OFSCDRS 1999

The insurer appealed an arbitrator's interim order requiring it to produce all adjuster's notes prior to June 1, 1999, except for those made during a prior mediation.

The insured argued the notes were relevant because she was claiming a special award for unreasonable denial of benefits.

The Director's Delegate allowed the appeal in part, finding that a claim for a special award does not automatically entitle an insured to the complete file.

The production order was narrowed to the period between when the insurer first received notice of the disputed claims and the commencement of the mediation.

The applicant was injured in a motor vehicle accident and received income replacement benefits until the insurer terminated them in June 1996.

The applicant applied for mediation, which failed in April 1997.

She filed an application for arbitration in November 1998, more than two years after the insurer's refusal to pay further benefits.

The arbitrator held that the two-year limitation period under section 72(1) of the Statutory Accident Benefits Schedule had expired.

The insurer's agreement to reconsider the claim upon receipt of updated medicals did not waive or reactivate the limitation period.

The application for arbitration was dismissed as out of time.

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

The applicant applied for arbitration.

The insurer brought a preliminary motion to adjourn the arbitration until the applicant attended independent medical examinations by an orthopaedic surgeon and a neurologist.

The arbitrator found that the requested examinations were reasonably required under section 23(2) of the Statutory Accident Benefits Schedule, given a recent head injury diagnosis and the length of time since the last orthopaedic assessment.

The motion was granted and the arbitration was adjourned.

The insured applied for statutory accident benefits and subsequently referred a dispute over a psycho-vocational assessment to arbitration.

Shortly after, the insured commenced a civil action in court claiming medical and rehabilitation benefits, which encompassed the same assessment expense.

The insurer brought a preliminary motion to dismiss the arbitration, arguing that the insured had elected to proceed in court and that the concurrent proceedings constituted an abuse of process.

The arbitrator found that the issues in both forums were the same, but permitted the insured to proceed with the arbitration on the condition that she withdraw the related court action or amend her statement of claim to exclude the disputed expense.

The insurer was awarded $250 in expenses for the motion.

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

The insurer terminated non-earner and childcare benefits at the three-year mark, arguing she did not meet the stricter post-156 week test of being continuously prevented from engaging in substantially all of her normal activities.

The arbitrator found that the applicant's permanent pelvic malalignment caused constant pain that drastically reduced her ability to engage in her pre-accident focus on outdoor activities and active childcare.

The arbitrator concluded the applicant met the test and ordered the insurer to pay ongoing non-earner and childcare benefits, plus arbitration expenses.

The applicant was injured in two motor vehicle accidents in 1993 and received statutory accident benefits until the insurer terminated them in January 1997.

The applicant sought ongoing weekly non-earner benefits, arguing that chronic pain and psychological factors continuously prevented her from engaging in substantially all of her pre-accident activities.

The arbitrator reviewed medical evidence from various experts, noting that while the applicant suffered from chronic pain and depression, her physical injuries had healed and she maintained normal muscle bulk, indicating a higher level of activity than she perceived.

The arbitrator concluded that the applicant did not meet the stringent post-156 week test under subsection 13(8)(b) of the Schedule, as her impairment did not continuously prevent her from engaging in substantially all of her former activities.

The application for weekly benefits was dismissed.

The appellant appealed an arbitration decision that largely denied his claims for income replacement and medical benefits arising from three motor vehicle accidents.

He argued the arbitrator erred in assessing the evidence and that the insurer's counsel had a conflict of interest because her firm was defending him in a related tort action brought by his wife.

The Director's Delegate dismissed the evidentiary appeal, finding no basis to interfere with the arbitrator's findings.

The conflict of interest claim was also dismissed, as the appellant was the defendant in the tort action and no confidential information could have flowed to his detriment.

However, the appeal was allowed in part to rescind the order requiring the appellant to pay the insurer's arbitration expenses, as the proceeding commenced before the statutory amendment permitting such awards.

The applicant sought to rescind a $12,500 settlement of arbitration expenses negotiated by her former counsel with the insurer, arguing it was unauthorized and did not comply with the disclosure requirements of section 9.1 of the Settlement Regulation.

The arbitrator held that the applicant was bound by the settlement because she had allowed her counsel to represent her in the expense issue, giving him apparent authority to bind her.

Furthermore, the arbitrator determined that section 9.1 of the Settlement Regulation does not apply to the settlement of an award of expenses, as expenses are a discretionary award under the Insurance Act and not a statutory accident benefit.

The applicant was injured in a motor vehicle accident and received weekly education disability benefits before becoming eligible for loss of earning capacity benefits (LECBs).

The parties disputed whether the applicant's disability tax credit should be included in the calculation of his pre-accident earning capacity.

The arbitrator held that the Schedule requires the disability tax credit to be considered when translating the gross annual income figure into a net weekly income figure, even though the credit was only received post-accident.

The preliminary issue was resolved in favour of the applicant.

The applicant was injured in a motor vehicle accident and received weekly income benefits before returning to work.

The insurer terminated benefits and argued the applicant was barred from further benefits under subsection 16(2) of the Statutory Accident Benefits Schedule because she worked for more than 90 days.

The arbitrator held that subsection 16(2) does not bar an insured from receiving further benefits, but only affects the evidentiary presumption of ongoing eligibility.

