Volume. 6 Issue. 7 – February 23, 2022
This week’s edition features a med rehab case and an award only case.
In the first case the Applicant sought and satisfied the Tribunal that a now third trip to Haiti was warranted. The Tribunal found that the trip provided relief to the applicant with respect to his accident related injuries.
In the second case, the Tribunal considers submissions regarding the quantum of an award it had earlier found to be appropriate. The approach employed was to start at the requested 50% quantum, and then to reduce same by two mitigating features of the case.
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Applicant Awarded Trip To Haiti For Rehab
Trip to Haiti a Medical Benefit – Joseph was rendered a CAT as a result of injuries sustained in a January 2014 accident. As of the date of the hearing, ACE INA had paid $340,000 in medical and over $100,000 for ACB.
Amongst numerous items sought in Joseph v ACE INA (19-010124), were $262,000 in proposed home modifications, and $3766 for a trip to Haiti. With respect to the home modifications proposed, ACE INA’s expert originally proposed a total of $130,696, subsequently revising the recommendation to $30,670 after having reviewed video surveillance of Joseph, an amount approved by ACE INA.
Reviewing Joseph’s proposal, the Tribunal found same to be largely in order to make the home accessible for a walker, however to date a requirement for a walker has neither been confirmed nor even suggested. The Tribunal referenced an earlier related decision, R.T. and The Economical Insurance Group by the same adjudicator, wherein modifications proposed were “largely to address speculative future needs, not to address the applicant’s current disability”. Similarly in this matter, the proposals were “largely to address speculative future needs, not to address the applicant’s current disability.”
Regarding the proposed trip to Haiti, the Tribunal noted that ACE INA had previously approved and paid for two trips to Haiti. The current proposal was said to allow Joseph “to participate in family cultural practices and receive alternative therapies.” Joseph’s doctor had indicated that he “seemed a bit better’ after a previous trip, and his psychologist indicated that following the prior trip, Joseph “presented very differently, with clear improvement to his cognition, affect, and depressive symptomology.”
Despite the denial, Joseph went on the trip, commenting that it “helped quite a lot”. Further, that the “treatment he received there included having his feet slapped with medicinal herbs and sour orange, sitting on a horse, walking on warm sand, and having leeches applied.” The Tribunal awarded the cost of the trip as “The proposed treatment provided relief to the applicant with respect to his accident related injuries, per the applicant’s own testimony, that of his family physician and his treating psychologist.” The Tribunal awarded $2866 towards the trip, disallowing only airfare for an “attendant” as there was no evidence that Joseph was accompanied by same.
Tribunal Considers Mitigating Circumstances In Reducing Award By 25%
Award Reduced by 25% – Earlier, we featured Keshavarzv Aviva,(20-001377), wherein the Tribunal determined an award was payable, however sought submissions regarding quantum.
After review of the submissions, the Tribunal found “the length of the respondent’s delay in approving the OCF-18 to be the most aggravating factor in this case. I find the respondent denied the OCF-18 based on no rationale and did not approve the benefit for almost two-years from the date that it was submitted.”
It was further noted that ‘the respondent had many opportunities to reverse its decision but chose not to for two years. I find that the respondent is fully responsible for its conduct as there was no evidence of a mistake or an administrative oversight.”
In addition, Keshavarz was vulnerable as she was a minor and “was forced to incur the assessment and file an application with the Tribunal.” The Tribunal found that “a young person is more vulnerable than an adult because they cannot process, analyze, and make decisions the same way an adult can. Therefore, in my view the respondent should have used extra care in its handling of the OCF-18 and by explaining why it was being denied. Instead, it did the opposite.”
With Keshavarz seeking the maximum 50%, the Tribunal reduced the quantum to 25%. The Tribunal confirmed there to have been no prejudice to Keshavarz, as Aviva approved psychological treatment, with this “unique aspect” of the case warranting a 20% reduction in the award. The fact of the approval of the disputed item 8 months prior to the hearing warranted a further 5% reduction, resulting in an award of 25%.
Aviva argued that the Tribunal has determined that an award is not payable where an insurer has failed to comply with s.38(8). This most recently came to light in 19-008488 v Aviva, wherein the Tribunal set aside an earlier award, finding persuasive Aviva’s argument that “38(11) consequences serve as an appropriately punitive result based on Aviva’s non-compliance…(and) a penalty awarded on top of a penalty could be reasonably construed as excessive”. However in this instance, while agreeing with Aviva that “Tribunal’s decisions should be consistent” the Tribunal confirmed “I am not bound by them and the facts in this case are different.”
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