Andrew Scott Kerr

The applicant, a self-employed stone mason, was injured in a motor vehicle accident and sought statutory accident benefits, including a Loss of Earning Capacity Benefit (LECB) and expenses for home completion and maintenance.

The arbitrator determined the applicant's pre-accident earning capacity based on what he could reasonably have earned, discounting for seasonal and economic factors, and found his residual earning capacity to be zero due to chronic pain and vocational barriers.

The arbitrator awarded a weekly LECB of $488.87.

The claim for $106,013 to hire labour to complete the applicant's custom home was dismissed as it lacked a rehabilitative purpose under section 40 of the Schedule.

However, the arbitrator allowed claims for specific home maintenance tasks that would significantly aggravate the applicant's pain.

The applicant was injured in a motor vehicle accident and received weekly income replacement benefits until the insurer stopped payments.

The insurer argued that the applicant's subsequent applications for mediation and arbitration were barred by the two-year limitation period under the Insurance Act and the Statutory Accident Benefits Schedule.

The arbitrator found that the insurer's communications did not constitute a clear and unequivocal refusal to pay benefits, nor did the insurer provide the requisite notice under section 64(2) of the Schedule.

Consequently, the limitation period had not started to run, and the applicant was not precluded from proceeding to mediation and arbitration.

The appellant was injured in a snowmobile accident and received caregiver benefits.

The insurer terminated benefits before the 104-week mark, and an arbitrator found the appellant only met the partial-inability test, not the complete-inability test required after 104 weeks.

The appellant argued she could still elect loss of earning capacity benefits (LECBs) because she continued to 'qualify' for caregiver benefits under the partial-inability test, even if they were not payable.

The Director's Delegate dismissed the appeal, holding that to 'continue to qualify' for caregiver benefits at the 104-week mark for the purpose of electing LECBs, the insured must meet either the substantial-inability or complete-inability test.

The insurer's cross-appeal on arbitration expenses was allowed in part.

The applicant was injured in a motor vehicle accident and received statutory accident benefits from the insurer.

The insurer terminated her weekly income replacement benefits and housekeeping expenses in January 1997.

The applicant applied for arbitration, claiming ongoing entitlement to both benefits.

The arbitrator found that the applicant suffered from chronic pain in her left hip and low back, which prevented her from performing the essential duties of her pre-accident employment as a data entry clerk, as the job required prolonged sitting or standing.

The arbitrator relied on work simulations and medical evidence to conclude the applicant was substantially disabled.

However, the arbitrator dismissed the claim for housekeeping expenses, finding that the applicant's husband did not perform significantly more chores than before the accident and that the applicant retained the physical capacity to perform her housekeeping duties.

The applicant was awarded ongoing weekly income replacement benefits.

The applicant was unsuccessful in her claim for loss of earning capacity benefits and both parties sought their expenses for the arbitration.

The arbitrator reviewed the new expense provisions under section 282(11) of the Insurance Act and Ontario Regulation 464/96, which allow expenses to be awarded to either party.

The arbitrator found that the applicant raised a novel issue under a complex schedule and her proceeding was not manifestly unfounded.

The applicant was awarded her expenses, while the insurer's claim for expenses was denied to avoid discouraging legitimate disputes.

The Applicant sought statutory accident benefits after fracturing his ankle while falling from a fence.

He claimed he was climbing the fence to access the backyard and open a carport door from the inside to assist his father in parking a car.

The Insurer denied the claim, arguing the incident did not meet the definition of an 'accident' under the Schedule.

The arbitrator found the Applicant's evidence regarding the existence of the carport door not credible.

Furthermore, even if the evidence were accepted, the connection between climbing a fence 500 feet away and the use or operation of an automobile was too remote.

The application was dismissed, and the Applicant was ordered to pay the Insurer's expenses.

The applicant was injured in a snowmobile accident and received statutory accident benefits.

She sought to elect to receive loss of earning capacity benefits under section 21(1)6 of the Statutory Accident Benefits Schedule, arguing she continued to qualify for caregiver benefits.

The arbitrator found that a previous arbitration decision had determined her compensable period of disability for caregiver benefits ended on January 10, 1996.

Because she no longer met the disability test under section 18(1), she did not continue to qualify for caregiver benefits and was therefore not entitled to elect a loss of earning capacity benefit.

The applicant was injured in a snowmobile accident and received caregiver benefits until the insurer terminated them.

The arbitrator found that the applicant was deemed to have elected caregiver benefits.

While the applicant did not suffer a substantial inability to engage in caregiving activities after the termination date, she did suffer a partial inability to carry on a normal life due to her restricted mobility.

The arbitrator awarded caregiver benefits for the 104-week period following the accident, along with interest and expenses.

The applicant was injured in a motor vehicle accident and received statutory accident benefits until August 1992.

She applied for mediation and arbitration in 1994 and 1995.

The insurer argued the application was barred by the two-year limitation period under section 281(5) of the Insurance Act.

The arbitrator found that the insurer's letters did not constitute clear and unequivocal written notice of refusal to pay benefits as required by section 24(8) of the Schedule.

Therefore, the limitation period never started to run, and the applicant was entitled to proceed to arbitration.