M. Guy Jones

The applicant was injured in a motor vehicle accident and received income replacement benefits until the insurer terminated them for her failure to attend a disability assessment (DAC).

The applicant applied for arbitration.

The preliminary issue was whether the applicant made herself reasonably available for the DACs scheduled on June 24, 1997, and October 9, 1997.

The arbitrator found that her failure to attend the first DAC was reasonable due to late notice and a conflicting medical appointment for her husband.

However, her failure to attend the second DAC was not reasonable, as the insurer had properly scheduled a musculoskeletal DAC based on the medical evidence available at the time, and the applicant's counsel improperly refused to attend without a neurologist.

Consequently, the applicant was barred from proceeding to arbitration for income replacement benefits.

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

The insurer terminated benefits after the applicant failed to attend scheduled insurer's medical examinations (IMEs).

The applicant later attended a rescheduled IME, and benefits were reinstated, but the insurer refused to pay benefits for the period of non-compliance.

The arbitrator found that under section 65(5.1) of the Statutory Accident Benefits Schedule, the insurer was required to pay the withheld benefits once the applicant submitted to the examination.

The applicant was awarded the withheld benefits, interest from the date of the examination, and a special award of $250 due to the insurer's unreasonable withholding of benefits after the examination was completed.

The Applicant was injured when he slipped on ice while approaching his motor vehicle to unlock it.

The Insurer denied his claim for statutory accident benefits, and the Applicant failed to submit his application within the required 90-day period.

On a preliminary issue hearing, the Arbitrator held that the Applicant had a reasonable excuse for the delay because the Insurer failed to provide written information to assist him in applying for benefits, as required by the Schedule.

Furthermore, applying the Amos test, the Arbitrator found that attempting to unlock a car door is an ordinary and well-known activity to which an automobile can be put, and there was a sufficient nexus between the use of the vehicle and the injury.

The Applicant was therefore injured in an 'accident' and entitled to proceed to arbitration.

The applicant was severely injured when struck by a motor vehicle while riding her bicycle.

She received 'other disability benefits' for 104 weeks, after which the insurer terminated them, arguing she no longer suffered a complete inability to carry on a normal life.

The arbitrator reviewed the applicant's pre-accident activities, which were unstructured and limited, and compared them to her post-accident capabilities.

Despite devastating injuries including a severe head injury and loss of function in her right arm, the arbitrator found she was not continuously prevented from engaging in substantially all of her pre-accident activities.

The claim for ongoing benefits was dismissed, though the applicant was awarded her arbitration expenses.

The applicant sought 'other disability benefits' following a motor vehicle accident, claiming a complete or partial inability to carry on a normal life due to soft tissue injuries and severe heart and lung problems.

The insurer argued the applicant's disability resulted from pre-existing medical conditions.

The arbitrator found that the applicant's atrial fibrillation and respiratory issues were a natural progression of his pre-existing conditions and not caused by the accident.

However, the arbitrator concluded that the applicant did suffer soft tissue injuries in the accident that caused a partial inability to carry on a normal life for a limited period.

The applicant was awarded other disability benefits from March 22, 1994, to December 15, 1994.

The applicant was injured in motor vehicle accidents in 1991 and received weekly income benefits until the insurer terminated them.

The insurer raised a preliminary issue that the applicant's request for arbitration was barred by the two-year limitation period under section 281(5) of the Insurance Act.

The arbitrator found that the insurer provided clear and unequivocal notice of termination on November 22, 1993, after an independent medical examination.

The arbitrator rejected the applicant's arguments that the insurer waived the limitation period through ongoing negotiations, that a rolling limitation period applied, or that the arbitrator had jurisdiction to extend the statutory limitation period.

The application for arbitration was dismissed as statute-barred, but the applicant was awarded expenses.

The applicant was involved in a motor vehicle accident and applied for income replacement benefits, which the insurer denied.

