Ian D. Kirby

The appellant appealed an arbitrator's decision denying his claims for income replacement benefits and certain medical benefits.

The respondent insurer cross-appealed the arbitrator's order requiring it to pay $7,028.58 for two treatment plans on the basis that it failed to provide a timely response under the Statutory Accident Benefits Schedule.

The Director's Delegate dismissed the appellant's appeal because it improperly challenged findings of fact rather than errors of law.

The cross-appeal was also dismissed, as the arbitrator correctly applied the mandatory statutory consequences for the insurer's failure to respond to the treatment plans within the prescribed timelines after receiving them by fax.

Manitoba Public Insurance (MPI) brought a motion for directions regarding an unpaid costs award of $12,000 from a priority dispute over accident benefits.

MPI was successful in the underlying arbitration and application, but took no part in the subsequent appeal between Allstate and the Motor Vehicle Accident Claims Fund.

The Court of Appeal ordered Allstate, as the unsuccessful party on the appeal, to pay MPI's $12,000 costs from the lower proceedings, plus $1,000 for the costs of the motion.

The applicant was injured in a motor vehicle accident and applied for income replacement benefits.

He had not reported approximately $20,000 in income on his original 2006 income tax return, but later filed an amended return to include it.

The insurer argued that under section 64.1 of the Statutory Accident Benefits Schedule, the unreported income should not be included in the calculation of benefits.

The arbitrator agreed, finding that the purpose of section 64.1 is to avoid complex inquiries into undeclared income, and that an amended return filed after the fact to remedy non-disclosure does not override the original return for the purpose of calculating benefits.

The parties agreed on the amount of the applicant's Loss of Earning Capacity Benefits (LECB) but disputed the commencement date.

The insurer argued entitlement should begin on January 29, 2004, when the REC DAC evaluation was completed.

The applicant argued it should begin in May 2001, when the insurer made its original LECB offer of zero.

The Arbitrator held that the goal of consumer protection is best served by making LECB entitlement commence from the date the insurer made its original LECB offer, or when it should have been made.

The Arbitrator ordered that the applicant's LECB entitlement commenced in May 2001.

Following the dismissal of the insured's appeal regarding statutory accident benefits, the insurer sought its expenses of the appeal.

The Director's Delegate found that the insurer was entitled to its expenses as the successful party on an appeal involving essentially factual issues.

The insurer's claimed hours were found to be reasonable, but its claim for appeal filing fees and assessment fees was denied because the insured, not the insurer, had paid the filing fee to appeal.

The insured was ordered to pay the insurer's appeal expenses of $2,165.36.

Following the dismissal of the applicant's accident benefits claims, the arbitrator considered the issue of expenses.

The applicant objected to the determination of expenses, arguing the hearing was not completed and noting her appeal of the merits decision.

The arbitrator rejected this argument, finding authority under s. 282(11) of the Insurance Act.

As the applicant was entirely unsuccessful, raised no novel issues, and unnecessarily prolonged the proceedings, the insurer was awarded its expenses.

The arbitrator allowed the insurer's legal fees and most disbursements, but excluded the court reporter fee as not reasonably necessary, resulting in a total expense award of $9,457.84 payable by the applicant to the insurer.

In a preliminary issue hearing regarding a dispute over statutory accident benefits, the insurer challenged the conclusions of two Designated Assessment Centre (DAC) assessors.

The issue was whether a DAC assessor meeting privately with counsel for either party before testifying would affect the admissibility or weight of their opinion.

The Arbitrator held that such a meeting, by itself, does not affect the admissibility or weight of the opinion, as litigation privilege protects a party's right to seek such meetings.

However, if a party obtains previously-undisclosed information or provides new information to the DAC assessor, they must comply with disclosure rules under the Dispute Resolution Practice Code.

The applicant was injured in a motor vehicle accident and sought various statutory accident benefits, including medical and rehabilitation benefits, housekeeping expenses, and attendant care benefits.

The insurer denied the claims.

The arbitrator found that the applicant suffered from pre-existing physical and psychological conditions due to prior incidents.

Based on the medical evidence and the applicant's level of activity before and after the accident, the arbitrator concluded that the motor vehicle accident did not significantly contribute to her ongoing physical or psychological impairments.

All claims for benefits, interest, and a special award were dismissed.

The applicant was injured in a motor vehicle accident and sought post-104 week income replacement benefits.

The insurer terminated benefits, arguing the applicant continued to operate his horse farm.

The arbitrator found that the applicant suffered from severe chronic pain and depression, rendering him completely unable to engage in any employment for which he was reasonably suited, including his pre-accident work as a truck driver and farmer.

The arbitrator awarded income replacement benefits at $400 per week, interest on overdue payments, and a $25,000 special award against the insurer for unreasonably terminating benefits without sufficient medical or vocational investigation.

The appellant sought a stay of an arbitrator's order requiring her to repay $4,487.11 in income replacement benefits to the insurer, pending her appeal of the arbitrator's denial of other benefits.

The Director's Delegate applied the Scavuzzo criteria and found that the appellant was not actually appealing the repayment order itself, which arose from her failure to disclose post-accident employment.

