Category: Section 33

Nelson v. Travelers Insurance Company of Canada (19-012673)

The claimant sought entitlement to ongoing IRBs, removal from the MIG, and four treatment plans for physiotherapy and two assessments. Vice Chair McGee dismissed the claims. She held that the claimant failed to prove that she suffered from a non-minor injury. Her alleged chronic pain was not serious enough to qualify as non-minor. The claimant did not use medications, she returned to college within a few months of the accident, and she was largely independent with personal tasks and chores. The claimant also did not meet the IRB disability test. She returned to college shortly after the accident after quitting her job so that she could upgrade her credentials. She planned on returning to college before the accident occurred. The claimant did not look for a job while in college because she did not believe she could handle both a job and her studies. After graduating from college, the claimant’s inability to find employment was due to COVID rather than any physical impairment. Finally, Vice Chair McGee held that even if the claimant met the IRB disability test, she would not be entitled to claim IRBs until her completed election was submitted, as the OCF-3 supported both IRB and NEB.

Dino v. Travelers Insurance (20-005704)

The insurer brought a motion for suspension of the claimant’s benefits due to his failure to attend an examination under oath seven months prior to a scheduled hearing. Adjudicator Mazerolle granted the suspension. He rejected the claimant’s argument that there was a temporal limitation on when an insurer could request an examination under oath. The notice provided to the claimant was sufficient to satisfy the requirements of section 33. Adjudicator Mazerolle declined to decide whether the claimant had a reasonable explanation for the non-attendance.

Xie v. Allstate Insurance Company of Canada (20-001171)

The claimant disputed the insurer’s decision to keep her in the MIG, as well as her entitlement to various medical benefits. The insurer argued that the claimant had failed to comply with its section 33 requests for medical records, and as such, was not liable to pay any benefit. Adjudicator Grant agreed, noting that the claimant had not directed him to any evidence that she had complied with any of the insurer’s section 33 requests, or provided proof that she had requested the medical records, nor had she provided a reason for her failure to comply with the time limits. He further agreed with the insurer that the records requests were directly relevant and necessary to assist both the insurer and the Tribunal in the determination of whether the claimant was entitled to the benefits sought. As such, Adjudicator Grant concluded that the insurer was not liable to pay any of the benefits in dispute. He went on to find that, in any event, the claimant’s injuries fell within the MIG. The claimant relied solely on a section 25 psychological report, but had not submitted any contemporaneous medical evidence to support the need for continuing treatment, whether from a family doctor or objective medical professional.

Harvey v. TD Insurance Meloche Monnex (19-008497)

The claimant applied to the LAT seeking entitlement to incurred ACBs, occupational therapy, and a special award. The insurer raised two preliminary issues: 1) Did the LAT have jurisdiction to adjudicate the ACB issue as the benefit had been suspended for non-compliance with s. 33 requests rather than denied; and 2) Was the claimant barred from pursuing entitlement to ACBs pursuant to s. 55 for failure to attend an IE assessment? Adjudicator Victor found that the LAT had jurisdiction over the ACB dispute and the claimant was not barred from pursuing entitlement to the benefit pursuant to s. 55 because the notice of assessment was deficient for failure to provide specific medical and other reasons. Adjudicator Victor found that the claimant was entitled to all the benefits in dispute and granted a special award in relation to the claim for ACBs. The special award was justified because payment of ACBs was stopped while catastrophic impairment IEs were scheduled, despite section 45(4) which required ongoing ACBs until the IEs were completed. The insurer also used the COVID-19 delays in scheduling the IEs to its advantage by not paying ACBs while IEs were rescheduled.

P.M. v. Aviva Insurance Canada (18-009518)

The insurer submitted a request for reconsideration arising out of a decision which found that the claimant was entitled to payment of IRBs during a period of section 33 suspension, arguing she had not provided a reasonable explanation for her non-compliance (namely that she believed the insurer could access the information). The insurer argued that it was not possible for the claimant’s explanation to be “reasonable” because it was only offered at the hearing for the first time and there was not objective evidence to corroborate it. Adjudicator Makhamra dismissed the insurer’s request for reconsideration, noting that the insurer provided no authority to support its position that the timing of the claimant’s explanation was too late to find it reasonable or that the Tribunal erred in finding the claimant’s examination to be reasonable.

