Category: Special Award

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.

L.R. v Economical Mutual Insurance Company (19-005496)

The claimant sought entitlement to a special award, taking the position that the insurer unreasonably delayed the payment of a treatment plan for physiotherapy services because the insurer approved the treatment plan after submission of the LAT Application. The claimant did not make any submissions or provide any evidence in support for an award, as the bulk of submissions focused on whether the claimant was entitled to the $100 filing fee. As such, Adjudicator Msosa concluded that there was no unreasonably delayed payments that would justify an award, noting that the insurer was within its rights to request an IE to determine whether the claimant’s injuries were in the MIG as part of the normal adjusting of the file. With respect to the $100 filing fee, Adjudicator Msosa found no basis for awarding costs in this case. The claimant used the process for resolving disputes, which requires the payment of a filing fee.

M.I. v. Coseco Insurance Company (18-000742)

The insurer suspended the claimant’s entitlement to IRBs. The claimant applied to the LAT. Before the Case Conference, the insurer reinstated the IRBs. The insurer argued that the LAT did not have jurisdiction to consider the claim for IRBs. Adjudicator Kepman concluded that the Tribunal did not have jurisdiction under the Insurance Act to consider the claim, since all IRBs plus interest had been paid to the claimant. However, she did consider the claim for a special award, and concluded that the insurer had not acted unreasonably in its adjusting of the claim.

K.W. v. Aviva General Insurance (18-012007)

The claimant sought entitlement to a physiatry assessment and a special award. The assessment had been denied on HCAI, but no denial letter was sent to the claimant until more than two years later. Adjudicator Hines ruled that the insurer was liable to pay for the assessment in accordance with section 38, and granted a special award of 40 percent for unreasonably withholding and delaying payment.

J.T. v. Cayuga Mutual Insurance Co.(18-006061)

The claimant sought entitlement to various medical benefits and the cost of an OCF-3. Prior to the hearing, the insurer approved the denied medical benefits, leaving only two issues remaining: a special award, and payment of an OCF-3. The claimant argued that the insurer acted unreasonably by requiring her to attend IEs prior to her MIG removal and that there ample medical evidence provided that proved a non-MIG position. Adjudicator Hans did not grant a special award as the clamant had pre-existing conditions, and the medical information on file did not clearly differentiate between those issues and the accident-related issue. He ruled that it was completely in keeping with SABS and the evidence for the insurer to examine the claimant to determine her MIG status. The OCF-3 was found to be payable even though it was not requested by the insurer as it contained new medical information, including re-entitlement to a NEB.

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

The claimant sought entitlement to NEBs, medical treatment, various assessments, and a special award. In addition, the claimant sought entitlement to the balance of proposed catastrophic impairment assessments, which had been proposed in the amount of $26,400.00 and approved up to $12,400.00. The claimant was found entitled to NEBs, chiropractic and physiotherapy treatment, concussion management, and various s. 25 assessments up to $2,000.00 limit. Adjudicator Conway approved a second portion of a neuropsychological assessment, but denied the claim for additional CAT assessments because they were duplicative or for review of medical records (which is included in the $2,000 limit). The claimant was found entitled to interest if the cost of treatment had been incurred. Interest was found payable from the date payment was made by the applicant until the date of payment by the insurer. A special award of 33 percent was made due to the insurer not approving medical benefits when it had sufficient evidence that the claimant suffered from chronic pain and psychological injuries.

Y.K. v. Aviva General Insurance Company (18-003926)

The claimant suffered a brain injury and was deemed catastrophically impaired as a result of a 2011 accident. He received personal care from his brother, who left multiple part-time jobs to care for him. The Form 1 supported $6,000 per month in ACBs, but the claimant’s brother suffered an economic loss of $2,100 per month based on his income in the year prior to the accident; however, following the 2014 amendments to the SABS, the insurer paid $1,528.91 per month based on the average income earned by the brother in the three years prior to the accident. In 2018, the claimant hired a professional service provided in order to utilize the full $6,000 per month Form 1. The insurer received an invoice, but never paid it. The claimant sought entitlement to the full Form 1 amount, arguing that it was “deemed incurred” or that the 2014 amendments to the SABS did not apply. He also sought entitlement to HK expenses and a special award. Adjudicator Lester concluded that the 2014 amendments to the SABS applied and that the claimant was only entitled to the economic loss suffered by his brother. However, she accepted that lost opportunities and “fringe benefits” (IE, CPP, extended health care benefits) could form the basis of an economic loss, but required a sufficient evidentiary basis. The claimant did not have sufficient evidence to prove the projected scenarios he put before the Tribunal, so his economic loss was limited to his foregone wages. Adjudicator Lester also found services by the professional to be deemed incurred for a period of 10 months (the time between submission of the invoice up to the payment of the invoice). Adjudicator Lester awarded HK expenses, finding that the claimant was responsible for cleaning tasks prior to the accident and that he could no longer perform such tasks. Further, services were incurred because the claimant’s brother had given up his work. Finally, the adjudicator held that the insurer improperly withheld ACBs by paying only $1,528.91 per month. A special award of 50 percent based on the shortfall of $571.09 per month was granted for services provided by his brother, all amounts provided by the professional service provider which were deemed incurred, and all awarded HK expenses.

A.A. v. Aviva General Insurance Company (18-009541)

The claimant applied for medical benefits, which the insurer denied on the basis that his injuries fell within the MIG and that the benefits were not reasonable and necessary. Prior to the first case conference, all issues in dispute were agreed to paid including interest, and the insurer removed the claimant from the MIG. The claimant sought to proceed with his claim for a special award as stand-alone issue. The insurer argued that the Tribunal did not have authority to issue an award where all the issues in dispute have been resolved prior to the hearing. Adjudicator Johal found that the claimant was entitled to a special award in the amount of 25 percent of the maximum award, totalling $2,316.68, on the basis that the insurer showed a pattern of lateness in responding to treatment plans, and continued to maintain that the MIG applied to the claimant’s injuries despite an IE report to the contrary.

Applicant v. The Dominion of Canada General Insurance Company(18-002185)

The claimant sought a determination that the HST paid with respect to the attendant care services provided should be paid outside of the attendant care benefit limit, and a special award for unreasonably withholding payments of the attendant care benefit by paying HST out of the benefit limit. Adjudicator Gosio was persuaded by the claimant’s submissions, and found that HST should be paid outside of the attendant care benefit limits. However, Adjudicator Gosio concluded that the insurer had not unreasonably withheld payment of the attendant care benefit, as both the SABS and the mandatory FSCO Guidelines were silent with respect to the handling of HST in the attendant care benefit context, and thus the insurer’s interpretation of its obligations was not so unreasonable as to warrant an award.

F. A.-W. v. Aviva General Insurance Company (18-008742)

The claimant sought entitlement to a further $2,000 for catastrophic impairment clinic file review ($10,400 had been approved for other catastrophic impairment assessments). The insurer had initially denied entitlement on the grounds to the entire amount on the grounds that the claimant’s medical benefits limits had been exhausted, but reversed that position eight months later. Adjudicator Norris held that the denied clinic file review was not payable because it was duplicative of services intended to be included in the $2,000 limit for fees of conducting any one assessment or examination. Adjudicator Norris granted a special award of $2,080.00 (20 percent) in relation to the earlier denial of catastrophic impairment assessment because the insurer ignored abundant case law that the medical benefits limits did not apply to such assessments.