David R. Draper

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

The insurer terminated benefits at the 156-week mark, arguing she did not meet the stricter 'any occupation' test.

An arbitrator denied ongoing benefits but awarded them for a six-week period when the claimant underwent ear surgery.

On appeal, the Director's Delegate held that the post-156 week test under s. 12(5)(b) of the Statutory Accident Benefits Schedule requires a continuous disability.

Because the claimant's inability to work during the surgery recovery was a temporary interruption and she otherwise failed to establish continuous disability, she was not entitled to benefits for that period.

The appeal was allowed and the arbitration order was rescinded.

The insurer applied for variation or revocation of an interim arbitration order requiring it to pay interim income replacement benefits to the insured pending a Designated Assessment Centre report.

The Director's Delegate rejected the application, finding that the arbitrator's decision was based on the procedural obligations set out in the Statutory Accident Benefits Schedule and that the insurer should pay the amounts ordered and pursue any remedies before the hearing arbitrator.

The insurer sought to appeal an interim arbitration order requiring it to produce notes and memoranda concerning its decision to deny occupational therapy benefits.

The insured had claimed a special award for unreasonable withholding of benefits.

The Director's Delegate denied leave to appeal, noting that appeals from interim orders are generally prohibited under Rule 46.2 of the Dispute Resolution Practice Code to avoid delay and minimize costs.

The Delegate found no clear error or compelling reason to intrude on the arbitration process, as the production order was limited in scope and relevant to the specific claim.

The appellant insurer sought to appeal an interim arbitration order that refused to order the respondent to produce his farm ledgers for 1997 and 1998.

The Director's Delegate rejected the appeal, noting that appeals from interim orders are generally not allowed under the Dispute Resolution Practice Code to avoid delay and minimize complexity.

The Delegate found that allowing the appeal would be an undue intrusion into the ongoing arbitration process, as the arbitrator was in a better position to evaluate the relative merits of the parties' positions regarding the necessity of the documents.

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

The insurer terminated benefits, and an arbitrator upheld the termination, finding the appellant did not meet the post-156 week test of being continuously prevented from engaging in suitable employment.

On appeal, the appellant argued the arbitrator erred in law by focusing on whether she suffered a head injury, relying on hearsay evidence, and failing to properly analyze suitable employment options.

The Director's Delegate dismissed the appeal, finding the causation issue was properly before the arbitrator, the reliance on hearsay was permissible, and the arbitrator's conclusions were supported by the evidence.

The Director's Delegate issued a correction to an appeal decision dated September 20, 1999.

Three references to s.28(4) on pages 7 and 9 of the original decision were corrected to s.24(8).

The appellant appealed an arbitration decision dismissing her application for statutory accident benefits as statute-barred.

The appellant argued that the insurer's termination letter was not clear and unequivocal, and that sending the notice to her lawyer rather than directly to her was insufficient to trigger the two-year limitation period.

The Director's Delegate dismissed the appeal, finding that the termination letter, read with its enclosures, provided clear and unequivocal notice.

Furthermore, where an insured person retains a lawyer to conduct dealings with the insurer, notice to the lawyer is sufficient to start the limitation period.

The insurer appealed an arbitration decision regarding the calculation of Income Replacement Benefits (IRBs) and Loss of Earning Capacity Benefits (LECBs) for a self-employed seasonal truck driver.

The Director's Delegate held that the extrapolation provisions in s. 9(7) of the SABS-1994 applied because the insured was on a seasonal layoff.

However, the Delegate varied the calculation, finding that all business expenses must be deducted from revenues before extrapolation.

The Delegate also varied the LECB calculation, determining that the insured's pre-accident earning capacity should be based on his history as a truck driver rather than a theoretical position as a driving instructor.

The appeal was allowed in part.

The respondent sought an assessment of appeal expenses following the dismissal of the insurer's appeal.

The respondent claimed an hourly rate of $150, while the insurer argued for the legal aid rate of $83.75.

The Director's Delegate found that the issues raised in the appeal were not unusually complicated and applied the legal aid rate of $83.75 per hour.

After reviewing the time spent on research, preparation, and attendance, the Director's Delegate assessed the respondent's appeal expenses at $3,059.52.

The appellant appealed two arbitration decisions that dismissed her claims for statutory accident benefits.

The arbitrator held that her claim for Other Disability Benefits was time-barred because she applied for mediation more than two years after the insurer's clear refusal.

The arbitrator also dismissed her other claims because she failed to provide particulars as ordered at the pre-hearing.

The Director's Delegate upheld both decisions, finding no error of law, and noted the appellant could re-apply for mediation for her other claims if she provided the necessary details.

The appellant was struck by a car and received weekly benefits for a period.

After 156 weeks, the insurer terminated benefits.

The arbitrator found that while the appellant's psychiatric disorder was caused by the accident, he did not meet the strict post-156 week test of being continuously prevented from engaging in substantially all normal activities.

The appellant appealed, arguing the arbitrator defined his activities too narrowly and ignored the episodic nature of his disability.

The Director's Delegate dismissed the appeal, holding that the arbitrator's factual findings were supported by the evidence and she correctly applied the legal test.

A claim for a special award was also dismissed due to lack of evidence that the insurer withheld medical records.

