*Complimentary Issue* Volume. 4 Issue. 47 – December 2, 2020

In Trending – “Failure to Continuously Adjust” Comes at Various Price Points

Failure to continue to adjust comes at various price points ranging from an award at the full value of 50% to less than 5%. Three of the four cases reviewed this week demonstrate that even if the payment for the benefit is eventually made, the delay in payment can still be held to account. The last case discussed however introduces a novel award worthy scenario.

Award in Excess of $30,000 – In 18-012611 v Aviva, the Tribunal found that the Applicant was entitled to IRB for all of the denial periods within 104 weeks, as well as post-104 IRB to date and ongoing. This would represent IRB payments owing in excess of $60,000. However, the Tribunal further found that the Respondent had unreasonably denied the claim for IRB’s such that an award of 50% of IRB awarded was appropriate. Noting they had “essentially completely ignore(ed) the fact that the applicant suffered psychological impairments in adjusting the claim.”

In coming to this conclusion, the Tribunal found that the Respondent “failed in its ongoing adjustment of the claim to give recognition to the fact that the applicant suffered psychological impairments…failed to recognize the severity of the psychological impairment, despite the comments of its own assessors.”

Reducing Our Exposure – In 19-001009 v Aviva, the Tribunal considered the Applicant’s claim for post-104 IRB as well as entitlement to four OCF-18’s, all four having been approved and paid on the eve of the hearing that began in January 2020. The Tribunal accepted that the medical evidence clearly demonstrated that the Applicant “does not appear currently employable” and that as a result, she was entitled to post-104 IRB to date and ongoing. With respect to a claim for an award, the Tribunal found that the request “is close to, but does not meet, the necessary standard.” At issue was whether the Applicant’s “denial became unreasonable as further records arrived.” Ultimately, the Tribunal was satisfied that gaps in the Applicant’s testimony, delayed production and the fact that the Respondent had not had the benefit of the family doctor’s testimony mitigated the situation so as not to attract an award.

However, the Applicant was entitled to an award of 30% on the late approved OCF-18’s, as the Respondent “did not approve the treatment plans until the eve of the hearing, without a cogent reason for that delay.” The Tribunal found the “delay particularly unreasonable, as [the Respondent]’s original denials were based solely on the MIG”, having removed the client from the MIG in July 2019. The Tribunal further did not accept that the Respondent was entitled to rely upon the psychological IE’s ultimate conclusion that the MIG applied, as such a conclusion would be outside his expertise. These “mixed psychological/legal conclusions…are decisions for [the Respondent] to make.” Concluding, the Tribunal found “[the Respondent]’s representative’s comment about recent approvals to reduce [the Respondent]’s exposure troubling” but this was “certainly not intentional malice”.

Award as a Reminder – Finally, in 19-006241 & 19-006243 & 19-005765 v Dufferin Mutual, the Tribunal ruled on the claim for an award with no substantive issues remaining in dispute. The Tribunal found that Applicant’s rhetoric in characterizing the Respondent’s adjusting “rather dramatic on the facts” although there was some reality in the assertions. The Tribunal found as a matter of fact that most of the deficiencies claimed “cannot be placed at [the Respondent]’s feet.

Ultimately the Tribunal made a finding that the Respondent “had an obligation to reconsider its earlier benefit denials once it made the determination to remove her from the MIG but did not. This lack of reconsideration was not in line with its duty to continually adjust the file in good faith”. The Tribunal determined that “a nominal award totalling $400 is appropriate on the evidence, representing a bit less than 5% of the total benefits claimed, in order to remind [the Respondent] of its continuing duty to adjust the file in good faith and provide valid reasons when denying a claim.”

Award on Benefit Not Owed? – In 19-006441 v Co-operators, the Tribunal considered a claim for IRB for the period January 4, 2019 through to August 1, 2019, which the Respondent ultimately paid in full prior to the hearing. Initially, payment had been made beginning April 5, 2019, the date upon which the OCF-1 had been received, with the OCF-3 having been received March 15, 2019.

The Applicant sought an award based upon the Respondent’s initial refusal to pay IRB retroactively to January 4, 2019. The Respondent had contended that pursuant to s.36(3) of the Schedule, the Applicant is not entitled to a specified benefit for any period before it received both the completed OCF-1 and OCF-3. It was not until an EUO was able to proceed In December of 2019 that the Respondent agreed to pay from January 4, 2019, having been satisfied as to the Applicant’s reason for the delay in submitting the OCF-1.

The Tribunal in this instance however found that “the respondent unreasonably delayed the payment of IRBs when, on May 21, 2019, it initially refused to pay the IRBs retroactively to January 4, 2019 and instead only agreed to pay from the date it received the OCF-1, which was on April 5, 2019.” Ultimately, the end result was that the Respondent was penalized for the seemingly gratuitous “late” payment of IRB that they were not legislatively obligated to pay, as the earliest date they would have been obliged to commence IRB was March 15, 2019, the date the OCF-3 was received.

Despite the clear intent of the Schedule, the Tribunal nonetheless levied a 15% award against the Respondent, as they were aware throughout as to the reasons the Applicant was delayed in the submission of the forms.

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