Catherine Skinner

The applicants claimed to have been injured in a motor vehicle accident and applied for statutory accident benefits.

The insurer denied the benefits, alleging that the applicants wilfully misrepresented material facts by claiming they were involved in an accident that did not occur as described.

Relying on expert evidence in accident reconstruction, the arbitrator found that the physical damage to the vehicles was inconsistent with the applicants' accounts.

The arbitrator concluded that the applicants deliberately misrepresented material facts and were therefore precluded from receiving accident benefits under section 48 of the Schedule.

The applicants' claims for income replacement and medical benefits were dismissed, and they were ordered to pay the insurer's arbitration expenses.

The applicant sought payment of $1,284 for an EMG assessment and report prepared by a neurophysiology expert following a motor vehicle accident.

The insurer denied the claim, arguing it was not for the purpose of the Regulation and was covered by OHIP.

The arbitrator found the assessment was for the purpose of the Regulation and that the insurer failed to prove it was covered by OHIP.

However, the arbitrator found the fee unreasonable because the report was less than useful in developing a rehabilitation plan, and reduced the payable amount to $749.

The applicant filed an application for arbitration in error regarding claims that had not yet been mediated.

The insurer brought a motion to dismiss the application, seeking a return of its $3,000 assessment fee and its arbitration expenses.

The arbitrator dismissed the application for arbitration but found no jurisdiction to order the return of the assessment fee, as the relevant provision of the Insurance Act had been repealed.

However, the arbitrator ordered the applicant's representative to personally pay $150 in expenses to the insurer, as the representative's administrative error caused the application to be filed without reasonable cause.

The applicants claimed statutory accident benefits following an alleged motor vehicle accident on May 25, 2002.

The insurer denied the claims, arguing that no accident occurred.

At the preliminary issue hearing, the applicants requested an adjournment to obtain new representation, which was denied due to their failure to make reasonable efforts following a previous adjournment.

On the substantive issue, the insurer presented unrebutted expert evidence from two accident reconstruction specialists demonstrating that the physical damage to the vehicles was inconsistent with a collision.

The arbitrator found the applicants' evidence insufficient to rebut the physical evidence and concluded that no accident occurred.

The applications for arbitration were dismissed.

Following a decision on statutory accident benefits where the applicant was successful on only one of three issues, the applicant sought her arbitration expenses.

The arbitrator considered the criteria under section 12(2) of the Expense Regulation, including the applicant's limited success and the complexity of the issues.

The arbitrator awarded the applicant 25% of her arbitration expenses, noting that she argued her claims in good faith despite discrepancies in the evidence.

The applicant was injured when heavy windows fell on him while they were being unloaded from a stationary trailer.

The insurer denied statutory accident benefits, arguing the incident was not an "accident" under section 2(1) of the Schedule and that the applicant was excluded under section 30(1)(b) for driving without a valid licence.

The arbitrator found that the unloading of the windows constituted the use and operation of an automobile and directly caused the applicant's injuries, satisfying the definition of an accident.

Furthermore, although the applicant had briefly reversed the trailer into the driveway without a licence, he was not the "driver" at the time of the accident because he did not maintain control over the vehicle.

The preliminary issues were resolved in favour of the applicant.

The applicant was injured in a motor vehicle accident and received income replacement benefits.

The insurer terminated these benefits based on a Disability Designated Assessment Centre (DAC) report.

The applicant argued the DAC assessment was flawed and did not comply with the guidelines, seeking reinstatement of benefits.

The arbitrator found that the DAC assessment substantially complied with the guidelines and that the termination was valid under section 37 of the Schedule.

The arbitrator also held that the insurer was entitled to conduct further reasonably necessary medical examinations under section 42 to determine entitlement to post-104 week benefits.

The applicant, who suffered from secondary progressive multiple sclerosis, was injured in a motor vehicle accident when she was knocked to the ground by a reversing truck.

She applied for statutory accident benefits, claiming the accident accelerated her deterioration and caused a complete inability to carry on a normal life.

The arbitrator found that while the accident caused a short-term exacerbation of her symptoms, it did not materially contribute to her long-term impairments or continuously prevent her from engaging in substantially all of her pre-accident activities.

Claims for non-earner benefits and assistive devices were dismissed, but the cost of two assessments was awarded as they were reasonably incurred.

The applicant was injured in a motor vehicle accident and applied for attendant care benefits.

The insurer requested additional information beyond the Assessment of Attendant Care Needs (Form 1) to verify that the services were actually provided and expenses incurred.

The applicant argued that the Form 1 and the Schedule provided a complete code and no further information could be requested.

The arbitrator held that under section 33 of the Statutory Accident Benefits Schedule, the insurer is entitled to request reasonable information, including the identity of the service provider and the dates and approximate times of service, to satisfy itself that the attendant care services were provided and the expenses incurred before paying the benefit.

The applicant was injured in a motor vehicle accident and received income replacement benefits.

The insurer terminated benefits, alleging the applicant wilfully misrepresented his employment status by failing to disclose a six-week return to work.

The arbitrator found that while the applicant's failure to report his return to work was a wilful misrepresentation, it was not a 'material' fact under Section 48 of the Statutory Accident Benefits Schedule, as it did not affect the fundamental relationship between the parties and the insurer had a remedy for overpayment under Section 47.

The applicant's claim for a special award was dismissed.

The applicant sought statutory accident benefits following an alleged motor vehicle accident.

The insurer terminated benefits, arguing that the accident was staged and did not occur as described.

