https://www5.fsco.gov.on.ca/AD/5417
Decision Date: 2017-11-17, Adjudicator: David Snider, Regulation: 34/10, Decision: Arbitration, Final Decision, FSCO 5417
Ms. Sivananthan has successfully demonstrated, and I find as a fact, that Coachman failed, on a consistent and repeated basis, to follow the requirements of the Schedule while adjusting each and all of the Applicant’s claims for Income Replacement Benefits, Non-Earner Benefits, and Medical and Rehabilitation Benefits concerning each of the two dates of loss which form the basis of this Application for Arbitration.
The question I must answer is whether I find that Coachman has unreasonably withheld or delayed payments with regard to the Applicant’s claims. The failures to pay started with the original eligibility for Income Replacement Benefits, which the Insurer never made any effort to determine because it bogged itself down in the quantum calculations and refused, unreasonably in my opinion, to use the available, sufficient information to determine the appropriate weekly amount payable. The fact that Coachman still has not paid the first two treatment amounts set out by Gibson, starting with an OCF-23, even though they steadfastly maintained the position that Ms. Sivananthan’s injuries were minor and that they fell within the MIG. This is prima facie unreasonable and there can be no excuse for it. Failure to properly set up assessments pertaining to all of the other treatment plans, and relying upon an insufficient paper review with regard to the only actual assessment plan submitted was also patently unreasonable, in my opinion. The other most egregious unreasonable behaviour by the adjuster was the complete refusal, based upon reasons unknown to the Schedule, to reschedule the one assessment date that Ms. Sivananthan notified them that she was too ill to attend. And, finally, the Insurer failed to properly respond to Ms. Sivananthan’s application for Non-Earner Benefits when they did not deliver an Election Form to her concerning the second date of loss – which is entirely illogical and inappropriate under the provisions of the Schedule because the Applicant had submitted an OCF-3 which indicated that she met the medical eligibility test for NEBs.
I find, therefore, that Coachman unreasonably withheld or delayed payments to Ms. Sivananthan. Accordingly, I order Coachman to pay a special award of 50 per cent of the amount to which Ms. Sivananthan was entitled at the time of each of the benefits I have found to be due and payable in this Order, together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.