Dwain Burns

The applicant requested a reconsideration of a Tribunal decision that found he did not meet the requirements for catastrophic impairment under Criterion 8 of the Statutory Accident Benefits Schedule.

The applicant argued the Tribunal failed to properly adjudicate the evidence, relied too heavily on expert reports, and failed to consider his impairments on a biopsychosocial basis.

The Tribunal dismissed the request, finding no error of law or fact.

The Tribunal held that it had properly weighed the evidence, including the applicant's own expert who found only a moderate impairment in concentration, persistence, and pace, and that the reconsideration process is not an opportunity to reweigh evidence.

The applicant, who suffered severe physical injuries in a motorcycle accident, sought a catastrophic impairment designation under Criterion 8 of the Statutory Accident Benefits Schedule based on mental and behavioural disorders.

The Licence Appeal Tribunal found that the applicant failed to demonstrate a marked impairment in three of four functional domains or an extreme impairment in one domain.

The Tribunal gave limited weight to the applicant's psychiatric expert due to conclusory analysis and reliance on outdated occupational therapy reports, preferring the respondent's occupational therapy assessment and surveillance evidence showing the applicant retained useful functioning.

As the applicant was not catastrophically impaired and had exhausted his standard medical and rehabilitation limits, his claims for an occupational therapy treatment plan and an award for unreasonable delay were dismissed.

The applicant sought non-earner benefits, cost of examinations, interest, and a special award following a 2015 motor vehicle accident.

The Licence Appeal Tribunal dismissed the application, finding that the applicant's physical limitations and depression pre-dated the accident and were not caused by it.

Consequently, the applicant did not suffer a complete inability to carry on a normal life as a result of the accident.

The claims for the cost of multidisciplinary assessments, interest, and an award for unreasonable delay were also dismissed.

The appellant sought to appeal an order dismissing its motion for summary judgment to the Court of Appeal, arguing that a finding of law in the motion judge's reasons regarding relief from forfeiture constituted a final order.

The Court of Appeal held that the order was interlocutory and that, following recent jurisprudence, an order must contain any finding of law intended to be final to confer jurisdiction on the court.

The court concluded the order was not final and dismissed the appeal for lack of jurisdiction.

The defendants appealed an interlocutory order requiring them to post $100,000 in security for costs or have their Statement of Defence and Counterclaim struck.

The primary issue was whether Rule 56.01(1)(c) conflicts with section 12 of the Libel and Slander Act.

The Divisional Court found no conflict, as the rule and the statute rely on different criteria.

However, the court varied the order, holding that a party should not be required to post security merely to defend itself.

The order was amended so that only the defendants' counterclaim would be struck if security was not posted.

Following the dismissal of her application for statutory accident benefits, the applicant sought her expenses for the arbitration proceeding, arguing that her case raised a novel issue.

The arbitrator found that the issue was not novel, as it was substantially similar to numerous other cases involving assaults in a motor vehicle.

Given that the insurer was completely successful and the issue was not novel, the applicant was not entitled to her expenses.

The insurer did not pursue a claim for its expenses.

The applicant's husband, a taxi driver, was assaulted and murdered in his cab.

The applicant sought death and funeral benefits from the insurer.

The insurer denied the claim on the basis that the death was not the result of an 'accident' as defined in the Statutory Accident Benefits Schedule.

The arbitrator found that the assault was an intervening act and the use of the taxi did not amount to a direct cause of death.

The application for arbitration was dismissed.

The applicant sought statutory accident benefits following a motor vehicle accident.

The insurer terminated benefits and sought repayment, alleging willful misrepresentation of pre-accident and post-accident income.

The applicant failed to attend the hearing.

The arbitrator removed the applicant's counsel from the record due to a breakdown in the solicitor-client relationship.

The application for benefits was dismissed.

Based on surveillance evidence and witness testimony, the arbitrator found the applicant willfully misrepresented his income and ordered him to repay $39,122.44 in income replacement benefits, plus interest, and $1,846 in arbitration expenses.

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

A preliminary issue hearing was held to determine whether the applicant had the mental capacity to proceed in the dispute resolution process under Rule 10.3(a) of the Dispute Resolution Practice Code.

The arbitrator reviewed medical evidence and observed the applicant's participation in teleconferences, concluding that there was insufficient evidence to rebut the presumption of capacity.

The arbitrator found that the applicant had the mental capacity to proceed.

The appellant was injured in a motor vehicle accident and received income replacement benefits.

The insurer terminated benefits, arguing the appellant's ongoing disability was due to a pre-existing schizoaffective disorder rather than the accident.

The arbitrator agreed, finding the accident's material contribution to the disability ended by August 2001, and dismissed claims for various assessment expenses.

On appeal, the Director's Delegate upheld the arbitrator's decisions, finding no error of law in the arbitrator's evaluation of the medical evidence, the impact of the appellant's pre-existing condition, or the rejection of assessment expenses.

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

During a preliminary issue hearing, the applicant exhibited signs of mental difficulty, prompting the arbitrator to direct a hearing on his mental capacity to proceed.

The applicant brought a motion for interim expenses to retain counsel and undergo a capacity assessment.

The arbitrator granted the motion, awarding 5 hours of legal fees and up to $1,500 for a capacity assessment, finding that the applicant's mental difficulty constituted an extraordinary situation warranting interim expenses to ensure a fair hearing.

Each party was ordered to bear its own expenses for the motion.

The applicant sought statutory accident benefits following a motor vehicle accident.

In a previous decision, the insurer successfully defended the claim for income replacement benefits, while the applicant recovered a small amount for a functional capacity evaluation.

On the issue of expenses, the arbitrator found that both parties unnecessarily prolonged the hearing.

The applicant failed to produce hospital records on a timely basis, and the insurer's counsel conducted lengthy and unhelpful cross-examinations regarding the applicant's pre-existing psychiatric illness.

Consequently, the arbitrator ordered that each party bear their own expenses of the arbitration proceeding.

The insurer appealed an arbitrator's decision finding that the claimant suffered a catastrophic impairment under the Statutory Accident Benefits Schedule following a motor vehicle accident.

The arbitrator relied on Glasgow Coma Scale (GCS) scores of 9 or less taken within the first hour of the accident.

The insurer argued the scores were confounded by intubation, seizures, and facial injuries, and were not taken within a 'reasonable period of time'.

The Director's Delegate dismissed the appeal, finding no palpable and overriding error in the arbitrator's factual findings that the early scores validly reflected brain impairment and were taken within a reasonable time.

Liberty Mutual appealed an arbitration order requiring it to pay a loss of earning capacity benefit based on a pre-accident earning capacity of $31,000 and a residual earning capacity of zero.

The Director's Delegate upheld the finding of zero residual earning capacity, noting it was supported by evidence that the claimant could not work reliably or consistently.

However, the Delegate allowed the appeal regarding pre-accident earning capacity, finding the Arbitrator erred in law by failing to consider the credibility of the claimant's undocumented assertion that she was about to open a third gas station.

The issue of pre-accident earning capacity was remitted to the Arbitrator.