The applicant applied for arbitration more than two years after the insurer's clear and unequivocal written denial.

The arbitrator held that under section 281(5) of the Insurance Act, the two-year limitation period begins to run from the date of the insurer's refusal to pay, not on a rolling basis as under previous legislation.

Consequently, the applicant was precluded from proceeding to arbitration.

The Applicant was injured in a motor vehicle accident and sought ongoing weekly income benefits under section 13 of the Statutory Accident Benefits Schedule after the Insurer terminated them.

The arbitrator found that the Applicant was capable of returning to her pre-accident activities by October 7, 1994, and was therefore entitled to benefits up to that date.

However, because the Applicant received Canada Pension Plan and Workers' Compensation benefits that exceeded her accident benefits entitlement, she was not owed any further payments.

Furthermore, the arbitrator ordered the Applicant to repay $1,100.00 in overpaid benefits to the Insurer and denied her costs of the arbitration due to her exaggeration of her pre- and post-accident condition.

The applicant's stepfather, a police officer, took time off work using his accumulated sick bank time to visit the applicant, who was severely injured in a motor vehicle accident.

He applied for visitor's expenses under section 53(1) of the Statutory Accident Benefits Schedule for the value of the lost sick bank time.

The arbitrator held that the stepfather was not entitled to visitor's expenses because the use of sick bank time did not constitute an expense 'actually incurred' under the Schedule, but rather a potential future loss.

Furthermore, recovery was barred by section 75(13) as the sick bank was part of a plan available to the officer.

The applicant was injured in two motor vehicle accidents in 1993 and received statutory accident benefits.

She returned to work as a secretary for several months before her temporary position ended, after which she sought further weekly income benefits, a medical rehabilitation case manager, and active physiotherapy.

The arbitrator dismissed the claim for weekly income benefits, finding that the applicant's soft tissue and finger injuries were relatively minor and did not disable her from performing the essential tasks of her employment.

The request for a case manager was also denied as unnecessary.

However, the arbitrator ordered the insurer to pay for four months of active physiotherapy and granted a special award of 10 per cent of the physiotherapy cost, finding that the insurer had unreasonably withheld payment for this "pay now, dispute later" benefit.

The applicant was injured in a motor vehicle accident and claimed 'other disability benefits' under section 19 of the Statutory Accident Benefits Schedule, alleging a partial or complete inability to carry on a normal life due to knee injuries.

The insurer denied the claim on the basis that her medical problems pre-dated the accident.

The arbitrator found that the applicant had significant pre-existing knee and shoulder problems and a sedentary lifestyle prior to the accident.

Relying on the insurer's orthopaedic expert and the family doctor's records, the arbitrator concluded the accident only minimally aggravated her knee condition, disabling her for a brief period.

The applicant was awarded benefits for a closed period from March 22, 1994, to April 16, 1994, along with interest and arbitration expenses.

The Applicant was injured in a motor vehicle accident and initially received weekly income benefits from his motor vehicle insurer.

He subsequently elected to receive workers' compensation benefits, and the insurer was reimbursed.

After his workers' compensation benefits ceased, he reapplied for weekly income benefits from the insurer.

The arbitrator held that the Applicant was not entitled to re-elect and receive further interim benefits under section 21 of the Schedule, as he had already received workers' compensation payments and could no longer make a meaningful assignment of benefits to the insurer.

The applicant was injured in a motor vehicle accident in February 1993, his fourth accident in two years.

He applied for statutory accident benefits, and the insurer terminated his weekly income benefits in July 1993.

The arbitrator found that the accident materially contributed to the applicant's disability but concluded that the effects of the accident had resolved by October 13, 1993.

The arbitrator determined the correct quantum of weekly benefits by averaging the applicant's pre-accident income over 52 weeks, rather than just the weeks worked.

The applicant was ordered to repay collateral benefits received from a disability policy, but was not required to repay the insurer's overpayment of weekly benefits because the error was the insurer's.