The arbitrator heard evidence from the applicant, the owner of the other vehicle (who testified her car was used by someone else in a fraudulent scheme), and a forensic engineering expert retained by the insurer.

The arbitrator found the applicant's testimony credible despite minor inconsistencies and expert evidence suggesting different collision mechanics.

The arbitrator concluded that the applicant was involved in a genuine collision and did not participate in staging the accident.

The applicant sought expenses following an arbitration decision where he achieved partial success in his claims for statutory accident benefits.

The insurer also claimed its expenses, relying on two written offers to settle that exceeded the applicant's recovery.

The arbitrator awarded the applicant 50% of his allowable arbitration expenses, considering his partial success, the insurer's conduct in delaying pre-hearing discussions, and the statutory objective of speedy dispute resolution.

The insurer's claim for expenses was denied, as the arbitrator declined to follow a strict results-based approach based solely on the offers to settle.

The applicant's total allowable expenses were assessed at $13,010, resulting in an award of $6,505.

The applicant claimed she was injured in a bus rollover accident in New York and sought income replacement benefits, medical expenses, and clothing expenses from her insurer.

The insurer denied the benefits.

At arbitration, the arbitrator found that while an accident likely occurred, the medical evidence did not establish that the applicant suffered a substantial inability to perform the essential tasks of her pre-accident employment as a chambermaid.

Claims for taxi, motel, and clothing expenses were also dismissed for lack of evidence.

The insurer's late argument that the applicant was disentitled for failing to provide information was rejected.

The insurer was ordered to pay 70% of the applicant's arbitration expenses due to the applicant advancing legitimate claims, reduced because of late production of her arbitration brief.

The insurer brought a motion for the production of correspondence and file materials between the applicant and his lawyer, arguing that the applicant had waived solicitor-client privilege by implication.

The insurer contended that the applicant placed his state of mind in issue regarding his delay in applying for statutory accident benefits.

The arbitrator dismissed the motion, finding that the applicant's conduct, rather than his state of mind or the legal advice he received, was the focus of the inquiry into whether he had a reasonable explanation for the delay.

Therefore, privilege was not waived, and the documents were protected from production.

The applicant's claim for statutory accident benefits was previously dismissed, and he was ordered to pay half of the insurer's arbitration expenses.

In this decision on expenses, the arbitrator assessed the quantum of costs.

The arbitrator allowed a preparation-to-hearing ratio of 1.6 to 1, approved a 25% experience premium for the insurer's in-house counsel, and allowed mileage for counsel and a witness.

However, the arbitrator disallowed the cost of a court reporter, finding it was not an allowable disbursement under the Expense Regulation.

The applicant was ordered to pay $2,522.91 in expenses.

The applicant was injured in a motor vehicle accident and sought income replacement benefits and medical benefits after the insurer terminated them.

The arbitrator found that the applicant was entitled to income replacement benefits for a limited period from July 22, 2000, to October 4, 2000, based on his family doctor's evidence of ongoing improvement.

However, relying on surveillance evidence and a Med Rehab DAC assessment, the arbitrator concluded the applicant was substantially able to perform his pre-accident employment as a welder after October 4, 2000.

The arbitrator also awarded $1,522 for chiropractic treatments but denied the claim for physiotherapy and massage treatments, finding them not reasonable and necessary.

The insurer brought a motion to stay the arbitration proceedings because the applicant failed to attend scheduled insurer's medical examinations with a physiatrist and a psychiatrist under section 42 of the Statutory Accident Benefits Schedule.

The arbitrator found that the requested examinations were reasonable and necessary to assess the applicant's ongoing claim for income replacement benefits past the 104-week mark, especially given a newly disclosed potential psychological component.

The applicant failed to provide a reasonable excuse for non-attendance.

The arbitrator ordered that the arbitration be stayed unless the applicant makes herself reasonably available for the examinations.

The insurer brought a pre-hearing motion to suspend interest payments on any outstanding statutory accident benefits, arguing that the applicant's counsel's unavailability for an arbitration hearing until March 2003 constituted an abuse of process.

The arbitrator dismissed the motion, finding that the determination of interest entitlement is a substantive issue that falls within the function of the hearing arbitrator, not the pre-hearing arbitrator.

Furthermore, the delay caused by counsel's unavailability did not, on its own, constitute an abuse of process.

The applicant was injured in a motor vehicle accident and claimed statutory accident benefits.

The insurer denied certain medical benefits and examination costs, and arranged for a Designated Assessment Centre (DAC) assessment.

The applicant withdrew her treatment plans and failed to attend the DAC assessment and an insurer's in-home assessment.

The insurer raised a preliminary issue that the applicant was precluded from proceeding to arbitration under section 50 of the Schedule.

The arbitrator held that the applicant was precluded from arbitrating the section 14 medical benefits because she unreasonably withdrew the treatment plans to avoid the DAC assessment.

However, the applicant was not precluded from arbitrating the section 24 examination expenses, as those expenses are not subject to the DAC or insurer's examination process.

The applicant claimed statutory accident benefits following an alleged incident on a TTC bus.

The insurer denied the claim on the basis that the incident actually occurred on a subway train, which does not meet the definition of an 'automobile' under the Statutory Accident Benefits Schedule.

At arbitration, the arbitrator found that the applicant failed to prove on a balance of probabilities that the incident occurred on a bus, relying on contemporaneous records indicating it occurred on a subway.

The arbitrator also found insufficient medical evidence of an impairment.

The application for benefits was dismissed.

The insurer's request for an award for a frivolous application was denied, but the applicant was ordered to pay half of the insurer's arbitration expenses due to his conduct during the proceeding.