Dr. Henry Berry

The applicant insurer sought judicial review of a FSCO Director's Delegate decision upholding an Arbitrator's finding that the respondent suffered a catastrophic impairment.

The respondent had recorded a Glasgow Coma Scale (GCS) score of 9 several days after a motor vehicle accident, which the insurer argued was confounded by medication and other injuries rather than brain impairment.

The Divisional Court dismissed the application, holding that the standard of review is reasonableness and that the SABS regulation uses the GCS score as a proxy measurement without requiring an inquiry into the patient's prognosis or the specific cause of the lowered score.

Following a jury trial arising from a motorcycle accident, the defendant brought a post‑verdict threshold motion under s. 267.5 of the Insurance Act seeking to bar recovery of non‑pecuniary damages.

The moving party argued the plaintiff failed to establish a permanent serious impairment of an important physical, mental, or psychological function.

The court reviewed the statutory definitions under Regulation 381/03 (Bill 198) and considered extensive medical and lay evidence regarding chronic pain, knee injury, psychological effects, and functional limitations.

The court held the plaintiff established a permanent and serious impairment affecting important functions, including employment capacity and activities of daily living.

The threshold was met and the defendant’s motion was dismissed.

The Applicant was injured in a motor vehicle accident and applied for enhanced statutory accident benefits, claiming a catastrophic impairment due to a brain impairment resulting in a Glasgow Coma Scale (GCS) score of 9 or less.

The Insurer disputed the catastrophic impairment designation.

The arbitrator found that while a GCS score of 3 during intubation and medical paralysis was untestable and could not satisfy the definition, subsequent GCS scores of 9 recorded by a nurse were valid.

Relying on the Court of Appeal's decision in Liu, the arbitrator held that the GCS test is a legal bright-line rule rather than a scientifically precise measurement, and declined to adjust the score for the potential effects of sedatives.

The arbitrator concluded the Applicant suffered a catastrophic impairment.

The applicant was involved in three motor vehicle accidents in 2001 and sought income replacement benefits beyond October 6, 2002, claiming he was unable to return to his pre-accident job due to chronic pain and psychological problems.

The insurer terminated benefits based on multiple disability assessments concluding he was capable of working.

The arbitrator found that while the accidents contributed to his complaints, the applicant failed to prove he suffered a substantial inability to perform the essential tasks of his pre-accident employment.

The arbitrator preferred the evidence of the disability assessors over the applicant's treating physicians and experts, noting weaknesses in the latter's opinions and the fact that the applicant had successfully held other jobs post-accident.

The application for ongoing benefits and a special award was dismissed.

The applicant sought statutory accident benefits for rehabilitation and care services following a 1993 motor vehicle accident.

The insurer denied the claims, arguing the applicant's pervasive physical, cognitive, and psychological conditions were not caused by the accident.

The arbitrator dismissed the applicant's claims, finding she failed to prove on a balance of probabilities that the accident materially contributed to her impairments.

The arbitrator noted a complete absence of pre-accident medical records, relying solely on the applicant's unreliable self-reporting, and drew an adverse inference from her failure to call pre-accident treating physicians or lay witnesses to corroborate her pre-accident health and functional abilities.

The applicant was seriously injured in a motor vehicle accident and subsequently developed a severe addiction to crack cocaine.

He applied for catastrophic impairment status, attendant care benefits, and income replacement benefits.

The insurer argued the addiction pre-dated the accident and was not causally linked.

The arbitrator found that the applicant was a recreational user prior to the accident but the severe addiction was a direct result of the accident, likely due to a mild traumatic brain injury and an attempt to self-medicate.

The arbitrator concluded the applicant suffered a Class 4 marked impairment under the AMA Guides, meeting the definition of catastrophic impairment.

The applicant was awarded ongoing attendant care benefits of $5,056.80 per month and income replacement benefits of $256 per week.

The respondent suffered an ischemic stroke caused by a dissection of his left internal carotid artery while playing basketball, resulting in permanent disability.

He claimed a $200,000 benefit under his employer's group accident policy, which covered bodily injury caused by an accident.

The trial judge found that the dissection was likely caused by trauma from the respondent vigorously turning his neck during the game, and that this constituted an 'accident' because the resulting injury was unexpected.

The insurer appealed, arguing the trial judge made palpable and overriding errors in his factual findings and misapplied the law regarding accidental injuries.

The Court of Appeal dismissed the appeal, holding that deliberate acts of ordinary living can constitute an accident and that the circumstantial evidence amply supported the trial judge's findings on causation.

The appellant, who claimed to suffer from a traumatic brain injury following a motor vehicle accident, appealed an Arbitrator's preliminary order denying her request to have a friend act as a 'facilitator' during her accident benefits arbitration.

The Director of Arbitrations dismissed the appeal, finding no error of law in the Arbitrator's conclusion that the appellant had the mental capacity to conduct her own case.

The Director reviewed conflicting medical evidence and concluded that the proposed facilitator's role blurred the line between communication assistance and representation, which is restricted under the Insurance Act.

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

The insurer terminated weekly income benefits after 156 weeks.

The applicant sought ongoing benefits, claiming she was continuously prevented from working as a dressmaker due to chronic pain and fibromyalgia.

The arbitrator dismissed the claim for ongoing benefits, relying heavily on surveillance evidence that contradicted the applicant's reported functional limitations.

However, the arbitrator found that collateral benefits received by the applicant from private disability policies were not deductible from her pre-156 week income benefits, ordering the insurer to pay the shortfall with interest.

The applicant was injured in a motor vehicle accident and received weekly income benefits for three years.

The insurer terminated benefits on the basis that the applicant did not meet the stricter test of being continuously prevented from engaging in any suitable occupation after 156 weeks.

The arbitrator found the applicant lacked credibility, as extensive video surveillance contradicted his claims of severe physical and cognitive disability, showing him engaging in vigorous activities and working as a waiter.

The arbitrator dismissed the claim for ongoing benefits, ordered repayment of an overpayment due to CPP benefits, and awarded the applicant only 50% of his arbitration expenses.

The insurer appealed an arbitration order granting the insured weekly benefits and housekeeping expenses following a motor vehicle accident.

The insurer argued the arbitrator misconstrued medical evidence regarding the insured's ability to perform essential tasks and erred in awarding housekeeping expenses for services provided by family members.

The Director of Arbitrations dismissed the appeal, finding the arbitrator's conclusions on disability were supported by the evidence.

The Director also upheld the housekeeping award, confirming that paragraph 6(1)(f) of the Schedule allows compensation for reasonable services provided by family members when required for the insured's care or rehabilitation.

The applicant was struck by a car while crossing the street and claimed statutory accident benefits, including weekly income benefits and supplementary medical and rehabilitation benefits.

The insurer terminated weekly income benefits on December 31, 1992.

The arbitrator found the applicant lacked credibility due to numerous inconsistencies in his evidence regarding his pre-accident employment, medical history, and the accident itself.

The arbitrator accepted the evidence of the insurer's medical expert that the applicant's ongoing symptoms were related to aging and a pre-existing heart condition, not the motor vehicle accident.

The application for further benefits was dismissed, and the applicant was awarded only half of his arbitration expenses.