that he was in the process of figuring out the AB forms. The claimant also faced a delay in obtaining the financial records needed for submission of the OCF-2.

K.L. v. Aviva Insurance Company (19-004368)

The sole issue in dispute was whether the claimant was entitled to a special award under Ontario Regulation 664. The insurer initially denied a treatment plan, and referred the claimant to an IE to determine whether the plan was reasonable and necessary. Upon receipt of the IE reports, the insurer wrote to the claimant confirming that the IE assessor concluded that the treatment plan was not reasonable and necessary, but advised that it was nevertheless approving the treatment plan in full, as the IE report was not provided to the claimant within 10 days as required under the SABS. The claimant argued that the insurer’s communications to the claimant were unclear, and led to an unreasonable delay in the availability of benefits. Adjudicator Farlam declined to order a special award, as there was nothing ambiguous, unclear, or confusing in the insurer’s communications, and no reasonable basis to misinterpret the communications as a denial of the proposed treatment plan.

M.J. v. Dufferin Mutual Insurance Company (19-006241)

The sole issue in dispute was whether the claimant was entitled to a special award under Ontario Regulation 664. All of the substantive issues, including a claim for income replacement benefits, physiotherapy, and several assessments were resolved in advance of the hearing. Adjudicator Boyce agreed with the claimant on two grounds: (1) denying section 25 assessments on the basis that they are “duplications of service” because section 44 IEs have recently been completed is not a valid medical reason for a denial; and (2) insurers have an obligation to reconsider its earlier benefit denials once a claimant is removed from the MIG. As such, Adjudicator Boyce found that a nominal award totalling $400 was appropriate (representing a bit less than 5% of the total benefits claimed), in order to remind the insurer of its continuing duty to adjust the file in good faith and provide valid reasons when denying a claim.

Watters v. Aviva Insurance Company (19-005152)

The sole issue in dispute was whether the claimant was entitled to a special award under Ontario Regulation 664. The insurer changed its decision with respect to all of the treatment plans in dispute shortly prior to the hearing. The claimant alleged that the insurer ought to be liable for an award because the decisions in dispute were reversed at a late stage in the process. Adjudicator Ferguson disagreed, finding that a late reversal in itself was no suggestive of an unreasonable delay or withholding of payment. He felt that this was a normal consequence of a hearing process, noting that it was not unusual for one side or the other to reverse their position or find a compromise to avoid the necessity of a hearing.

P.B. v. The Co-operators Insurance Company (19-008343)

The claimant was receiving IRBs of $400 per week. She settled her action against her LTD provider. The LTD release indicated that it covered all claims being made against the LTD provider, including punitive damages and costs. The insurer argued that it was entitled to deduct from IRBs the amounts received from the LTD settlement. Adjudicator Boyce disagreed with the insurer and held that it could not deduct the settlement. The inclusion of other types of compensation in the LTD release meant that the settlement could not be treated as income replacement assistance. The release did not provide any further information to allow the insurer to determine which amounts were for LTD benefits and which amounts were for other compensation. While the insurer improperly deducted the LTD settlement from IRBs, Adjudicator Boyce held that a special award was not warranted. He accepted that the facts of the case presented a genuine dispute over the deductibility of the LTD settlement.

P.M. v. Aviva General Insurance (19-002717)

The claimant sought removal from the MIG and entitlement to medical benefits for physiotherapy, massage therapy as well as the cost of psychological and physiatry assessments, and completion of an OCF-3. The claimant also sought a special award. Adjudicator Lake found the claimant’s injuries were outside of the MIG due to her chronic pain, but held she was only entitled to medical benefits for physical treatment and the cost of the psychology assessment. Adjudicator Lake also considered the claimant’s section 38 denials of benefits, and held that there were deficiencies. The insurer referred to the $3,500 funding limit under the MIG and enclosed portions of the SABS relating to the MIG, but did not advise the claimant that the MIG applied to her accident related impairments. Further, the insurer never cured the deficient notices, so benefits were payable if incurred more than 10 business days after submission. She also rejected the argument that benefits had to be incurred to be payable under section 38(11), as the section only said that benefits had to “related to” the period of non-compliance, not that they needed to be incurred. Adjudicator Lake rejected the special award claim, reasoning that the insurer’s failure to comply with its obligations under section 38 of the SABS did not amount to an unreasonable withholding or delay in payment of benefits.