David S. Wilson

The applicant sought interim income replacement, housekeeping, and attendant care benefits pending the arbitration of her dispute with the insurer over a motor vehicle accident claim.

The arbitrator dismissed the motion, finding that the applicant failed to establish an urgent financial need or any other compelling reason to grant interim relief.

The applicant's evidence regarding her family's financial circumstances was deemed evasive and insufficient, and the insurer's conduct regarding the attendant care assessment did not amount to a blatant disregard of its obligations.

Arbitration under the Statutory Accident Benefits Schedule concerning ongoing income replacement benefits after a motor vehicle accident.

The arbitrator found that the applicant met the own-occupation disability test up to the two-year anniversary of the accident, largely on the strength of two functional capacity evaluations that were not effectively undermined by the insurer.

The insurer's orthopaedic expert was given little weight because his analysis focused unduly on objective findings and failed to address the functional demands of the pre-accident job.

The applicant failed, however, to prove the stricter post-104 week any-occupation test.

Issues of prejudgment interest, special award, and legal expenses were left for further submissions.

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

The Insurer terminated income replacement and housekeeping benefits based on insurer's examinations.

The arbitrator found the Applicant's evidence and her medical assessors' opinions credible, establishing that her physical and psychological impairments substantially prevented her from performing her pre-accident employment and housekeeping tasks.

The arbitrator rejected the Insurer's assessors' evidence as flawed and unpersuasive.

The Applicant was awarded income replacement and housekeeping benefits for the 104-week period, with interest.

Claims for post-104 week benefits were dismissed on a technical basis without prejudice.

The claim for a special award was dismissed as the Insurer's reliance on its assessors, though ultimately unsuccessful, was not unreasonable.

The insurer applied to vary or revoke an arbitration order regarding the quantum of income replacement benefits, arguing the insured was self-employed rather than employed.

The arbitrator dismissed the application, finding that the insurer's challenge to the previous arbitrator's ruling on jurisdiction was effectively an appeal, not an error in the order.

Furthermore, the evidence regarding employment status was not 'unavailable' at the original hearing; rather, the insurer failed to act diligently to mediate the issue in a timely manner.

The applicant sought statutory accident benefits for rehabilitation and care services following a 1993 motor vehicle accident.

The insurer denied the claims, arguing the applicant's pervasive physical, cognitive, and psychological conditions were not caused by the accident.

The arbitrator dismissed the applicant's claims, finding she failed to prove on a balance of probabilities that the accident materially contributed to her impairments.

The arbitrator noted a complete absence of pre-accident medical records, relying solely on the applicant's unreliable self-reporting, and drew an adverse inference from her failure to call pre-accident treating physicians or lay witnesses to corroborate her pre-accident health and functional abilities.

The insurer brought a motion for an order permitting it to schedule post-104 week examinations of the insured and requiring the insured to attend.

The arbitrator dismissed the motion, finding that an order permitting the scheduling of examinations was unnecessary as section 42 of the Statutory Accident Benefits Schedule already permits insurers to schedule them.

Furthermore, the arbitrator held that she lacked jurisdiction to order an insured to attend an examination, noting that the insurer had not yet served the insured with the required notice under section 42(4).

The applicant sought ongoing care-giver benefits beyond 104 weeks after a motor vehicle accident, together with a special award and interest.

The arbitrator applied the statutory test for a complete inability to carry on a normal life and found that chronic pain, severe depression, anxiety, and functional limitations continuously prevented the applicant from engaging in substantially all pre-accident activities in any meaningful way.

Ongoing care-giver benefits and statutory interest were awarded.

The claim for a special award was denied because the insurer's conduct was not shown to be unreasonable.

The applicant sought to fix the quantum of a special award previously ordered against the insurer for unreasonably delaying the payment of income replacement benefits, housekeeping benefits, and interest.

The arbitrator applied the Persofsky factors, considering the insurer's blameworthiness, the harm to the financially vulnerable applicant, and the need for deterrence.

The arbitrator fixed the total special award at $26,250 and amended the previous order to explicitly require the insurer to pay $8,286.82 in outstanding interest.

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

The parties settled all substantive issues in dispute prior to the conclusion of the arbitration.

The applicant sought an order for the expenses of the arbitration proceeding.

The insurer argued the arbitrator lacked jurisdiction to award expenses because the settlement ended the proceeding.

The arbitrator held that jurisdiction continues until an order is made ending the proceeding.

After considering the criteria for awarding expenses, including the mixed success of the parties and the unnecessary motion brought by the applicant, the arbitrator ordered each party to bear their own expenses.

The applicant was injured in a motor vehicle accident and applied for arbitration after the insurer terminated her income replacement benefits.

At the hearing, the parties resolved all substantive issues but disagreed on the form of the order.

The insurer sought a dismissal of the arbitration based on its agreement to reinstate benefits, while the applicant sought an order confirming her entitlement.

The arbitrator ruled that an agreement to pay benefits is not equivalent to an order, as an order restricts the insurer's rights to terminate benefits.

The hearing was adjourned to allow the applicant to pursue an order for entitlement.

