Nestor E. Kostyniuk

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

The applicant and her husband were self-employed, operating a retail electronics store.

The applicant claimed she was entitled to an income replacement benefit based on the cost of hiring replacement labour.

The arbitrator found that the applicant suffered a substantial inability to perform the essential tasks of her employment due to the accident.

However, because the business operated at a loss prior to the accident and there was no evidence that the business incurred additional losses as a result of the accident, the amount of the income replacement benefit was calculated to be zero.

The application for arbitration was dismissed, and the claim for a special award was denied.

The appellant insurer appealed an arbitrator's decision calculating the respondent insured's loss of earning capacity benefits.

The insured, a full-time firefighter, also operated a boat business that had not yet shown a profit.

The arbitrator included $22,000 of self-employment income in the insured's pre-accident earning capacity.

The Director's Delegate dismissed the appeal, finding that the arbitrator correctly interpreted section 29(2) of the SABS-1994 by considering what the insured could reasonably have earned based on his personal and vocational characteristics, and that the arbitrator's calculation was a fair and reasonable estimate.

The applicant was injured in a motor vehicle accident and received income replacement benefits based on his employment as a firefighter.

A dispute arose over whether his pre-accident earning capacity should also include income from his incorporated boat performance business, which had historically operated at a loss.

The arbitrator found that despite the corporate structure, the applicant was self-employed in substance.

The arbitrator assessed the applicant's gross annual income from self-employment at $22,000, based on what he could reasonably have earned as a part-time outboard motor mechanic.

The claim for a special award was dismissed as the insurer's position was not unreasonable.

The Applicant sought statutory accident benefits after fracturing his ankle while falling from a fence.

He claimed he was climbing the fence to access the backyard and open a carport door from the inside to assist his father in parking a car.

The Insurer denied the claim, arguing the incident did not meet the definition of an 'accident' under the Schedule.

The arbitrator found the Applicant's evidence regarding the existence of the carport door not credible.

Furthermore, even if the evidence were accepted, the connection between climbing a fence 500 feet away and the use or operation of an automobile was too remote.

The application was dismissed, and the Applicant was ordered to pay the Insurer's expenses.

The appellant was injured while travelling as a passenger on a bus and received statutory accident benefits until they were terminated by the insurer.

At arbitration, it was determined that the appellant did not suffer a substantial inability to perform his essential tasks after the termination date.

The appellant appealed, arguing the arbitrator failed to accord appropriate weight to medical reports and misapplied the law.

The Director of Arbitrations dismissed the appeal, finding that the arbitrator's factual conclusions were supported by the evidence and that she correctly applied the provisions of the Statutory Accident Benefits Schedule to those findings.

The applicants, parents of a 23-year-old who died in a motorcycle accident, applied for death benefits under the Statutory Accident Benefits Schedule.

The insurer denied the claim on the basis that the parents were not "dependants" of the deceased at the time of the accident.

The arbitrator found that the parents failed to establish that they were principally dependent for financial support on the deceased, as their income from social assistance and workers' compensation exceeded the financial contributions made by the deceased.

The claim for death benefits was dismissed.

The insurer's request for an award for a frivolous arbitration was denied, and the applicants were awarded their arbitration expenses.

The applicant was injured in a motor vehicle accident and received weekly income benefits for 156 weeks.

The insurer terminated benefits, arguing the applicant no longer met the stricter disability test under section 12(5)(b) of the Statutory Accident Benefits Schedule.

The arbitrator found that while the applicant suffered from chronic back pain and might be disabled from his pre-accident heavy manual job, he failed to prove that his injuries continuously prevented him from engaging in any occupation or employment for which he was reasonably suited by education, training, or experience.

The application for further weekly income benefits was dismissed, but the insurer was ordered to pay the applicant's arbitration expenses.

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

He subsequently sought ongoing weekly income benefits and rehabilitation services, claiming he was disabled by soft tissue injuries and a fractured elbow.

The arbitrator found the applicant's testimony lacked credibility, noting discrepancies in his reported income, his failure to report his return to work, and his regular participation in sports like golf and snooker.

The arbitrator concluded the applicant was not disabled after September 4, 1992, and denied further benefits.

Furthermore, because the applicant had overstated his pre-accident income, the insurer was entitled to repayment of $1,075.20 in overpaid benefits.

Both parties' claims for arbitration expenses were dismissed.

The applicant was injured in a motor vehicle accident and received statutory accident benefits until they were terminated by the insurer.

The applicant applied for arbitration but failed to attend a scheduled independent medical examination (IME).

The insurer brought a motion to stay the arbitration hearing.

The arbitrator held that under sections 23(2) and 25 of the Statutory Accident Benefits Schedule, an applicant cannot proceed with the dispute resolution process unless they make themselves reasonably available for a medical examination.

The motion was granted, and the applicant was precluded from proceeding with the arbitration until she makes herself available for the IME.

The applicant was injured in a motor vehicle accident and received weekly income benefits until January 1992.

The insurer raised a preliminary issue that the applicant's 1994 application for arbitration was time-barred under the Insurance Act, arguing a February 1992 letter constituted a valid notice of refusal.

