Jessica Kowalski

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

After her former counsel was removed from the record due to a breakdown in the solicitor-client relationship, the applicant failed to attend the pre-hearing and the rescheduled hearing despite being served with notice.

The arbitrator found that the applicant had abandoned her application and dismissed it for failure to establish entitlement to the claimed benefits.

The applicants sought accident benefits following a motor vehicle collision where their minivan struck a Honda Civic making a left turn.

The insurer denied the claims, alleging the collision was a deliberate, staged accident orchestrated with the help of an unidentified third vehicle.

The arbitrator found the insurer's witnesses to be inconsistent and unreliable, and preferred the applicants' straightforward evidence that the collision was a genuine left-turn accident.

The arbitrator concluded the incident was an 'accident' within the meaning of the Statutory Accident Benefits Schedule, allowing the applicants to proceed with their arbitration applications.

The applicant was injured in a motor vehicle accident in 2008 and sought ongoing income replacement benefits, housekeeping benefits, and medical benefits for psychological treatment.

The insurer terminated benefits, relying on surveillance evidence and medical assessments indicating the applicant's condition had improved and he was exaggerating symptoms.

The arbitrator found the applicant's evidence lacked credibility, noting he failed to disclose a subsequent 2010 accident to assessors and attributed impairments from the second accident to the first.

The application for arbitration was dismissed, as the applicant failed to prove a complete inability to engage in suitable employment or a substantial inability to perform housekeeping tasks.

The insurer brought a preliminary issue seeking to dismiss the applicant's claim for income replacement benefits (IRBs) arising from a 2009 motor vehicle accident.

The insurer argued the claim was an abuse of process because the applicant failed to provide proof of income, failed to file tax returns, failed to attend insurer examinations, and had previously withdrawn the IRB claim.

The Arbitrator found that the applicant's conduct as a whole irrevocably prejudiced the insurer's ability to assess and defend the claim.

The claim for IRBs was dismissed as an abuse of process.

The parties settled a dispute over income replacement benefits on the morning of the arbitration hearing.

The applicant sought $51,976.80 in expenses, arguing the insurer's aggressive and obstructionist tactics unnecessarily prolonged the process.

The arbitrator found that the insurer's failure to meaningfully consider the applicant's earlier settlement offer caused unnecessary preparation work.

The arbitrator awarded the applicant $35,389.06 in expenses, allowing full legal fees for the period after the settlement offer but reducing disbursements for expert reports to the maximum allowable amounts and denying expert attendance fees since no hearing took place.

Following an arbitration where the applicant was awarded income replacement benefits and a special award, both parties sought their expenses.

The arbitrator found that both parties engaged in conduct contributing to moderate delay, making that criterion moot.

Considering the applicant's partial success and an offer to settle, the arbitrator awarded the applicant a portion of her expenses.

The insurer was ordered to pay the applicant's expenses fixed at $15,000.00, inclusive of fees, disbursements, and taxes.

The insurer, Aviva Canada Inc., sought expenses following an arbitration hearing where it was entirely successful on all substantive issues regarding the calculation of the applicant's pre-accident earning capacity and loss of earning capacity benefits.

The applicant also sought expenses, arguing that the arbitration involved a novel issue.

The arbitrator found that the issues were neither complex nor novel, as the law regarding the calculation of pre-accident earning capacity was well established.

Applying the criteria under the Expense Regulation, the arbitrator awarded the insurer $6,000.00 in expenses, based on a pragmatic approach and a ratio of two hours of preparation time to one hour of hearing time.

The applicant sought a determination that she sustained a catastrophic impairment as a result of a 1999 motor vehicle accident.

The matter was referred back by the Director's Delegate for clarification on the whole person impairment (WPI) rating for 13 specific impairments identified by the applicant's assessor.

The Arbitrator found that the applicant's impairments, including her primary complaints of a lumbar spine discectomy and chronic pain, were not caused by the accident, resulting in a 0% WPI rating.

Even assuming causation, the Arbitrator calculated the WPI at 41%, which falls short of the 55% threshold required for a catastrophic impairment designation.

The applicant was injured in a motor vehicle accident and received income replacement benefits until the insurer terminated them using an OCF-17 form.

The insurer argued the applicant was barred from proceeding to arbitration because the two-year limitation period had expired.

The arbitrator found that the OCF-17 form used by the insurer was confusing and did not comply with the Statutory Accident Benefits Schedule or the Supreme Court's decision in Smith v. Co-operators.

Specifically, the form misleadingly suggested that a Designated Assessment Centre (DAC) assessment was mandatory to dispute the stoppage of benefits.

As the notice was invalid, the limitation period did not begin to run, and the applicant was permitted to proceed to arbitration.

The insurer brought a motion for an order compelling the insured to attend insurer medical examinations with a psychologist and a physiatrist under section 44 of the Statutory Accident Benefits Schedule.

The insured argued the examinations were primarily for hearing preparation.

The arbitrator found the examinations were reasonable and necessary because the insured's delayed and limited productions restricted the insurer's ability to assess the claim.

The arbitration was stayed pending the insured's attendance at the examinations.

