OFSCDRS 1997

The appellant insurer appealed an arbitration decision finding it responsible for paying accident benefits to the injured respondent.

The injured respondent was a passenger in a vehicle insured by the respondent insurer, but was the spouse of a named insured under the appellant's policy.

The Director's Delegate held that the injured respondent qualified as an 'insured person' under the appellant's policy because she was an occupant of 'any other automobile'.

Under the priority rules, she was required to claim benefits from her spouse's insurer.

The appeal was dismissed.

The Director's Delegate also held there was no jurisdiction to award appeal expenses between insurers.

The appellant insurer appealed an arbitration order finding it responsible for paying accident benefits to the injured respondent.

The respondent was injured while driving a taxi insured by the respondent insurer, but his spouse had a personal automobile policy with the appellant.

The Director's Delegate applied the reasoning from a related appeal and concluded that, because the respondent was the spouse of the named insured under the appellant's policy, section 268(5) of the Insurance Act required him to claim benefits under that policy.

The appeal was dismissed.

The applicant was involved in a motor vehicle accident and applied for statutory accident benefits.

The insurer terminated benefits and the applicant applied for arbitration.

The insurer moved to dismiss or stay the proceeding because the applicant failed to comply with pre-hearing production orders and failed to participate in pre-hearing discussions.

The arbitrator found that the applicant abused the Commission's process and constructively withdrew his application.

The applicant was ordered to pay the insurer's $2,000 arbitration assessment as a precondition to proceeding with the hearing, failing which the application would be deemed withdrawn.

The applicant was injured in two motor vehicle accidents and claimed income replacement benefits based on an alleged written contract of employment as a sales representative, which he claimed was signed before the first accident.

The insurer terminated benefits, arguing the contract was not legitimate.

The arbitrator found that the alleged contract did not represent the true relationship between the parties, concluding the applicant was likely a subcontractor working on strict commission rather than a salaried employee.

Consequently, the claim for income replacement benefits under paragraph 7(1)3 of the Statutory Accident Benefits Schedule was dismissed.

The arbitrator also reduced a claim for a $1,670 psychovocational assessment to $400, finding the full amount unreasonable.

The insurer brought a preliminary motion arguing that the applicant should be precluded from proceeding to arbitration for failing to attend two insurer medical examinations and failing to comply with production orders.

The arbitrator found that the first medical examination was not reasonably necessary, but the second was.

However, rather than adjourning the hearing, the arbitrator ordered that the arbitration proceed on the scheduled date, with the condition that the applicant is precluded from relying on any information or documents not provided to the insurer by a specified deadline.

The arbitrator also found that the applicant's conduct did not amount to an abuse of process at this stage, and declined to award interim expenses or cancellation fees.

The appellant was injured in a motor vehicle accident and sought statutory accident benefits from the respondent insurer.

The insurer denied coverage shortly after the accident, asserting the policy had been cancelled.

The appellant failed to submit a formal application for benefits within the two-year limitation period under section 22 of the Statutory Accident Benefits Schedule.

The Director's Delegate upheld the arbitrator's decision that the insurer was not estopped from relying on the limitation period, as its denial of coverage did not constitute a waiver of the application requirement.

Furthermore, the Director's Delegate confirmed that arbitrators lack the jurisdiction to grant equitable relief from forfeiture under section 129 of the Insurance Act.

The applicant was injured in a motor vehicle accident and elected to receive education benefits instead of income replacement benefits.

She later sought to change her election, arguing the insurer misinformed her about the calculation of income replacement benefits by stating tips could not be included unless declared on her income tax return.

The arbitrator found that while the insurer's advice was incorrect, the applicant did not rely on this misrepresentation when making her election.

The application to re-elect was dismissed.

The applicant was involved in a motor vehicle accident and applied for statutory accident benefits.

The insurer refused to pay, arguing the applicant failed to notify them of his intention to apply within 30 days as required by subsection 59(1) of the Statutory Accident Benefits Schedule.

The arbitrator found that the applicant did not notify the insurer until 87 days after the accident and lacked a reasonable excuse for the delay.

The application for arbitration was dismissed.

The appellants appealed an arbitrator's order that they could not arbitrate their claim for death benefits because they failed to file an adequate application within the 90-day time limit under subsection 59(3) of the Statutory Accident Benefits Schedule.

The Director's Delegate found that the initial application filed by the appellants' former counsel was for funeral and travel expenses, not death benefits, and that the appellants did not attempt to argue a reasonable excuse for the delay under subsection 59(4).

The appeal was dismissed, but the appellants were awarded $500 in appeal expenses because the appeal raised novel issues of significance regarding the insurer's obligations.

The applicant was injured in a motor vehicle accident and received rehabilitation assistance from Trauma Services.

A dispute arose over the outstanding account, and an application for arbitration was filed.

The insurer raised a preliminary issue, arguing that the Commission lacked jurisdiction because the arbitration was actually brought by Trauma Services rather than the insured person.

The Arbitrator found that the applicant had authorized Trauma Services to access the mediation and arbitration processes on her behalf, and that she had properly retained counsel to proceed with the application.

The Arbitrator concluded that the arbitration was properly instituted by the applicant and that the Commission had jurisdiction to hear the matter.

