Weaver v. Aviva Canada Inc., FSCO A16-001215

The following is a summary of the FSCO Decision of Weaver v. Aviva, an Arbitration that was heard August 9, 2017.

Date Heard: August 9, 2017 | Full Decision [PDF]

The Applicant sustained significant injuries in a motor vehicle accident while traveling as a front seat passenger in a pick-up truck on October 11, 2013. The truck hit a rock wall, rolled, ejected the Applicant and rolled on top of him.  The Applicant was pinned underneath the vehicle for 45 minutes. He was airlifted to Sunnybrook Hospital where he received treatment for significant injuries including broken ribs, a fractured pelvis, a torn urethra and lacerations to his wrists and elbows.  The Applicant was bedridden and unable to independently care for himself as a result of the accident.

The issues in dispute at the Arbitration were as follows:

  1. Attendant Care in the amount of $3,000/month from Oct. 11, 2013 to Jan. 9, 2014;
  2. Medical benefit in the amount of $80.00 for an eye examination expense submitted Dec. 11, 2013;
  3. Various expenses for damage to clothing, glasses, hearing aids, etc.;
  4. Special Award;
  5. Interest; and
  6. Expenses of the Hearing.

As of the date of the hearing, the insurer, Aviva, refused to pay any attendant care benefits or out of pocket expenses to the Applicant.  As a result, the Applicant was compelled to proceed to an Arbitration despite the small amounts of his claim.  Aviva’s unreasonable withholding of the payment of these benefits led to the Applicant’s claim and award against Aviva for a special award, interest and costs with respect to these benefits.


CLAIM FOR MEDICAL AND OTHER EXPENSES

Facts:

The Applicant claimed medical and other expenses as a result of items lost in the accident.  Aviva deemed them “not reasonable and necessary” and/or payable under the SABS.

Decision:

The Arbitrator found that the Applicant’s prescription sunglasses, which were lost in the accident, and the eye exam required to replace the sunglasses were payable expenses as per the SABS.  The Arbitrator relied upon the receipts submitted by the Applicant to determine that the expenses with proof of purchase were reasonable and necessary incurred expenses. Some expenses were found to not be payable as no receipts were provided for their replacement cost, and as such, there was no proof that those expenses were incurred.

Considerations of Medical and Other Expenses Regarding the Special Award:

Arbitrator Parish relied upon and accepted that the evidence and testimony provided at the Hearing were in support of the Applicant’s claim for a special award.

In finding Aviva’s unreasonable withholding of medical and other expenses, Arbitrator Parish relied upon Aviva’s denial letter was in contravention of sections 15(1) and 24(2) of the SABS.  The Arbitrator found that Aviva had unreasonably withheld or delayed payments to the Applicant for a medical benefit and payments for damage to glasses.  As a result, the maximum special award of 50% of the total amount of the benefits owing was awarded.


CLAIM FOR ATTENDANT CARE BENEFITS

Facts:

The Applicant claimed Attendant Care Benefits in the amount of $3,000 per month from the date of loss, being October 11, 2013, to January 9, 2014.

The Applicant was unrepresented for the first 3 months post-accident.  Despite being aware of the Applicant’s significant injuries and lack of representation, Aviva waited 3 weeks before sending their Occupational Therapist (“OT”) to assess the Applicant regarding Attendant Care Benefits.  Aviva’s first Form 1 was dated October 30, 2013 and found that the Applicant was entitled to only $1,483.94 per month.  Aviva’s second Form 1 was completed 1.5 months later (dated December 16, 2013) by the same OT, and reported no further entitlement to attendant care benefits (i.e. $0/month).  Both Form 1’s were completed by Louise Wall, OT, who was retained on behalf of Aviva.

The Applicant submitted one OCF-6 Expense Claim Form dated December 3, 2013 which claimed attendant care incurred at a rate of $3,000.00 per month from October 14, 2013 to November 30, 2013.  The Applicant gave evidence that he was informed by the Insurer’s OT at the time of his initial assessment, that this was the amount he could claim.

Lastly, the Applicant submitted a letter to the insurer dated March 7, 2016 from the attendant care provider’s impending employer which stated that the provider had work available to him but was unable to accept the position until January 9, 2014 as he was providing attendant care to the Applicant.

Despite the insurer’s own Form 1’s, the submitted OCF-6 and the letter providing evidence that the attendant care services were “incurred”, Aviva did not pay the Applicant a single dollar in attendant care benefits.

Decision:

Despite the Applicant being misinformed and unrepresented at the material time, the Arbitrator relied on s. 19(2) of the SABS and MVACF v. Veley in deciding that the maximum amount payable for a monthly Attendant Care Benefit is established by a Form 1.  As such, Arbitrator Parish did not find $3,000 was payable as it exceeded the October 30, 2013 Form 1 rate.

With respect to the duration of the benefit, the Arbitrator relied upon the attendant care provider’s testimony that he started providing attendant care as of October 16, 2013 until January 9, 2014, not October 11, 2013 to November 30, 2013 as noted on the OCF-6.  Despite the Applicant and his provider’s “very credible” testimonies, the Arbitrator relied upon the Unagro case when deciding that it is the OCF-6 which triggers payment as per the Form 1, and no amount is payable beyond what has been submitted on the OCF-6.

Lastly, the Arbitrator found that the Applicant had “incurred” expenses for attendant care as defined within s. 19(1) of the SABS.  The letter provided to the insurer dated March 7, 2016 was found to have substantiated that the provider sustained an “economic loss” as defined by the SABS.

In sum, the Applicant was deemed to be entitled to attendant care benefits at a rate of $1,483.94 per month in accordance with the initial Form 1 and the OCF-6 submitted.

Considerations of Attendant Care Benefits Regarding the Special Award:

Arbitrator Parish relied upon and accepted that the evidence and testimony provided at the Hearing were in support of the Applicant’s claim for a special award.

In finding Aviva’s unreasonable withholding of attendant care benefits, Arbitrator Parish found that although the SABS does not strictly require the insurer to complete a retroactive Form 1, the mechanism and acuteness of the Applicant’s injuries, along with the Applicant’s lack of legal counsel at the time, showed that attendant care was required from the date the Applicant was released from the hospital, when his condition was at its worst.

Further, Arbitrator Parish commented on the biased and discredited testimony of Aviva’s OT, Louise Wall. After testifying that she did not and would not communicate directly with the insurer in the circumstances, email documentary evidence presented by Applicant’s counsel proved to the contrary. The Arbitrator found that Ms. Wall demonstrated behavior which clearly favoured the Insurer and which intended to alert Aviva that it could stop the Applicant’s benefits as soon as possible.

Lastly, Arbitrator Parish accepted that the letter from the attendant care provider’s impending employer proved that an “economic loss” was sustained.  This letter was sent to Aviva as well as a subsequent email to follow up on the payment of benefits, yet still, Aviva did not pay the Applicant for these benefits.  The Arbitrator found that if Aviva took issue with the Applicant’s evidence of “economic loss” they should have followed up regarding the information.  In this case, they failed.

The Arbitrator found that Aviva had unreasonably withheld or delayed payments to the Applicant for attendant care benefits. As a result, the maximum special award of 50% of the total amount of the benefits owing was awarded.

Expenses for the hearing have yet to be agreed upon.

 

 

 

Read the full decision [PDF]
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