OFSCDRS 1996

The applicant, a drywall finisher, suffered forearm fractures in a motorcycle accident and received weekly income benefits for three years.

The insurer terminated benefits under section 12(5)(b) of the Statutory Accident Benefits Schedule, arguing the applicant could perform alternative employment.

The arbitrator found that the alternative occupations proposed by the insurer were either physically unsuitable or required experience the applicant lacked.

The arbitrator ordered the reinstatement of weekly income benefits but denied the applicant's specific request for retraining as an electronics engineering technician, noting other viable vocational paths existed.

The appellant insurer appealed an arbitration decision that calculated the respondent's weekly income benefit based on his pre-accident salary as an employee of his closely-held corporation, rather than treating him as self-employed.

The Director of Arbitrations dismissed the appeal, finding that the respondent's consistent pattern of salary-based payments and treatment as an employee justified the arbitrator's conclusion.

The arbitrator did not err in her interpretation and application of the Statutory Accident Benefits Schedule.

The appellant was injured in a motor vehicle accident and received weekly income benefits based on her part-time factory job.

She appealed the arbitrator's decision, arguing her benefits should be higher because she was also self-employed as a street vendor at the time of the accident.

The Director's Delegate dismissed the appeal, finding that the appellant failed to prove she earned any actual income from her self-employment prior to the accident, and that claims for lost business opportunities or future loss of income are not payable under the Schedule.

The applicant was injured in a motor vehicle accident and received weekly income benefits until he returned to work.

After working for over a year, he left his employment due to chronic pain and substance abuse, and sought reinstatement of his benefits.

The arbitrator held that returning to work for more than 90 days under section 16(2) of the Schedule merely shifts the onus to the insured to re-establish disability, rather than acting as a complete bar.

The arbitrator also interpreted the 156-week period in section 12(5)(b) as 156 weeks of disability, not consecutive weeks from the accident.

Finding that the applicant's poor psychological health and substance abuse rendered him disabled, the arbitrator awarded weekly income benefits for the claimed period.

The applicant was injured in a motor vehicle accident and received weekly income benefits until the insurer terminated them, arguing he was no longer disabled.

The applicant sought benefits for an additional five months.

The insurer sought repayment of nearly $30,000, arguing the applicant failed to apply for available long-term disability (LTD) benefits through his employer.

The arbitrator dismissed the applicant's claim, finding insufficient evidence of ongoing disability.

The arbitrator also dismissed the insurer's claim for repayment, finding the applicant did not act fraudulently or in error by failing to apply for LTD benefits after his employment was terminated, and that the LTD benefits were not clearly available to him.

The appellant was injured in a motor vehicle accident in December 1990 and received weekly income benefits until June 1991, when the insurer terminated them.

The appellant applied for arbitration, seeking ongoing weekly income benefits and rehabilitation expenses, arguing that his continuing back problems were caused by the accident.

The arbitrator dismissed the claims, finding that the appellant was no longer substantially unable to perform the essential tasks of his pre-accident occupation by June 1991, and that his ongoing back problems were primarily caused by factors other than the accident.

On appeal, the Director's Delegate confirmed the arbitrator's decision, finding no error in the assessment of the medical evidence or the application of the causation standard.

The appeal was dismissed with no expenses payable.

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

The applicant sought arbitration, claiming ongoing physical and psychological disability preventing him from working as a taxi driver.

The arbitrator found the applicant lacked credibility due to inconsistencies in his testimony and reliable medical records indicating pre-existing conditions.

The medical evidence did not establish an objective physical basis for his ongoing pain complaints, nor did it prove his psychological issues were caused by the accident.

The claim for ongoing weekly income benefits was dismissed, though the arbitrator confirmed the correct quantum of benefits was $540.00 per week and awarded the applicant his arbitration expenses.

The Applicant was injured in a motor vehicle accident while participating in a W.C.B. vocational rehabilitation program and receiving a temporary supplement to a permanent partial disability award.

He applied for statutory accident benefits, claiming entitlement to weekly income benefits under section 12(1) of the Schedule.

The Insurer paid benefits under section 13(1) (Benefit if No Income).

The Arbitrator found that the Applicant was neither employed nor self-employed while participating in the rehabilitation program, and that the W.C.B. supplement was not income from occupation or employment.

The Applicant's entitlement to weekly benefits was therefore correctly determined under section 13(1).

The applicant was injured in a motor vehicle accident and received statutory accident benefits before signing a full and final release in exchange for a lump sum settlement.

He later sought further benefits, arguing the settlement should be set aside due to misrepresentation, unconscionability, and undue influence.

The arbitrator held that while arbitrators can determine if a settlement agreement exists as a defence to a claim for benefits, they lack the equitable jurisdiction to set aside an otherwise valid agreement.

The applicant is precluded from proceeding with the arbitration until a court of competent jurisdiction sets aside the settlement agreement.

The appellant appealed an arbitration order that terminated his weekly income benefits, ordered him to repay $16,233.06 in overpaid benefits, and required him to pay the insurer's $1,000 assessment fee.

On appeal, the appellant sought to introduce new evidence regarding his pre-accident employment and challenged the arbitrator's credibility findings and preference for the insurer's medical experts.

The Director's Delegate dismissed the appeal, denying the admission of new evidence because it could have been obtained with due diligence and would not have affected the outcome.

The Delegate found no basis to interfere with the arbitrator's findings of fact, credibility assessments, or the conclusion that the appellant deliberately misled the insurer about his employment.

The applicant, a passenger on a TTC bus involved in a collision, sought statutory accident benefits including weekly benefits, housekeeping expenses, and a special award.

