Category: Section 33

Applicant v. State Farm Insurance (17-000018)

The claimant disputed her entitlement to IRBs. Adjudicator Paluch dismissed the claimant’s application finding that the claimant was not entitled to IRBs for either the pre- or post-104 week period. Adjudicator Paluch also concluded that the claimant did not comply with s. 33 and did not provide a reasonable explanation for her delay in providing documentation for the claimed period. Adjudicator Paluch noted that he found the IE assessors’ opinions persuasive. In particular, Adjudicator Paluch noted that the FAE IE report indicated to him that the claimant could tolerate light to medium physical demands and that the claimant was therefore able to return to her pre-accident employment as the owner and operator of a restaurant. With respect to the insurer’s s. 33 suspension, even though Adjudicator Paluch did not find the claimant entitled to IRBs, he would have found the claimant not entitled to IRBs for the period of 2.5 years in any event due to her non-compliance with s. 33 as the claimant failed to provide the insurer financial documentation necessary to calculate her IRB quantum.

H.T. v. TD General Insurance Company (16-000608)

The claimant sought reconsideration of a Tribunal decision that dismissed all claims. Executive Chair Linda Lamoureux reviewed the submissions and concluded that no significant error of fact or law took place and noted that it was open to the Tribunal to hold that benefits were suspended due to non-attendance at an EUO. Additionally, no procedural fairness or issues of natural justice warranted disturbing the Tribunal decision

F.F. v. Aviva Canada (16-000941)

The claimant sought entitlement to income replacement benefits and was successful at the LAT. The insurer sought reconsideration and pled the claimant did not comply with a section 33 information request and it is therefore not required to pay for benefits during the period of non-compliance. Executive Chair Linda Lamoureux determined that the information requested was reasonable and the claimant did not provide a reasonable explanation for failing to comply with the request. As a result, the LAT decision was varied to deny the payment of IRBs during the period of non-compliance.

S.K. v. Allstate Insurance Company of Canada (16-004212)

The claimant sought entitlement to accident benefits. The insurer raised a limitations objection and relied on the letter holding the claimant in section 33 non-compliance as the triggering document. Adjudicator Chloe Lester determined that a refusal to pay a benefit from a section 33 notice letter can trigger a limitation objection. A distinction was made between a letter requesting information and a letter denying payment because of failing to provide information – the latter being able to trigger a limitation period. The claimant did not provide a reasonable explanation for not providing the requested information and it was therefore determined that the claims were barred due to the limitations provision.

F.F. v. Aviva Canada (16-000941)

The claimant sought entitlement to income replacement benefits and was successful at the LAT. The insurer sought reconsideration and pled the claimant did not comply with a section 33 information request and it is therefore not required to pay for benefits during the period of non-compliance. Executive Chair Linda Lamoureux determined that the information requested was reasonable and the claimant did not provide a reasonable explanation for failing to comply with the request. As a result, the LAT decision was varied to deny the payment of IRBs during the period of non-compliance.

P.I. v. Aviva General Insurance (17-000465)

The insurer brought two preliminary issues in defence of this accident benefits claim: first, whether the claimant was barred from pursing a LAT dispute due to failure to attend IEs, and second, whether the claimant had failed to comply with section 33 requests. Adjudicator Treksler held that the claimant was barred from pursuing income replacement benefits due to her failure to attend IEs that were reasonably requested. In terms of the section 33 requests, Adjudicator Treksler held that the claimant’s failure to answer all questions at an examination under oath did not result in section 33 barring entitlement to accident benefits because many of the questions were issues the insurer already had answers to. Further the requests for documents were made after the insurer had already denied entitlement to income replacement benefits, and were therefore not reasonably required.

L.K. v. The Guarantee Company of North America (16-003577)

The claimant’s entitlement to income replacement benefits had been suspended for about six months due to her failure to provide a copy of her CPP file, which had been requested by the insurer under section 33 of the SABS. Upon receipt of the CPP, the insurer reinstated income replacement benefits, but refused to pay for the period the claimant was in section 33 non-compliance. The claimant applied to the LAT for payment of income replacement benefits over that period. Adjudicator Gemma Harmison ruled the request for the CPP file was a reasonable request under section 33 and that the claimant did not provide a reasonable explanation for her delay to provide the CPP file.

S.U. v. Wawanesa Mutual Insurance Company (16-003333)

The claimant sought entitlement to medical benefits; the insurer argued that the claimant had not complied with section 33 requests and that the claimed benefits were not reasonable and necessary. Regarding the section 33 argument, Adjudicator Ferguson held that the information requested by the insurer was not “reasonably necessary” to determine entitlement as the insurer had already rejected the claims prior to making the section 33 requests. Regarding the medical benefits claimed, Adjudicator Ferguson held that the medical evidence did not support that the treatment was reasonable or necessary.

W.P. v. Aviva Insurance (16-000693)

In this preliminary issue decision, the insurer argued that the claimant had failed to attend an IE and EUO and therefore could not proceed to arbitration at the LAT. Adjudicator Neilsen held that the insurer’s request for an IE was reasonable, and the insurer had provided a notice that satisfied section 38 of the SABS. The claimant was barred from seeking the claim, but was given 30 days to rectify the non-attendance. Adjudicator Neilsen left the issue of EUO non-attendance to the hearing adjudicator.