Category: Section 33

Shaikh v. Economical Insurance Company (20-009837/AABS)

The claimant brought a LAT application to dispute NEBs and his MIG designation. Adjudicator Flude found that the claimant was not entitled to NEBs because he had failed to submit a signed application for NEBs until June 8, 2020, approximately a year after the accident of July 16, 2019. Adjudicator Flude confirmed that an application for NEBs could not be considered complete until a signed OCF-3 has been submitted. The claimant was found to be ineligible for NEBs in the period following the submission of his application because he failed to respond to a s. 33 request issued by the insurer. Adjudicator Flude also found that the claimant’s injuries fell within the MIG. The claimant had failed to report his significant pre-accident history with his medical examiners, which rendered their diagnoses regarding his impairments unreliable. The Adjudicator noted that the claimant’s medical records reflected an improvement of his symptoms from July 2019 to November 2019. He drew an adverse inference from the claimant’s failure to produce further medical records after November 2019 and opined that the records would have reflected an improvement of the claimant’s symptoms. Adjudicator Flude concluded that the claimant did not suffer from chronic pain syndrome as a result of the accident and that his injuries were minor in nature.

Nagalingam v. Economical Insurance Company (20-006884)

The claimant sought entitlement to pre-104 week and post-104 week IRBs. The insurer denied the claimant’s entitlement and argued that section 33 barred the claim as the claimant failed to provide information relating to his place of residence, which was relevant to a potential section 31 exclusion. Adjudicator Maleki-Yazdi found that the claimant did not meet the medical test for IRBs during either the pre-104 week or post-104 week period. Even if the claimant had met either test, the adjudicator held that it was reasonable for the insurer to request information relating to the claimant’s place of residence as the policy was issued to an address other than the address on the OCF-1 and OCF-3. The claimant’s refusal to provide the information was not reasonable. Additionally, the claimant failed to comply with section 33 requests for medical records, despite the insurer agreeing to pay for the cost of obtaining the requested records. The claimant argued that he had not received the section 33 requests. The adjudicator rejected the claimant’s explanation for non-compliance, as the letters were also sent to his counsel, and therefore deemed to have been received by him.

O’connor v. Aviva General Insurance Company (19-006131)

The claimant brought an application seeking entitlement to IRBs from December 16, 2017 to May 2018. The date of loss was December 9, 2017. She testified that she had returned to part-time work in January 2018 and transitioned to full-time work in April or May 2018. However, the insurer identified two IE reports in which the claimant had stated that she had returned to full-time employment in January 2018. In response to her conflicting claims, the insurer had requested the claimant’s paystubs and an OCF-2 in June 2018, and further requested in a letter dated October 23, 2018, that the claimant confirm the date that she had returned to work. As the claimant had not produced any income records that could confirm her post-accident income, the insurer argued that the LAT should rule that the claimant was not entitled to any IRBs for the period being claimed. Adjudicator Neilson found that she could not deny IRBs to the claimant under s. 33(6) for a failure to provide income information, because per s. 36(5), an insurer was required to pay IRBs withheld once the information sought was received, as long as a reasonable explanation was provided for the delay. However, Adjudicator Neilson stated that she was unable to make a determination on the claimant’s entitlement to IRBs until the claimant provided the income documents requested and provided reasons for the delay.

Aviva Canada Inc. v. McNamara (2022 ONSC 1462)

The insurer appealed the Tribunal’s decision that the claimant was entitled to IRBs during a period of section 33 non-compliance. The Tribunal found that the claimant’s explanation for the delay in providing records was reasonable because she thought the insurer had access to her medical records by way of signed authorization, and that she was suffering from post-traumatic stress. The insurer argued that the Tribunal erred by applying subjective factors to the reasonable explanation. The Court dismissed the appeal, holding that the reasonable explanation under section 33 was not a strictly objective test, and that the reasonableness of the explanation had to be considered in the context of the particular claimant and take into account the remedial nature of the SABS.

