Jessica Kowalski

The applicant was injured in a rear-end motor vehicle accident and subsequently developed complete hearing loss in his left ear and partial hearing loss in his right ear due to a labyrinthine concussion.

He applied for non-earner benefits, housekeeping benefits, and a determination of catastrophic impairment.

The arbitrator found that the applicant's hearing loss and resulting psychological impairments continuously prevented him from engaging in substantially all of his pre-accident activities, entitling him to non-earner benefits.

The arbitrator also concluded that the applicant sustained a catastrophic impairment under criterion (g) of the Schedule, as his psychological impairments resulted in a Class 4 marked impairment in the sphere of social functioning.

The claim for housekeeping benefits was dismissed.

The insurer was ordered to pay the applicant's arbitration expenses.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits for physical therapy and a psychological assessment.

The insurer denied the physical therapy plans, arguing the applicant's impairments were pre-existing and fell within the Minor Injury Guideline.

The arbitrator preferred the evidence of the applicant's orthopaedic surgeon, finding the accident exacerbated pre-existing degenerative conditions in the low back and right knee, warranting further physical therapy outside the Minor Injury Guideline.

Three of the four physical therapy plans were approved, while one was denied because it was retroactively altered.

The arbitrator also denied the unapproved balance for a psychological assessment, finding the services were provided by an unregulated counsellor and billed improperly.

The applicant was awarded interest on overdue benefits, and no costs were ordered.

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

She sought non-earner benefits and funding for a catastrophic impairment assessment.

The arbitrator dismissed the claim for non-earner benefits, finding that the applicant's academic struggles pre-dated the accident and she had not suffered a complete inability to carry on a normal life.

However, the arbitrator ordered the insurer to pay $23,323.20 for a multidisciplinary catastrophic impairment assessment, reasoning that it was necessary to allow the applicant to respond to the insurer's own catastrophic assessments and that denying funding would be unfair.

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

The insurer terminated attendant care and housekeeping benefits, leading to a settlement and release.

The release included a 'without prejudice' clause preserving the applicant's right to claim post-104 week benefits if determined to be catastrophically impaired.

The insurer raised a preliminary issue arguing the applicant was barred from claiming these benefits due to the limitation period and the settlement.

The arbitrator found the release clear and unambiguous, holding that it did not preclude the applicant from proceeding with his claim for post-104 week benefits.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits, specifically non-earner benefits.

During the course of the dispute, the applicant passed away.

The applicant's former solicitor made significant efforts to locate an estate trustee or family member to provide instructions, but no one came forward with authority to act for the estate.

The insurer sought an order dismissing the arbitration.

The arbitrator found that without any evidence in support of the claim and without anyone acting on behalf of the estate, the arbitration could not proceed.

The application for arbitration was dismissed.

Following the dismissal of the applicant's claim for income replacement benefits, the insurer sought its expenses of the arbitration.

The arbitrator awarded the insurer its expenses, noting that the insurer was wholly successful and that the applicant had engaged in conduct that prolongated and obfuscated the proceeding, including failing to comply with production orders for his company's general ledger.

The insurer was awarded $15,073.22 in expenses and $2,816.88 in disbursements.

The applicant sought non-earner benefits following a motor vehicle accident.

The insurer brought a motion to dismiss the arbitration because the applicant failed to participate or advance his claim.

The arbitrator previously found the applicant lacked the capacity to proceed on his own and adjourned the matter multiple times to allow him to retain counsel or arrange for assistance.

The Public Guardian and Trustee declined to intervene.

As the applicant took no steps to participate or retain representation despite ample time, the application for arbitration was dismissed.

The applicant applied for statutory accident benefits following a motor vehicle accident and subsequently applied for arbitration at the Financial Services Commission of Ontario.

After her legal representatives were removed from the record, the applicant failed to participate in the proceedings or respond to communications from the Arbitrator.

The insurer requested that the application be dismissed.

The Arbitrator found that the applicant demonstrated no interest in pursuing the claim, rendering the proceeding frivolous or vexatious.

The application was dismissed pursuant to Rule 68 of the Dispute Resolution Practice Code.

The insurer sought an order for expenses after successfully defending an application for arbitration regarding statutory accident benefits.

The arbitrator considered the criteria under the Expense Regulation.

Although the insurer was wholly successful, the arbitrator noted that the case involved novel issues regarding the Minor Injury Guideline (MIG) and that the insurer's own medical reports were problematic and contradictory.

Concluding that both sides were reasonably justified in believing they had a triable case, the arbitrator ordered each party to bear its own expenses.

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

Her occupational therapist submitted a treatment and assessment plan (OCF-18) that included a new diagnosis of a foot fracture.

The insurer denied the plan and required the applicant to attend an insurer examination with an orthopaedic surgeon to investigate the new diagnosis.

The applicant failed to attend the examination, arguing the insurer's notice lacked sufficient medical reasons.

The arbitrator found that investigating a new diagnosis constituted a valid medical reason, making the notice compliant with section 44 of the Schedule.

Consequently, the applicant was precluded from proceeding to mediation under section 55(2) of the Schedule.

