Nancy Makepeace

The insurer appealed an arbitration order requiring it to pay income replacement benefits, medical benefits, and a $15,000 special award to the claimant following a motor vehicle accident.

The insurer argued the arbitrator erred in accepting the claimant's pre-accident employment contract and finding him disabled from that prospective job.

The Director's Delegate dismissed the appeal regarding the benefits, finding the arbitrator's conclusions were supported by the evidence and no error of law occurred.

However, the appeal was allowed in part regarding the special award.

The Director's Delegate found the arbitrator erred in her analysis by penalizing the insurer for relying on a Designated Assessment Centre report and for an adjuster's poor performance as a witness.

The special award was reduced by 50 percent to $7,500.

The appellant was pregnant when injured in a motor vehicle accident.

Her son was born the next day but died 15 days later.

The insurer denied death benefits, arguing the child was not a dependant at the time of the accident.

The Director's Delegate upheld the arbitrator's decision that the common law en ventre sa mere principle applies, meaning the child, once born alive, is considered a dependant at the time of the accident.

The mother was awarded death benefits.

The Delegate also varied the arbitrator's order to award interest from 30 days after the application was received, but upheld the dismissal of a special award, finding the insurer's legal position was reasonable given conflicting jurisprudence.

The respondent's son suffered a catastrophic impairment in an automobile accident.

The respondent, who was not involved in the accident, suffered psychological injuries and subsequently sustained physical injuries while providing attendant care to her son.

The insurer paid for her psychological treatment but denied her claim for medical benefits related to her physical injuries.

The arbitrator found the respondent was an 'insured person' under s. 2(1)(a)(ii) of the SABS-1996 and thus eligible for benefits for her physical injuries.

On appeal, the Director's Delegate revoked the arbitrator's order, holding that the definition of 'insured person' under s. 2(1)(a)(ii) is limited to psychological or mental injury resulting from an accident that causes physical injury to a family member, and does not extend to physical injuries sustained while providing attendant care.

Following a successful appeal by the insurer regarding the arbitrator's jurisdiction over a settlement enforcement proceeding, both parties sought their expenses of the arbitration and appeal.

The Director's Delegate declined to award expenses to either party, finding that although the insurer was entirely successful on appeal, the issues raised regarding the application of the method of payment rules to settlement funds were novel and the arbitration proceeding was not improper.

The parties were ordered to bear their own expenses.

The respondent was injured in an automobile accident and, three weeks later, suffered severe burn injuries after attempting suicide by setting himself on fire.

He claimed psychological treatment expenses, which the insurer denied on the basis that the treatment related to the suicide attempt and pre-existing problems, not the accident.

An arbitrator ordered the insurer to pay, finding the accident triggered the suicide attempt.

On appeal, the Director's Delegate found no error in the arbitrator's legal analysis that a suicide attempt due to accident-related depression could be covered.

However, the appeal was allowed and the matter remitted for rehearing because the arbitrator failed to address critical gaps and contradictions in the evidence regarding the causal link between the accident and the suicide attempt.

The appellant and his representative failed to appear at an arbitration hearing for statutory accident benefits.

The arbitrator dismissed the application and ordered the appellant to pay the insurer's arbitration expenses.

The arbitrator also ordered the appellant's representative to personally repay the insurer for funds advanced for third-party document production that were never produced.

On appeal, the Director's Delegate dismissed the appeal, finding the explanations for the failure to appear unconvincing and confirming the arbitrator's orders, including the personal costs order against the representative.

The appellant appealed an Arbitrator's order requiring him to pay the respondent's arbitration expenses of $12,112.66.

The appellant argued that the Arbitrator erred by applying the amended expenses regulation retrospectively and failing to consider the merits of his unsuccessful claim.

The Director's Delegate found that while the pre-amendment regulation should have applied due to administrative delay, the outcome would have been the same under either version because the Arbitrator thoroughly rejected the appellant's claims based on credibility findings.

The appeal was dismissed, and the appellant was ordered to pay the respondent's appeal expenses of $4,183.18.

The insurer appealed an arbitrator's preliminary order finding that the insured was not barred from proceeding to arbitration under s. 50(1)(a) of the SABS-1996.

The insurer argued the insured failed to submit an application for benefits within 30 days of receiving the forms, as required by s. 32(3).

The Director's Delegate dismissed the appeal, upholding the arbitrator's finding that the insured had provided sufficient information to allow the insurer to begin adjusting the claim within the required timeframe, despite not completing the approved forms.

The insured's agent misappropriated a $15,000 settlement cheque mailed to the agent by the insurer.

The insured's estate sought arbitration, arguing the insurer breached section 44(1)(a) of the Statutory Accident Benefits Schedule by not delivering the cheque directly to the insured.

The Arbitrator agreed, but on appeal, the Director's Delegate revoked the order.

The Delegate held that section 44 governs the payment of benefits, not lump-sum settlement payments, and that the Commission lacked jurisdiction to resolve a debt collection or settlement enforcement dispute between the insured and his agent.

The respondent cyclist was injured when struck by a beer bottle thrown by the driver of a passing pickup truck.

The Arbitrator found the incident was an 'accident' under the Statutory Accident Benefits Schedule, relying on an engineering report that the truck's speed contributed to the bottle's impact.

On appeal, the Director's Delegate revoked the decision, holding that the incident was an assault, not an accident.