Kunaseelan v. Aviva Insurance Company of Canada (20-000565)

The claimant sought entitlement to IRBs of $400.00 per week for the five month period between the date of loss and the date the OCF-3 was submitted. Adjudicator Norris dismissed the claim, holding that section 36(3) barred the claimant’s entitlement to IRBs for the period prior to OCF-3 submission. The claimant argued that the insurer failed to prove an OCF-3 in the application package, and that the insurer’s failure to comply with section 32(2) should result in her entitlement to IRBs during the period. The claimant relied upon a FSCO decision in Anthonipillai v. Security National in which a similar result was reached. Adjudicator Norris rejected the claimant’s arguments and found that the decision in Anthonipillai was incorrect and that the bar to receiving IRBs prior to submission of an OCF-3 was absolute. Adjudicator Norris also found that no interest was payable on IRBs that were back-paid to the claimant in May 2020 because the claimant had not provided sufficient information to support her claim for IRBs, meaning that IRBs were never actually overdue. Similarly, the claim for a special award was dismissed because the insurer was not required to pay IRBs while the claimant remained in non-compliance with requests for financial and income records.

Harvey v. Economical Insurance Company (19-006159)

The claimant applied to the LAT seeking entitlement to various medical and rehabilitation benefits and a special award. In addition, the claimant brought a motion seeking to exclude the insurer’s submission of surveillance and the transcript from the claimant’s EUO. The claimant submitted that the insurer conducted surveillance prior to the EUO, which demonstrated that it was preparing for litigation as opposed to adjusting her file in good faith. The claimant argued that this was a conflict of interest and the insurer’s failure to disclose the surveillance prior to the EUO was trial by ambush. She also maintained that it was a conflict of interest for the counsel that conducted the EUO to represent the insurer in the LAT dispute. In support of her position, the claimant relied on the Divisional Court’s decision in The Personal Insurance Company v. Jia, in which the court upheld the LAT’s decision that an EUO obtained in the priority dispute should not be permitted in the accident benefit hearing because it was not obtained in compliance with section 33(2) of the SABS. Adjudicator Hines found that the Divisional Court decision was distinguishable as it dealt with evidence obtained in a priority dispute, whereas in the subject case the insurer obtained the EUO as part of the accident benefit claim and in compliance with section 33(2) of the SABS . Adjudicator Hines found there was no breach of any firewall between the accident benefit, tort or priority dispute, and that it is not uncommon for an insurance company to retain the same counsel for the duration of an accident benefit claim (i.e., for a s. 33 EUO and then later in response to a LAT application). With regards to the surveillance evidence, Adjudicator Hines stated that the claimant did not direct the LAT to any case law dealing with whether there was a conflict of interest due to the timing of the insurer’s surveillance or rules for when an insurer is obligated to disclose surveillance in advance of an EUO. The claimant’s request for the exclusion of EUO and surveillance was denied. Adjudicator Hines found that the claimant was entitled to the proposed assistive devices only.

Haji v. The Personal Insurance Company (20-010507)

There were two preliminary issues raised during this hearing. First, the insurer sought to bar the claimant from proceeding to a hearing on an IRB denial due to their failure to attend an EUO. The claimant had attended an EUO, but was not able to complete it due to a “terrible headache”. The EUO was terminated, and it was anticipated by both counsel that it would be rescheduled. However, the insurer never rescheduled the EUO, and did not provide notice to the claimant of where and when she needed to attend to complete the EUO. Vice Chair Maedel held that the claimant had not failed to attend a subsequent, properly scheduled EUO. Since non-attendance had not occurred, Vice Chair Maedal found that a suspension of benefits under s. 33 of the Schedule could not be granted. Second, the insurer sought to bar the claimant from commencing an application due to their failure to comply with s.44 of the Schedule, and their failure to attend two remaining CAT insurer’s examinations (physiatry and OT). The insurer sent a notice of examination that provided the medical reasons for the examination, and included information relating to the time, date, place, and name, professional designation and specialty of the assessor. The claimant initially resided in Calgary, Canada, and later moved from Canada to Amsterdam in the Netherlands. The insurer was not aware that the claimant had travelled to Amsterdam, and the location of the physiatry IE was noted as Calgary. Vice Chair Maedal found that this NOE complied with s. 44(5)(a) of the Schedule, and was not served with foreknowledge that the claimant was already in Amsterdam. Vice Chair Maedal then concluded that the physiatry IE was reasonable and necessary, and ordered a stay of the application for 120 days for the physiatry IE to be completed.

