Category: Section 33

W.F. v. Aviva Insurance Company (18-007724)

The insurer filed a request for reconsideration following a decision in which the Tribunal found that the insurer’s section 33 request was reasonably necessary and upheld its suspension of NEBs. The insurer claimed that the suspension should have lasted for a longer period of time. The Tribunal found that the insurer’s initial notice of suspension did not advise the claimant of his rights under section 33(8) of the SABS, which indicates what would happen if he eventually complied with the section 33 request, and thus the insurer was only entitled to suspend NEBs effective on the date of the later notice of suspension which did outline the claimant’s right under section 33. Vice-Chair Lester granted the reconsideration request in part, finding that the Tribunal made an error in law by obligating the insurer to include information in the section 33 notice that is not detailed in the SABS. As the claimant did not comply with the section 33 request in its entirety, the claimant’s NEBs were suspended as of the date of the initial notice of suspension.

Y.L.C. v. Gore Mutual Insurance Company (18-010499)

The claimant disputed his entitlement to chiropractic treatment and income replacement benefits. The insurer denied the proposed chiropractic treatment based on a physiatry IE report which found that further facility-based treatment would not be helpful. Vice Chair Lester nevertheless determined that the disputed treatment plan was reasonable and necessary, given the records from the treating facility which showed ongoing improvements in the claimant’s range of motion and the fact that the claimant’s family physician had recently referred him to a chronic pain clinic for the same types of issues he complained of to the physiatry assessor. Vice Chair Lester concluded that she did not have jurisdiction to deal with the merits of the IRB claim, as the insurer had not denied entitlement to IRBs but rather suspended entitlement for failure to comply with a section 33 request for production of financial documentation.

Maeghan Easson v. Aviva Insurance Canada (18-011969)

The claimant sought an order reinstating payment of IRBs. The insurer argued that the claimant failed to provide relevant documents which had been requested under section 33. Adjudicator Go held that the insurer’s request for employment information and medical records were reasonable, and that the claimant failed to provide any explanation as to why it took a number of months to produce the requested records. Adjudicator Go concluded that IRBs were not unreasonably withheld, and that no interest or a special award were warranted.

B.K. v. Aviva Insurance Canada (18-007095)

The insurer had requested the claimant’s attendance at an examination under oath. The claimant refused to attend the examination under oath until the insurer had provided the particular of surveillance. The insurer suspended benefits in accordance with section 33. Adjudicator Ferguson held that there was no obligation on Aviva to disclose surveillance particulars under the SABS, so it was not reasonable for the claimant to refuse to attend the examination under oath on that basis. The adjudicator also noted that the examination under oath was scheduled before the LAT application, and the surveillance did not form the basis of any denials of benefits.

Applicant v. Aviva General Insurance (17-006537)

The claimant sought entitlement to various treatment plans, IRBs and dental treatment. The insurer raised section 33 and 55 defences due to the claimant’s failure to provide requested information and attend IEs. Adjudicator Ferguson held that the claimant was barred from seeking IRBs and dental treatment for failing to provide dental records, invoices, an OCF-10, income tax returns, and post-accident income information requested per section 33. The adjudicator held that there was no legal basis for the claimant’s argument that as long as best efforts are made under s. 33, the claim moves forward. The adjudicator also held that the claimant’s appeal for other goods and services of a medical nature was barred per section 55. The claimant’s reason for non-attendance was that her psychological and pain-related impairments prevented her from leaving her house, which was not supported with any evidence and the insurer had surveillance showing her participating in various ADLs outside of her house. The adjudicator denied various treatment plans due to lack of medical evidence, but found the balance of a chiropractic treatment plan payable as the insurer only denied the treatment plan based on the MIG, and was not allowed to rely on the MIG position after covering psychological treatment.

P.F. v. Jevco Insurance (18-000533)

The claimant failed to attend an examination under oath. The insurer argued that the claimant’s entitlement to accident benefits was suspended. The claimant argued that the examination under oath was not properly scheduled. Adjudicator Norris held that the examination under oath was properly scheduled. He reasoned that an examination under oath can be requested after a LAT application is submitted. He also reasoned that the examination under oath notice complied with the requirements of section 33. Finally, Adjudicator Norris concluded that the LAT application would not be stayed, but that the claimant’s entitlement to benefits was suspended until he participated in an examination under oath.

Applicant v Coachman Insurance Company (17-004906)

The self-employed claimant and insurer disagreed about the quantum of IRBs; the claimant also sought interest on medical benefits approved shortly before the hearing, and a special award. Adjudicator Victor held that it was reasonable to base IRB calculations on the year prior’s gross business income as contemplated in s.4(3) of the SABS, and as such the claimant was entitled to IRBs based on the two income tax returns he provided within the stipulated timeframe. Adjudicator Victor held that requests for further and supporting information were excessive and that the claimant was only required to prove his self-employment income in accordance with the SABS. The claimant went further than required by providing an accounting report. There was a small period of non-compliance by the claimant for which the insurer was entitled to withhold IRB payments. Adjudicator Victor also held that an insurer being incorrect about the claimant not having proved the quantum of IRBs was not enough to grant a special award. Interest was awarded on the approved medical benefits.

R.T. v. Aviva Insurance Canada (17-004564)

The claimant sought a entitlement to income replacement benefits. At the outset of the hearing, the insurer sought an order dismissing the application as abandoned because the claimant had not submitted written submission prior to the oral hearing, as ordered at the case conference. In the alternative, the insurer sought to have any further evidence or written submissions struck from the record. Adjudicator Norris held that the parties could make written submissions after the oral testimony. With regards to the claim for IRBs, Adjudicator Norris found that claimant was not entitled to the benefit for the period in which he was in non-compliance with section 33 requests for an executed WSIB assignment. Adjudicator Norris also found the claimant was not entitled to IRBs as he had not declared his pre-accident income pursuant to the Income Tax Act.

D.C. v. Aviva Insurance Company (17-002921)

The claimant sought entitlement to NEBs, medical benefits, and the cost of various examinations. The insurer raised s. 55 and s. 33 defences. Pursuant to s. 55, Adjudicator Ferguson held that the claimant was barred from commencing part of the application as a result of his failure to attend IE assessments. He was only barred from pursuing the issues in dispute that were relevant to the IE assessments. Adjudicator Ferguson held that the claimant was entitled to NEBs for an initial period based on the insufficiency of the insurer’s  s. 35(1) notice; however, the insurer was entitled to withhold payment of NEBs during the period in which the claimant was not in compliance with s. 33 requests.

R.S. v. Wawanesa Mutual Insurance Company (17-000513)

In this preliminary decision relating to IRBs, the insurer argued that the claimant had failed to provide documents requested under section 33 of the SABS, and that the claimant failed to seek medical treatment as required under section 57 of the SABS. Adjudicator Norris held that the claimant had failed to provide relevant documents over the period of approximately 5 months, and that the insurer was not required to pay IRBs for that period. In terms of the requirement to treat, Adjudicator Baker held that the claimant’s medical records show that he was attending medical treatment and therefore section 57 did not justify discontinuing IRBs.