The use or operation of the truck was not the direct cause of the impairment, but merely provided a platform and means of escape for the assailant.

The appellant, a pedestrian struck by a vehicle, appealed an arbitrator's decision dismissing his claim for weekly income benefits.

The appellant had returned to work for several years before being laid off due to lack of work.

The Director's Delegate upheld the arbitrator's finding that the appellant failed to prove his injuries continuously prevented him from engaging in suitable employment, as required by section 12(5)(b) of the SABS-1990, and failed to rebut the presumption of ineligibility under section 16(2) arising from his extended return to work.

The appeal was dismissed.

Liberty Mutual appealed an arbitration order requiring it to pay a loss of earning capacity benefit based on a pre-accident earning capacity of $31,000 and a residual earning capacity of zero.

The Director's Delegate upheld the finding of zero residual earning capacity, noting it was supported by evidence that the claimant could not work reliably or consistently.

However, the Delegate allowed the appeal regarding pre-accident earning capacity, finding the Arbitrator erred in law by failing to consider the credibility of the claimant's undocumented assertion that she was about to open a third gas station.

The issue of pre-accident earning capacity was remitted to the Arbitrator.

The appellant was injured in a motor vehicle accident and claimed income replacement benefits based on self-employment.

The insurer requested corporate documentation, which the appellant delayed in providing.

At a preliminary hearing, the Arbitrator found the appellant failed to comply with reasonable requests for information and ordered her disentitled to benefits for the period of non-compliance pursuant to section 33(2) of the SABS-1996.

On appeal, the Director's Delegate held that section 33(2) authorizes a delay or suspension of benefits, not a permanent forfeiture.

The Delegate also found the Arbitrator erred in treating the preliminary order as a final dismissal of the claim for that period.

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

The insured person was injured in a motor vehicle accident and initially elected to receive caregiver benefits.

She later attempted to re-elect income replacement benefits, which the insurer refused on the basis that elections are irrevocable.

The Arbitrator found the initial election invalid because the insurer failed to provide sufficient information about the implications of the choice, specifically that the higher benefit might not be the longer-lasting one.

On appeal, the Director's Delegate upheld the Arbitrator's decision, finding that the insurer did not meet its obligations under s. 32(2)(d) of the SABS-1996.

The Delegate also held that s. 36 allows an insured person to re-elect benefits, subject to statutory time limits and the requirement to provide a reasonable explanation for any delay.

Following the dismissal of the appellant's appeal regarding his entitlement to income replacement benefits, both parties sought their appeal expenses.

The Director's Delegate considered the amended expenses criteria under the Insurance Act regulations, which applied retrospectively.

The Delegate found that while the appellant was unsuccessful and raised a new argument late, the appeal involved a novel issue of general importance regarding the interpretation of section 48 of the SABS.

Consequently, neither party was awarded expenses, and they were ordered to bear their own costs.

Following an appeal decision that upheld an award of medical benefits to the insured person, the Director's Delegate assessed the insured's arbitration and appeal expenses.

The Delegate allowed an increased hourly rate for the insured's counsel but denied the insured's claim for lost wages, finding that lost wages do not qualify as disbursements under the Expense Schedule.

Claims for meal allowances were also denied as there was no overnight stay, but mileage was allowed for each separate hearing attendance.

Total expenses were assessed at $12,461.95.

The insurer appealed an arbitration order awarding the insured person ongoing income replacement benefits, attendant care benefits, medical benefits, and a special award following a motor vehicle accident.

The Director's Delegate upheld the award of income replacement benefits, finding no error in the arbitrator's conclusion that the insured person suffered a complete inability to engage in suitable employment due to chronic pain.

However, the Delegate reversed the award of attendant care benefits beyond the 104-week mark, holding that the transitional provisions of the SABS-1996 did not suspend the temporal limit.

The Delegate also reversed the award of medical benefits for a specific clinic, finding the arbitrator erred in ordering benefits solely because of a delay in obtaining a DAC report.

The special award was consequently reduced to reflect only those benefits that were unreasonably delayed and actually payable.

The insurer appealed an arbitration decision finding that the insured's deliberate failure to disclose a brief period of post-accident employment did not preclude him from receiving weekly income replacement benefits.

The Director's Delegate upheld the decision, agreeing that the misrepresentation was not 'material' under section 48 of the SABS-1996.

The misrepresentation did not undermine the fundamental basis of the claim, as the insured remained disabled from his pre-accident employment, and the insurer's remedy was limited to repayment of the overpaid benefits under section 47.

The Director's Delegate issued an appeal expenses order on consent, requiring the appellant to pay the respondent $2,500.00 in appeal expenses pursuant to section 283 of the Insurance Act.

The appellant was injured in a motor vehicle accident and applied for statutory accident benefits.

In his application, he falsely stated he was unemployed to protect his workers' compensation benefits.

The insurer assessed his claim for non-earner benefits and incurred expenses before denying the claim.

The appellant later revealed his true employment status and sought income replacement benefits.

The insurer refused to pay, relying on section 48 of the SABS-1996 for material misrepresentation.

The Director's Delegate upheld the arbitrator's decision, finding that the misrepresentation of employment status was material to both benefit claims and that section 48 permits an insurer to terminate entitlement to benefits even if no payments have yet been made.