Dr. L. Tuff

The applicant was injured in a bicycle accident and sought statutory accident benefits.

The respondent insurer scheduled an insurer examination with a neuropsychologist, providing notice that it would be a 'paper review' and attendance was not required.

However, the applicant attended an in-person examination.

The applicant brought a motion to exclude the resulting reports, arguing the notice was defective under s. 44(5) of the Schedule.

The Tribunal found the notice was invalid and prejudiced the applicant by denying him the opportunity to provide relevant information prior to the assessment.

The Tribunal excluded the neuropsychologist's evidence from the in-person examination but found the applicant's request to preclude further examinations premature.

The applicant insurer sought judicial review of a Director's Delegate decision upholding an arbitrator's award for private school tuition and a special award for unreasonably withholding benefits under the Statutory Accident Benefits Schedule.

The Divisional Court found the Delegate's broad interpretation of 'incurred' and 'undertaken' under s. 15 of SABS was reasonable.

The court also upheld the finding that the insurer unreasonably denied benefits by relying on flawed expert reports and ignoring the insured's future needs.

The court fixed the quantum of the special award at $20,000.

The appellant insurer appealed an arbitrator's decision granting a special award to the respondent for unreasonably withholding payments for rehabilitation support worker services and private school tuition.

The Director's Delegate confirmed the appeal decision, finding that there was an adequate evidentiary foundation to support the arbitrator's finding that the insurer acted unreasonably.

The insurer had failed to consider new information, including a DVD with statements from the respondent's rehabilitation team, and relied on overlapping and preliminary assessments to deny benefits.