OFSCDRS 1995

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

He returned to work full-time for nearly six months before stopping due to chronic pain, and sought reinstatement of his weekly income benefits and vocational retraining.

The insurer argued that returning to work for more than 90 days after the two-year anniversary of the accident precluded further benefits under section 16(2) of the Schedule.

The arbitrator held that section 16(2) creates a rebuttable presumption of ineligibility, which the applicant successfully rebutted with medical evidence showing he was substantially disabled from his essential tasks.

The applicant was awarded weekly income benefits up to the 156-week mark and vocational retraining costs, but was denied benefits beyond 156 weeks as he failed to prove he was continuously prevented from engaging in any suitable occupation.

The applicant was injured in a motor vehicle accident while a passenger in a vehicle insured by Lambton Mutual.

The applicant had no personal motor vehicle insurance.

Lambton Mutual argued its policy was void ab initio due to material misrepresentations by the named insured regarding ownership and principal driver status, and claimed General Accident (the insurer of the other vehicle) should pay the statutory accident benefits.

The arbitrator found that while there was material misrepresentation, the defence of void ab initio is not available against an innocent third party claiming statutory accident benefits, pursuant to section 233(2) of the Insurance Act.

Lambton Mutual was held liable to pay the benefits.

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

The Applicant sought ongoing benefits, while the Insurer sought repayment of benefits paid, alleging fraud.

The arbitrator found that the Applicant was capable of working in his family cleaning business and had exaggerated his injuries, as evidenced by surveillance video and inconsistent testimony.

The arbitrator concluded the Applicant did not suffer a substantial inability to perform his essential tasks and ordered him to repay $36,474.84 in benefits obtained through fraud.

The applicant sought an assessment of expenses following an arbitration hearing where her claim for additional benefits was denied but the insurer was ordered to pay her arbitration expenses.

The parties disputed three items: an expert witness fee, a psychiatrist's report and consultation fee, and the cost of clinical notes.

The arbitrator allowed the expert witness fee at a reduced hourly rate for the day she testified, denied the psychiatrist's fees as unnecessary, and allowed the cost of the clinical notes as they were produced at the insurer's request.

The applicants, family members of a deceased motor vehicle accident victim residing in Ethiopia, brought a motion for an interim award of expenses to fund their travel to Ontario for an arbitration hearing regarding death benefits.

The arbitrator applied the criteria for interim expenses, requiring the applicants to demonstrate a case of sufficient merit.

Finding that the applicants provided minimal and unsupported evidence regarding their dependency on the deceased, the arbitrator concluded they failed to establish a bona fide issue.

The motion for interim expenses was dismissed.

The applicant, a self-employed taxi driver, was injured in a motor vehicle accident and sought statutory accident benefits.

The insurer denied transportation expenses because the applicant paid a friend to drive him, and paid only the minimum weekly income benefits, arguing the applicant lacked sufficient financial records.

The arbitrator ordered the insurer to pay the transportation expenses, finding them reasonable and required.

The arbitrator also ordered the insurer to pay weekly income benefits based on the applicant's trip sheets, finding them to be the best evidence of income for a cash business, resulting in an award for the underpaid amount.

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

The insurer terminated benefits, arguing she did not meet the post-156 week disability test under section 12(5)(b) of the Statutory Accident Benefits Schedule.

The arbitrator found that while the applicant was reasonably suited for light assembly work or her pre-accident work as a motor repair technician, she required a graduated work hardening program to build up her working tolerance before returning to full-time employment.

The arbitrator ordered the insurer to pay ongoing weekly income benefits until the completion of the recommended work hardening program.

The applicant was injured as a pedestrian in a motor vehicle accident and gave initial notice of his claim for statutory accident benefits 18 months later.

The insurer argued the claim was invalid due to non-compliance with the 30-day notice provision.

The arbitrator found that the applicant had a reasonable excuse for the delay, citing his substance abuse, incarceration, homelessness, and reliance on legal counsel who failed to notify the insurer.

The arbitrator also found no prejudice to the insurer, as the applicant's history of non-compliance with medical advice meant early intervention by a rehabilitation caseworker would not have altered his recovery.

The minor applicants' mother was killed in a motor vehicle accident.

Her common law spouse received workers' compensation survivor benefits.

The applicants claimed death benefits under section 11(2) of the Statutory Accident Benefits Schedule.

The insurer denied the claim, arguing that section 20 of the Schedule precluded payment because workers' compensation benefits were payable in respect of the deceased.

The arbitrator held that section 20 is an exclusionary clause that must be interpreted narrowly.

Because the deceased herself was not entitled to receive the workers' compensation benefits, section 20 did not apply to exclude the dependants' claims.

The applicants were found entitled to the death benefits.

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

When the insurer terminated benefits, the applicant applied for arbitration and subsequently produced a psychiatric report diagnosing him with major depression.

The insurer scheduled a psychiatric independent medical examination (IME), but the applicant arrived 40 minutes late to the 90-minute appointment, leaving insufficient time for an assessment.

