David Leitch

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

Disputes arose regarding her entitlement to medical benefits for treatment at a rehabilitation clinic, housekeeping expenses, the cost of a psychological assessment, and a special award.

The arbitrator found that the applicant's right knee problems and chronic pain syndrome were materially contributed to by the accident, making the clinic's treatment reasonable and necessary.

The claim for housekeeping expenses was dismissed due to inconsistencies in the evidence.

The cost of the psychological assessment was awarded as it was reasonable for the applicant's counsel to request it.

The claim for a special award was dismissed as the insurer's denials were not unreasonable.

The insurer sought production of a transcript of the applicant's examination for discovery from a related civil action.

The applicant refused consent, relying on the implied undertaking rule.

The arbitrator held that under Rule 30.1.01 of the Rules of Civil Procedure, only a court has the authority to grant relief from the implied undertaking rule.

The arbitrator concluded that the tribunal lacked jurisdiction to order the production of the transcript, and the insurer's request was denied.

The applicant sustained a cervical spinal cord injury in a motor vehicle accident, resulting in quadriplegia.

He claimed entitlement to an increased maximum monthly attendant care benefit under section 47(6) of the Statutory Accident Benefits Schedule, arguing he also suffered a separate psychological injury (major depressive disorder) requiring additional care.

The arbitrator found that while the applicant did suffer a psychological injury as a result of the accident, the attendant care services required for this psychological impairment overlapped with the 24-hour care already required for his physical injuries.

Therefore, the applicant was not entitled to the higher maximum under section 47(6) and the insurer was obliged to pay the standard catastrophic maximum under section 47(5).

The applicant, a French-speaking person, refused to attend Designated Assessment Centre (DAC) assessments because they were to be conducted in English with the assistance of a French interpreter.

On a preliminary issue, the arbitrator determined whether the French Language Services Act applies to DACs.

The arbitrator held that the Minister's Committee and the DACs are 'government agencies' and that DAC assessments are 'services' under the Act.

Applying a purposive interpretation of language rights based on R. v. Beaulac, the arbitrator concluded that French-speaking persons have the right to be assessed by French-speaking assessors without the assistance of interpreters.

The applicant was injured in a motor vehicle accident and initially elected to receive caregiver benefits after the insurer indicated she was not eligible for income replacement benefits.

She later sought to re-elect income replacement benefits, which the insurer refused.

The arbitrator found that the insurer had misled the applicant by stating she was simply 'not eligible' for income replacement benefits without explaining that this was due to a lack of supporting information.

As a result, the applicant was deprived of her right to make an informed election, and the arbitrator ruled she is entitled to re-elect income replacement benefits.

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

The insurer terminated benefits and later argued that the applicant was precluded from proceeding to arbitration because he failed to commence mediation within the two-year limitation period.

The arbitrator found that the insurer failed to prove it had communicated a clear and unequivocal written refusal of benefits to the applicant.

The insurer's letters either did not constitute a refusal, were not received by the applicant, or failed to inform the applicant of the dispute resolution process.

Therefore, the limitation period had not expired, and the applicant was permitted to proceed to arbitration.

The applicant was struck by a motor vehicle as a pedestrian and claimed income replacement benefits, alleging he was self-employed in construction prior to the accident.

The insurer terminated benefits, and the applicant applied for arbitration.

The arbitrator found the applicant's evidence of self-employment unreliable, noting inconsistencies in documentary evidence and contradictory statements made to the Workers' Compensation Board claiming total disability during the same period.

The claim for income replacement benefits was dismissed as the applicant failed to prove he was self-employed in the 156 weeks prior to the accident.

The applicant was injured in two motor vehicle accidents in 1996 and sought statutory accident benefits for caregiver, housekeeping, and attendant care expenses.

The insurer terminated caregiver benefits and denied attendant care, alleging the applicant was malingering and exaggerating her symptoms, pointing to a pre-existing slip-and-fall injury and substance abuse issues.

The arbitrator found that the applicant sustained psychological and physical injuries in the accidents, leading to disabling psychological and chronic pain conditions.

The arbitrator rejected the insurer's malingering argument, finding the applicant's substance abuse was a misguided effort to control pain.

The applicant was awarded caregiver benefits from February 4, 1997, and attendant care benefits for a limited period, but her claim for additional housekeeping benefits was denied.

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

The insurer denied the application on the basis that the applicant failed to attend insurer's examinations and a designated assessment centre (DAC) evaluation.

The applicant, a French-speaking person, refused to attend the examinations and evaluations because they were to be conducted with the assistance of interpreters rather than by French-speaking professionals.

On a preliminary issue, the arbitrator held that the applicant was not entitled to French-speaking examiners for the insurer's examinations, as the insurer is not a government agency bound by the French Language Services Act.

Consequently, the applicant was precluded from proceeding to arbitration until he made himself available for those examinations.

Regarding the DAC evaluations, the arbitrator deferred the decision to allow the Minister's Committee on the Designated Assessment Centre System and the Superintendent of Financial Services to make submissions on whether DACs are government agencies subject to the French Language Services Act.

The applicant was injured in a motor vehicle accident and hospitalized for two months.

His mother stopped working to visit him daily and claimed her lost wages as a visitor expense under section 21 of the Statutory Accident Benefits Schedule.

The insurer denied the claim, arguing that lost wages are not an 'expense incurred' under the Schedule.

The arbitrator held that the mother's wage loss was the financial cost of her daily hospital visits and fell within the meaning of 'expenses incurred'.

