OFSCDRS 1999

The applicant was injured in a motor vehicle accident while riding his motorcycle and applied for statutory accident benefits.

Disputes arose regarding the calculation of his income replacement benefits (IRBs), the indexation of his pre-accident earning capacity (PEC) for loss of earning capacity benefits (LECBs), his residual earning capacity (REC), and his entitlement to a special award.

The arbitrator determined that the applicant's gross annual income should be calculated based on the 52 weeks prior to the accident, including accrued vacation pay.

The arbitrator also held that the applicant's PEC must be indexed before calculating LECBs.

Furthermore, the arbitrator rejected the Designated Assessment Centre's (DAC) finding that the applicant could work as a part-time sales representative, concluding that such employment did not exist in the Thunder Bay area, and deemed his REC to be zero.

The claim for a special award was dismissed as the insurer's conduct was not found to be unreasonable.

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

The insurer argued the applicant was barred from receiving benefits because he failed to notify the insurer within 30 days and failed to submit an application within 90 days under section 59 of the Statutory Accident Benefits Schedule.

The arbitrator found that the applicant had provided sufficient notice to his broker within 30 days, which constituted notice to the insurer.

Furthermore, the applicant had substantially complied with the 90-day application requirement by submitting partially completed forms and providing detailed information to the adjuster.

Alternatively, the arbitrator found the applicant had a reasonable excuse for any delay, and the insurer suffered no prejudice.

The applicant was not barred from receiving benefits.

The applicant was successful in an arbitration for statutory accident benefits and was awarded her expenses.

In this expense assessment, the arbitrator determined the quantum of legal fees and disbursements payable by the insurer.

The arbitrator allowed a 3:1 ratio for preparation to hearing time, resulting in 260 hours for lead counsel.

The arbitrator also awarded an enhanced hourly rate of $150, noting that the insurer had unreasonably refused a settlement offer.

Additional fees were awarded for previous counsel, an articling student, and law clerks, along with disbursements including expert witness fees and court reporting services.

The applicant was injured in a rear-end motor vehicle accident and sought ongoing income replacement benefits after the insurer terminated them.

The arbitrator found no objective physical injury but accepted that the applicant developed significant emotional and psychological problems resulting in a substantial inability to perform her essential job tasks.

However, evidence showed she was functionally able to operate a chip wagon business on her own by the summer of 1997.

The arbitrator ordered the insurer to pay income replacement benefits from the date of termination until June 1, 1997.

The applicant, a visiting homemaker, was struck by a motor vehicle and received income replacement benefits until the insurer terminated them, claiming she could return to work.

The applicant sought reinstatement of benefits, arguing she suffered from benign paroxysmal positional vertigo and soft tissue injuries preventing her from working.

The arbitrator found that while the soft tissue injuries did not prevent her from working, the vertigo caused a substantial inability to perform the essential tasks of her pre-accident employment.

The applicant was awarded ongoing income replacement benefits but denied the cost of a multidisciplinary assessment.

The insured was injured in a motor vehicle accident while driving a rental van insured by American Home.

He submitted his first completed application for statutory accident benefits to American Home, which denied the claim.

He later submitted an application to State Farm, his spouse's insurer, and sought to arbitrate against State Farm when it refused to pay.

State Farm appealed a preliminary arbitration decision that allowed the insured to proceed against it.

The Director's Delegate allowed the appeal, holding that under O.Reg. 283/95, the first insurer to receive a completed application (American Home) is responsible for paying benefits pending any priority dispute.

The insured could not proceed against State Farm because it was not the first insurer to receive a completed application, and the evidence did not support the insured's claim that State Farm had improperly deflected the initial application.

The appellant appealed an arbitrator's decision denying her ongoing weekly income benefits beyond a six-month extension and refusing a special award.

The arbitrator had found that the appellant would have been fit for full-time work had she continued her prescribed exercise program, and that her failure to do so was the sole cause of her continuing disability.

The Director's Delegate upheld the decision, finding that the arbitrator did not improperly import mitigation principles but correctly considered rehabilitation efforts in determining whether the appellant met the statutory definition of disability.

The Delegate also upheld the refusal of a special award, finding no error in the arbitrator's conclusion that the insurer's termination of benefits was not unreasonable.

The appeal was dismissed, with partial expenses awarded to the appellant.

The appellant insurer appealed an arbitrator's decision calculating the respondent insured's loss of earning capacity benefits.

The insured, a full-time firefighter, also operated a boat business that had not yet shown a profit.

The arbitrator included $22,000 of self-employment income in the insured's pre-accident earning capacity.

The Director's Delegate dismissed the appeal, finding that the arbitrator correctly interpreted section 29(2) of the SABS-1994 by considering what the insured could reasonably have earned based on his personal and vocational characteristics, and that the arbitrator's calculation was a fair and reasonable estimate.

The applicant was injured in a motor vehicle accident and subsequently developed severe depression and anxiety.

The insurer terminated her loss of earning capacity benefits, arguing her residual earning capacity was greater than her pre-accident earning capacity based on a RECDAC assessment suggesting she could work part-time as a general office clerk.

The arbitrator rejected the RECDAC's conclusion, finding the work simulation inadequate and preferring the evidence of the applicant's treating psychiatrist and a vocational rehabilitation specialist.

The arbitrator concluded that the applicant's psychological impairments rendered her residual earning capacity zero.

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

The insurer stopped payments and sent a letter regarding an alleged overpayment, but did not explicitly state reasons for refusing further benefits.

