Category: Special Award

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 The special award on NEBs was rescinded because it was originally made based on the erroneous conclusion that the insurer had not responded to the claimant’s initial application.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 The special award on NEBs was rescinded because it was originally made based on the erroneous conclusion that the insurer had not responded to the claimant’s initial application.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.

L.D. v. Certas Home and Auto Insurance Company (19-001472)

The claimant disputed entitlement to four treatment plans for physical treatments and a chronic pain assessment, an invoice for completion of an OCF-3, a MIG determination, interest and a special award. The claimant alleged that he suffered from chronic pain as a result of the accident. In support of his claims, the claimant submitted medical records from his family doctor showing a long history of complaints of back pain post-accident. The notes further indicated that treatments would give relief. The claimant also submitted a chronic pain report from a specialist. The insurer submitted its own independent reports, but never sent the claimant to independent assessments under section 44 of the SABS. The insurer raised concerns with the merits of the claimant’s report and the quality of the report itself. Adjudicator Norris agreed with the concerns, but held that the insurer did not provide a competing medical opinion to rule out chronic pain. The adjudicator ruled that the claimant was out of the MIG, that all disputed treatment plans were reasonable and necessary, that the claimant was not entitled to payment of the OCF-3 as he had returned to work post-accident and failed to prove it was reasonable and necessary, that interest was payable on all benefits, and granted a 40 percent special award for the insurer’s failure to recognize the claimant’s medical evidence, especially in light of the fact that the insurer had no competing medical opinion on which to continue to deny benefits and maintain a MIG position in light of the volume of evidence presented by the claimant.