Shen v. Aviva General Insurance Company (20-000662)

The claimant applied to the LAT seeking entitlement to NEBs and chiropractic services proposed in one OCF-18. Pursuant to section 36(4) of the SABS, the claimant argued that the insurer was required to pay for NEBs as a result of a failure to reply to an OCF-3 within 10 days and a failure to provide adequate medical and other reasons why it determined the claimant was not entitled to NEBs. Alternatively, the claimant argued that NEBs were payable as a result of failure to provide s. 44 reports within 10 days of receipt of the reports, as required by section 36(7) of the SABS. The insurer argued that the claimant failed to comply with section 33 requests for medical records and was not entitled to any amount for NEBs. Adjudicator Grant found that the claimant was in non-compliance with section 33, having failed to comply with all reasonable section 33 requests up to the time of the hearing, and was not entitled to payment of NEBs. Adjudicator Grant also found that the section 33 requests were made in compliance with section 36(4) of the SABS. Adjudicator Grant further found that the medical and other reasons in the s. 44 notice of examination were sufficient and the claimant failed to provide compelling evidence that the insurer was required to pay NEBs for any period of alleged s. 44 non-compliance. It was noted that the claimant attended all of the s. 44 assessments, and if there was an issue with reasons for the examination, she could have requested further information from the insurer prior to attending. The claimant was also found not to meet the complete inability test for NEBS. The claim for NEBs was dismissed, but the claimant was entitled to the chiropractic treatment.

Carpizo v. Co-operators General Insurance Company (20-007999)

A preliminary issue hearing was held to address whether the claimant was entitled to payment of NEBs until the substantive hearing based on the insurer’s failure to comply with section 36 of the SABS. Adjudicator Farlam found that the claimant was not entitled to the payment of NEBs until the substantive hearing and that the claimant failed to prove that the insurer did not comply with the SABs. A denial letter was sent indicating that the insurer did not have sufficient medical information to support the claimant’s entitlement to NEBS and that the benefit would not be payable until the receipt of additional information, which was requested under section 33. The claimant failed to comply with the insurer’s request. The claimant argued that the letter was not SABs compliant as it failed to reference the submitted OCF3. Adjudicator Farlam highlighted that there is no requirement that an OCF3 be mentioned in a denial letter. The claimant further argued that she had requested the additional records and ought to have been paid NEBs in the meantime. Adjudicator Farlam disagreed, finding that the requirement is for a claimant to provide records to the insurer, not merely request them.

Liao v. Aviva General Insurance (19-004856)

The claimant applied to the LAT seeking entitlement to IRBs and a treatment plan proposing chiropractic treatment. The claimant submitted that she attempted to return to work after the April 2016 accident but ceased working in August 2016 due to accident-related impairments. The insurer argued that the claimant was not entitled to IRBs because she did not comply with requests for documents to complete her IRB application and calculation until November 2019, and therefore she was not entitled to IRBs prior to November 2019. Alternatively, the insurer argued that the claimant had not shown that she satisfied the test for pre- or post-104 IRBs. Adjudicator Chakravarti found that the insurer provided proper (although late) s. 33 requests in December 2016 following receipt of the OCF-3 and the insurer was able to rely on the s. 33(6) consequences for the claimant’s non-compliance with s. 33 requests. The claimant did not produce requested income information until January 2018 and did not produce the requested OCF-2 until November 2019. Adjudicator Chakravarti found that the claimant did not provide a reasonable explanation for the delay in providing the requested documentation and the insurer was entitled to withhold payment of IRBs for the period of non-compliance. Adjudicator Chakravarti found that the insurer’s s. 33 request was made more than 10 days after receipt of the OCF-3 (contrary to the requirements in s. 36(4)) and IRBs would therefore be payable for the period from receipt of the OCF-3 until the s. 33 request was made if the claimant met the substantial inability test for pre-104 week IRBs during this period. Adjudicator Chakravarti found that the claimant failed to prove that she met the test for pre- or post-104 IRBs and was not entitled to IRBs for any period before the s. 33 requests were made or after the s. 33 requests were complied with. The claimant also failed to meet her onus of demonstrating that the proposed chiropractic treatment was reasonable and necessary. The application was dismissed in its entirety.