David Muir

The Applicant sought an award of expenses following a pre-hearing motion in which the Insurer's request for production of defence medical reports was denied.

The Arbitrator held that interim expenses should only be awarded in exceptional circumstances, which were not present here.

The request for expenses was denied, with the issue left to be determined by the hearing arbitrator at the conclusion of the proceeding.

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

During the pre-hearing process, the applicant changed representatives without notifying the Commission or the insurer, resulting in wasted time and adjourned hearings.

The insurer brought a motion for expenses for time thrown away.

The arbitrator granted the motion, awarding the insurer $410.38 in expenses.

Pursuant to subsection 282(11.2) of the Insurance Act, the arbitrator ordered the applicant's prior representatives to personally pay 50% of the expenses for failing to advise that they no longer represented the applicant, causing unreasonable delay and wasted expenses.

The applicant applied for arbitration regarding statutory accident benefits following a motor vehicle accident.

At the scheduled hearing, neither the applicant nor his representative attended.

The arbitrator dismissed the arbitration due to the applicant's non-attendance.

The insurer was awarded its reasonable expenses of the arbitration, fixed at $1,750.00, taking into account the applicant's prior costs thrown away.

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

The insurer terminated IRBs at the 104-week mark based on a disability DAC assessment concluding the applicant could return to work.

The applicant sought ongoing IRBs and funding for vocational retraining as a computer network technician, arguing he lacked the transferable skills for the entry-level jobs proposed by the insurer.

The arbitrator found that the insurer and its assessors overestimated the applicant's transferable skills and that he was completely unable to engage in reasonably suitable employment without retraining.

The arbitrator ordered the insurer to pay ongoing IRBs and fund a vocational retraining program, and recalculated the IRBs to include additional pre-accident cash income.

Claims for massage therapy, repayment of IRBs, and a special award were dismissed.

The applicant was injured in a pedestrian knockdown and sought ongoing income replacement and medical benefits.

The insurer terminated benefits, alleging the applicant was exaggerating her symptoms and sought repayment of an overpayment.

The arbitrator found the applicant's presentation of chronic pain and emotional impairments to be genuine, rejecting the insurer's expert who admitted a bias toward skepticism.

The applicant was awarded ongoing income replacement benefits as she was completely unable to engage in suitable employment.

The insurer's claim for repayment was dismissed as the overpayment resulted from an employer error, not the applicant's wilful misrepresentation.

Medical benefits were partially awarded.

The applicant was injured in motor vehicle accidents in 1994 and 1996.

Following a failed mediation and a purported settlement, the parties disputed which statutory accident benefit claims could proceed to arbitration.

The arbitrator held that a pragmatic and flexible approach should be applied to the mediation requirement.

The applicant was permitted to proceed to arbitration on the quantum of income replacement benefits and supplementary medical/rehabilitation benefits, as they flowed consequentially from the mediated issues or were captured by the broad descriptions in the mediation applications.

However, claims for attendant care and housekeeping were barred from arbitration because they were not expressly mediated, did not flow from mediated issues, and would cause prejudice to the insurer.

The applicant was injured in motor vehicle accidents in 1994 and 1996 and applied for statutory accident benefits.

The insurer terminated weekly income replacement benefits.

On the eve of an arbitration hearing, a preliminary issue was raised regarding which statutory accident benefit claims were captured in the applications for mediation and could proceed to arbitration.

The arbitrator determined that the applicant could proceed to arbitration on nine specific issues, including income replacement benefits, loss of earning capacity benefits, supplementary medical expenses, rehabilitation benefits, special awards, and expenses.

The applicant sought expenses following a successful preliminary issue hearing regarding statutory accident benefits.

The parties disputed the appropriate hourly rate for the applicant's representative, an experienced paralegal.

The arbitrator held that Rule 78.2 of the Dispute Resolution Practice Code applies to agents, limiting their fees to the rates under the Legal Aid Services Act for law clerks, articling students, and investigators, rather than the higher rates for lawyers under Rule 78.1.

The insurer was ordered to pay expenses of $834.07.

The insurer brought a motion to stay the arbitration until the applicant attended an examination under oath pursuant to section 33(1.1) of the Statutory Accident Benefits Schedule.

The arbitrator found that while section 33 provides a remedy for non-compliance (potential disentitlement to benefits), it does not grant the arbitrator authority to stay the arbitration proceedings.

The arbitrator distinguished this from a failure to attend a section 42 medical examination, where a stay may be granted to prevent unfairness or abuse of process.

The motion for a stay was dismissed.

The applicant was injured in a motor vehicle accident while driving to a job site.

He applied for statutory accident benefits from the insurer and workers' compensation benefits from the WSIB.

The WSIB determined that the applicant was not entitled to WSIB benefits because the claim was filed beyond the six-month limitation period.

The insurer argued that the applicant was entitled to WSIB benefits and that it was not required to pay statutory accident benefits under section 59(1) of the Statutory Accident Benefits Schedule.

The arbitrator held that, as the WSIB had determined the applicant was not entitled to benefits, section 59(1) did not relieve the insurer of its obligation to pay.

