Category: Section 33

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.

The claimant applied to the LAT disputing entitlement to IRBs and two medical benefits. The matter proceeded by way of written hearing. Adjudicator Farlam found that the claimant was entitled to an IRB at the rate of $291 per week and awarded the two medical benefits plus interest. With respect to IRBs, the parties agreed that substantive entitlement was not an issue. The insurer argued that the claimant was not entitled to an IRB pursuant to s. 33(6) because he failed to provide documentation necessary to adjust his claim. Adjudicator Farlam held that the claimant responded to the insurer’s requests and there was no valid suspension of benefits pursuant to s. 33. Adjudicator Farlam noted that the claimant had valid reasons for not complying with the insurer’s requests, including misunderstanding the nature of the insurer’s request for medical documents, and finding that the claimant gave best efforts to obtain the requested documents. With respect to the disputed cost of a mattress, Adjudicator Farlam awarded this benefit as she preferred the evidence of the claimant’s treating physician to that of the IE occupational therapist. Adjudicator Farlam held that the treating physician likely knew the claimant best, diagnosed the claimant with chronic back pain, and wrote to the insurer asking it to consider funding a firm mattress. Adjudicator Farlam agreed that the mattress was reasonable and necessary. Adjudicator Farlam also awarded the cost of a chiropractic treatment plan based on the evidence of the claimant’s treating physicians, and noted that the claimant’s family physician wrote a letter to the insurer requesting it reinstate funding of chiropractic care.