S.M. vs. Unica Insurance Inc., 2020 CanLII 12718 (ON LAT)

Full Decision

The bar for special awards at the LAT may have just been lowered in the wake of this recent LAT decision holding “there was a failure on the part of Unica or its agents to ask the relevant questions” during an independent assessment regarding the applicant’s functional needs, and a failure to consider the file in its entirety at the time of the assessment.

The applicant suffered a brain injury and multiple fractures while ice-fishing with friends on March 16, 2014. He was deemed catastrophically impaired by the respondent, Unica, on February 2, 2017. Unica’s assessors concluded that the applicant suffered a marked impairment in the sphere of adaptation, and a combined 63% whole person impairment.

This application included a number of issues, including two partially approved treatment plans. The applicant’s treating occupational therapists recommended, among other things, an attendant care benefit of $6,000 per month, and a rehabilitation benefit in the amount of $344,864 for home modifications, including the installation of an elevator in the home.

Unica’s assessor’s recommendations differed, and as a result only a portion of the benefits recommended were paid. Overall, Unica’s assessor did not believe the applicant required overnight assistance to ensure safety and security in his bedroom, and did not assign an allowance for cueing the applicant to engage in activities such as feeding and grooming. Instead of an elevator, Unica agreed to fund an in-home stair-lift for the applicant.

During the hearing, Unica’s assessor testified that she did not consider whether the applicant needed cuing, emotional support, and supervision at night, nor did she ask any questions in this regard at the time of the assessment. The evidence established that Unica had the relevant information at the time of the assessment to warrant such inquiries, and that there were important discrepancies between their assessments of the applicant’s abilities and those confirmed by his treating professionals at the time of the assessment.

Adjudicator Punyarthi found that Unica did not turn “its mind to the larger context of information available to it from the evidence in this matter”. Unica’s assessors “failed to ask key questions about function that it should have on the basis of available information”. Unica should have followed up with their own assessor to ensure the right questions were being asked. He therefore held that, Unica’s partial denial of these benefits was “imprudent, inflexible, and immoderate”, and amounted to an unreasonable denial, warranting a special award against the insurer. Unica was ordered to pay 25% of the portions of the attendant care benefits and home modifications benefits that were denied, in addition to interest.

Written by

Irina Rosca received her law degree from the University of Windsor – Faculty of Law. After articling at a full service, national firm on Bay Street, she joined Greg Monforton and Partners as an Associate in 2018, where she practices exclusively in the field of personal injury. Irina is passionate and committed to protecting the rights of her clients and fighting to secure the compensation they deserve. In her spare time, Irina enjoys giving back and volunteering within her community.