Shari Novick

The Applicant sought to withdraw her application for arbitration mid-hearing after an unfavourable evidentiary ruling, intending to pursue the matter in court.

The Insurer opposed the withdrawal.

The Arbitrator denied the request, finding that permitting a withdrawal after three days of hearing and testimony from two witnesses would be unfair to the Insurer, detrimental to the arbitration process, and amount to forum shopping.

The hearing was ordered to continue, and the Insurer was awarded $350 in costs for the withdrawal request.

The applicant was injured in a motor vehicle accident and sought various statutory accident benefits that the insurer had terminated or denied.

The arbitrator found that the applicant's ongoing chiropractic and massage therapy treatments were reasonable for pain relief, and that her physical and cognitive limitations justified the cost of taxi transportation to treatment sessions and ongoing housekeeping expenses.

However, the claim for opioid prescription medication was denied, as the weight of medical opinion indicated it was not beneficial and potentially harmful.

The arbitrator rejected the applicant's argument that her income replacement benefits should include the indexation percentage for the first year following the onset of disability, finding the statutory language clear.

Finally, the arbitrator ordered the insurer to pay a $5,000 special award for unreasonably withholding payment for treatments and medication in blatant disregard of the pay-pending-dispute provisions of the Schedule.

Following a decision denying the applicant's claim for other disability benefits, the parties were unable to resolve the issue of expenses.

The insurer argued the applicant should be denied expenses because he was not a credible witness and had caused the insurer to incur significant costs by changing his position on the claim period at the last minute.

The arbitrator found that while the applicant's case was not entirely without merit, his late decision not to pursue benefits beyond the 104-week point caused wasted expenses and prolonged the proceeding.

The arbitrator awarded the applicant one-half of his assessed expenses, fixing the total payable by the insurer at $6,471.45.

The applicant sought other disability benefits following a second motor vehicle accident in October 1996.

The insurer denied the claim.

The applicant argued the insurer breached procedural requirements by failing to respond within 14 days, but the arbitrator found substantial compliance and no prejudice.

On the merits, the arbitrator found the applicant lacked credibility, noting he failed to disclose the second accident to multiple health care practitioners and his pre-accident condition was significantly worse than he claimed.

The application for benefits was dismissed as the applicant failed to prove his impairment resulted from the second accident.

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

The insurer delayed payment for several months and failed to pay benefits pending a disability DAC assessment.

On a motion for interim benefits, the insurer agreed to pay $21,841.32 in arrears and $300 per week ongoing.

The arbitrator found the insurer's conduct in delaying and withholding benefits to be unreasonable and ordered a special award of $6,500 under section 282(10) of the Insurance Act.

The applicant, a registered nurse, was struck by a vehicle and sustained a knee fracture.

She applied for statutory accident benefits, and the insurer paid income replacement benefits until terminating them based on a residual earning capacity assessment that concluded she could work full-time as a clinic nurse.

The arbitrator found that while the applicant was physically capable of light nursing duties, such positions were not accessible to her in her area due to a poor job market, resulting in a residual earning capacity of nil.

The arbitrator also determined that the applicant's pre-accident earning capacity should be calculated by converting her part-time nursing income to full-time income under section 86 of the Schedule, as there was a real possibility she would have secured full-time employment but for the accident.

The applicant was awarded ongoing loss of earning capacity benefits, but her claim for a special award was dismissed as the insurer's conduct did not amount to an unreasonable delay or withholding of benefits.

The arbitrator issued a correction to a previous costs decision.

The insurer's counsel advised that he had been practising law for 25 years and was therefore entitled to a 25% experiential premium on the legal aid hourly rate, rather than the 12.5% premium originally awarded.

The arbitrator corrected the decision, increasing the hourly rate and the total costs awarded to the insurer for costs thrown away due to the applicant's late withdrawal of her application for arbitration.

The applicant sought to withdraw her application for arbitration regarding statutory accident benefits in order to pursue a court action.

The insurer opposed the withdrawal or, alternatively, sought conditions including the payment of its assessment fee and costs.

The arbitrator permitted the withdrawal but ordered the applicant to pay the insurer's $3,000 assessment fee, as well as legal fees and disbursements 'thrown away' due to the late withdrawal, totaling $4,661.88 plus GST.

The applicant was barred from reapplying for arbitration on the same issues until these amounts were paid.

The insurer brought a preliminary motion arguing that the applicant was barred from proceeding to arbitration because he failed to cooperate with a disability DAC assessment, contrary to s. 64(9) of the Statutory Accident Benefits Schedule.

The insurer alleged the applicant refused to sign a consent form or provide medical records.

The arbitrator preferred the applicant's evidence that he answered all questions and had previously signed authorizations for the insurer to obtain his medical records.

The arbitrator found the applicant complied with his obligations and dismissed the insurer's motion, allowing the arbitration to proceed.