Dr. R. Hershberg

The applicant was seriously injured in a motor vehicle accident, resulting in a through-the-knee amputation of his right leg.

He applied for a catastrophic impairment designation under paragraph 2(1)(f) of the Statutory Accident Benefits Schedule, claiming a whole person impairment (WPI) of 55% or more.

The arbitrator evaluated the applicant's physical, skin, and mental/behavioural impairments using the AMA Guides.

The arbitrator found that the applicant sustained a 37% WPI for his lower extremity, a 20% WPI for skin impairment, a 15% WPI for mental and behavioural disorders, and additional minor ratings for his low back, left knee, and left wrist/elbow.

Combining these ratings, the arbitrator concluded the applicant sustained a 62% WPI, meeting the threshold for catastrophic impairment.

The insurer brought a motion to stay the arbitration hearing on the basis that the claimant refused to attend an insurer's medical examination (IME) with a neuro-psychiatrist.

The claimant argued the request was neither reasonable nor timely, as it was made close to the hearing date and the insurer already had numerous assessments in its favour.

The arbitrator found that the insurer's request was not reasonably necessary, noting that the insurer had ample time to request the IME earlier and that the chosen doctor had already concluded from a paper review that the claimant's injuries were not accident-related.

The motion was dismissed and the arbitration was ordered to proceed.

The insurer appealed an arbitration order awarding the insured person ongoing income replacement benefits, attendant care benefits, medical benefits, and a special award following a motor vehicle accident.

The Director's Delegate upheld the award of income replacement benefits, finding no error in the arbitrator's conclusion that the insured person suffered a complete inability to engage in suitable employment due to chronic pain.

However, the Delegate reversed the award of attendant care benefits beyond the 104-week mark, holding that the transitional provisions of the SABS-1996 did not suspend the temporal limit.

The Delegate also reversed the award of medical benefits for a specific clinic, finding the arbitrator erred in ordering benefits solely because of a delay in obtaining a DAC report.

The special award was consequently reduced to reflect only those benefits that were unreasonably delayed and actually payable.

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

The insurer terminated her income replacement benefits, prompting the applicant to apply for arbitration.

Shortly before the hearing, the insurer reinstated the benefits and paid the arrears with interest.

The arbitration proceeded solely on the issue of whether the applicant was entitled to a special award under s. 282(10) of the Insurance Act.

The arbitrator found that the insurer acted unreasonably and engaged in flagrant misconduct by terminating benefits without meaningful medical evidence, ignoring overwhelming medical reports from its own assessors confirming the applicant's severe depression and disability, and improperly deducting collateral benefits.

The arbitrator awarded the maximum special award of 50% of the withheld benefits, amounting to $61,829.52.