OFSCDRS 1999

The appellant appealed an arbitrator's decision denying his claim for income replacement benefits under the Statutory Accident Benefits Schedule.

The appellant claimed he had a legitimate contract of employment as a sales representative before the accident.

The Director's Delegate upheld the arbitrator's finding that the evidence did not establish a genuine employment contract, dismissing the income replacement claim.

However, the appeal was allowed in part to award the appellant the full $1,670 cost of a psycho-vocational assessment, finding it was a reasonable expense recommended by his treating doctors.

The insurer's cross-appeal for repayment of benefits was dismissed.

The applicant was injured in a motor vehicle accident and received income replacement benefits based on his employment as a firefighter.

A dispute arose over whether his pre-accident earning capacity should also include income from his incorporated boat performance business, which had historically operated at a loss.

The arbitrator found that despite the corporate structure, the applicant was self-employed in substance.

The arbitrator assessed the applicant's gross annual income from self-employment at $22,000, based on what he could reasonably have earned as a part-time outboard motor mechanic.

The claim for a special award was dismissed as the insurer's position was not unreasonable.

The applicant was injured in a motor vehicle accident and received statutory accident benefits until the insurer terminated them at the three-year mark.

The applicant sought ongoing weekly income benefits, claiming total disability due to chronic pain and restricted neck movement.

The arbitrator found the applicant's subjective complaints of pain and limitation to be unreliable, noting significant discrepancies between her presentation to doctors and her fluid movements captured on video surveillance.

Relying on objective functional capacity evaluations, the arbitrator concluded the applicant was capable of returning to sedentary work and had unreasonably resisted rehabilitation efforts.

The claim for ongoing benefits was dismissed, save for a six-week period of benefits awarded for recovery following a related ear surgery.

The appellant insurer appealed an arbitration decision allowing the respondent insured to proceed with her claim for income replacement benefits (IRBs).

The insured had returned to work within 104 weeks of the onset of her disability but later worked for more than 90 days after the 104-week mark before resigning due to her injuries.

The Director's Delegate dismissed the appeal, holding that under section 14(1) of the SABS-1994, an insured who returns to work within 104 weeks preserves their right to resume receiving IRBs if they are subsequently unable to continue working due to the accident, regardless of how long they worked after the 104-week mark.

The applicant, who sustained a severe brain injury in a motor vehicle accident, sought Education Disability Benefits (EDBs) for the period of July 12 to July 15, 1996, which marked 104 weeks post-accident.

The insurer had terminated EDBs just prior to this date.

The arbitrator found that the applicant suffered a substantial inability to continue his specific pre-accident educational path, despite his efforts to attend university part-time with accommodations.

The arbitrator also found that the applicant suffered a partial inability to carry on a normal life.

Furthermore, the arbitrator ruled that under the Statutory Accident Benefits Schedule, an insured only needs to demonstrate a partial inability to carry on a normal life at the exact 104-week mark to be entitled to a Loss of Earning Capacity (LEC) benefits offer, rejecting the insurer's argument that complete inability was required.

The Applicant was injured in a motor vehicle accident while on an unpaid vacation from his employment.

The parties disputed the correct method for calculating his weekly income benefit under subsection 12(7) of the Statutory Accident Benefits Schedule.

The Applicant argued for the Scavuzzo method, which would only average the weeks he actually earned income, resulting in $600 per week.

The Insurer argued for the Vo method, which averages income over the entire four-week period preceding the accident, including the unpaid vacation weeks, resulting in $468 per week.

The Arbitrator held that she was bound by the Director of Arbitration's appeal decision in Vo, and concluded that the Applicant's weekly income benefit is $468.

The Arbitrator issued a decision correction pursuant to Rule 63.4 of the Dispute Resolution Practice Code.

Paragraph 3 of the arbitration order was corrected to order the insurer to pay the applicant a $10,000 lump sum special award, together with simple two percent interest per month from the date of the Order.

The applicant sought to recover the cost of rehabilitation services following a motor vehicle accident.

At the commencement of the arbitration hearing, the applicant brought a motion requesting the arbitrator disqualify herself, alleging the Commission had a systemic bias against the service provider.

The applicant subpoenaed an acting registrar/arbitrator to testify on the bias motion.

The Commission's counsel successfully moved to quash the subpoena, relying on statutory provisions exempting Commission employees and arbitrators from testifying in civil proceedings.

The arbitrator dismissed the bias motion, finding no evidence of institutional bias.

Following this ruling, the applicant called no evidence on the substantive claim, which was consequently dismissed.

The insurer was awarded its expenses of the arbitration.

The applicant was injured in a motor vehicle accident and received income replacement benefits until returning to heavy physical work.

Ten months later, he stopped working due to back pain and sought reinstatement of benefits, claiming the disability resulted from the accident.

The insurer denied the claim, arguing the new disability was a work-related repetitive strain injury.

The arbitrator agreed with the insurer on causation, dismissing the claim for income replacement benefits.

However, because the insurer unilaterally terminated payment for medical and rehabilitation treatments without following the mandatory dispute resolution procedures under the Statutory Accident Benefits Schedule, the arbitrator ordered the insurer to pay for those treatments up to the date it formally notified the providers of the negative assessment results, plus a 25% special award for unreasonable withholding.

The applicant was injured in a motor vehicle accident and sought payment for a functional capacity evaluation and a surface EMG under section 24 of the Statutory Accident Benefits Schedule.

The insurer refused payment, arguing the expenses were medical services subject to section 38 requirements or were experimental.

The arbitrator held that diagnostic assessments obtained to assist in preparing a treatment plan fall under section 24 and are not subject to section 38.

However, the arbitrator reduced the claimed amount by 50% because the quality and value of the reports were questionable due to missing pre-accident information and unexplained test results.

The applicant was awarded $637.50 plus interest and arbitration expenses.

The appellant appealed an arbitration decision that denied him income replacement benefits after September 25, 1995.

He argued that the arbitrator imposed an inappropriately high burden of proof due to his friendship with his employer and erred in defining his essential tasks by not considering planned expansions to the farm where he worked.

The Director's Delegate dismissed the appeal, finding that the arbitrator properly assessed the evidence and correctly determined that essential tasks must be based on the employment at the time of the accident, not speculative future plans.

No appeal expenses were awarded.

The applicant was injured in a motor vehicle accident and sought supplementary medical benefits, an education disability benefit, loss of earning capacity benefits, and a special award from her insurer.

The insurer denied the claims, arguing that the applicant's temporomandibular joint (TMJ) dysfunction and psychological issues were not caused by the accident.

The arbitrator found that the TMJ symptoms were caused by the accident and ordered the insurer to pay for related treatments, but denied the claim for psychological assessments as they were self-referred and not requested from the insurer beforehand.

The claims for education disability and loss of earning capacity benefits were dismissed because the applicant did not meet the statutory criteria.

The request for a special award was also denied as the insurer's conduct was not unreasonable.

The insurer appealed an arbitrator's preliminary ruling that the insured's application for arbitration was not time-barred, despite the arbitrator ultimately dismissing the insured's claim for additional benefits on the merits.

The insured brought a motion to dismiss the appeal for mootness.

The Director's Delegate dismissed the appeal, finding that it raised no concrete dispute between the parties and that the insured had no stake in the outcome.

The arbitrator's order was confirmed and the insured was awarded appeal expenses.