The arbitrator held that arriving unreasonably late frustrated the purpose of the IME and constituted a failure to make oneself reasonably available under section 25 of the Schedule.

The arbitration was stayed until the applicant attended a psychiatric IME.

Lambton Mutual appealed an arbitration order finding it responsible for paying statutory accident benefits to an injured passenger.

Lambton Mutual argued its policy was void ab initio because the named insured misrepresented her ownership of the vehicle, meaning she had no insurable interest.

The Director's Delegate dismissed the appeal, holding that while misrepresentation of ownership may invalidate coverages based on ownership, it does not render the entire policy void ab initio.

An innocent third party occupant remains entitled to claim accident benefits under the policy.

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 weekly income benefits from the insurer until they were terminated on the basis that he no longer suffered a substantial inability to perform the essential tasks of his employment.

The applicant, who was self-employed as a grocery store owner, sought ongoing weekly income benefits and the cost of occupational retraining.

The arbitrator found that the applicant remained substantially unable to perform his essential tasks until he completed a physical reconditioning program, extending his entitlement to benefits.

The arbitrator also determined the quantum of benefits by applying an 'avoidable expenses' approach to calculate the applicant's pre-accident gross weekly income.

The claim for occupational retraining was dismissed as the applicant was found capable of returning to his pre-accident occupation with reasonable modifications.

The applicant was injured in a rear-end motor vehicle accident and received weekly income benefits for three years.

He applied for ongoing benefits, claiming physical and psychological disability prevented him from working.

The arbitrator found that while the applicant suffered a herniated disc from the accident, he exaggerated his symptoms and his psychological condition was caused by pre-existing and psycho-social factors unrelated to the accident.

The arbitrator concluded the applicant retained the capacity and skills for suitable employment, such as a retail clerk or in construction trades, and dismissed the claim for ongoing benefits.

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

The insurer terminated his weekly income benefits three years post-accident.

The applicant sought further benefits under section 12(5)(b) of the Schedule, claiming he required extensive retraining due to his physical limitations.

The insurer argued the applicant was magnifying his disability and could return to his previous work as a brick mason.

The arbitrator found that the applicant's realistic work tolerances fell below the medium to heavy range required for his pre-accident job, but that his rehabilitation efforts and improved English skills opened new employment opportunities.

The arbitrator ordered the insurer to pay weekly income benefits from the date of termination until the conclusion of a pre-examination community college course the applicant had started.

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

The insurer terminated weekly income benefits at the three-year mark.

The applicant sought ongoing benefits under section 12(5) of the Schedule, claiming continuous inability to engage in suitable employment due to soft tissue injuries, fibromyalgia, and depression.

The arbitrator found evidence of symptom embellishment and concluded the applicant was capable of sedentary work or returning to his previous administrative courier duties.

The arbitrator awarded a brief extension of benefits for a four-month 'work hardening' period, terminating on January 29, 1994.

The applicant sought statutory accident benefits (weekly income benefits) under the Insurance Act, claiming he suffered from post-traumatic stress disorder (PTSD) following a motor vehicle accident.

The arbitrator found the applicant's account of the accident to be exaggerated and unreliable, noting inconsistencies in medical records and post-accident conduct that contradicted a driving phobia.

The arbitrator rejected the expert evidence of both the applicant's psychiatrist and the insurer's psychologist.

The application for weekly income benefits was dismissed as the applicant failed to prove a disability resulting from the accident, though arbitration expenses were awarded to the applicant.

The applicant was injured in an accident and applied for workers' compensation benefits, which were denied by the Workers' Compensation Board (WCB) on the basis that he was not in the course of his employment.

He then applied for statutory accident benefits from the insurer.

The insurer argued that the applicant's WCB claim was made in bad faith and that he was actually in the course of his employment, meaning he should be receiving WCB benefits instead of accident benefits.

On a preliminary motion, the arbitrator held that the Commission has no jurisdiction to go behind the WCB's decision regarding entitlement to workers' compensation benefits, as the WCB has exclusive jurisdiction over that issue.

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

The applicant sought ongoing benefits, claiming substantial inability to perform the essential tasks of his employment in the music production industry due to physical and psychological injuries, including chronic pain syndrome.

The arbitrator found that while the applicant was employed at the time of the accident and suffered soft tissue injuries, the medical evidence from orthopaedic and psychiatric specialists did not support a finding of substantial disability beyond the termination date.

The claim for ongoing weekly income benefits was dismissed, but the applicant was awarded his reasonable arbitration expenses.

The applicant sought to withdraw his application for arbitration two weeks before the scheduled hearing date, intending to proceed through the court system instead.

The applicant had failed to produce numerous required documents prior to the hearing.

The arbitrator found the late withdrawal to be an abuse of process under Rule 66.3 of the Commission Rules of Procedure, as the insurer had been put to considerable wasted time and expense.

The applicant was permitted to withdraw the application on the condition that he pay the insurer $2,000, representing the maximum amount the insurer was required to pay the Commission to participate in the hearing.