OFSCDRS 1994

The insurer sought to raise issues regarding the repayment and ongoing entitlement to weekly income benefits in an arbitration initiated by the insured.

The insured had only referred the calculation of the quantum of benefits and transportation expenses to arbitration.

The arbitrator held that the insurer could not expand the scope of the arbitration to include issues that did not naturally or consequentially flow from the specific matters referred by the insured.

The insurer's request to add these issues was dismissed.

The arbitrator issued a supplementary order to replace the original order dated June 10, 1994.

The supplementary order clarified the applicant's entitlement to weekly income benefits of $445.59 from September 13, 1992, subject to deductions for amounts already paid and 80 per cent of post-accident income.

The insurer was also ordered to pay interest on overdue amounts, a special award of $1,500 for unreasonably failing to pay benefits, and the applicant's arbitration expenses.

The applicant, who sustained paraplegia in a motorcycle accident, sought payment from his insurer for various expenses related to temporary accommodation, home renovations, transportation, and miscellaneous items under the Statutory Accident Benefits Schedule.

The arbitrator allowed certain expenses for apartment furnishings, window blinds, and a wire basket system as reasonable and necessary for rehabilitation.

However, claims for unauthorized changes to the home's heating and cooling system, landscaping, a second set of vehicle hand controls, and optional vehicle extras were denied as they were not required as a result of the accident.

The insurer was ordered to pay 17 months of lease payments for an interim vehicle and the cost of an interior stain guard for the modified minivan.

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

More than a year after the accident, she was diagnosed with left shoulder rotator cuff tendonitis, which required surgery.

The insurer disputed that the shoulder condition was caused by the accident and argued the applicant was not disabled from her job as a cashier.

The arbitrator found that the shoulder condition was caused by the accident, likely due to the shoulder belt or traction effect, and that it rendered her substantially unable to perform the essential tasks of her employment.

The arbitrator awarded ongoing weekly income benefits, supplementary medical and rehabilitation expenses, and a special award for the insurer's unreasonable withholding of chiropractic expenses.

The applicant sought weekly benefits following a motor vehicle accident, claiming a substantial inability to perform his pre-accident essential tasks.

The insurer terminated benefits based on independent medical examinations and a functional abilities evaluation indicating symptom magnification and an ability to perform daily activities.

The arbitrator found the applicant's evidence inconsistent and accepted the medical evidence that he was capable of performing his essential tasks.

The claim for weekly benefits was dismissed, but the applicant was awarded his arbitration expenses as the claim was not frivolous.

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

The applicant applied for mediation and claimed that the parties reached a settlement to reinstate benefits at $600 per week, as reflected in a Report of Mediator.

The insurer argued that the agreement was contingent on receiving verification of the applicant's pre-accident income.

The arbitrator found that there was an honest misunderstanding between the parties and concluded that no binding settlement was reached regarding the proper amount of the weekly income benefits.

The applicant was awarded expenses for the preliminary issue.

The applicant sought an interim award of expenses for clinical notes and a medical-legal report under section 282(11.1) of the Insurance Act.

The insurer argued the section did not apply retrospectively to proceedings commenced before January 1, 1994.

The arbitrator held that the section applies immediately to all ongoing proceedings.

Applying a three-part test, the arbitrator found the application raised a bona fide issue, the expenses were necessary and reasonable, and the applicant was unable to carry the costs until the hearing.

The arbitrator awarded $800 in interim expenses.

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

The applicant sought arbitration, claiming she suffered from post-traumatic fibromyalgia and was substantially unable to perform her essential job tasks as an assembler.

The arbitrator reviewed medical evidence and surveillance video, concluding that the applicant's job was light and sedentary, and that she had adopted a dysfunctional stance, magnifying her symptoms.

The arbitrator found that any continuing symptoms were not caused by the accident and dismissed the claim for ongoing weekly income benefits and a special award, but granted the applicant her arbitration expenses.

The Applicant was injured in a motor vehicle accident and sought weekly income benefits from the Insurer.

The parties disputed the calculation of the Applicant's gross weekly income and the deduction of collateral benefits, including workers' compensation and Canada Pension Plan benefits.

The Arbitrator determined that the Applicant's gross weekly income should be calculated based on his total income in the 52 weeks preceding the accident, including union benefit contributions and freelance income.

The Arbitrator also held that temporary total disability and future loss of earnings benefits from WCB, as well as CPP disability benefits, were deductible as payments for loss of income.

The Insurer was entitled to repayment of overpaid benefits, and the Applicant was awarded arbitration expenses and simple interest.

The insurer appealed an arbitrator's preliminary decision that the insured had not finally settled her weekly benefits claim at mediation and could proceed to arbitration.

The insurer argued that mediation is strictly confidential and the Report of Mediator confirming settlement should be conclusive.

The Director of Arbitrations held that while statements made to or by the mediator are privileged to protect the mediator's neutrality, evidence of the parties' own understanding and subsequent conduct is admissible to determine if a settlement was actually reached when the Report is ambiguous.

The appeal was dismissed, allowing the arbitration for weekly benefits to proceed.

The applicant, a taxi driver, was injured in a motor vehicle accident and received weekly income benefits until the insurer terminated them based on a functional capacity evaluation.