The arbitrator found that the letter did not clearly and unequivocally communicate the insurer's refusal to pay benefits and the reasons for the refusal.

Therefore, the letter did not meet the requirements of subsection 24(8) of the Schedule, the limitation period was not triggered, and the applicant was not precluded from proceeding to arbitration.

The applicant was injured in a motor vehicle accident and claimed statutory accident benefits for moving and snow clearing expenses.

The insurer paid a portion of the moving expenses but denied the rest.

The arbitrator found that the applicant required assistance with moving and snow clearing due to his injuries.

The arbitrator awarded $70 for snow clearing and a portion of the moving expenses, deducting the estimated cost the applicant would have incurred had he moved himself.

The claim for a special award was dismissed as the insurer had not unreasonably withheld payments.

The insurer brought a preliminary issue motion arguing that the insured was precluded from proceeding with his arbitration for ongoing weekly income benefits because he refused to attend a medical examination.

The insured argued that the insurer's right to require a medical examination ended when it terminated his benefits.

The arbitrator held that section 23(2) of the Statutory Accident Benefits Schedule allows an insurer to require a medical examination to evaluate an ongoing claim even after benefits have been terminated.

The arbitrator found the insurer's request for a follow-up examination reasonable and ordered that the insured is precluded from proceeding with the arbitration unless he makes himself reasonably available for the examination.

The Applicant was injured in a motor vehicle accident and received weekly income benefits until they were terminated by the Insurer.

The parties mediated the issue of entitlement to benefits but not the amount.

At a pre-hearing discussion for arbitration, the Insurer sought to add the amount of benefits as an issue.

The arbitrator held that the amount of benefits could not be raised because it had not been mediated and did not reasonably and consequentially flow from the issue of entitlement.

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

The Insurer terminated weekly income benefits, and the parties proceeded to arbitration.

The arbitrator found that the Applicant's physical injuries had largely resolved, but she continued to suffer a substantial inability to perform the essential tasks of her occupation due to psychological injuries until March 24, 1993.

The Applicant was awarded weekly income benefits up to that date, as well as supplementary medical and rehabilitation benefits for her residual psychological injuries.

The Insurer was entitled to repayment of weekly income benefits paid after March 24, 1993.

The applicant was injured in a motor vehicle accident and received weekly income benefits until the insurer terminated them.

The applicant sought ongoing benefits, claiming a hearing loss resulting from the accident prevented her from working as a waitress.

The arbitrator found the hearing loss was a pre-existing condition and dismissed the claim for ongoing benefits.

The insurer sought repayment of an overpayment, arguing the applicant's pre-accident income was misstated.

The arbitrator agreed, finding the applicant had no earnings in the four weeks prior to the accident, and ordered the applicant to repay the overpayment with interest.

The applicant, a taxicab driver, was injured in a motor vehicle accident and subsequently developed post-traumatic stress disorder and a driving phobia.

The insurer terminated her weekly income benefits, arguing she had returned to her pre-accident condition.

The arbitrator found that the applicant suffered a substantial inability to perform the essential tasks of her occupation due to the psychological injuries caused by the accident.

However, because the applicant fabricated trip sheets to inflate her pre-accident income, the arbitrator awarded the minimum weekly benefit of $185.60 and reduced her expense award to two-thirds.

The applicants' daughter was killed in a motor vehicle accident.

They applied for death benefits under the No-Fault Benefits Schedule, which the insurer denied on the basis that the daughter was not 'principally dependent for financial support' on her parents.

The arbitrator found that although the parents generously supplemented their daughter's income, she was employed full-time, lived in her own apartment, and was financially able to provide for herself.

The application for death benefits was dismissed, but the applicants were awarded their arbitration expenses.

The applicant was injured in a motor vehicle accident and received weekly income benefits until July 7, 1991.

He disputed the termination of his benefits, claiming entitlement until April 1, 1992, due to an inability to perform his essential tasks as a self-employed consultant.

The arbitrator found that the medical evidence, including testimony from the insurer's orthopaedic expert and the applicant's former family physician, did not support the claim of ongoing disability.

The application for ongoing weekly income benefits was dismissed.

The applicant was injured in a motor vehicle accident and received weekly income benefits until the insurer terminated them, alleging he could return to work.

The arbitrator found the applicant remained substantially unable to perform the heavy physical tasks of his pre-accident employment as a sheeter-decker, relying on the court-appointed medical expert.

However, the arbitrator also found the applicant had fraudulently concealed temporary employment as a tow truck operator while receiving benefits.

Consequently, the applicant was ordered to repay the benefits received during those weeks and was denied his expenses for the arbitration proceeding.

The applicant was injured when the public transit bus he was riding braked suddenly.

He received weekly income benefits until the insurer terminated them, alleging he was not substantially unable to perform his essential tasks and had defrauded the insurer.

The arbitrator found that an accident had occurred and caused injury, but that the applicant failed to prove a substantial inability to perform his essential tasks after June 1991, as his inability to pursue his ambitions was due to a pre-existing depressive illness rather than the accident.

The insurer's claim of fraud was dismissed, and the applicant was awarded the expenses of the arbitration.