The insurer brought a motion to stay the arbitration proceedings until the insured attended in-person insurer examinations regarding catastrophic impairment.

The insured had delayed providing his responding medical reports for three years and then refused to attend further insurer examinations, arguing they were intrusive and unnecessary.

The arbitrator found that the insurer's request was reasonable and necessary given the passage of time and the overarching principle of procedural fairness.

The arbitration was stayed until the insured attends the examinations.

The insurer sought an order for its expenses and disbursements totalling $166,613.39 against the applicant and her lawyer personally, following the dismissal of the applicant's claim for statutory accident benefits.

The arbitrator found that the applicant and her counsel failed to adequately prepare for the hearing, maintained unmeritorious claims until the last minute, and engaged in conduct that prolonged the proceeding.

The arbitrator ordered the applicant to pay $49,190.13 in expenses and her counsel to personally pay $6,051.36.

The applicant sought statutory accident benefits, including income replacement benefits (IRBs) and medical/rehabilitation benefits, following a motor vehicle accident.

The insurer terminated IRBs and denied further treatment plans, arguing the applicant's injuries were minor and did not prevent him from working.

The arbitrator dismissed the application, finding the applicant's evidence regarding his inability to work highly unreliable and contradicted by his employment records and his family doctor's clinical notes.

The arbitrator also held that the applicant's physical and psychological impairments fell within the Minor Injury Guideline (MIG), as there was no compelling evidence from his treating health practitioner that a pre-existing condition would prevent him from achieving maximal recovery within the MIG limits.

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

During the dispute resolution process, concerns arose regarding his mental capacity to represent himself, as he exhibited signs of cognitive and memory issues and failed to attend scheduled pre-hearings.

The Arbitrator held a preliminary issue hearing and determined that the applicant lacked the mental capacity to proceed on his own.

The hearing was adjourned to allow the applicant time to find a suitable representative or guardian.

The applicant was injured when she fell from and was trampled by her horse after it was spooked by an oncoming ATV and became stuck in a muddy ditch.

The insurer denied accident benefits, arguing the incident was not an 'accident' under the Schedule because the mud or an 'assault' by the horse broke the chain of causation.

The arbitrator applied the Chisholm and Greenhalgh tests, finding that the ATV was the active, efficient cause that set the events in motion.

The arbitrator concluded the incident was an accident, as the horse's reaction and the muddy ditch were normal risks associated with the ATV passing on a narrow rural road.

The applicant sought statutory accident benefits, including non-earner, attendant care, and housekeeping benefits, following a motor vehicle accident.

The insurer denied the claims, arguing the applicant's impairments pre-dated the accident and that she misrepresented her medical history.

The arbitrator dismissed the application, finding the applicant and her husband lacked credibility.

The evidence demonstrated the applicant had a significant pre-existing history of chronic pain and degenerative arthritis for which she was already receiving a disability pension, and she failed to disclose this history to post-accident assessors.

The applicant sought income replacement benefits (IRBs) following a motor vehicle accident, claiming he was unable to work and that his business income was passive.

The insurer argued the applicant returned to work immediately, continued to operate his property development business, and earned income exceeding any IRB entitlement.

The arbitrator found that the applicant continued to perform his pre-accident duties, earned substantial post-accident income, and deliberately failed to produce his company's general ledger.

The application for IRBs was dismissed, as the post-accident income reduced the IRB entitlement to zero.

A third-party health care service provider commenced an arbitration application in the name of the insured person, seeking payment of an outstanding account of $53,021.62.

The insured person had previously settled all claims with the insurer on a full and final basis.

The insurer brought a motion to dismiss the application on the basis that the service provider lacked standing.

The Arbitrator granted the motion, finding that the dispute resolution process under the Insurance Act is restricted to disputes between insured persons and insurers, and third-party service providers do not have standing to commence arbitration proceedings.

The applicant sought income replacement benefits (IRBs) and non-earner benefits (NEBs) following two motor vehicle accidents.

The insurer denied the benefits and sought repayment of $42,402.58 in IRBs previously paid, alleging material misrepresentation regarding the applicant's employment and income.

The arbitrator dismissed the applicant's claims, finding that his pain complaints were long-standing and pre-existing, and he failed to prove a substantial inability to perform his employment tasks or a complete inability to carry on a normal life.

The arbitrator also dismissed the insurer's claim for repayment, concluding there was insufficient evidence to prove the applicant wilfully misrepresented his employment or committed fraud.

The applicant sought statutory accident benefits following an alleged motor vehicle collision.

The insurer denied the claim, alleging the applicant misrepresented the occurrence of the collision.

At arbitration, the arbitrator found significant inconsistencies in the testimony of the applicant and his witnesses regarding the events leading up to the alleged collision.

Furthermore, the arbitrator preferred the evidence of the insurer's accident reconstruction expert, who examined the vehicles firsthand and concluded the physical damage was inconsistent with the reported collision.

The arbitrator concluded the applicant was not involved in an 'accident' as defined in the Schedule and dismissed the application.