The applicant was awarded his expenses of the arbitration.

The minor applicants' mother was killed in a motor vehicle accident.

Her common law spouse received workers' compensation survivor benefits.

The applicants claimed death benefits under section 11(2) of the Statutory Accident Benefits Schedule.

The insurer denied the claim, arguing that section 20 of the Schedule precluded payment because workers' compensation benefits were payable in respect of the deceased.

The arbitrator held that section 20 is an exclusionary clause that must be interpreted narrowly.

Because the deceased herself was not entitled to receive the workers' compensation benefits, section 20 did not apply to exclude the dependants' claims.

The applicants were found entitled to the death benefits.

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

The insurer terminated weekly income benefits at the three-year mark.

The applicant sought ongoing benefits under section 12(5) of the Schedule, claiming continuous inability to engage in suitable employment due to soft tissue injuries, fibromyalgia, and depression.

The arbitrator found evidence of symptom embellishment and concluded the applicant was capable of sedentary work or returning to his previous administrative courier duties.

The arbitrator awarded a brief extension of benefits for a four-month 'work hardening' period, terminating on January 29, 1994.

The applicant sought to withdraw his application for arbitration two weeks before the scheduled hearing date, intending to proceed through the court system instead.

The applicant had failed to produce numerous required documents prior to the hearing.

The arbitrator found the late withdrawal to be an abuse of process under Rule 66.3 of the Commission Rules of Procedure, as the insurer had been put to considerable wasted time and expense.

The applicant was permitted to withdraw the application on the condition that he pay the insurer $2,000, representing the maximum amount the insurer was required to pay the Commission to participate in the hearing.

The applicant was injured in an accident and applied for workers' compensation benefits, which were denied by the Workers' Compensation Board (WCB) on the basis that he was not in the course of his employment.

He then applied for statutory accident benefits from the insurer.

The insurer argued that the applicant's WCB claim was made in bad faith and that he was actually in the course of his employment, meaning he should be receiving WCB benefits instead of accident benefits.

On a preliminary motion, the arbitrator held that the Commission has no jurisdiction to go behind the WCB's decision regarding entitlement to workers' compensation benefits, as the WCB has exclusive jurisdiction over that issue.

The applicant was injured in a motorcycle accident and received weekly income benefits until the insurer terminated them.

The applicant applied for arbitration to dispute the termination, claiming ongoing disability due to a fractured leg and subsequent knee complications.

The arbitrator found that the applicant's delayed recovery and left knee problems were related to the accident.

The arbitrator concluded the applicant was substantially unable to perform the essential tasks of his employment until May 23, 1995, and ordered the insurer to pay weekly income benefits for that period, plus interest and expenses.

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

Prior to the accident, he and his wife ran a business, with the applicant performing heavy labour and administrative duties.

Following the accident, the applicant's wife took over the administrative duties, though the applicant remained physically capable of performing them.

The arbitrator found that the reallocation of duties was a lifestyle decision rather than a result of the accident.

Consequently, the arbitrator declined to alter the pre-accident income allocation, finding that the applicant's post-accident income exceeded the benefits payable.

The claim for further benefits was dismissed, but the applicant was awarded his arbitration expenses.

The applicant was injured in a workplace accident and subsequently in a motor vehicle accident, suffering overlapping injuries to her neck, back, shoulder, and leg.

She applied for weekly income benefits under the Statutory Accident Benefits Schedule.

The arbitrator found that the motor vehicle accident significantly contributed to her disability, entitling her to benefits.

However, the arbitrator concluded that the disability attributable to the motor vehicle accident ceased by May 3, 1993.

The arbitrator also determined that the applicant's pre-accident income should be calculated by averaging her earnings over the entire 52 weeks preceding the accident, rather than only the weeks she actually worked.

The applicant was awarded $26.60 per week for the period from March 19, 1993, to May 3, 1993, plus interest and arbitration expenses.