The arbitrator also determined that the disability entitlement test under subsection 12(5) refers to 156 weeks of disability, and that post-accident employment income does not delay or interrupt the running of this period.

The applicant was injured as a pedestrian in a motor vehicle accident and applied for statutory accident benefits from multiple insurers, including the Motor Vehicle Accident Claims Fund.

A dispute arose regarding which insurer was responsible for paying the benefits and whether Ontario Regulation 283/95 applied.

The arbitrator determined that because the applications for benefits and the dispute arose after March 27, 1995, Ontario Regulation 283/95 applied.

Consequently, the Commission lacked jurisdiction to decide the priority dispute, and the issue of which insurer is required to pay benefits must be resolved through private arbitration under the Arbitration Act, 1991.

At a pre-hearing conference, the Motor Vehicle Accident Claims Fund, supported by the applicant, moved to admit transcripts from examinations for discovery in a related tort action into evidence at the upcoming arbitration hearing in lieu of viva voce evidence.

Royal Insurance Company of Canada objected.

The pre-hearing arbitrator dismissed the motion, finding that the hearing arbitrator is in a better position to determine what documentary and viva voce evidence should be heard and to exercise the evidentiary powers under section 15 of the Statutory Powers Procedure Act.

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

The parties settled all substantive issues prior to the arbitration hearing, including the location of a residual earning capacity assessment, but could not agree on the entitlement to arbitration expenses.

The arbitrator found that the application had merit and the applicant achieved some success by obtaining an assessment in her preferred location, even though the insurer did not concede the legal right to that location.

The arbitrator awarded the applicant her expenses of the arbitration proceeding.

The applicant was injured in a rear-end motor vehicle accident and applied for weekly income replacement benefits, which the insurer denied.

The applicant had a significant pre-existing history of back and arm injuries.

The arbitrator found that the applicant suffered soft tissue injuries in the accident that temporarily disabled him from his employment as a truck driver.

However, due to the severity of his pre-existing conditions and the lack of evidence showing long-term exacerbation caused by the accident, the arbitrator concluded the applicant returned to his pre-accident status within 24 weeks.

The applicant was awarded weekly income replacement benefits for 24 weeks, plus interest.

The applicant sought weekly income replacement benefits following a motor vehicle accident but failed to attend the arbitration hearing or comply with production orders.

The arbitrator dismissed the claim for benefits due to a lack of evidence.

The insurer sought an award under section 282(11.2) of the Insurance Act, arguing the arbitration was frivolous and vexatious.

The arbitrator dismissed this request, finding the claim was not devoid of merit when commenced.

However, the arbitrator awarded the insurer its expenses of the proceeding, concluding that the applicant's repeated failures to comply with orders and attend hearings constituted an abuse of process that unreasonably prolonged the matter.

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

The insurer terminated benefits and the applicant applied for arbitration.

The insurer argued the application was barred by the two-year limitation period under subsection 281(5) of the Insurance Act.

The applicant's representative claimed to have filed two previous applications within the limitation period that were allegedly misplaced by the Commission.

The arbitrator rejected the representative's evidence as fabricated and unreliable, finding the application was filed out of time.

The arbitration was dismissed, and the applicant was ordered to pay $1,000 of the insurer's expenses due to the manifestly unfounded claims regarding the limitation period.

The insurer brought a motion to compel the applicant to attend several medical examinations, including a multidisciplinary assessment, after terminating his weekly income replacement benefits.

The applicant had refused to attend the insurer's scheduled assessments and instead attended his own.

The arbitrator found that orthopaedic, psychological, and neurological assessments were reasonably necessary for the insurer to assess the ongoing medical condition.

However, the arbitrator declined to order work capacity and functional abilities assessments, finding them not reasonably necessary.

The arbitrator also found it premature to order consequences for the applicant's failure to attend.

The insurer appealed an arbitration decision that reinstated the claimant's income replacement benefits and ordered a $5,000 special award.

The Director's Delegate allowed the appeal, finding that the arbitrator failed to provide a reasonable explanation for her factual findings, unfairly restricted and ignored the evidence of the insurer's medical expert regarding surveillance video, and failed to adequately address the complexity of the conflicting medical evidence.

The arbitration order was rescinded, the special award was overturned because the insurer reasonably relied on a Designated Assessment Centre report, and a new hearing before a different arbitrator was ordered.

The applicants were injured in a motor vehicle accident and sought statutory accident benefits for caregiving, housekeeping, and medical devices.

The insurer denied the claims.

At arbitration, the arbitrator found the applicants' evidence lacked credibility and was contradicted by medical certificates and school records.

The applicants failed to establish that they suffered impairments substantially preventing them from performing their pre-accident activities, or that the claimed expenses were reasonable, necessary, and actually incurred.

All claims for benefits and a special award were dismissed.

The applicant was injured in a motor vehicle accident and received income replacement benefits from the insurer.

The insurer terminated and later reinstated benefits, paying a lump sum for the outstanding period.

The applicant sought interest on the late payment, arguing the insurer had sufficient information to pay earlier.

The arbitrator found the insurer had the necessary information by April 21, 1998, and the benefits were overdue from that date.

The insurer was ordered to pay interest at 2 per cent per month compounded from April 21, 1998, to the date of payment, along with the applicant's arbitration expenses.