The mother was entitled to recover her lost wages.

The applicant was injured in a motor vehicle accident and received income replacement benefits until the insurer terminated them, alleging his ongoing disability was due to a pre-existing congenital neck condition, degenerative changes, or self-limitation.

The arbitrator found that while the congenital condition was not caused by the accident, the accident injuries combined with the fear generated by the discovery of the condition led to a chronic pain syndrome.

The arbitrator rejected the insurer's video surveillance evidence as proof of ability to return to work and ordered the reinstatement of income replacement benefits.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits for fitness classes, chiropractic and massage treatments, acupuncture, and housekeeping expenses.

The arbitrator found that the applicant suffered from chronic pain and reasonably required the fitness classes and ongoing chiropractic and massage treatments.

The claim for acupuncture was also allowed, as the applicant established a prima facie case for its reasonableness.

However, the claim for housekeeping and home maintenance expenses was dismissed because the evidence, including a functional capacity evaluation, showed the applicant was capable of performing the tasks by pacing herself.

Finally, the arbitrator ordered the insurer to pay a special award of $350 for unreasonably withholding chiropractic benefits pending dispute resolution.

The applicant was injured in a motor vehicle accident and settled her claim for statutory accident benefits with the insurer prior to an arbitration hearing.

The parties agreed to have the applicant's expenses assessed by the Financial Services Commission of Ontario (FSCO).

The arbitrator held that FSCO has jurisdiction to award expenses even when the substantive issues are settled prior to a hearing, as the matter remains an 'arbitration proceeding' under the Insurance Act from the time the application is filed.

The applicant was injured in a motor vehicle accident and subsequently developed severe depression and anxiety.

The insurer terminated her loss of earning capacity benefits, arguing her residual earning capacity was greater than her pre-accident earning capacity based on a RECDAC assessment suggesting she could work part-time as a general office clerk.

The arbitrator rejected the RECDAC's conclusion, finding the work simulation inadequate and preferring the evidence of the applicant's treating psychiatrist and a vocational rehabilitation specialist.

The arbitrator concluded that the applicant's psychological impairments rendered her residual earning capacity zero.

The applicant was injured in a rear-end motor vehicle accident and claimed income replacement benefits (IRBs).

The insurer terminated IRBs, arguing the applicant could return to her pre-accident jobs as a bus driver and special needs rehabilitation specialist.

The arbitrator found that while the applicant had pre-existing psychological issues, the accident materially contributed to a substantial psychological inability that prevented her from performing the physically demanding tasks of her pre-accident jobs.

The applicant was awarded IRBs for the disputed period.

However, the arbitrator rejected the applicant's claim to include income from a photography business in the IRB calculation, finding insufficient evidence that she performed the essential tasks of that business or that she was disabled from doing so.

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

The insurer terminated the benefits, and the applicant applied for arbitration.

The insurer raised a preliminary issue that the application was filed beyond the two-year limitation period under section 281(5) of the Insurance Act and section 72(1) of the Statutory Accident Benefits Schedule.

The arbitrator found that the insurer failed to provide the required notice under section 64 of the Schedule before terminating benefits, and that its initial letter did not constitute a clear and unequivocal refusal.

Therefore, the limitation period had not expired, and the applicant was not precluded from proceeding to arbitration.

The applicant was injured in a motor vehicle accident and claimed statutory accident benefits, including income replacement and housekeeping expenses, arguing she could no longer work as a live-in housekeeper.

The arbitrator found that while the applicant sustained genuine injuries, including vertigo and cervicogenic pain, she exaggerated her limitations and was only disabled from working until her employer returned from Florida on February 21, 1996.

Income replacement benefits were awarded up to that date, along with a 50% special award because the insurer unreasonably withheld payment despite having uncontradicted medical evidence of disability for that initial period.

Claims for ongoing income replacement, housekeeping, and a case manager were dismissed.

The applicant was injured in a motor vehicle accident and received weekly education disability benefits before becoming eligible for loss of earning capacity benefits (LECBs).

The parties disputed whether the applicant's disability tax credit should be included in the calculation of his pre-accident earning capacity.

The arbitrator held that the Schedule requires the disability tax credit to be considered when translating the gross annual income figure into a net weekly income figure, even though the credit was only received post-accident.

The preliminary issue was resolved in favour of the applicant.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits, including medical/rehabilitation benefits and income replacement benefits.

The insurer terminated treatment payments and income replacement benefits based on medical assessments.

At arbitration, the tribunal ordered the insurer to pay for physiotherapy treatment up to the date the applicant received the Designated Assessment Centre (DAC) reports, at the rates charged by the clinic.

However, the tribunal dismissed the claim for ongoing income replacement benefits, finding that the medical evidence, including psychiatric and orthopaedic assessments, did not establish a substantial inability to perform the essential tasks of her pre-accident employment as a sewing machine operator.

The applicant was injured in a motor vehicle accident and received statutory accident benefits until the insurer terminated his income replacement benefits.

The applicant sought arbitration for ongoing income replacement benefits, treatment expenses, and a special award.

The arbitrator found that while the applicant's physical injuries had resolved, he suffered from an ongoing psychological disability caused by the accident, entitling him to ongoing income replacement benefits and psychological treatment expenses.

The arbitrator also granted a special award of $1,900, finding that the insurer unreasonably withheld benefits by deducting collateral benefits before they were actually available to the applicant.