David Payne

The applicant sought an adjournment of a hearing regarding a catastrophic impairment determination because the respondent had only recently produced medical reports.

The respondent opposed the adjournment, arguing the late disclosure was caused by the applicant's own delay in providing her medical assessments.

The Tribunal granted the adjournment, finding that the applicant was entitled to prepare medical reports in reply to the respondent's assessors, and that a full hearing on the merits of the serious catastrophic impairment issue was necessary.

The hearing was adjourned to September 2017.

The respondent was injured while operating a Genie S65 Boom Lift and applied for statutory accident benefits.

The insurer denied the claim on the basis that the boom lift was not an 'automobile'.

The arbitrator found that the boom lift was an off-road vehicle requiring insurance and thus met the enlarged definition of an automobile.

On appeal, the Director's Delegate reversed the decision, holding that under the Off-Road Vehicles Act regulations, a vehicle must have a seat to be prescribed as an off-road vehicle.

Because the boom lift lacked a seat, it was not an automobile, and the respondent was not involved in an accident under the Schedule.

The applicant, injured in a motor vehicle accident, sought a determination of catastrophic impairment.

The insurer requested that the applicant attend in-person multidisciplinary examinations under section 44 of the Statutory Accident Benefits Schedule to assist in its determination.

The applicant refused, arguing the insurer's request was an abuse of process because it had previously denied funding for her own assessments based on flawed paper reviews.

The Arbitrator held that while the insurer's handling of the file raised concerns, it was not seeking the assessments for the dominant purpose of litigation.

Applying the Ramalingam factors, the Arbitrator found the insurer was entitled to conduct two or more in-person assessments to respond to the applicant's new medical information.

The applicant was injured in a motor vehicle accident and applied for a determination of catastrophic impairment.

The insurer's Designated Assessment Centre concluded she did not suffer a catastrophic impairment.

The arbitrator found that the applicant suffered a marked impairment in social functioning due to the accident, satisfying the definition of catastrophic impairment under section 2(1)(g) of the Schedule.

The arbitrator also assessed her physical impairments at 52% WPI, which combined with her psychological impairment would exceed the 55% threshold.

The applicant was awarded her expenses of the arbitration.

The insurer brought a motion seeking an order confirming its right to speak privately with members of a Designated Assessment Centre (DAC) assessment team to prepare them for an upcoming arbitration hearing, and an order that it was not obliged to disclose the details of those conversations.

The arbitrator dismissed the motion, finding that DAC assessors hold a unique, neutral statutory role in the dispute resolution process.

Maintaining the actual and perceived neutrality of DAC assessors outweighs concerns about hearing efficiency and witness preparation.

Consequently, there is no right to one-sided partisan contact with a DAC assessor prior to a hearing.

The insurer sought leave to appeal an Arbitrator's preliminary order that allowed the insured to proceed to arbitration on the condition that he withdraw overlapping claims from his court action.

The Director of Arbitrations denied the request, finding no compelling reason to deviate from the usual rule that appeals must wait until all issues in dispute have been finally decided.

The Arbitrator's decision involved a pragmatic balancing of interests and an exercise of discretion that should not be disturbed lightly on an interlocutory basis.

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

He commenced a civil action and subsequently applied for arbitration.

After being determined catastrophically impaired, he filed a supplementary application for arbitration claiming attendant care and case manager benefits, and sought to combine it with his scheduled arbitration.

The insurer objected, arguing that the applicant could not proceed with both a court action and arbitration for the same benefits under section 281 of the Insurance Act.

The arbitrator allowed the applicant to continue and combine the arbitration proceedings on the condition that he amend his civil statement of claim to withdraw all overlapping claims.

The arbitrator found this approach would prevent duplication, avoid inconsistent results, and address the urgency of the applicant's need for attendant care.