The applicant sought income replacement benefits (IRBs) after being terminated from her employment more than five years following a motor vehicle accident.

The insurer raised a preliminary issue that the claim was statute-barred, having issued a clear denial of IRBs shortly after the accident when the applicant returned to work.

The arbitrator found that the insurer's initial denial was valid and triggered the two-year limitation period, which had long expired.

Furthermore, the arbitrator held that the applicant failed to comply with her statutory obligations to notify the insurer of her change in circumstances and to provide requested information, without a reasonable excuse.

The applicant was therefore precluded from proceeding to arbitration on her IRB claim.

The applicant failed to participate in any proceeding before the Commission since filing the application, including failing to attend multiple pre-hearings.

The applicant's former counsel was removed from the record, and the applicant did not respond to any communications from the Commission.

The arbitrator found that the applicant had no interest in pursuing the application, deemed it frivolous and vexatious, and dismissed it pursuant to Rule 68 of the Dispute Resolution Practice Code.

The insurer brought a motion to stay an upcoming arbitration hearing and compel the applicant to attend four post-104 week insurer examinations.

The arbitrator dismissed the motion, finding that the insurer had ample notice of the applicant's claim for ongoing income replacement benefits but delayed in requesting the assessments.

The insurer merely asked about the applicant's availability and, upon refusal, failed to send formal notices of examination or take timely steps to arrange them.

The arbitrator concluded the assessments were no longer reasonable and necessary given the delay and the imminent hearing date.

The applicant was injured in a minor rear-end motor vehicle accident and received statutory accident benefits.

The insurer terminated her income replacement benefits 11 months post-accident based on incomplete and deficient insurer examination reports.

The applicant sought ongoing income replacement benefits, interest, and a special award.

The arbitrator found that the insurer's termination of benefits was premature and unreasonable, entitling the applicant to benefits up to the 104-week mark and a special award of $7,500.

However, the arbitrator found the applicant was not entitled to benefits beyond 104 weeks, as she exaggerated her physical and psychological impairments, failed to make reasonable efforts to return to work, and her pre-accident employer was willing to accommodate her return.

The insurer brought a motion for an order compelling the applicant's daughter, a third party, to produce her university academic schedule.

The insurer sought the records to challenge the amount of time the daughter claimed to have spent providing housekeeping and caregiving services to the applicant following a motor vehicle accident.

The arbitrator dismissed the motion, finding that the academic schedule was not reasonably required to ensure a just and fair hearing.

The records contained no information about the applicant's impairments, and the schedule would not prove whether the daughter actually attended classes.

The applicant sought legal expenses following a successful arbitration regarding his employment status for statutory accident benefits.

The arbitrator found the applicant was entitled to expenses but reduced the claimed hours by excluding time spent preparing for and attending mediation, as mediation expenses are not recoverable under the Insurance Act.

The arbitrator also declined to depart from the maximum allowable Legal Aid rate, finding the arbitration straightforward.

The applicant was awarded $4,378.11 plus applicable taxes.

The applicant sought a determination that she sustained a catastrophic impairment as a result of a 1999 motor vehicle accident.

She claimed the accident caused a lumbar disc rupture that led to chronic pain and significant impairment.

The arbitrator found the applicant's testimony unreliable due to numerous inconsistencies with contemporaneous medical records, which showed no complaints of low back pain until over a year after the accident and referenced a possible second accident in 2001.

The arbitrator concluded the applicant failed to prove on a balance of probabilities that the 1999 accident caused her impairments or that she met the 55% whole person impairment threshold, dismissing the application.

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

Due to the applicant's deteriorating mental capacity, her counsel brought a motion to appoint her separated spouse as her representative in the arbitration process under Rule 10.5 of the Dispute Resolution Practice Code.

The insurer opposed the appointment because the spouse did not reside with the applicant and sought to dismiss the arbitration for delay.

The arbitrator granted the motion, noting the spouse had already been appointed litigation guardian in the related tort action, the Public Guardian and Trustee declined to act, and the delay was attributable to the applicant's incapacity.

Following a preliminary issue hearing where the insured's application for arbitration was dismissed on the basis that he failed to prove he was involved in an 'accident', the insurer sought its legal expenses and disbursements.

The arbitrator found that the insurer was the successful party and was entitled to its expenses.

The arbitrator awarded the insurer $9,839.20, which included legal fees, disbursements, and the maximum allowable amounts for its expert witness's preparation and attendance, noting that the insurer's expert evidence was preferred because the expert inspected both vehicles closer to the date of the incident.

The applicant, a pedestrian struck by a vehicle, sought statutory accident benefits for breast reconstruction surgery in Germany, arguing that neck injuries from the accident prevented her from undergoing the procedure in Ontario under general anesthesia with intubation.

The arbitrator dismissed the claim, finding no evidence that the applicant was a candidate for the overseas surgery or that it was reasonable and necessary, especially since medical evidence indicated the procedure could be performed in Ontario without intubation.

Claims for a rehabilitation clinic account and unspecified future surgeries were also dismissed, as the former was settled directly by the insurer and the latter lacked particulars and had not been mediated.