Donnahoque (Donald) Palmer v State Farm

Donnahoque (Donald) Palmer v State Farm Mutual Automobile Insurance Company

Facts

  • Donald Palmer was injured in a motor vehicle accident on November 1, 1997. He applied to receive statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”). The Applicant’s claims included: psychological treatment, nerve block injections and cost of a vocational assessment. At the pre-hearing the Applicant also added botox injections and massage treatment to the benefits list. State farm denied these treatments and the issued were brought forth to the arbitration.
  • Before the hearing the parties settled the psychological treatments and vocational assessment issues. The Applicant felt that State Farm should have paid for these services when his treating psychologist recommended them in January 2000 and was thus seeking special awards.
  • Costs for nerve block injections, proposed botox injections and massage treatments as well as special awards were outstanding and sought after by the Applicant.

Issues

  • Is the Applicant entitled to the cost associated with outstanding cost of nerve block injections, botox injections and massage treatments?
  • Is State Farm liable to pay a special award pursuant to subsection 282(10) of the Insurance Act on the basis that it unreasonably withheld or delayed benefit payments for psychological treatment and vocational assessment?
  • Are the parties entitled to their respected arbitration expenses pursuant to subsection 282(11) of the Insurance Act?

Rule

  • Applicant applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8
  • Subsection 282(10) of the Insurance Act deals with “special awards” sought by the Plaintiff:

282.(10) If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the No-Fault Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award 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.

  • Based on the oral testimonies and medical testimonies of physicians State Farm was found liable and ordered to pay $1,170 (50 percent of $2,340) together with interest calculated as per subsection 282(10) of the Insurance Act

Analysis

  • The Applicant was, without a doubt, seriously injured in a head collision on November 1, 1997. The Applicant’s testimony was accepted, he had suffered a fractured sternum and left shoulder and an injury to his left knee, chronic pain in various parts of his body (particularly head, neck, chest, left arm and knee, upper back).
  • Nerve block injections were administered to address particularly his head, neck and shoulder pain. Botox injections and massage were recommended for pain in the same areas.
  • The Plaintiff had to deal with psychological problems which resulted in secondary anxiety and depression.

Conclusion

  • State Farm was ordered to pay $800 fee for the five sessions of nerve block injections with interest.
  • The Applicant was not entitled to the cost of either botox or massage treatments.
  • State Farm was liable to pay a special award of $1,170 together with interest calculated pursuant to subsection 282(10) of the Insurance Act.

 Significance

  • The significance of the Insurance Act subsection 282(10) allows for those seeking benefits from the Auto Insurance Company to be protected from harm caused by the delay or withhold of payment. When further harm is caused special benefits are awarded in addition to the original ones issued.
Kate Lucoff is a Paralegal student at Centennial College in Toronto studying professional communications with Omar Ha-Redeye.

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