Helen Wong

Following an arbitration and appeal regarding statutory accident benefits, the applicant sought an assessment of his arbitration expenses.

The insurers argued that the appeal automatically stayed the arbitration expenses order, but the arbitrator noted that under the Insurance Act, an appeal does not stay an order unless the Director decides otherwise.

The arbitrator assessed the applicant's claimed legal fees and disbursements, allowing a portion of the preparation time and expert witness fees.

After accounting for set-offs for collateral benefits and the insurers' appeal expenses, Allstate was ordered to pay $3,569.45 and Wellington was ordered to pay $6,381.95.

The applicant, who had a pre-existing severe disability in her right arm, suffered a rotator cuff tear to her left shoulder and a low back injury in a motor vehicle accident.

She applied for statutory accident benefits for housekeeping, attendant care, various assistive devices, and a weight reduction program.

The insurer denied or ignored many of the claims, arguing the applicant failed to mitigate her damages by refusing shoulder surgery and that her mobility issues were unrelated to the accident.

The arbitrator found the applicant's refusal of surgery was reasonable given the high risks.

The arbitrator awarded past and ongoing housekeeping and care benefits, funding for an electrically operated bed, a scooter, a chair lift, a residential weight reduction program, and rehabilitation assessments.

Finding that the insurer had unreasonably withheld payments and failed to properly adjust the claim, the arbitrator ordered a special award ranging from 30% to 50% on the withheld benefits, along with interest.