https://www5.fsco.gov.on.ca/AD/5374
Unica was not only wrong about the analysis of the injuries in relation to the MIG, but its persistent “no” to requests for funding for assessments resulted (as it was warned) in exacerbating the Applicant’s injuries to the point where he now suffers from chronic pain. The Form 1 for attendant care was submitted after Dr. Galati’s report. That assessment clearly identified ongoing musculoskeletal impairments, as evidenced in the Applicant’s adjustments to daily living such as having to go onto his knees to make his bed. A reasonable insurer would have considered the additional information and sent it on to Dr. Galati for an addendum report. A reasonable insurer would have noted the ongoing problems with hearing, even four months after the accident, and would have reconsidered its refusal of the neurologist’s assessment.
Unica failed to respond promptly to reasonable requests for approval of examinations, and waited an unreasonable period to arrange its own assessment with respect to the psychological assessment. It failed to arrange an assessment (or even an addendum) based on new information provided in the Form 1 and in the 2017 reports concerning chronic pain.
Unica has the institutional knowledge developed in the senior levels of its adjusters to flag the potential that untreated or poorly treated injuries can lead to chronic pain. There is little evidence that Unica’s adjusters grappled in any way with their Insured’s complaints and injuries and the potential long term effects which are now clearly outlined. I do not accept that the laissez-faire approach Unica followed constitutes adjusting the file in good faith or constitutes acting reasonably. The result was an unreasonable delay in assessing and treating the Applicant’s injuries because the benefits claimed were denied.
I find that Unica has unreasonably delayed payment of benefits, and that a special award is appropriate. The Applicant calculated the total monetary amount of the claim at $20,760.56, including the attendant care claim and interest. Unica calculated the claim based solely on attendant care at $6,022.85—$397 per month for one year plus interest. The special award is to be no more than 50% of the amount to which the person was entitled at the time of the award, together with interest on all amounts then owing including unpaid interest.[34] Since the attendant care claim was not approved but the remaining claims have been, I calculate the special award on the net amount of $20,760.56 less $6,022.85. Unica’s failings are not the most egregious, but an award is appropriate to inspire more careful attention on its part to claims like this one. The special award is fixed at $5,000.00.