Erin Farrell

The applicant sought production of the insurer's entire accident benefits file, including post-mediation documents and communications with counsel, arguing the insurer waived privilege by abandoning its position on an insurer examination.

The arbitrator found no factual basis for waiver of solicitor-client privilege.

However, due to concerns about the insurer's compliance with a prior production order and its refusal to particularize claims of privilege, the arbitrator ordered the insurer to serve a detailed Affidavit of Documents for both the pre-mediation and post-mediation periods.

The applicant was injured in a motor vehicle accident and claimed statutory accident benefits for a Kenko Sleep System (a magnetic mattress and pillow) costing $1,607.70.

The insurer denied the claim, arguing the device was experimental and not a medical device.

The arbitrator found that while the system qualified as a medical device under the Schedule, the applicant failed to prove it was a reasonable and necessary treatment for her accident-related impairment.

The medical evidence did not support the therapeutic value of the device for her soft tissue injuries.

The application for arbitration was dismissed, and no expenses were awarded.