Stewart M. McMahon

The parties cross-appealed an arbitration decision regarding the calculation of loss of earning capacity benefits (LECBs) under the SABS-1994.

The insurer argued the Arbitrator erred in extrapolating the insured's part-time earnings to a full-time equivalent for her pre-accident earning capacity (PEC) and in assessing her residual earning capacity (REC) at nil.

The insured argued her PEC should have been based on the income replacement benefits she actually received and appealed the denial of a special award.

The Director's Delegate dismissed both appeals, finding no error in the Arbitrator's application of the SABS provisions or her assessment of the evidence regarding the accessibility of employment.

The appellant appealed an arbitration order that dismissed her claim for arbitration expenses following a dispute over accident benefits for acupuncture treatments.

Although the appellant had partial success at arbitration, the Arbitrator denied expenses due to the hearing being unnecessarily prolonged and concerns regarding the acupuncturist's inflated fees and treatment of non-accident-related ailments.

The Director's Delegate dismissed the appeal, finding that the Arbitrator's decision on expenses was a discretionary balancing of factors supported by the evidence and should not be disturbed.

The insurer appealed an arbitrator's decision ordering it to pay the balance of the respondent's treatment expenses and a $250 special award for unreasonably delaying benefits.

The insurer argued the arbitrator erred in calculating the collateral benefits reasonably available from the respondent's supplementary insurer and in imposing the special award.

The Director's Delegate dismissed the appeal, finding that the insurer's arguments were merely disagreements with the arbitrator's findings of fact, which were supported by the evidence, and raised no errors of law.

The insurer appealed an arbitration order requiring it to pay interest on medical and rehabilitation expenses and a $1,000 special award.

The Director's Delegate held that interest under s. 46(2) of the SABS-1996 is not payable on expenses incurred after a negative Designated Assessment Centre (DAC) report until an adjudicator determines the benefits are owing, as the amounts are not 'overdue' prior to that determination.

The appeal was allowed in part, adjusting the interest payable and reducing the special award to $500 to comply with the statutory maximum under s. 282(10) of the Insurance Act.

The insurer appealed an arbitration order requiring it to pay interest on medical and rehabilitation expenses.

The central issue was whether interest under s. 46(2) of the SABS-1996 is payable on expenses awarded at arbitration when a Designated Assessment Centre (DAC) previously reported the expenses were not reasonable and necessary.

The Director's Delegate held that a negative DAC report generally suspends the obligation to pay, meaning benefits are not 'overdue' prior to adjudication.

However, the appeal was dismissed because the insurer had voluntarily paid for the sessions but at a reduced hourly rate, making the shortfall an overdue payment subject to interest.

The parties cross-appealed an arbitration decision regarding statutory accident benefits following a motor vehicle accident.

The insured appealed the denial of interest on medical and rehabilitation benefits awarded at arbitration, arguing they were overdue.

The Director's Delegate dismissed this ground, holding that under the SABS-1996, benefits are not overdue prior to adjudication if a Designated Assessment Centre (DAC) concludes they are not reasonable and necessary.

The insurer appealed the award of s. 24 assessment expenses, arguing the insured had unreasonably refused to attend insurer examinations.

The Director's Delegate allowed the insurer's appeal in part, rescinding the award for two assessments because the insured used them to thwart the insurer's legitimate assessment requests.

The insured was awarded an additional $990 for a psychological assessment after proving collateral benefits were exhausted.

The insurer appealed an arbitration order requiring it to pay interest on chiropractic and exercise expenses awarded to the insured.

The central issue was whether interest under s. 46(2) of the SABS-1996 is payable on medical expenses that a Designated Assessment Centre (DAC) had previously deemed not reasonable and necessary, but which an arbitrator later awarded.

The Director's Delegate held that because the DAC report was negative, the insurer had no obligation to pay the expenses prior to the arbitrator's decision.

Consequently, the benefits were not 'overdue' within the meaning of the Schedule prior to adjudication, and no interest was payable for that period.

The appeal was allowed and the order for interest was rescinded.

The appellant, a self-employed carpenter, was injured in a motor vehicle accident and received income replacement benefits (IRBs).

Shortly after returning to work, he was injured in a second accident.

The insurer accepted the claim for IRBs but refused to include the IRBs from the first accident in the calculation of his pre-accident income.

The Director's Delegate dismissed the appeal, holding that under the SABS-1996, temporary disability benefits such as IRBs are not considered income from employment and cannot be included in the calculation of pre-accident income, despite the harsh result for the appellant.

The appellant sought leave to amend his Notice of Appeal to challenge a portion of the arbitration order regarding the calculation of income replacement benefits, which he had not initially appealed.

The respondent opposed the request, citing prejudice.

The Director's Delegate allowed the amendment, finding that the delay was short, the amendment raised a legitimate question of law, and the prejudice to the respondent could be addressed by concessions, undertakings, and an award of expenses thrown away.

The applicant sought to vary or revoke previous arbitration orders denying his claim for income replacement benefits and ordering him to pay arbitration expenses.

He argued there were errors in the orders and sought to introduce fresh evidence.

The Director's Delegate dismissed the application, finding that a variation/revocation proceeding under s. 284 of the Insurance Act cannot be used to re-argue an appeal.

Furthermore, the proposed fresh evidence did not meet the Palmer test, as it could have been adduced at the original hearing and would not have affected the outcome.