The Delegate concluded that the appellant failed to establish a compelling case or exceptional circumstances to justify a stay, noting that her claims of financial hardship were insufficiently detailed to overcome the deference owed to the arbitrator's findings.

The insurer appealed an arbitrator's decision awarding the insured non-earner benefits, prescription costs, and the cost of a medical report following a motor vehicle accident.

The insurer argued the arbitrator erred by relying on the evidence of the insured's husband, who had previously assisted the insured in providing inaccurate histories to medical assessors.

The Director's Delegate dismissed the appeal, finding that the arbitrator's credibility assessments and weighing of the evidence were fact-driven determinations entitled to deference.

The arbitrator had a sufficient evidentiary basis, including evidence from the treating psychologist and the insurer's own examining psychiatrist, to conclude that the accident significantly exacerbated the insured's pre-existing depression and prevented her from engaging in substantially all of her pre-accident activities.

The insurer appealed an arbitrator's decision granting a $50,000 special award to the respondent for unreasonably withholding accident benefits following the death of a pedestrian.

The insurer argued the arbitrator erred in law by imposing the award and in calculating its quantum, contending the evidence of an 'accident' was equivocal.

The Director's Delegate dismissed the appeal, finding the special award was justified not by the ultimate evidence, but by the insurer's egregious adjusting practices, including failing to investigate, ignoring evidence, and allowing tort considerations to influence the first-party claim.

The quantum of the award was upheld as rationally related to the misconduct and necessary for deterrence.

The appellant appealed an arbitrator's decision dismissing her claims for income replacement benefits, medical and rehabilitation benefits (including a Tempur mattress and laptop computer), a neuropsychological re-assessment, and a special award under the Statutory Accident Benefits Schedule.

She also appealed the arbitrator's order awarding the insurer $15,344.05 in expenses.

The Director's Delegate dismissed the appeal, finding no breach of natural justice or procedural fairness by the arbitrator.

The Delegate upheld the arbitrator's factual findings that the appellant was not disabled from her pre-accident employment, that the claimed medical and rehabilitation items were not reasonable and necessary, and that the appellant's conduct unnecessarily prolonged the hearing, justifying the expenses award.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits, including rehabilitation benefits for university tuition, income replacement benefits (IRBs) beyond 104 weeks, attendant care benefits, and housekeeping services.

The arbitrator dismissed all of the applicant's claims, finding that her pursuit of a university degree was not a reasonable and necessary rehabilitation measure, and that medical evidence did not support her inability to engage in suitable employment.

Furthermore, the arbitrator ordered the applicant to repay $4,487.11 in overpaid IRBs, as she had failed to disclose her return to part-time work.

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

The insurer then terminated the benefits and sought repayment, alleging the applicant was not employed as claimed.

On a preliminary issue, the arbitrator held that, as a matter of law, an insurer can be estopped from challenging an insured's entitlement to and quantum of income replacement benefits on grounds related to pre-accident employment, despite the dispute resolution and repayment provisions of the Insurance Act and the Statutory Accident Benefits Schedule.

The appellant, who suffered a serious brain injury in a motor vehicle accident, appealed an arbitrator's decision terminating his non-earner benefits as of August 31, 2002.

The arbitrator had found that by September 2002, the appellant had resumed quality participation in enough of his pre-accident activities, such as socializing and attending school, that he no longer suffered a complete inability to carry on a normal life.

The Director's Delegate dismissed the appeal, finding no error in the arbitrator's holistic assessment of the appellant's pre- and post-accident activities and potential.

Following the dismissal of the insured's application for statutory accident benefits, the insurer sought its expenses of the arbitration proceeding.

The insured's counsel did not file a response to the insurer's bill of expenses.

The arbitrator reviewed the claimed fees and disbursements, allowing the fees as claimed but disallowing a $1,112.00 disbursement for the attendance of a rheumatologist, finding the expert's opinion was neither necessary nor helpful.

The insurer was awarded total expenses of $8,795.97.

The applicant brought a motion seeking orders requiring the insurer to pay for transcripts from a previous arbitration, produce its entire accident benefits file, produce its Policy and Procedure Manual, and produce a copy of her medical file from Riverfront Medical.

The arbitrator denied the requests for the transcripts, the accident benefits file, and the manual.

The arbitrator found no jurisdiction to admit the transcripts without consent, that the file request was too late to assess privilege claims, and that the manual did not exist.

The insurer was ordered to produce the medical file at its expense.

The applicant was involved in a single motor vehicle rollover accident.

The insurer denied her claim for income replacement and housekeeping benefits, alleging she made a material misrepresentation by claiming she was the driver when her husband was actually driving.

The insurer relied on an anonymous tip and an accident reconstruction report.

The arbitrator weighed conflicting expert evidence on occupancy dynamics and injury biomechanics.

The arbitrator preferred the applicant's expert, finding his explanation of the applicant's head injury more cogent, and concluded on a balance of probabilities that the applicant was driving the vehicle.

In a further decision regarding the calculation of the applicant's Residual Earning Capacity (REC), the arbitrator determined whether compensation for hours not actually worked and shift premiums constituted overtime earnings.

The arbitrator held that both the compensation received for 3.75 hours per week not actually worked and the shift premiums were earnings from full-time employment, not overtime, and must be included in the calculation of the applicant's REC.