The applicant sought ongoing benefits and disputed the calculation of his pre-accident income.

The arbitrator found that the applicant remained substantially disabled from his occupation, as the functional evaluation failed to account for the 12-hour shifts required for his work to be reasonably remunerative.

Regarding the calculation of benefits, the arbitrator held that the applicant's farm losses were investment losses and should not reduce his pre-accident income.

However, the arbitrator ruled that the applicant's pre-accident income should be averaged over 52 weeks, rather than the 47 weeks he actually worked, to account for his vacation period.

The applicant, a 65-year-old retired man, was injured in a motor vehicle accident and received statutory accident benefits for one year.

The insurer terminated weekly benefits, arguing his ongoing disability was due to a pre-existing condition.

The arbitrator found that the applicant's back pain and headaches pre-dated the accident, relying on clinical notes that contradicted the family physician's testimony.

The arbitrator concluded the applicant failed to prove a substantial inability to perform his essential tasks of daily life, as he continued to shop, socialize, and travel as he did before the accident.

The claim for ongoing weekly benefits and a special award was dismissed, but the applicant was awarded expenses.

The unrepresented applicant reached a lump sum settlement with the insurer during a pre-hearing discussion and signed a full and final release.

Shortly after, she attempted to revoke the settlement, arguing it was unfair and that there was an inequality of bargaining power.

The arbitrator found the settlement binding.

On appeal, the Director of Arbitrations upheld the arbitrator's decision, finding no evidence of unconscionability, undue influence, or other vitiating factors, and noting that the pre-hearing arbitrator had taken appropriate steps to ensure the applicant understood the consequences of signing the release.

The deceased was fatally injured in a motor vehicle accident.

Her former common law spouse claimed entitlement to the $25,000 death benefit under the Statutory Accident Benefits Schedule.

The deceased's children disputed his entitlement, arguing the spousal relationship had terminated prior to the accident.

The arbitrator held that under section 224 of the Insurance Act, unmarried parties are only spouses as long as they continue to cohabit.

Since the parties had separated and ceased cohabiting before the accident, the former common law spouse was not a spouse at the time of the accident.

The death benefit was ordered payable to the deceased's children.

The Applicant was seriously injured in a motor vehicle accident while a passenger in a vehicle driven by an unauthorized driver.

The Insurer denied statutory accident benefits, arguing the Applicant knew or ought reasonably to have known the driver lacked the owner's consent under section 17(3)(b) of the Statutory Accident Benefits Schedule.

The arbitrator found no evidence that the Applicant, who was highly intoxicated and suffered a severe head injury, knew or ought reasonably to have known the driver lacked consent.

The exclusion did not apply, and the Applicant was entitled to his arbitration expenses.

The applicant was injured in a motor vehicle accident and received weekly income benefits until the insurer terminated them, claiming she was no longer substantially unable to perform the essential tasks of her pre-accident employment as a server and cashier.

The arbitrator found that the applicant remained substantially unable to perform the heavy aspects of her work as a server and was therefore entitled to ongoing weekly income benefits.

The arbitrator also determined the proper calculation of her pre-accident income, including an estimate of her tip income, and awarded a special award of $1,500 against the insurer for unreasonably handling the tips issue.

The applicant, a taxi driver, was injured in a motor vehicle accident and received weekly income benefits until the insurer terminated them, alleging overpayment based on fraudulent income records.

The arbitrator found that the applicant remained substantially unable to perform the essential tasks of her employment and was therefore entitled to ongoing weekly income benefits.

However, the arbitrator accepted the insurer's accounting evidence that the applicant's pre-accident financial records were not genuine.

Consequently, her benefits were reduced to the statutory minimum of $185.60 per week, and she was ordered to repay the overpayment to the insurer pursuant to section 27 of the Schedule.

The applicant was injured when struck by an automobile while riding his bicycle.

He applied for statutory accident benefits from Guardian, which insured a vehicle owned by his father and on which the applicant was listed as the principal driver.

Guardian argued that Liberty Mutual, the insurer of the striking vehicle, should pay the benefits, claiming the applicant was not an 'insured person' or a 'dependant' under its policy.

The arbitrator found that the applicant was an 'insured' under the Guardian policy pursuant to sections 224 and 270 of the Insurance Act, as he was the principal driver for whom a specific premium was paid.

Alternatively, the arbitrator found the applicant was a dependant of his parents.

Guardian was held responsible for paying the statutory accident benefits.

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

At mediation, the parties signed an agreement to be bound by the opinion of an orthopaedic specialist regarding the applicant's ability to work.

The specialist opined that the applicant was substantially unable to perform his essential tasks.

The arbitrator held that the mediation agreement was binding and ordered the insurer to pay weekly benefits in accordance with the specialist's opinion until the date the specialist no longer found the applicant disabled.

The claim for a special award was dismissed.

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

The insurer deducted Canada Pension Plan disability benefits from the weekly income benefits, arguing they were payments for loss of income.

The applicant disputed this and applied for arbitration.

On the date of the hearing, the applicant conceded the claim would fail but sought arbitration expenses.

The arbitrator found it was reasonable for the applicant to have applied for arbitration to test the legal issue, but noted the claim was unreasonably prolonged before being conceded.

The arbitrator awarded the applicant $750 in expenses.