The applicant was ordered to pay $500 in expenses.

The appellant appealed an arbitration order, alleging that the Arbitrator was biased, spoke to her representative in an antagonistic manner, and ignored evidence and submissions.

The appellant failed to order a transcript of the hearing despite being warned that the allegations of bias needed to be proven with evidence from the record.

The Director's Delegate dismissed the appeal, finding that without a transcript, the appellant could not substantiate her claims regarding the Arbitrator's conduct or evidentiary rulings.

The appellant was ordered to pay $1,000 in expenses to the respondent.

The appellant was injured in a motor vehicle accident and received income replacement benefits for two years until the insurer terminated them, arguing she did not meet the 'any occupation' test.

At arbitration, the Arbitrator ordered benefits reinstated but only until September 2000, inferring from a psychiatrist's report that the appellant could perform some work.

On appeal, the Director's Delegate found the Arbitrator erred in law by drawing an inference that was not supported by the evidence, as the psychiatrist's report did not recommend a work trial but merely suggested one to prove his unqualified opinion that she was completely disabled.

The appeal was allowed and the issue of entitlement to benefits was remitted to a new arbitration hearing.

The insurer appealed a preliminary arbitration order that dismissed its motion to stay the arbitration proceeding until the insured attended new insurer examinations with an orthopaedic surgeon and a neuropsychologist.

The Director's Delegate rejected the appeal as premature, finding that the arbitrator's decision was largely fact-based, did not raise novel questions of law, and lacked sufficient merit to justify departing from the usual rule that appeals from preliminary orders should not proceed until all issues in dispute have been decided.

The deceased was killed in a motor vehicle accident.

The insurer paid a $10,000 death benefit to her mother, but refused to make an additional payment to her father, arguing the Statutory Accident Benefits Schedule provided for a single payment.

The arbitrator ordered the insurer to pay an additional $10,000 to the father.

On appeal, the Director's Delegate confirmed the arbitrator's decision, holding that each person in respect of whom the insured was a dependant is entitled to a separate $10,000 payment.

The appellant was injured in a motor vehicle accident and sought statutory accident benefits for treatment to her right knee, housekeeping expenses, and a special award.

The insurer cross-appealed the arbitrator's finding that the knee injury was caused by the accident.

The Director's Delegate dismissed the insurer's cross-appeal, finding sufficient medical evidence to support causation.

The Director's Delegate also dismissed the appellant's appeal, upholding the arbitrator's rulings that the appellant was limited to recovering expenses described in the initial treatment plans, that she failed to prove entitlement to housekeeping expenses, and that the insurer's denial of benefits was not unreasonable so as to warrant a special award.

The appellant was injured in a motor vehicle accident and initially awarded ongoing income replacement benefits.

Years later, the respondent insurer applied to revoke the benefits, arguing a material change in circumstances.

The arbitrator found that the appellant's medical condition had improved and that her extensive involvement in a highly successful gospel choir demonstrated a capacity for suitable employment, terminating her benefits.

On appeal, the Director's Delegate upheld the arbitrator's decision, finding no error of law in the determination that a material change had occurred and that the appellant was no longer continuously prevented from engaging in suitable employment.

The parties cross-appealed an arbitrator's decision regarding the insured's entitlement to loss of earning capacity benefits (LECBs) and rehabilitation expenses following a motor vehicle accident.

The Director's Delegate upheld the arbitrator's calculation of the self-employed insured's pre-accident earning capacity (PEC), finding no error of law in the factual assessment.

However, the Delegate allowed the insurer's appeal regarding residual earning capacity (REC), holding that the arbitrator erred in law by shifting the onus to the insurer to prove the availability of suitable alternative employment.

The REC was reassessed at $145.30 per week, reducing the weekly LECB to $358.10.

The insured's appeal for the cost of labour to complete his home construction was dismissed as it did not serve a rehabilitative purpose under section 40 of the SABS.

The appellant appealed an arbitrator's decision dismissing his claim for further income replacement benefits following two motor vehicle accidents.

The central issue was whether the appellant's essential tasks as a self-employed construction company owner included heavy physical labour or were limited to administrative and supervisory duties.

The Director's Delegate upheld the arbitrator's finding that the appellant's essential tasks were primarily administrative and supervisory, based on evidence of his pre-accident activities and health.

The Director's Delegate also found no error in the arbitrator's refusal to adjourn the hearing pending a Designated Assessment Centre (DAC) assessment, given the appellant's significant delay in pursuing the issue.

The appeal was dismissed.

The appellant appealed an arbitrator's decision dismissing his claim for statutory accident benefits after he and his representative failed to attend the arbitration hearing.

The appellant argued that the issues had been settled prior to the hearing and that he did not receive adequate notice.

The Director's Delegate dismissed the appeal, finding no evidence of an accepted settlement offer and concluding that the appellant received proper notice of the peremptory hearing date.

The appellant was ordered to pay $1,000 in expenses.

The appellant insurer sought to compel the respondent insured to produce documents from a related tort action in a statutory accident benefits arbitration.

The arbitrator dismissed the request, relying on the principles underlying the deemed undertaking rule.

On appeal, the Director's Delegate upheld the arbitrator's decision, finding that compelling production of defence medicals and discovery transcripts from the tort action would distort the arbitration process and prejudice the insured, particularly given the insurer's ability to conduct its own medical examinations under the Statutory Accident Benefits Schedule.