The insurer raised a preliminary issue that the application for arbitration was time-barred under the two-year limitation period.

The arbitrator found that the insurer's letter did not constitute proper written notice of refusal because it lacked clear reasons for the refusal.

Therefore, the limitation period had not commenced, and the applicant was not precluded from proceeding to arbitration.

The appellant appealed an arbitration decision that found his claim for weekly income benefits was time-barred.

The appellant argued that the arbitrator's refusal to allow written submissions after the hearing concluded raised a reasonable apprehension of bias, and that there was insufficient evidence he received the mediator's report to trigger the 90-day limitation period.

The Director's Delegate dismissed the appeal, finding no evidence of bias in the arbitrator's procedural rulings or conduct during the hearing.

Furthermore, the arbitrator did not err in concluding that the insurer's clear refusal to pay benefits and the mailing of the mediator's report triggered the limitation period, which had expired before the arbitration application was filed.

The applicant was struck by a car and claimed ongoing income replacement benefits and physiotherapy expenses.

The insurer terminated benefits, arguing she could return to her job as a light duty cleaner and sought to deduct alleged post-accident income.

The arbitrator found the applicant suffered a substantial inability to perform the essential tasks of her job due to accident-related knee tendinitis, entitling her to ongoing income replacement benefits.

The arbitrator also found no evidence of actual post-accident income to deduct, and allowed only one month of the claimed physiotherapy expenses, finding the remainder unreasonable.

The Arbitrator issued a decision correction to fix a typographical error in the original decision dated November 2, 1999.

The name 'Mr. Thanh' was corrected to 'Mr. Truong' in two sentences regarding a signed statement.

The applicant, a self-employed baker and greenhouse operator, was injured in a head-on motor vehicle collision.

The insurer terminated her income replacement benefits at the 104-week mark, arguing she was no longer disabled and seeking repayment for allegedly overstated pre-accident income.

The arbitrator found the applicant remained substantially disabled from the essential tasks of her pre-accident employment, relying heavily on compelling lay witness testimony regarding her post-accident cognitive and physical decline.

The arbitrator also accepted the applicant's evidence regarding her pre-accident earnings, setting the ongoing benefit at $634.82 weekly and ordering the insurer to pay $34,233 in arrears.

The applicant sought various statutory accident benefits following a motor vehicle accident, including income replacement benefits, an education benefit, medical expenses, dependant care, and housekeeping expenses.

The insurer denied the claims.

The arbitrator found that while the applicant was not procedurally barred from claiming income replacement benefits, she failed to prove that her accident-related injuries substantially prevented her from performing the essential tasks of her employment.

The arbitrator also dismissed the claims for education, medical, dependant care, and housekeeping benefits due to a lack of credible evidence and documentary proof that the expenses were incurred or were reasonable and necessary as a result of the accident.

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

The insurer terminated benefits and sought repayment, alleging the applicant wilfully misrepresented his employment status and income, and continued to operate his drywall business post-accident.

The arbitrator found the applicant was self-employed, had submitted a false income confirmation, and was capable of performing his essential duties.

The applicant's claims for ongoing benefits and a special award were dismissed.

The insurer's claim for repayment was granted, and the applicant was ordered to repay $51,761.86 due to wilful misrepresentation.

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

The insurer terminated her weekly caregiver benefits after 104 weeks, asserting she did not suffer a complete inability to carry on a normal life.

The applicant argued she suffered a substantial inability to engage in her pre-accident caregiving activities for her adult son, who had a severe brain injury.

The arbitrator found that the applicant's physical limitations, including osteoarthritis and restricted mobility, prevented her from meaningfully engaging in her pre-accident caregiving activities.

The arbitrator ordered the insurer to pay ongoing weekly caregiver benefits and interest, but denied the claim for a special award.

The applicant was injured in two motor vehicle accidents and sought statutory accident benefits from her insurer.

The insurer terminated income replacement benefits based on DAC assessments.

The arbitrator found that the applicant suffered a substantial inability to perform the essential tasks of her employment due to a shoulder injury and a major depressive disorder caused by the accidents.

The arbitrator awarded income replacement benefits for the disputed periods until the applicant was found to be coping and able to return to work.

Claims for massage therapy were allowed, while claims for acupuncture and disability management services were dismissed as unreasonable.

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

The applicant applied for arbitration, claiming ongoing benefits due to chronic pain and depression that rendered him unable to perform his pre-accident maintenance job.

The insurer argued the applicant was not disabled and that any impairment was due to pre-existing factors.

The arbitrator found the applicant's pain complaints genuine and supported by medical evidence, concluding he suffered from a chronic pain condition with a significant psychological component.

Applying the thin skull rule, the arbitrator held the accident materially contributed to the disability.

The applicant was awarded ongoing income replacement benefits, interest, and arbitration expenses, as well as partial chiropractic expenses, but the claim for a recliner chair was denied.

The applicant was injured in a motor vehicle accident and received income replacement benefits until the insurer terminated them based on an occupational medicine examination.

The applicant was subsequently involved in a second motor vehicle accident but only sought benefits related to the first.

The arbitrator found that the applicant's evidence was inconsistent and that multiple medical specialists noted exaggerated pain behaviour and illness behaviour.

The arbitrator concluded that the applicant did not suffer a physiological or anatomical impairment from the first accident that disabled her from working, and that her psychological impairment did not prevent her from performing the essential tasks of her employment.

The application for arbitration was dismissed.