The arbitrator further ordered the insurer to pay benefits pending the final resolution of the WSIB dispute, pursuant to section 59(5) of the Schedule.

The applicant was seriously injured in a motor vehicle accident and subsequently developed a severe addiction to crack cocaine.

He applied for catastrophic impairment status, attendant care benefits, and income replacement benefits.

The insurer argued the addiction pre-dated the accident and was not causally linked.

The arbitrator found that the applicant was a recreational user prior to the accident but the severe addiction was a direct result of the accident, likely due to a mild traumatic brain injury and an attempt to self-medicate.

The arbitrator concluded the applicant suffered a Class 4 marked impairment under the AMA Guides, meeting the definition of catastrophic impairment.

The applicant was awarded ongoing attendant care benefits of $5,056.80 per month and income replacement benefits of $256 per week.

The applicant applied for statutory accident benefits following a motor vehicle accident and subsequently applied for arbitration.

After failing to attend a pre-hearing and failing to respond to his representative or the Commission, the representative was granted leave to withdraw.

The insurer moved to dismiss the arbitration.

The arbitrator found that the applicant had abandoned the proceeding without notifying the insurer or the Commission, causing unnecessary expense.

The arbitration was dismissed as frivolous and vexatious pursuant to Rule 68.1 of the Dispute Resolution Practice Code.

The insurer brought a motion to compel the applicant to attend a neurological assessment under section 42 of the Statutory Accident Benefits Schedule to determine ongoing entitlement to income replacement benefits.

The applicant refused, arguing the assessment was sought to buttress the insurer's case for an upcoming arbitration rather than to assess benefit entitlement.

The arbitrator found the assessment was authorized, noting the applicant's head injury and the lack of a prior neurological assessment by the insurer.

The issue of remedy for non-attendance was deemed premature.

The parties resolved their dispute concerning the applicant's claims for statutory accident benefits on the first day of the scheduled hearing.

The insurer agreed to pay the applicant's reasonable expenses, but the parties could not agree on the quantum.

The applicant sought $40,658.73.

The arbitrator assessed the expenses, reducing the amount claimed for a medical report to the statutory maximum exclusive of GST, and deducting hours billed for an interim motion that was subject to a separate costs order.

The arbitrator allowed the hours billed for a private mediation and found the total preparation time reasonable given the complexity of the case.

Expenses were fixed at $37,622.11.

The law firm representing the applicant in a statutory accident benefits dispute brought a motion to withdraw as his representative, citing a breakdown in the solicitor-client relationship.

The applicant opposed the motion.

The arbitrator granted the motion, finding that the relationship had broken down, and ordered the firm to cooperate with the applicant's attempt to find new representation and provide a copy of his file.

The applicant's claims for non-earner and attendant care benefits were previously dismissed.

The parties were unable to resolve the issue of expenses.

The arbitrator applied the criteria set out in the Expense Regulation and found that the insurer was entitled to its reasonable expenses, given its success in the proceeding and the applicant's failure to provide evidence supporting its claims.

The insurer was awarded expenses in the amount of $2,171.40.

The applicant applied for statutory accident benefits following a motor vehicle accident.

At a pre-hearing discussion, the applicant's representative sought to be removed from the record due to a breakdown in the relationship, as the applicant failed to respond to numerous attempts at contact.

The arbitrator granted the representative's motion to withdraw without conditions.

Additionally, as the applicant appeared to have abandoned the arbitration, the arbitrator gave notice of the intention to dismiss the arbitration without a hearing on the grounds that the proceeding is frivolous, vexatious, or commenced in bad faith.

The applicant, who was injured in a 1991 motor vehicle accident, brought a motion seeking reinstatement of income replacement benefits.

He argued that the insurer improperly terminated his benefits by failing to comply with the notice requirements under sections 37 and 49 of the Statutory Accident Benefits Schedule (Bill 59).

The arbitrator dismissed the motion, finding that the applicant's claims arose under the Bill 68 Schedule, which was in effect at the time of the accident.

As Bill 68 did not contain the procedural requirements found in Bill 59, the insurer was not required to follow them when terminating the benefits.

The insurer brought a pre-hearing motion seeking a stay of the arbitration until the insured attended three requested medical assessments under section 42 of the Statutory Accident Benefits Schedule.

The insured had refused to attend the assessments, which were requested approximately two months prior to the scheduled arbitration hearing.

The arbitrator found that the assessments were not authorized by section 42, as they were requested long after the issue of post-104-week income replacement benefits had crystallized.

The arbitrator concluded that the assessments were sought to buttress the insurer's case rather than to determine entitlement, and that the late request would cause prejudice to the insured.

The motion for a stay was dismissed.

The applicant, a 74-year-old pedestrian, was struck by a vehicle and sustained injuries including a fractured knee.

He later passed away from unrelated causes.

His Estate sought non-earner and attendant care benefits.

The arbitrator dismissed the claims, finding that the applicant did not suffer a complete inability to carry on a normal life, as he resumed most pre-accident activities after his cast was removed.

The claim for attendant care benefits was also dismissed due to a lack of evidence regarding the services provided, by whom, and for what period, as no Form 1 was submitted.