Fred Sampliner

Following an arbitration where the applicant recovered approximately $4,000 in attendant care benefits but was unsuccessful on claims for caregiver benefits, housekeeping expenses, and catastrophic impairment, the insurer sought its arbitration expenses.

The arbitrator found the insurer was largely successful and had made a $33,000 settlement offer that exceeded the applicant's recovery.

The arbitrator awarded the insurer its expenses but applied a 20% reduction because both parties had hindered and prolonged the hearing with duplicative documents and lengthy examinations.

The applicant was ordered to pay $16,230.08 in arbitration expenses.

The applicant sought arbitration expenses following a successful claim for statutory accident benefits.

The insurer argued for a reduction in the hourly rate and the number of hours claimed, and objected to full reimbursement of expert reports because they were also being used in an ongoing tort proceeding.

The arbitrator allowed the maximum hourly rate of $150, reduced the claimed hours using a broad approach rather than a line-by-line analysis, and allowed 50% of the cost of the expert reports.

The applicant was awarded a total of $30,001.31 in arbitration expenses.

The Insurer brought a preliminary motion to dismiss the Applicant's arbitration for attendant care benefits, arguing that the Applicant had simultaneously filed a Superior Court action for other accident benefits arising from the same motor vehicle accident.

The Arbitrator found that maintaining multiple proceedings created significant diseconomies and that the Applicant failed to provide a reasonable explanation for splitting the claims.

The arbitration was dismissed to allow the Applicant to join the attendant care claim into the lawsuit.

The Insurer was awarded $500 in motion expenses.

The applicant was injured in a rear-end motor vehicle accident and sought statutory accident benefits for caregiver services, housekeeping expenses, and the costs of various medical assessments.

The arbitrator found that the applicant was not the primary caregiver for his nephew's children prior to the accident, and that the invoices submitted for both caregiver and housekeeping expenses were unreliable and failed to establish the amounts claimed.

The claims for caregiver and housekeeping benefits were dismissed.

The arbitrator awarded the costs of a functional abilities evaluation and a reduced amount for an in-home assessment, but denied funding for neurological and orthopaedic assessments as they were not reasonably required.

The applicant was injured in a low-speed rear-end motor vehicle accident and claimed statutory accident benefits, including caregiver, attendant care, and housekeeping benefits, as well as a determination of catastrophic impairment.

The insurer denied the claims and sought repayment of an alleged overpayment.

The arbitrator found that the applicant's physical presentation of torticollis was inconsistent with extensive video surveillance showing her performing normal daily activities.

Relying on expert evidence that her symptoms had a psychogenic overlay and did not meet the threshold for catastrophic impairment under the AMA Guides, the arbitrator dismissed the claims for ongoing caregiver and housekeeping benefits, and the catastrophic impairment designation.

The applicant was awarded a modest amount for attendant care during the first 104 weeks.

The insurer's claim for repayment was dismissed due to inadequate notice, and the applicant's claim for a special award was denied.

The applicant brought a motion against her former law firm, the third party, seeking an order for the delivery of her accident benefits file to her new counsel.

The third party transferred the file the day before the motion hearing.

The arbitrator found that the third party had unreasonably delayed the transfer of the file, which prejudiced the applicant's ability to prepare for a pre-hearing conference.

The arbitrator awarded the applicant $629.27 for the expenses of the motion and dismissed the third party's claim for expenses.

In a dispute over statutory accident benefits following a motor vehicle accident, the insurer sought a pre-hearing production order for the applicant's 2006 and 2007 income tax returns.

The applicant claimed caregiver benefits, alleging he was the primary caregiver for his children.

The arbitrator found that the tax returns, specifically the child care expense deductions, were directly relevant to the caregiver claim.

The applicant was ordered to produce the requested tax returns.

The applicant was injured in a motor vehicle accident and received benefits until February 2008.

The insurer requested the applicant attend a neurological examination under section 42 of the Statutory Accident Benefits Schedule prior to the arbitration hearing.

The applicant refused, arguing the insurer's previous physiatry examination was sufficient, the notice was improperly given by the insurer's lawyer, and the notice lacked a required fax cover page.

The arbitrator found that the physiatry examination was not a substitute for a neurological assessment, the lawyer was authorized to give notice, and the lack of a fax cover page was an inconsequential procedural defect since receipt was acknowledged.

The arbitrator concluded the request was reasonable because the applicant's neurological condition was a central issue and the insurer had not yet obtained a neurological opinion to assess its risk.

The applicant claimed accident benefits following a rear-end collision.

The insurer denied the claim, alleging the accident was staged and citing suspicious factors including the parties' shared ethnic background.

At arbitration, both parties presented accident reconstruction experts whose evidence the arbitrator rejected as unreliable.

However, based on the consistent testimony of the applicant and his passenger, supported by physical evidence such as paint transfer and airbag deployment, the arbitrator found the accident did occur.

The applicant's claim for a special award under s. 282(10) of the Insurance Act was dismissed; although the arbitrator condemned the insurer's consideration of race as a suspicious factor, he found the insurer had principally and reasonably relied on its expert's opinion to deny the claim.

Following the dismissal of the applicant's accident benefits claims, the arbitrator considered the issue of expenses.