The insurer appealed a preliminary arbitration decision finding that the insured's claim for caregiver benefits was not time-barred.

The central issue was whether the two-year limitation period for applying for mediation under the Insurance Act and the SABS-1994 commenced upon the insurer's initial notice of intention to terminate benefits or upon the release of the Designated Assessment Centre (DAC) report.

The Director's Delegate held that when an insured requests a DAC assessment, the insurer's 'refusal to pay' does not occur until the DAC report is released and the insurer is authorized to stop paying benefits.

Consequently, the limitation period had not expired, and the appeal was dismissed.

The insurer appealed an arbitration decision finding that the insured, a high school student injured in a motor vehicle accident, continued to qualify for Education Disability Benefits (EDBs) and was entitled to an offer for Loss of Earning Capacity Benefits (LECBs).

The Director's Delegate upheld the arbitrator's finding that the insured was substantially unable to continue his education, noting that the test involves an individualized inquiry and that mere attendance at school is not sufficient.

However, the Director's Delegate allowed the appeal regarding LECBs, concluding that the insurer's obligation to make an LECB offer is not triggered if it stops paying weekly benefits before the 104-week mark, pending the resolution of the dispute over entitlement.

The appellant was injured in a snowmobile accident and received caregiver benefits.

The insurer terminated benefits before the 104-week mark, and an arbitrator found the appellant only met the partial-inability test, not the complete-inability test required after 104 weeks.

The appellant argued she could still elect loss of earning capacity benefits (LECBs) because she continued to 'qualify' for caregiver benefits under the partial-inability test, even if they were not payable.

The Director's Delegate dismissed the appeal, holding that to 'continue to qualify' for caregiver benefits at the 104-week mark for the purpose of electing LECBs, the insured must meet either the substantial-inability or complete-inability test.

The insurer's cross-appeal on arbitration expenses was allowed in part.

The appellant appealed an arbitration decision that largely denied his claims for income replacement and medical benefits arising from three motor vehicle accidents.

He argued the arbitrator erred in assessing the evidence and that the insurer's counsel had a conflict of interest because her firm was defending him in a related tort action brought by his wife.

The Director's Delegate dismissed the evidentiary appeal, finding no basis to interfere with the arbitrator's findings.

The conflict of interest claim was also dismissed, as the appellant was the defendant in the tort action and no confidential information could have flowed to his detriment.

However, the appeal was allowed in part to rescind the order requiring the appellant to pay the insurer's arbitration expenses, as the proceeding commenced before the statutory amendment permitting such awards.

The insurer appealed an arbitration decision that reinstated the claimant's income replacement benefits and ordered a $5,000 special award.

The Director's Delegate allowed the appeal, finding that the arbitrator failed to provide a reasonable explanation for her factual findings, unfairly restricted and ignored the evidence of the insurer's medical expert regarding surveillance video, and failed to adequately address the complexity of the conflicting medical evidence.

The arbitration order was rescinded, the special award was overturned because the insurer reasonably relied on a Designated Assessment Centre report, and a new hearing before a different arbitrator was ordered.

Zurich Insurance Company appealed an arbitration order granting the respondent ongoing weekly income benefits, housekeeping expenses, and a special award.

The Director's Delegate found that the arbitrator erred in her interpretation of the post-156 week test under s. 13(8)(b) of the Statutory Accident Benefits Schedule by improperly categorizing the respondent's pre-accident activities and misinterpreting 'substantially all' to mean 'most'.

The Delegate also rescinded the special award, finding that Zurich had an acceptable basis for terminating the benefits.

The appeal was allowed, and a new arbitration hearing was ordered.

The insurer appealed an arbitration decision that reinstated the insured's income replacement benefits and ordered a $7,500 special award.

The insured developed spasmodic torticollis following a rear-end motor vehicle accident.

The Director's Delegate upheld the arbitrator's refusal to stay the hearing for a late-scheduled independent medical examination, finding the insurer's delay unreasonable.

The Delegate also affirmed the arbitrator's conclusion that the accident materially contributed to the insured's condition, and upheld the special award on the basis that the insurer unreasonably relied on a qualified Designated Assessment Centre report without arranging necessary neurological follow-up.

The appellant appealed an arbitration decision denying her claim for spousal death benefits following the death of the insured in a motor vehicle accident.

The appellant claimed she was the deceased's common-law spouse, despite the deceased being married and continuing to live with his wife at the time of his death.

The Director's Delegate upheld the arbitrator's finding that the appellant failed to establish a conjugal relationship of sufficient permanence, noting the lack of financial interdependence and the deceased's ongoing cohabitation with his wife.

The appeal was dismissed.

The appellant, a self-employed life insurance agent, was injured in a motor vehicle accident and claimed income replacement benefits.

The dispute centered on whether the commissions he received in the 52 weeks prior to the accident should be treated entirely as income or as a combination of income and a loan under a 'renewal capitalization' plan.

The arbitrator found that the payments were a combination of income and loan, meaning only the earned commission portion should be included in the pre-accident income calculation.

The Director's Delegate upheld the arbitrator's decision, finding ample accounting evidence to support the conclusion that the loan portion did not become income until policies were renewed.