The arbitrator found the applicant's evidence unreliable and fraught with misrepresentations, preferring the insurer's medical evidence that the applicant was malingering and did not suffer from chronic pain syndrome or a disabling disc injury.

The claims for benefits were dismissed.

Finding the arbitration to be an abuse of process due to the applicant's deliberate misrepresentations, the arbitrator ordered the applicant to pay $1,000 in expenses to the insurer.

The applicant was injured in a motor vehicle accident in Ontario while driving a Quebec-registered vehicle.

He applied for statutory accident benefits in Ontario.

The insurer denied benefits, arguing the applicant was a resident of Quebec and must apply to the SAAQ.

On a preliminary issue, the arbitrator held that the applicant's place of residence was not determinative of his entitlement to benefits under the Ontario Schedule, as section 45(1) of the Insurance Act allows non-residents involved in accidents in Ontario to claim benefits in Ontario.

The applicant was pregnant when she was involved in a motor vehicle accident.

Her son was born prematurely shortly after.

The applicant claimed statutory accident benefits on behalf of her son.

The insurer denied the claim on the basis that a fetus is not an 'insured person' under the Statutory Accident Benefits Schedule.

On a preliminary issue hearing, the arbitrator held that the common law legal fiction applying to children en ventre sa mere extends to statutory accident benefits.

A child injured in utero who is subsequently born alive is an 'insured person' entitled to claim medical and rehabilitation benefits.

The applicant, a taxi driver, was injured in a motor vehicle accident and received weekly income benefits until January 1994.

He applied for reinstatement of benefits, claiming ongoing physical and psychological injuries rendered him substantially unable to perform his essential tasks.

The arbitrator found the applicant's evidence contradictory and unsupported by the medical reports, which largely recommended a return to work.

The claims for ongoing weekly income benefits and a special award were dismissed, though the applicant was awarded his arbitration expenses.

The appellant's husband, a taxi driver, was found murdered in his taxi cab.

The appellant claimed statutory accident benefits, including funeral and death benefits, from the respondent insurer.

The insurer denied the claim on the basis that the death was not an 'accident' as defined in the Statutory Accident Benefits Schedule.

The arbitrator agreed, finding no causal connection between the death and the use or operation of the vehicle.

On appeal, the Director's Delegate applied the Supreme Court of Canada's causation test from Amos and upheld the arbitrator's decision, concluding that the available evidence did not establish that the murder was directly or indirectly caused by the use or operation of the taxi cab.

The applicant was injured in two motor vehicle accidents and received statutory accident benefits until the insurer terminated them in January 1994.

The applicant sought ongoing weekly income benefits, medical and rehabilitation benefits, and a special award, claiming he was unable to return to his pre-accident job as a welder due to thoracic outlet syndrome and other injuries.

The arbitrator dismissed the application, finding that the applicant's ongoing difficulties were primarily related to pre-existing, work-related conditions rather than the motor vehicle accidents.

Surveillance evidence and the applicant's post-accident recreational activities demonstrated a level of functional ability inconsistent with his claims of severe disability.

The insurer's termination of benefits was deemed reasonable, and no special award was granted.

The applicant was injured in two motor vehicle accidents in 1993 and received statutory accident benefits.

She returned to work as a secretary for several months before her temporary position ended, after which she sought further weekly income benefits, a medical rehabilitation case manager, and active physiotherapy.

The arbitrator dismissed the claim for weekly income benefits, finding that the applicant's soft tissue and finger injuries were relatively minor and did not disable her from performing the essential tasks of her employment.

The request for a case manager was also denied as unnecessary.

However, the arbitrator ordered the insurer to pay for four months of active physiotherapy and granted a special award of 10 per cent of the physiotherapy cost, finding that the insurer had unreasonably withheld payment for this "pay now, dispute later" benefit.

The applicant sought statutory accident benefits, including other disability benefits and housekeeping expenses, following a minor motor vehicle accident.

The arbitrator found that the applicant did not suffer a substantial inability to carry on his pre-accident household activities and dismissed the claims for ongoing benefits.

However, the arbitrator found that the insurer's notice of termination was slightly defective, entitling the applicant to a small payment of $105.71 for the notice period.

The arbitrator also found that the applicant had wilfully misrepresented his need for and receipt of housekeeping services, ordering him to repay $3,800 to the insurer.

The application was deemed frivolous, and the applicant was ordered to pay the insurer's $2,000 arbitration fee.

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

The insurer terminated the benefits, and the applicant sought ongoing benefits under s. 12(5)(b) of the Statutory Accident Benefits Schedule, arguing she was continuously prevented from engaging in any occupation or employment for which she was reasonably suited.

The arbitrator found that the applicant did not have the physical capacity or stamina to do reasonably suitable full-time work, and that part-time work would not be sufficiently remunerative.

The arbitrator concluded that the insurer acted unreasonably in terminating the benefits given the medical evidence of the applicant's ongoing hip problems and need for further surgery.

The applicant was awarded ongoing weekly income benefits and a special award of $2,000.

The applicant was injured in a motor vehicle accident and claimed 'other disability benefits' under section 19 of the Statutory Accident Benefits Schedule, alleging a partial or complete inability to carry on a normal life due to knee injuries.

The insurer denied the claim on the basis that her medical problems pre-dated the accident.

The arbitrator found that the applicant had significant pre-existing knee and shoulder problems and a sedentary lifestyle prior to the accident.

Relying on the insurer's orthopaedic expert and the family doctor's records, the arbitrator concluded the accident only minimally aggravated her knee condition, disabling her for a brief period.

The applicant was awarded benefits for a closed period from March 22, 1994, to April 16, 1994, along with interest and arbitration expenses.