Insurer entitled to require applicant to attend updated in-home and neuropsychological assessments prior to arbitration.
The applicant, who suffered an acquired brain injury in a motor vehicle accident, disputed the quantum of attendant care benefits paid by the insurer.
During pre-hearing discussions, the insurer sought to have the applicant undergo an in-home occupational therapy assessment and a neuropsychological assessment in Toronto pursuant to section 42 of the Statutory Accident Benefits Schedule.
The applicant objected, arguing the insurer was out of time and attempting to buttress its case for arbitration, and objected to the location and assessor for the neuropsychological assessment.
The arbitrator held that the insurer was entitled to the assessments, as nearly two years had passed since its last assessment and the request was not primarily strategic.
The arbitrator also found the choice of a neuropsychologist with adolescent expertise in Toronto was not unreasonable.
Botox treatment for chronic pain and cervicogenic headache is not experimental and is payable under SABS.
The applicant was injured in a motor vehicle accident and sought statutory accident benefits for Botox treatment for chronic pain and cervicogenic headache.
The insurer denied the treatment plan on the basis that the use of Botox for these conditions was experimental in nature.
At the arbitration hearing, the arbitrator weighed competing expert medical evidence regarding the efficacy and acceptance of Botox for chronic pain.
The arbitrator preferred the evidence of the applicant's expert, finding that the treatment is becoming an accepted therapy and is no longer experimental.
The arbitrator ordered the insurer to pay for the treatment and awarded expenses to the applicant.
Interim attendant care benefits granted where applicant established prima facie case and urgency due to safety risks.
The applicant, who suffered a moderate brain injury in a pedestrian motor vehicle collision, sought interim attendant care benefits after the insurer terminated them.
The insurer relied on a Designated Assessment Centre (DAC) report suggesting the applicant's need for supervision pre-dated the accident due to ADHD.
The arbitrator found significant flaws in the DAC report, including procedural irregularities and a failure to consider whether the accident exacerbated pre-existing vulnerabilities.
Finding that the applicant established a compelling prima facie case for entitlement and urgency due to safety risks, the arbitrator ordered the insurer to pay interim attendant care benefits pending a full arbitration hearing.
Motion to remove former arbitrator as counsel dismissed; passage of time alleviated bias concerns.
The applicant brought a motion to remove the insurer's counsel from the record on the basis that her prior employment as an arbitrator at the Financial Services Commission of Ontario raised a reasonable apprehension of bias.
The arbitrator dismissed the motion, finding that the passage of two and a half years since the counsel's departure from the Commission was sufficient to alleviate any reasonable concerns that the requirements of fundamental justice would not be met.
Arbitrator finds unwitnessed severe injuries were caused by a motor vehicle collision, not an assault.
The applicant was found severely injured in a driveway between two houses with no memory of the incident.
He claimed statutory accident benefits, alleging he was struck by a motor vehicle.
The insurer denied the claim, arguing the injuries resulted from an assault.
After hearing extensive medical expert testimony regarding the pattern and severity of the injuries, the arbitrator concluded on a balance of probabilities that the injuries were consistent with a pedestrian-automobile collision and ruled that the applicant was involved in an 'accident' under the Schedule.
Motion to adjourn pending judicial review dismissed; short adjournment granted for late-filed report.
The insurer brought a motion to adjourn the arbitration hearing pending the outcome of its application for judicial review of a prior appeal decision regarding the deductibility of a pension plan.
The arbitrator dismissed the request for a lengthy adjournment, noting the absence of an automatic stay and the need for an expeditious process.
However, the arbitrator granted a short adjournment to allow the insurer time to review and respond to an accountant's report that the applicant had served late.
Interim expenses for a pre-hearing motion denied absent exceptional circumstances.
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.
Insurer awarded expenses for time thrown away due to applicant's unnotified change of representative.
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.
Arbitration dismissed for non-attendance; insurer awarded $1,750 in 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.
Insurer ordered to pay ongoing income replacement benefits and fund vocational retraining for injured worker.
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.
Applicant awarded ongoing income replacement benefits; insurer's claim for repayment due to overpayment 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.
Arbitrator allows unmediated quantum and medical benefit claims to proceed, but bars unmediated attendant care claims.
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.
Arbitrator determined which statutory accident benefit claims could proceed to arbitration following mediation.
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.
Paralegal fees for arbitration expenses are limited to Legal Aid rates for law clerks under Rule 78.2.
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.
Motion to stay arbitration pending applicant's attendance at an examination under oath dismissed.
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.
Insurer ordered to pay statutory accident benefits pending final resolution of workers' compensation entitlement dispute.
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.
Applicant's post-accident crack cocaine addiction found to be a catastrophic impairment caused by the accident.
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.
Arbitration dismissed as frivolous and vexatious after the applicant abandoned the proceeding and failed to communicate.
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.
Insurer's motion to compel applicant to attend a neurological assessment under section 42 granted.
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.
Arbitrator assesses and fixes applicant's arbitration expenses at $37,622.11 following settlement of accident benefits claim.
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.