Category: Special Award

L.L. v Aviva Insurance Canada (18-001329)

Requests for reconsideration were filed by the claimant and the insurer in relation to a special award of $550 on a $2,200 assessment. The claimant sought an increase in the quantum awarded; the insurer argued that no special award ought to have been granted. Adjudicator Kepman dismissed both reconsideration requests, writing that the insurer had failed to articulate a legitimate reason for denying the treatment plan and for scheduling an IE with a general practitioner rather than a physiatrist. This was not an error of law upon which a reconsideration would be granted. The claimant’s request for an increase in the quantum of the special award was rejected because it was premised on being awarded on two additional treatment plans that were not in dispute at the hearing.

S.V. v. Aviva Insurance Company (19-005032)

The insurer initially denied a treatment plan based on the MIG, but did not respond to it for three weeks. The insurer later acknowledged that the denial was late and offered to pay for all incurred treatment, but did not provide an explanation for the delay. The claimant sought interest on the incurred treatment and a special award for the delay. Adjudicator Hines awarded interest from 10 days after it was submitted to the insurer. She also granted a special award of 25 percent because the insurer continued to deny payment of the disputed treatment even after it acknowledged that it had failed to respond within 10 business days. Adjudicator Hines rejected the insurer’s argument that treatment had to be incurred for a special award to be granted.

T.A. v. Aviva General Insurance Company (18-006820)

The Tribunal awarded NEBs, a psychological assessment, and a 25 percent special award. The Tribunal had ordered the insurer to pay NEBs due to its failure to respond to the claimant’s application, and such order required the insurer to pay NEBs before the conclusion of the 26 week waiting period. The insurer sought reconsideration. Adjudicator Lake partially granted the reconsideration. She amended the date on which NEBs began by one month, as the Tribunal erred in the date on which the OCF1 and OCF3 were submitted to the insurer. The special award on NEBs was rescinded because it was originally made based on the erroneous conclusion that the insurer had not responded to the claimant’s initial application.

T.A. v. Aviva General Insurance Company (18-006820)

The Tribunal awarded NEBs, a psychological assessment, and a 25 percent special award. The Tribunal had ordered the insurer to pay NEBs due to its failure to respond to the claimant’s application, and such order required the insurer to pay NEBs before the conclusion of the 26 week waiting period. The insurer sought reconsideration. Adjudicator Lake partially granted the reconsideration. She amended the date on which NEBs began by one month, as the Tribunal erred in the date on which the OCF1 and OCF3 were submitted to the insurer. The special award on NEBs was rescinded because it was originally made based on the erroneous conclusion that the insurer had not responded to the claimant’s initial application.

Z.A. v. Certas Home and Auto Insurance Company (19-001119)

The claimant sought entitlement to transportation expenses and a special award. Adjudicator Boyce dismissed both claims. The claimant failed to provide evidence regarding the transportation expenses, her home address, the address of the clinic, or an invoice for the transportation. Looking to the OCF-18, the longest one-way route between the addresses listed was well under the 50 kilometer deductible for non-catastrophic claims.

D.L. v. Aviva Insurance Company (17-006056)

The claimant initially disputed entitlement to various assessments which were denied based on the MIG. The insurer later approved the assessments following an IE which concluded that the claimant suffered a psychological impairment as a result of the accident. The claimant requested a special award based on the earlier denials. Adjudicator Goela granted a special award of 25 percent in relation to one of the denied psychological assessments. The insurer had the IE report removing the claimant from the MIG in its possession for eight months but had failed to provide it to the claimant due to an administrative error. The claimant’s representative had requested a copy of the report on numerous occasions and the insurer took no steps to request an additional copy of the report.

S.M. v. Unica Insurance Inc. (18-010164)

The Tribunal had found the claimant entitled to (among other things) $6,000 per month in ACBs and granted a 25 percent special award. The insurer sought reconsideration. Adjudicator Boyce granted the reconsideration and reduced the payable ACBs and concluded that no special award was payable on ACBs or an awarded home modification. With regard to the ACBs award, the claimant was only entitled to payment for service incurred but in the amount provided for by the hourly rates set out in the Guidelines (as opposed to the amount actually incurred). The Tribunal erred by awarding the claimant “up to $6,000” for whatever was incurred at whatever rate the service provider charged. With regard to the special award, Adjudicator Boyce held that the Tribunal imposed a greater burden on the insurer than was appropriate. It was unreasonable to expect an adjuster to micromanage the assessments of qualified professionals, and the adjuster was entitled to rely upon their expert opinions.

S.M. v. Unica Insurance Inc. (18-010164)

The Tribunal had found the claimant entitled to (among other things) $6,000 per month in ACBs and granted a 25 percent special award. The insurer sought reconsideration. Adjudicator Boyce granted the reconsideration and reduced the payable ACBs and concluded that no special award was payable on ACBs or an awarded home modification. With regard to the ACBs award, the claimant was only entitled to payment for service incurred but in the amount provided for by the hourly rates set out in the Guidelines (as opposed to the amount actually incurred). The Tribunal erred by awarding the claimant “up to $6,000” for whatever was incurred at whatever rate the service provider charged. With regard to the special award, Adjudicator Boyce held that the Tribunal imposed a greater burden on the insurer than was appropriate. It was unreasonable to expect an adjuster to micromanage the assessments of qualified professionals, and the adjuster was entitled to rely upon their expert opinions.

M.M.R. v. Travelers Insurance Company of Canada (18-009122)

The claimant sought entitlement to ongoing IRBs. The insurer approved IRBs prior to the hearing. The claimant argued that she was entitled to a special award. Adjudicator Chakravarti held that a special award was not payable. The insurer had notified the claimant that an OCF-2 was required in order to determine the quantum of IRBs payable and requested information related to pre-accident income. The claimant delayed providing the requested information for a number of months. The adjudicator noted that it would be an absurd result to argue that the insurer was withholding IRBs while the claimant was withholding necessary information. It was also reasonable for the insurer to request that an accountant review the claimant’s income documentation when it became apparent that the claimant was self-employed. Finally, the insurer corrected a miscalculation in the weekly IRB once it became aware of the error.

M.M. v. Aviva Insurance Canada (18-000467)

The claimant sought reconsideration of the Tribunal’s decision that a special award was not payable on a psychological assessment that was initially denied but approved just before the hearing. Adjudicator Punyarthi granted the reconsideration and ordered a special award of 45 percent be paid on the denied assessment. She explained that the Tribunal had made a material error of fact in reviewing and drawing conclusions from the evidence at the hearing. The adjuster had sufficient information available to determine that the proposed assessment was reasonable at the time it was requested. Once the clinical notes and records had been provided, only a paper review should have been requested or the assessment should have been approved based on the adjuster’s review of the records. The 45 percent award was based primarily on the delay of 19 months.