David R. Draper

The applicant was injured in a motorcycle accident and received statutory accident benefits until the insurer terminated his weekly income benefits after 156 weeks.

The applicant applied for arbitration, claiming ongoing entitlement to weekly income benefits, additional medical and rehabilitation expenses, and a special award for unreasonable delay.

The arbitrator found that the applicant's physical and psychological limitations continuously prevented him from engaging in any suitable employment, entitling him to ongoing weekly income benefits.

The arbitrator also awarded costs for an adjustable bed and necessary child care, but denied claims for a whirlpool, scooter, and other items.

The claim for a special award was dismissed as the insurer's delays were largely attributable to the applicant's own conduct and unreasonable demands.

In a supplementary decision, the arbitrator determined whether the insurer was entitled to interest on a previously ordered overpayment of $14,086.40 and whether the insurer could set off the applicant's arbitration expenses against that overpayment.

The arbitrator held that the insurer was entitled to interest from the date of the original arbitration decision, as no prior notice of interest was given.

Furthermore, the arbitrator allowed the insurer to set off the applicant's expenses against the overpayment, finding that the legislation authorizes orders that respond to the mixed success of the parties.

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

He claimed entitlement to the maximum weekly income benefit of $600, while the insurer paid the minimum of $185.60.

The applicant, who operated a moving business, lacked basic business records such as tax returns, invoices, or an accounting book.

The arbitrator accepted the insurer's accountant's conclusion that there was insufficient verifiable evidence to establish the applicant's pre-accident income.

The applicant's entitlement was limited to the minimum rate of $185.60 per week, but he was awarded his arbitration expenses.

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

After 156 weeks, the insurer terminated the benefits, arguing the applicant did not meet the stricter test under section 12(5)(b) of the Statutory Accident Benefits Schedule, which requires that the injury continuously prevents the insured from engaging in any occupation or employment for which they are reasonably suited by education, training, or experience.

The applicant, a former nurse, argued she suffered from chronic pain syndrome and was retraining as a counsellor.

The arbitrator found the applicant's decision to retrain was reasonable and supported by her treating physicians.

The arbitrator concluded that the applicant's injuries continuously prevented her from engaging in suitable employment and ordered the insurer to pay ongoing weekly income benefits from the date of termination, along with arbitration expenses.

The Applicant sought death benefits from the Insurer following the death of her parents in a motor vehicle accident, claiming she was a dependant under section 11(1)(c) of the Statutory Accident Benefits Schedule.

The Insurer denied the claim on the basis that she was not principally dependent on her parents for financial support.

The arbitrator found that the Applicant, who was married, had children, and had income from her husband and her own work placement, failed to provide sufficient documentary evidence to prove her parents were her primary source of financial support.

The claim for death benefits was dismissed, but the Applicant was awarded her arbitration expenses.

The applicant's husband, a taxi driver, was murdered in his vehicle while on duty.

The applicant sought funeral and death benefits from the deceased's automobile insurer, arguing his death was an 'accident' because he was targeted for robbery due to his occupation.

The arbitrator dismissed the claim, finding that while the vehicle was the location of the crime, the death was not caused directly or indirectly by the use or operation of the automobile.

The applicant was awarded her arbitration expenses.

The applicant, an independent truck operator, was injured when a steel loading plate fell on him while he was preparing his trailer for unloading.

He applied for and received statutory accident benefits from Markel, the insurer of the trucking company he drove for.

Markel later terminated benefits and sought repayment, arguing the incident was not an 'accident' under the Schedule and, alternatively, that the applicant's personal auto insurer, Royal, was the priority insurer.

The arbitrator held that the incident constituted an accident because preparing the trailer for unloading was an ordinary use of the vehicle that occasioned the injuries.

The arbitrator further held that the applicant was not required to repay the benefits.

On the priority issue, the arbitrator determined that Royal was responsible for paying the benefits because the applicant was a 'named insured' under his personal policy with Royal, but not under Markel's fleet policy.

The applicant sought assessment of expenses related to the expert testimony of his family doctor at an arbitration hearing.

The doctor billed for preparation, travel, and attendance time.

The arbitrator held that under section 5(1)2 of Ontario Regulation 664, expert witness expenses are limited to the reasonable time the expert is in attendance at the hearing site, and do not include pre-arbitration preparation or travel time.

The insurer was ordered to pay $112.50 for the 45 minutes the doctor spent at the hearing.

The applicant was injured in a motor vehicle accident and received weekly income benefits for over 156 weeks.

The insurer terminated benefits, arguing the applicant did not meet the stricter post-156 week test of being continuously prevented from engaging in any occupation for which he is reasonably suited by education, training, or experience.

The arbitrator found that while the applicant had chronic injuries preventing heavy physical work, he was capable of performing lighter or sedentary work consistent with his education and experience.

The arbitrator concluded the applicant's failure to pursue such work was due to a lifestyle choice rather than physical restrictions.

The application for ongoing benefits was dismissed, but the applicant was awarded expenses.

The applicant was injured in a motor vehicle accident and received statutory accident benefits for 156 weeks.

The insurer terminated weekly and child care benefits on the basis that the applicant did not meet the stricter post-156 week eligibility test.

The arbitrator found that the applicant's primary debilitating condition, carpal tunnel syndrome, was unrelated to the accident.

The arbitrator concluded that the applicant's accident-related injuries did not continuously prevent her from engaging in substantially all of her normal activities.

The claims for ongoing weekly benefits, child care benefits, and supplementary medical and rehabilitation benefits were dismissed, though the applicant was awarded her arbitration expenses.

