Carolyn V. Amendola

The insurer brought a motion to dismiss or stay the applicant's arbitration proceeding regarding income replacement benefits, arguing that the issue of the applicant's failure to attend insurer medical examinations had not been mediated.

The arbitrator dismissed the motion, finding that the non-attendance issue flowed directly from the income replacement entitlement issue raised in the application for mediation, and that the mediator had enquired into it and concluded mediation had failed.

The applicant was permitted to proceed to a preliminary issue hearing on the non-attendance issue, and if successful, to a further hearing on entitlement and quantum.

The appellant appealed an arbitration order finding that his application for arbitration regarding a claim for additional weekly benefits was time-barred.

The appellant argued that the insurer's Assessment of Claim was ambiguous and did not constitute a clear refusal, and that ongoing negotiations estopped the insurer from relying on the limitation period.

The Director's Delegate dismissed the appeal, upholding the arbitrator's finding that the insurer provided clear and unequivocal notice of its refusal to pay further weekly benefits and that the insurer's willingness to consider additional medical evidence did not waive the limitation period or mislead the appellant.

The appellant appealed an arbitrator's decision denying her claim for weekly income benefits and refusing to award her arbitration expenses.

The arbitrator found that the appellant had deliberately withheld information from her doctors about a previous back injury.

On appeal, the appellant argued that under the McCormick principles, she should be awarded expenses because her claim was not found to be frivolous or vexatious, nor did her conduct unreasonably prolong the proceedings.

The Director's Delegate dismissed the appeal, holding that the arbitrator's discretion to deny expenses was exercised reasonably given the appellant's deliberate misrepresentation of her pre-accident health, which went to the heart of her evidence.