Category: Section 33

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.

Omar v. Co-operators General Insurance Company (20-000085)

The insurer brought a motion to dismiss the LAT application for failure to attend IEs and failure to disclose relevant documents in a timely matter. Adjudicator Flude found that the claimant’s failure to attend properly scheduled IEs was grounds for dismissal of the LAT application. A reasonable explanation for non-compliance with the IE had not been provided. Adjudicator Flude found that there was no authority under section 33 to dismiss the application for failure to disclose documents. It was noted that section 33 has its own remedies, including suspension of benefits during periods of non-compliance, absent a reasonable excuse.

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

The insurer was paying the claimant IRBs for over a year after the accident when it suspended IRBs due to the claimant’s failure to obtain necessary treatment and in providing relevant information under section 33 (the status of recommended psychological treatments and the updated clinical notes and records from the family physician). IRBs were reinstated after the claimant submitted a treatment plan for psychological treatment and remain ongoing. She applied to the LAT regarding the IRBs withheld for nine months. Adjudicator Makhamra concluded that the claimant was entitled to payment of the withheld IRBs. First, she held that while the claimant was in breach of section 33, the claimant had a reasonable explanation because she believed she was making best efforts and was complying with her family physician’s recommendations. She also believed the insurer had the ability to obtain the medical records with her consent. Second, the adjudicator held that the claimant was not in breach of section 57 as the claimant was receiving help for her psychological symptoms from her family physician and a social worker during the period of suspension.

N.Z. v. Economical Insurance (18-009611)

The self-employed claimant disputed entitlement to IRBs, which the insurer was not paying because it had requested further income documentation which the claimant failed to provide. The insurer had suspended IRBs under section 33 until the claimant complied with the requests. As a preliminary matter, Adjudicator Mazerolle allowed the insurer to submit late surveillance reports because they showed the claimant attending his place of work at a time he claimed he was not working. He also allowed the claimant to submit a late accounting report, reasoning that the insurer’s ability to cross-examine the accountant eliminated any prejudice. In terms of pre-accident records, Adjudicator Mazerolle concluded that the claimants Notices of Assessments for the year of the accident and the year prior to the accident were sufficient to calculate the weekly base income, stating that the SABS stated that income reported to the CRA was appropriate for calculating an IRB. In terms of post-accident records, Adjudicator Mazerolle held that the insurer was justified in requesting additional information (corporate tax filings, information about the claimant’s work duties and hours) because it appeared that the claimant was continuing with some level of work while claiming that he was unable to do so. The insurer was permitted to suspend payment of IRBs until the claimant provided the requested records.

K.A. v. Aviva General Insurance Company (19-002676)

The claimant sought entitlement to IRBs. The insurer argued that the claimant had failed to attend IE, and failed to comply with section 33 requests. Adjudicator Johal held that the claimant was barred from proceeding due to the IE non-attendance, reasoning that the IEs were reasonably required for determining entitlement to post-104 week IRBs even though IRBs had been terminated prior to the 104 week mark, and that the notices provided the requisite information. Adjudicator Johal rejected the insurer’s section 33 defence because section 33 did not prevent the Tribunal from adjudicating the claim. The consequences of section 33 non-compliance ultimately go to entitlement to a disputed benefit.

Levey v. Aviva Insurance Company (19-006014)

The claimant applied to the LAT seeking entitlement to psychological services and the balance of a partially approved OCF-18 for driving lessons. Adjudicator Parish found that the claimant was not entitled to the disputed benefits. Adjudicator Parish noted that the OCF-18 for psychological services was completed by a psychologist, but the claimant previously received and only wanted therapy from a particular psychotherapist, who was not listed as the service provider on the OCF-18. The rates proposed on the OCF-18 were the rates for a psychologist, as per the Professional Services Guidelines. Adjudicator Parish did not accept that a psychotherapist should be paid the same rate as a psychologist. Adjudicator Parish also found that the psychological services were not payable as the claimant had failed to comply with the insurer’s section 33 requests. The balance of the partially approved OCF-18 for driving lessons was not payable as the hourly rates approved by the insurer were reasonable.

S.P. v Aviva General Insurance Company (18-008876)

The claimant disputed her MIG determination, as well as entitlement to various medical benefits and IRBs. Adjudicator Helt found that the clamant did not suffer from chronic pain so as to remove her from the MIG, noting that the medical records failed to establish that she claimant complained of persistent chronic pain issues causing functional impairment or disability over the course of several appointments. Adjudicator Helt further found that the claimant did not suffer a substantial inability to perform the essential tasks of her pre-accident employment as a result of the accident, given that the claimant returned to work immediately after the accident for a period of five weeks and provided conflicting statements and information to doctors regarding her post-accident level of functioning (contradicted by way of surveillance evidence) and her work status.

I.Y. v. Pembridge Insurance Company (18-006724)

The claimant sought removal from the MIG, and entitlement to various medical benefits and cost of examinations. The insurer, in addition to opposing the claims, argued that the claimant failed to comply with section 33 requests, and sought costs. Adjudicator Ferguson concluded that the claimant had failed to comply with the numerous requests under section 33, and also had failed to provide a reasonable explanation for doing so. Adjudicator Ferguson noted that an explanation for non-compliance must be provided promptly after the reason for inability to provide information is known. Adjudicator Ferguson saw no reason why the claimant could not comply with the requests, and he found no evidence that either the claimant or his counsel attempted to work with the insurer over the course of the claim to gather the information. Adjudicator Ferguson also awarded the insurer costs in the amount of $250, noting that the claimant’s submissions and behaviour “so strain credibility and credulity that they do not support any contention that they are reasonable, good faith contentions, and the proceeding has wastefully consumed … time and resources.

Economical Mutual Insurance Company v. A.S. (19-001820)

The insurer applied to the LAT for repayment of IRBs, and also for a determination on the claimant’s entitlement to further IRBs, the application of a section 33 suspension, and whether the claimant sustained a catastrophic impairment. Adjudicator Boyce held that the insurer could not bring an application related to IRB entitlement, section 33 suspension, or a catastrophic impairment, but could proceed with the request for repayment. He reasoned that the Tribunal only had jurisdiction once there was a dispute between the parties. The insurer’s determination regarding IRBs, section 33, and a catastrophic impairment was not equivalent to a “dispute” or “disagreement.” The claimant could, potentially, agree with the determinations and abide by the decisions. The insurer was permitted to proceed with the request for repayment, but the remainder of the issues were dismissed.

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