David Zarek

The applicant was injured in a motor vehicle accident and claimed statutory accident benefits from two insurers, Royal and Coseco.

The insurers disputed priority.

The arbitrator determined that Ontario Regulation 283/95, which mandates private arbitration for priority disputes, does not apply retroactively to this case.

The arbitrator found that the applicant had chosen Coseco by submitting her first completed application for benefits to them, and therefore Coseco was liable to pay her claims.

The insurer appealed an arbitration decision that refused to order the respondent to repay weekly income benefits under section 27 of the Statutory Accident Benefits Schedule.

The insurer argued that it paid the benefits through error because it mistakenly believed the respondent was on a temporary lay-off at the time of the accident.

The Director's Delegate dismissed the appeal, finding that the insurer did not pay the benefits through error, as it had calculated them properly based on the information provided and the prevailing case law at the time.

The Delegate affirmed that an innocent insured person should not be required to repay benefits due to a later reassessment based on new information or developing case law.

The applicant was injured in a motor vehicle accident and sought a determination of the quantum of his weekly income benefits.

The arbitrator had to decide whether to calculate the applicant's pre-accident income by averaging his earnings over the 22 weeks he actually worked, or over the full 52 weeks preceding the accident.

Following previous tribunal decisions, the arbitrator held that the plain language of the Statutory Accident Benefits Schedule required averaging the income over 52 weeks, resulting in a weekly benefit of $250.22.

The arbitrator denied the applicant's request for a special award for unreasonably withheld benefits, noting that the delay was partly attributable to the applicant's refusal to include the quantum issue in the initial hearing.

The insurer's request for costs was denied, and the applicant was awarded his expenses for the arbitration.

The applicant sought an assessment of expenses following an arbitration order granting him his expenses.

The insurer argued that payment should be delayed pending an appeal and that the legal fees claimed were unreasonable.

The arbitrator held that the original order remained in full force and effect because the insurer had not requested a stay pending appeal.

The arbitrator also found that the 50.75 hours of legal work claimed by the applicant's counsel were reasonable given the complexity of the case and the duration of the hearing.

The insurer was ordered to pay the expenses forthwith.

The applicant was injured in a motor vehicle accident and received weekly income benefits from the insurer until they were terminated.

The applicant sought reinstatement of benefits, arguing he was either on a temporary lay-off or employed for 180 days in the twelve months preceding the accident.

The insurer argued the applicant did not qualify and sought repayment of benefits previously paid, alleging the applicant misrepresented his employment status.

The arbitrator found that the applicant retained his employment status while receiving workers' compensation benefits, thus satisfying the 180-day employment requirement.

The arbitrator also found the applicant did not knowingly misrepresent his status, dismissing the insurer's claim for repayment.

The applicant was awarded reinstatement of weekly income benefits and arbitration expenses.