Category: Special Award

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

Post author By tgp-admin
Post date September 30, 2020
No Comments on 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)

Post author By tgp-admin
Post date September 23, 2020
No Comments on 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)

Post author By tgp-admin
Post date September 22, 2020
No Comments on 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.M. v. Aviva General Insurance (19-002717)

Post author By tgp-admin
Post date September 18, 2020
No Comments on 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.

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

Post author By tgp-admin
Post date September 18, 2020
No Comments on 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.

M.C. and M.C. v. Pembridge Insurance Company (18-006473 and 18-006682)

Post author By tgp-admin
Post date September 2, 2020
No Comments on M.C. and M.C. v. Pembridge Insurance Company (18-006473 and 18-006682)

The husband and wife claimants were involved in a motorcycle accident and required amputation of their right legs. Both claimants were entitled to catastrophic impairment level benefits. Because the cost of both the claimant’s and insurer’s plan outpaced the cost of building a new home, neither plan was carried out. Instead, a new home was constructed. However, the amount the insurer was required to pay was limited to the value of renovations to the existing house. The claimants and insurer initially disagreed on approximately $70,000 in costs. During the hearing the insurer made certain concessions that led to the difference between the parties to be $17,000. Adjudicator Mazerolle preferred the renovation plan proposed by the claimant’s expert over that of the insurer’s expert. He accepted that the claimant’s layout that allowed for better access to amenities and was preferred by the claimants was reasonable, as it allowed the claimants to seek to maintain their pre-accident lifestyle. Adjudicator Mazerolle rejected the insurer’s argument that there were no amounts overdue under section 38 because neither housing renovation would ever be completed. Adjudicator Mazerolle granted a 25 percent special award related to the denial of a back-up generator. The adjudicator accepted that the claimants were at risk of being stuck in parts of their home if the power went out (which happened occasionally in the area).

K.H. v. Gore Mutual Insurance (18-009689)

Post author By tgp-admin
Post date August 12, 2020
No Comments on K.H. v. Gore Mutual Insurance (18-009689)

The claimant filed a Request for Reconsideration arising out of a decision in which the Tribunal found the claimant entitled to medical benefits proposed in a treatment plan, but not entitled to a special award. The claimant argued that Adjudicator Norris erred in law or fact when considering her entitlement to a special award. Adjudicator Norris first considered the insurer’s inaction following the submission of the disputed treatment plan. Adjudicator Norris found that the insurer’s inaction was reasonable, and it was not unreasonable to rely on the opinions in an IE report that were provided by a regulated healthcare professional. Second, the circumstances surrounding the prognosis in the IE report were considered in the decision. Adjudicator Norris held that there was no error in law in how the issue of the prognosis in the IE report was analyzed. In conclusion, Adjudicator Norris agreed with the insurer and found that the claimant failed to prove that a significant error in law or fact occurred.

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

Post author By tgp-admin
Post date August 6, 2020
No Comments on 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)

Post author By tgp-admin
Post date July 29, 2020
No Comments on 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)

Post author By tgp-admin
Post date July 6, 2020
No Comments on 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.

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