A preliminary issue regarding the non-production of documents was deemed moot due to the adjournment.

The Applicant sought an award of expenses following a pre-hearing motion in which the Insurer's request for production of defence medical reports was denied.

The Arbitrator held that interim expenses should only be awarded in exceptional circumstances, which were not present here.

The request for expenses was denied, with the issue left to be determined by the hearing arbitrator at the conclusion of the proceeding.

The applicant was injured in motor vehicle accidents in 1994 and 1996.

Following a failed mediation and a purported settlement, the parties disputed which statutory accident benefit claims could proceed to arbitration.

The arbitrator held that a pragmatic and flexible approach should be applied to the mediation requirement.

The applicant was permitted to proceed to arbitration on the quantum of income replacement benefits and supplementary medical/rehabilitation benefits, as they flowed consequentially from the mediated issues or were captured by the broad descriptions in the mediation applications.

However, claims for attendant care and housekeeping were barred from arbitration because they were not expressly mediated, did not flow from mediated issues, and would cause prejudice to the insurer.

The applicant was injured in motor vehicle accidents in 1994 and 1996 and applied for statutory accident benefits.

The insurer terminated weekly income replacement benefits.

On the eve of an arbitration hearing, a preliminary issue was raised regarding which statutory accident benefit claims were captured in the applications for mediation and could proceed to arbitration.

The arbitrator determined that the applicant could proceed to arbitration on nine specific issues, including income replacement benefits, loss of earning capacity benefits, supplementary medical expenses, rehabilitation benefits, special awards, and expenses.

The applicant sought an assessment of legal fees following a successful arbitration for statutory accident benefits.

The insurer disputed the amount claimed, arguing that the preparation time was excessive and the hourly rate should be reduced.

The arbitrator found the applicant's bill of costs reasonable, noting the insurer's late reinstatement of benefits and unsuccessful adjournment request necessitated the preparation.

The arbitrator awarded the applicant $13,634.48 in legal fees and GST, including costs for the expense assessment hearing.

The applicant sought an assessment of expenses following a successful cross-motion for continuing interim income replacement benefits.

The insurer argued that the claimed fees were excessive and that disbursements should be reserved for the main hearing.

The arbitrator found the applicant's claimed hours reasonable given the efficient use of hearing time and the novelty of the issues.

The arbitrator also allowed the disbursements for medical reports, finding them necessary for the motion.

The insurer was ordered to pay the applicant's assessed expenses of $10,323.90.

The applicant was injured in a motor vehicle accident and received statutory accident benefits, which the insurer later terminated.

Shortly before the arbitration hearing, the insurer unilaterally reinstated the benefits but at a lower rate for the income replacement benefits (IRBs) and refused to consent to an Order for ongoing benefits.

The arbitrator held a hearing on the merits and found the applicant entitled to ongoing IRBs and housekeeping benefits.

The arbitrator ordered the IRBs to be paid at the original rate of $400 per week, as the insurer had failed to mediate the issue of quantum.

A special award of $5,000 was also granted due to the insurer's delay and failure to properly investigate the claim.

The parties sought a determination on entitlement to expenses following a variation motion and cross-motion regarding interim income replacement benefits.

The arbitrator applied the criteria under O. Reg. 275/03, finding that while both parties had some success, the applicant enjoyed a greater degree of success by maintaining his ongoing entitlement to income replacement benefits.

The arbitrator awarded the applicant his expenses of the proceeding, leaving the quantum to be assessed if the parties could not agree.

The parties resolved their dispute concerning the applicant's claims for statutory accident benefits on the first day of the scheduled hearing.

The insurer agreed to pay the applicant's reasonable expenses, but the parties could not agree on the quantum.

The applicant sought $40,658.73.

The arbitrator assessed the expenses, reducing the amount claimed for a medical report to the statutory maximum exclusive of GST, and deducting hours billed for an interim motion that was subject to a separate costs order.

The arbitrator allowed the hours billed for a private mediation and found the total preparation time reasonable given the complexity of the case.

Expenses were fixed at $37,622.11.

The applicant was injured in a motor vehicle accident and applied for arbitration after the insurer terminated his income replacement benefits.

Shortly before the hearing, the parties settled all present issues, including the reinstatement of benefits.

The applicant requested an adjournment to a new date in case the insurer terminated benefits at the upcoming 104-week mark.

The arbitrator held that the Commission lacks jurisdiction to take reservations for potential future disputes when no actual issues remain in dispute.

The request for an adjournment was denied, and notice was given of the intention to close the file in 90 days.

The insurer brought a motion on the eve of an arbitration hearing seeking leave to amend its response to add an issue of material misrepresentation, a stay of the arbitration, and an adjournment due to alleged non-compliance with productions and the unavailability of medical witnesses.

The arbitrator denied the motion to amend, finding that the insurer had the information necessary to raise the issue months earlier and that adding it now would cause significant delay and prejudice to the insured.

The requests for a stay and adjournment were also denied, as there were no outstanding production orders and the insurer had failed to take steps to ensure its witnesses were available for cross-examination.

The insurer was ordered to pay $900 in costs.