The applicant objected to the determination of expenses, arguing the hearing was not completed and noting her appeal of the merits decision.

The arbitrator rejected this argument, finding authority under s. 282(11) of the Insurance Act.

As the applicant was entirely unsuccessful, raised no novel issues, and unnecessarily prolonged the proceedings, the insurer was awarded its expenses.

The arbitrator allowed the insurer's legal fees and most disbursements, but excluded the court reporter fee as not reasonably necessary, resulting in a total expense award of $9,457.84 payable by the applicant to the insurer.

The insurer requested production of the draft reports and foundation material of the applicant's accounting and occupational therapy experts.

The applicant refused, claiming litigation privilege and arguing that the pre-hearing stage was too early to compel disclosure.

The arbitrator held that by voluntarily disclosing the experts' reports in his pre-hearing brief, the applicant impliedly waived litigation privilege over the foundation material (notes, draft reports, technical data, and test results) relied upon by the experts.

The applicant was ordered to produce this material, but was not required to produce counsel's instruction letters to the experts, as they were deemed irrelevant.

The applicant was injured in a motor vehicle accident and sought various statutory accident benefits, including medical and rehabilitation benefits, housekeeping expenses, and attendant care benefits.

The insurer denied the claims.

The arbitrator found that the applicant suffered from pre-existing physical and psychological conditions due to prior incidents.

Based on the medical evidence and the applicant's level of activity before and after the accident, the arbitrator concluded that the motor vehicle accident did not significantly contribute to her ongoing physical or psychological impairments.

All claims for benefits, interest, and a special award were dismissed.

The applicant sought her expenses for an arbitration proceeding after successfully claiming ongoing income replacement benefits.

The insurer disputed the number of hours billed by the applicant's lawyer, particularly the bulk billing of 23.6 hours for 118 pieces of correspondence.

The arbitrator allowed half of the bulk-billed hours due to a lack of supporting evidence, but found the remaining hours reasonable.

Certain disbursements for medical records not produced in the arbitration were also deducted.

The arbitrator ordered the insurer to pay $11,514.50 for the applicant's legal fees, disbursements, and GST.

The applicant, injured in a motor vehicle accident, sought production of the insurer's adjusting records, including reserves, to support a claim for a special award under s. 282(10) of the Insurance Act.

The insurer claimed litigation privilege over the records and opposed disclosure of reserve information.

The arbitrator ordered the insurer to produce its complete adjusting notes, including reserves, up to the date the applicant filed for mediation, finding that litigation privilege did not apply before that date and that the reserve information was potentially relevant to the special award claim.

The Insurer brought an Application for Variation of an arbitration order that had granted the Applicant $380 for treatment and a $200 special award.

The Applicant did not attend the variation hearing.

The Insurer introduced documentary evidence proving that it had paid the $380 for treatment shortly after it was approved by the Designated Assessment Centre.

The Arbitrator found that the Insurer did not unreasonably deny or delay payment, and therefore the special award was not warranted.

The Arbitrator revoked the $380 treatment award and the $200 special award.

The Applicant was injured in a motor vehicle accident and initially elected to receive income replacement benefits, but later switched to caregiver benefits.

After her maternity benefits expired and she was unable to resume her pre-accident employment, she sought to re-elect income replacement benefits.

The insurer denied the request, arguing the initial election was irrevocable.

The Arbitrator held that the Statutory Accident Benefits Schedule allows for re-election of weekly benefits in some circumstances.

Finding that the Applicant had legitimate reasons for the delayed re-election and that the insurer suffered no prejudice, the Arbitrator ordered that the Applicant be allowed to re-elect income replacement benefits.

The applicant was injured in a motor vehicle accident and sought ongoing income replacement benefits after the 104-week mark.

The insurer had reinstated benefits prior to the pre-hearing but did not concede entitlement.

The arbitrator found that the applicant suffered a complete inability to engage in any suitable employment due to chronic pain, reduced endurance, and inability to sit, stand, or keyboard for significant periods.

The applicant was awarded ongoing income replacement benefits and her arbitration expenses.

The insurer brought a motion to remove the applicant's representative, Ms. Lubman, due to a conflict of interest.

Ms. Lubman owned the clinic that provided the psychological evaluation for which the applicant sought payment.

The arbitrator found that the applicant did not have a sufficient understanding of the consequences of the conflict of interest and had not made an informed decision to waive it.

The motion was granted and Ms. Lubman was removed as the applicant's representative.

Following a decision on statutory accident benefits, both parties sought their expenses of the arbitration.

The applicant had achieved partial success on her claims for caregiver, housekeeping, and treatment benefits, while the insurer successfully defended the novel claim for dynamic motion imaging (DMX).

The arbitrator found that the novelty and importance of the DMX issue justified bringing the matter to a hearing, balancing out the fact that the applicant's recovery approximated the insurer's settlement offer.

Accordingly, the arbitrator ordered that each party bear their own expenses.

The insurer sought $450 in arbitration expenses following a split decision where the applicant's claim for income replacement benefits and the insurer's claim for repayment were both dismissed.

The arbitrator found that the applicant enjoyed relatively little success, as her claim was worth significantly more and occupied most of the hearing time.

The insurer was awarded $450 in partial costs, payable only as a setoff against any future recovery by the applicant in another legal proceeding against the insurer.