The applicant claimed she was injured when a public transit bus braked sharply.

She received statutory accident benefits until July 1993, when the insurer terminated them.

The applicant sought ongoing weekly income benefits, claiming she was disabled by fibromyalgia and severe psychological problems caused by the accident.

The arbitrator found that while the applicant was involved in an accident and was disabled by psychological problems, she failed to establish on a balance of probabilities that the accident caused her psychological disability.

The claim for ongoing benefits and a special award was dismissed.

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

The sole issue at arbitration was the interpretation of section 12(7) of the Schedule regarding the calculation of pre-accident gross weekly income.

The arbitrator held that he was bound by the Director's Delegate's decision in Scavuzzo, which established that only weeks during which income was earned are included in the averaging calculation.

The arbitrator concluded that the internal appeal system under the Insurance Act makes Director's decisions binding on arbitrators, despite any consensus among arbitrators favouring a different approach.

The Applicant claimed she sustained neck and back injuries when her bicycle collided with a cube van insured by the Respondent.

The Insurer denied that an accident occurred.

Following a hearing on the preliminary issue of whether an 'accident' occurred within the meaning of the Statutory Accident Benefits Schedule, the Arbitrator found the Applicant's testimony implausible and preferred the evidence of the van driver and two independent witnesses who testified there was no contact between the van and the bicycle.

The Arbitrator concluded that the Applicant was not involved in an accident and did not sustain an impairment caused by the use or operation of an automobile.

The application for statutory accident benefits was dismissed.

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

She applied for arbitration, seeking ongoing weekly income benefits and medical/rehabilitation benefits.

The arbitrator found that the applicant suffered from chronic pain syndrome and remained disabled from her pre-accident job as an in-store demonstrator, entitling her to weekly benefits up to the 156-week mark.

However, the arbitrator concluded that the applicant was not continuously prevented from engaging in any suitable employment thereafter, and dismissed the claim for post-156 week benefits and further medical/rehabilitation benefits.

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

The insurer terminated benefits at the 156-week mark, asserting the applicant no longer met the more onerous disability test of being continuously prevented from engaging in any reasonably suitable employment.

The applicant sought ongoing benefits and a special award.

The arbitrator found that while the applicant required a brief adjustment period to return to work, she did not suffer a continuous disability preventing her from engaging in suitable employment beyond June 1, 1994.

The arbitrator preferred the insurer's medical evidence, noting inconsistencies in the applicant's presentation and surveillance footage showing her performing physical tasks without apparent difficulty.

The claim for ongoing benefits after June 1, 1994, and the request for a special award were dismissed.

The appellant appealed an arbitration decision that denied his claim for ongoing weekly income benefits, denied his arbitration expenses, and ordered him to pay a $1,000 assessment to the insurer for abuse of process.

The Director's Delegate dismissed the appeal, finding that the arbitrator properly exercised his discretion to deny expenses due to the appellant's failure to comply with production orders and disruptive behaviour at the hearing.

The Delegate also upheld the $1,000 assessment, agreeing that there was no evidence the 1991 accident significantly affected the appellant's ability to work, which was already compromised by a 1989 accident and pre-existing arthritis.

The appellant appealed an arbitration order denying his claim for ongoing weekly income benefits and a higher benefit rate following a motor vehicle accident.

The insurer had terminated benefits after the appellant failed to attend a scheduled medical examination.

The Director's Delegate upheld the arbitrator's findings that the appellant lacked credibility, failed to prove substantial inability to perform his pre-accident employment as a roofer, and provided insufficient evidence to calculate a higher benefit rate.

The appeal was dismissed with no appeal expenses payable.

The insurer appealed two arbitration decisions regarding statutory accident benefits.

The insurer argued it should be allowed to set off an overpayment of benefits against future payments, and that it should be allowed to deduct post-accident income the insured reported from her husband's business.

The Director's Delegate dismissed these grounds, finding the insured did not materially contribute to the overpayment and the reported income was merely for income splitting.

However, the Director's Delegate allowed the appeal regarding a special award ordered against the insurer, finding that the arbitrator breached procedural fairness by raising the issue in her decision without giving the insurer a reasonable opportunity to present evidence in response.

The special award was revoked and a partial rehearing was ordered.

The insurer appealed an arbitration order that allowed the insured to withdraw his application for arbitration shortly before the hearing date without ordering him to pay an assessment for abuse of process.

The Director's Delegate dismissed the appeal, finding that the arbitrator properly exercised his discretion in allowing the withdrawal and correctly concluded that the insured's conduct did not amount to an abuse of process.

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

The appellant appealed an arbitrator's decision finding he was not employed at the time of the accident under subsection 12(3) of the Statutory Accident Benefits Schedule and was limited to benefits under section 13.

The Director of Arbitrations upheld the arbitrator's finding that the appellant's employment relationship had ended months before the accident when he decided not to return to his courier job and sought other work.

The Director also upheld the finding that the appellant was no longer substantially unable to perform his essential tasks of personal care and household duties, preferring the medical evidence of the insurer's experts over a later, uncorroborated report from the appellant's physician.

The appeal was dismissed.