Dr. P. Marton

The insurer appealed an arbitrator's decision awarding the claimant income replacement benefits (IRBs) for a psychological impairment.

The arbitrator had found the claimant entirely lacking in credibility and rejected his claims for physical disability, but awarded IRBs based on a psychologist's report.

The Director's Delegate allowed the appeal, finding that the arbitrator committed an error of law.

Because the psychologist's report explicitly relied on the claimant's presumed truthfulness, it could not support an award of benefits given the arbitrator's explicit finding that the claimant was not credible.

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

The applicant sought further income replacement benefits, arguing he was unable to return to his pre-accident employment as a concrete cutter due to physical and psychological impairments.

The arbitrator found the applicant's physical impairment evidence unreliable, but accepted the psychological evidence that he suffered from major depressive disorder and anxiety which prevented him from working.

The arbitrator preferred the applicant's psychological expert over the insurer's expert.

The applicant was awarded income replacement benefits for the disputed period.

Claims for attendant care and housekeeping were withdrawn, and a claim for the cost of a functional abilities evaluation was denied for failing to seek prior approval.

The insurer brought a motion to compel the insured to attend further psychological and orthopaedic examinations under section 42 of the Statutory Accident Benefits Schedule.

The insured opposed the motion, arguing the notice for the orthopaedic examination was void and the examinations were not reasonably necessary.

The arbitrator found the notice for the orthopaedic examination was void because it was served less than five business days before the appointment.

Furthermore, the arbitrator held that further examinations were not reasonably necessary, as the insurer had already obtained up-to-date, independent medical opinions that concluded the insured's ongoing complaints were not accident-related.

The motion was dismissed, and the insurer was ordered to pay $500 in costs.