The applicant sought an assessment of expenses following an arbitration hearing where her claim for additional benefits was denied but the insurer was ordered to pay her arbitration expenses.

The parties disputed three items: an expert witness fee, a psychiatrist's report and consultation fee, and the cost of clinical notes.

The arbitrator allowed the expert witness fee at a reduced hourly rate for the day she testified, denied the psychiatrist's fees as unnecessary, and allowed the cost of the clinical notes as they were produced at the insurer's request.

The insurer brought a preliminary issue motion arguing that the insured was precluded from proceeding with his arbitration for ongoing weekly income benefits because he refused to attend a medical examination.

The insured argued that the insurer's right to require a medical examination ended when it terminated his benefits.

The arbitrator held that section 23(2) of the Statutory Accident Benefits Schedule allows an insurer to require a medical examination to evaluate an ongoing claim even after benefits have been terminated.

The arbitrator found the insurer's request for a follow-up examination reasonable and ordered that the insured is precluded from proceeding with the arbitration unless he makes himself reasonably available for the examination.

The applicant was injured in a motor vehicle accident and received weekly income benefits from the insurer until the insurer stopped payments, alleging an overpayment.

The applicant sought arbitration to reinstate benefits and determine the proper quantum.

The arbitrator found that the applicant suffered only soft tissue injuries and, relying on surveillance evidence and orthopaedic opinion, concluded he was not substantially unable to perform his pre-accident employment.

The arbitrator also found the applicant failed to prove his pre-accident income exceeded the minimum threshold.

Consequently, the arbitrator ordered the applicant to repay $14,086.40 in overpaid benefits, as the overpayment resulted from error or fraud regarding his income.

The applicant was injured in a motor vehicle accident and claimed weekly income benefits based on an alleged pre-accident job offer.

At a preliminary hearing, the applicant argued that the insurer was precluded from contesting the legitimacy of the job offer because the issue had been settled at a prior mediation.

The arbitrator found that the mediation resulted in a procedural agreement to investigate the claim further and pay a temporary amount, rather than a binding settlement conceding the legitimacy of the job offer.

The insurer was therefore not precluded from contesting the issue.

The applicant failed to attend a scheduled medical examination without a reasonable excuse, resulting in a $250 no-show fee assessed by the physician.

The insurer deducted this fee from the applicant's ongoing weekly accident benefits.

The applicant applied for arbitration to dispute the deduction.

The arbitrator held that there is no statutory authority under the Insurance Act or the Statutory Accident Benefits Schedule allowing an insurer to set off a no-show fee against an insured's entitlement to benefits.

The insurer was ordered to repay the $250 with interest, and the applicant was awarded expenses.

The applicant, a 70-year-old retiree, was injured in a motor vehicle accident and suffered a compression fracture of the L4 vertebrae.

The insurer paid weekly benefits under section 13 of the Statutory Accident Benefits Schedule but terminated them on April 21, 1993, arguing the applicant was no longer substantially unable to perform his essential pre-accident tasks.

The arbitrator determined the applicant's essential tasks included personal care, limited household chores, and a daily walk.

The arbitrator found that the applicant remained substantially unable to perform these tasks until June 8, 1993, when he was discharged from a physiotherapy program having resumed about 70% of his normal daily regimes.

The applicant was awarded weekly benefits for the closed period from April 21 to June 8, 1993, plus interest and arbitration expenses.

The Applicant was injured in a motor vehicle accident and sought statutory accident benefits for transportation expenses to see doctors in Toronto after moving to London, Ontario.

The arbitrator allowed transportation expenses for visits to an orthopaedic surgeon and a neurologist, finding them reasonable.

However, transportation expenses for visits to a family doctor and a psychiatrist were limited to a local distance of 25 kilometres per visit, as the treatment was routine and local alternatives were available.

Claims for a $125 fee paid to a psychiatrist and for hydrotherapy were dismissed due to insufficient evidence.

The Applicant was awarded expenses for the arbitration.

The arbitrator issued a supplementary order to replace the original order dated June 10, 1994.

The supplementary order clarified the applicant's entitlement to weekly income benefits of $445.59 from September 13, 1992, subject to deductions for amounts already paid and 80 per cent of post-accident income.

The insurer was also ordered to pay interest on overdue amounts, a special award of $1,500 for unreasonably failing to pay benefits, and the applicant's arbitration expenses.

The applicant was injured in a motor vehicle accident and received weekly income benefits from the insurer until they were terminated.

The applicant applied for mediation and claimed that the parties reached a settlement to reinstate benefits at $600 per week, as reflected in a Report of Mediator.

The insurer argued that the agreement was contingent on receiving verification of the applicant's pre-accident income.

The arbitrator found that there was an honest misunderstanding between the parties and concluded that no binding settlement was reached regarding the proper amount of the weekly income benefits.

The applicant was awarded expenses for the preliminary issue.

The Applicant was injured in a motor vehicle accident and claimed expenses for a Health Care Aide to assist her at home, arguing these were 'nursing services' under section 6(1)(a) of the Statutory Accident Benefits Schedule, which has no monthly limit.

The Insurer argued the services were 'care' benefits under section 7, subject to a $3,000 monthly limit.

The Arbitrator held that the services provided by the Health Care Aide were best described as 'care' rather than 'nursing services,' as they were primarily focused on assisting with daily tasks rather than active treatment or rehabilitation.

Therefore, the benefits were limited to $3,000 per month under section 7.