Volume. 5 Issue. 25 – June 2, 2021

In this all award issue, we consider four recent award cases that range from an insurer suspending entitlement to NEB prior to eligibility garnering a 30% award, to the implication of COVID-19 on claims handling. Further, the need to continually adjust a claims file is reinforced, with two awards levied based upon a perceived failure to do so.

In Trending – $8,598 Award on NEB Levied on Multiple Missteps + COVID Complications & More…

Suspension Prior to Eligibility – In A.J. v Security National (18-007658), a standalone Award decision, the Tribunal found that the Respondent was liable to pay an award in the amount of $8,598.95, equal to 30% of the in excess of $28,000 in NEB that was paid, covering the period November 28, 2016 to June 16, 2019.

A.J. had been before the Tribunal on a preliminary issue over the right to dispute after failing to attend previously scheduled IE’s. Following the Tribunal’s decision that A.J. was not precluded from disputing entitlement to NEB as the Respondent did not provide proper medical reasons, the Respondent made the payment.

A.J.’s NEB claim was subject to the 26 week waiting period, and as such she would not be eligible to claim until November 27, 2016. On September 16, 2016, the Respondent requested an updated OCF-3 in order to determine entitlement, with same being due October 11, 2016, however A.J. did not reply this request. As a result, on November 4, 2016 the Respondent advised that NEB entitlement was suspended, given the failure to comply with s.37 of the Schedule. In response, A.J. indicated that she would not be attending IEs scheduled as the notice was improper, and that an updated OCF-3 would follow, which it did November 28, 2016. On four separate occasions between December 2016 and February 2018, counsel for A.J. requested a response to the OCF-3, however through to the date of hearing no such response was forthcoming.

The Tribunal found that the Respondent took an unreasonable and stubborn approach in its handling of A.J.’s claim for a NEB. This was based upon the benefit suspension being prior to A.J. being eligible to claim the benefit. The Tribunal found that “it makes little sense that the respondent would request an updated OCF-3 two months in advance of the 26-week mark and then suspend the benefit prior to the applicant being eligible to claim it.” The Respondent “took an inflexible position when it suspended the applicant’s entitlement to NEBs prior to her being eligible to claim the benefit.” The Tribunal also cited the fact of the Respondent having never responded to the most recent OCF-3, in fact ignoring several requests for status updates as further basis for an award.

Don’t Risk Your Life – In Harvey v TD Insurance (19-008497), the Tribunal levied an award of 10% of ACB awarded, having taken exception to a number of issues regarding the handling of Harvey’s file. Chief amongst them being the matter of scheduling IEs to determine Harvey’s CAT status. The Respondent scheduled several IEs in March and April 2020, contemporaneous with the emergence of Covid-19. Harvey contended that she never refused to attend; rather she requested same to be paper or virtual in nature. This was as a result of Harvey, recipient of a lung transplant, having been advised to avoid contact with people, as she was severely immunocompromised and highly susceptible to serious outcomes if she contracts Covid-19.

Ultimately, it was not until mid August that the Respondent arranged virtual IEs for October 2020. The Tribunal found that the delay in determining CAT status “was inflexible especially during Covid-19”, and that the delay was most relevant to the amount of ACB payable in the interim, as she was consuming well over the non-CAT $3,000 available. The Respondent was found to have held the “untenable position” that Harvey must attend an in person IE. Virtual and paper IEs ought to have been “explored without delay”. As consumer protection legislation, “it cannot be that a medically vulnerable person should risk their life to attend an IE in order to obtain benefits that they may be entitled to.” The Tribunal also referenced the Respondent’s submissions for this hearing as evidence that “the respondent has taken an adversarial approach to the characterization of the applicant.” This would appear as the first time that conduct during the course of a hearing is factored into an award. This, in context of the Tribunal finding nonetheless there to be no grounds for a cost award, where such conduct is ordinarily considered.

Continue to Adjust – In the two decisions that follow, insurers are once again reminded as to the need to continually adjust their file. Almayahi was awarded 10% of two denied Treatment Plans in Almayahi v Co-operators (20-001166), as the Respondent “did not take appropriate steps in its ongoing duty to continue adjusting the applicant’s claim.” Specifically, the Tribunal found that the Respondent did not take any action in considering the records provided from Almayahi’s family physician. These were noted to constitute “convincing evidence” that challenged the conclusions of the assessor that the respondent relied on. Whilst relying upon recommendations of a chosen assessor is not the basis for an award, the evidence provided “should have resulted in further consideration on [the Responden]’s part in reconsidering its determination to deny the OCF-18s.”

Finally, in Viran v Aviva (19-008488), a “nominal” award of $300 was levied, again largely based upon the failure to consider additional medical documentation from the family doctor. This new evidence “clearly contradicted” the findings of the IE assessor. Therefore, “at the very least, [the Respondent] could have had [the IE assessor] conduct an additional paper review assessment based on the documentation from [the family physician], in order to reconsider its determination.” In this matter, the Respondent had also failed to respond to a chronic pain assessment, rendering same as payable, despite not having been incurred.

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