Kazmi v. Pembridge Insurance Company (19-010107 and 20-001345)

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.

Drew v. Travelers Insurance Company of Canada (20-007200)

This is a motion decision made prior to a written preliminary hearing that was scheduled to determine whether the claimant was barred from proceeding with her application to the LAT pursuant to section 55 of the SABS for failure to submit an OCF-1 in accordance with section 32. The insurer filed the motion after the claimant refused to attend a post-case conference examination under oath. The insurer requested: (a) an order compelling the claimant to attend the EUO, (b) an order requiring an adverse inference be drawn at the preliminary issue hearing if the claimant did not attend the EUO, and (c) an order imposing a suspension of benefits for failure to comply with section 33(2) of the SABS. Adjudicator Mazerolle ordered that the claimant was not entitled to any payment of benefits under the SABS from the date she failed to attend the EUO onwards (or until such date that she attended an EUO). Adjudicator Mazerolle found that the LAT does not have the authority to order a claimant to attend an EUO. It was left to the hearing adjudicator to determine whether an adverse inference would be made for failure to attend the EUO. Adjudicator Mazerolle found that an EUO can touch on any topic an insurer chooses, so long as the topics are matters that are relevant to the claimant’s entitlement to benefits.

The Personal Insurance Co. v. Jia (2020 ONSC 6361)

The insurer appealed the LAT’s decision that counsel acting in a priority matter could not also act in the LAT dispute, and the decision excluding the transcript from the priority EUO from the LAT hearing. The Court dismissed the appeal and concluded that the LAT’s decision was reasonable. It held that a conflict could arise if the same counsel acted in the priority dispute and at the LAT. It also reasoned that the protections of section 33 would not be followed if the priority EUO transcript was admitted without leave of the Tribunal.

Staszewski v. Intact Insurance Company (19-012409)

The claimant applied to the LAT seeking entitlement to pre- and post-104 IRBs. Three medicolegal reports noted the claimant had returned to work in some capacity since the accident. The insurer suspended the claimant’s entitlement to IRBs pursuant to section 33 of the SABS for failure to provide documentation regarding post-accident employment and income. The claimant argued that the insurer had suspended IRBs without justification. Adjudicator Parish found that the insurer was justified in requesting further documentation to confirm whether the claimant earned any post-accident income. An adverse inference was drawn relating to the claimant’s refusal to produce bank statements. Adjudicator Parish found that the insurer was not liable to pay IRBs to the claimant, pursuant to section 33(6) of the SABS.

A.M. v. Zurich Insurance Company Ltd. (19-009920)

The claimant was being transported by the Ontario Provincial Police in the rear box of a prisoner’s transportation van. During the transport, the van struck a moose and the claimant, handcuffed and shackled, was thrown towards the front of the van, suffering physical and psychological injuries. He applied for and received accident benefits from the insurer for the OPP. He applied to the LAT seeking entitlement to further medical benefits. Adjudicator Boyce found that the claimant was not entitled to the disputed benefits because he had not proven they were reasonable and necessary, and the claimant had failed to comply with section 33 requests for productions. Adjudicator Boyce noted that no records from a family doctor or objective medical professional were submitted into evidence, and simply reproducing the particulars of an OCF-18 was insufficient to prove a proposed benefit is reasonable and necessary. Adjudicator Boyce further noted that the insurer was not required to pay for treatment for impairments that pre-dated the accident, such as addiction issues and personality disorder. Adjudicator Boyce found that the level of driving anxiety was so mild it did not warrant a diagnosis. In addition, it was found that treatment for driving anxiety was no longer relevant as the claimant was required to surrender his driver’s licence following a conviction for an offence. A proposed functional abilities assessment was considered not appropriate as the claimant was not employed prior to the accident and was not seeking IRBs. There was no evidence to support the need for an adjustable bed and mattress.