OFSCDRS 1999

Following an arbitration where the applicant was denied income replacement benefits but awarded medical and rehabilitation benefits, the parties disputed the applicant's entitlement to expenses.

The arbitrator applied the criteria in Regulation 464/96, noting that success is only one factor and that the insurer's conduct in unnecessarily questioning doctors about an irrelevant pre-accident overdose prolonged the proceeding.

The applicant was awarded 80 percent of her legal fees and 100 percent of her assessable expenses, including fees for services subsequent to the arbitration.

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

The insurer paid income replacement benefits, but the applicant claimed entitlement to higher education disability benefits (EDBs) because she was a hairstylist apprentice at the time of the accident.

The insurer argued she was employed and thus only entitled to income replacement benefits, and alternatively, that her claim for EDBs was barred by the two-year limitation period.

The arbitrator found that the applicant's apprenticeship constituted full-time enrollment in post-secondary education, qualifying her for EDBs.

The arbitrator also held that the insurer's explanation of assessment did not constitute a clear and unequivocal refusal of benefits, so the limitation period was not triggered and the claim was not statute-barred.

The appellant appealed an arbitration decision dismissing her application for statutory accident benefits as statute-barred.

The appellant argued that the insurer's termination letter was not clear and unequivocal, and that sending the notice to her lawyer rather than directly to her was insufficient to trigger the two-year limitation period.

The Director's Delegate dismissed the appeal, finding that the termination letter, read with its enclosures, provided clear and unequivocal notice.

Furthermore, where an insured person retains a lawyer to conduct dealings with the insurer, notice to the lawyer is sufficient to start the limitation period.

State Farm appealed an arbitrator's decision awarding the respondent weekly income benefits and a special award following a motor vehicle accident.

State Farm argued the arbitrator erred in finding ongoing disability and lacked jurisdiction to order a special award because the disputed medical account was paid prior to the hearing.

The Director's Delegate dismissed the appeal, finding sufficient evidence supported the arbitrator's conclusion on disability.

Furthermore, the Delegate held that an insurer's late payment of benefits does not oust an arbitrator's jurisdiction to make a special award under section 282(10) of the Insurance Act, and that State Farm had unreasonably delayed payment by failing to follow the mandatory process for adjusting medical claims.

The applicant was injured in a motor vehicle accident and claimed income replacement benefits (IRBs).

The insurer denied IRBs on the basis that the applicant continued to receive her full salary from her employer, a closely-held corporation in which she and her husband were majority shareholders.

The arbitrator found that the payments made while the applicant was completely unable to work were a loan, not employment income, and therefore not deductible from IRBs.

However, the full salary paid during periods when she returned to work part-time was deductible as post-accident employment income, as her work was commercially productive.

The arbitrator also determined that the applicant was substantially disabled for specific periods, but not continuously, relying on independent medical and functional assessments over her subjective reports of pain.

The applicant was injured in two motor vehicle accidents in 1992 and sought ongoing weekly income benefits from two insurers.

The applicant had pre-existing, largely asymptomatic spinal conditions that became symptomatic after the accidents, eventually leading to a cervical laminectomy that resulted in incomplete quadriplegia.

The arbitrator found that both accidents materially contributed to the applicant's disability and that he met the post-156 week disability test.

Both insurers were held fully responsible for the statutory accident benefits without apportionment.

The arbitrator also found a causal connection between the accidents and the surgery, and dismissed one insurer's claim for repayment of benefits.

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

The insurer terminated benefits, arguing the applicant was no longer disabled and could return to work.

The applicant applied for arbitration, claiming ongoing disability due to chronic pain, depression, and cognitive difficulties.

The arbitrator found the applicant credible and preferred the medical evidence supporting her disability over the insurer's medical examinations.

The arbitrator concluded that the applicant was continuously prevented from engaging in any occupation for which she was reasonably suited by education, training, or experience.

The applicant was awarded ongoing weekly income benefits and interest on overdue payments.

The appellant appealed an arbitrator's decision upholding the termination of his weekly income benefits at the 156-week mark by the respondent insurer.

The central issue was whether the appellant met the disability test under section 12(5)(b) of the Statutory Accident Benefits Schedule, which requires that the injury continuously prevents the insured from engaging in any suitable occupation.

The appellant argued that the arbitrator erred in relying on the evidence of his treating physiatrist, who testified for the insurer, and in finding that suitable work was available.

The Director's Delegate dismissed the appeal, finding no error in the arbitrator's reliance on the physiatrist's evidence or the conclusion that the appellant was capable of light or sedentary work.

The appellant was awarded his reasonable appeal expenses.

The appellant was injured in a motor vehicle accident and claimed weekly income benefits for chronic pain and depression.

The arbitrator denied the claim, finding the appellant not credible based on alleged pre-existing conditions, surveillance evidence, and hearing observations.

On appeal, the Director's Delegate found that the arbitrator made serious factual errors regarding the pre-accident medical records and misapprehended the surveillance evidence.

Because these errors undermined the core credibility findings, the appeal was allowed, the arbitration order was rescinded, and the matter was remitted for a new hearing before a different arbitrator.

The insurer brought a motion to require the insured to attend a medical assessment with a physiatrist under subsection 23(2) of the Statutory Accident Benefits Schedule.

The insured opposed the assessment, arguing it was scheduled to bolster the insurer's upcoming variation application and that there would be insufficient time to review the report before the hearing.

The arbitrator found the assessment reasonable, noting the insured had not been assessed in over two years and the insurer has a right to assess the claim.

The motion was granted and the insured was ordered to attend the examination.

The applicant was involved in a rear-end motor vehicle accident and sought statutory accident benefits, including income replacement benefits (IRBs), medical expenses, and housekeeping expenses.

The insurer denied the claims, arguing the applicant was not employed and did not suffer a substantial inability to perform her essential tasks.

The arbitrator found that the applicant's work as an in-home caregiver for disabled adults constituted employment and that the accident materially contributed to her ongoing low back complaints, rendering her substantially unable to perform the heavy physical demands of her job.

The arbitrator awarded ongoing IRBs, various medical and travel expenses, and housekeeping costs.

Additionally, the arbitrator ordered a $2,500 special award against the insurer for unreasonably withholding payments under the 'pay now, dispute later' provisions of the Schedule.

Following a decision on statutory accident benefits, the parties disputed the applicant's entitlement to arbitration expenses and the calculation of interest on a special award.

The arbitrator awarded the applicant her expenses of $19,048.46, finding that she achieved partial success and raised significant issues.

The arbitrator also clarified that the $5,000 special award previously ordered was inclusive of interest under subsection 282(10) of the Insurance Act.

The issue of ongoing loss of earning capacity benefits was deferred to a further pre-hearing.

The applicant was injured in a motor vehicle accident and claimed entitlement to weekly income replacement benefits of $430.71 based on his income as an independent convenience store operator.

The insurer paid $238.07 weekly.

The arbitrator found the applicant's evidence regarding his employee wage costs to be inconsistent and unsupported by documentation.

The arbitrator accepted the insurer's expert accounting evidence, which calculated the applicant's net weekly income at $264.53, entitling him to a benefit of $238.07.

The claim for a special award was dismissed as the insurer had paid the proper amount.

The insurer brought a motion to determine whether the applicant was reasonably entitled to refuse to attend a psychiatric examination unless accompanied by her husband or mother.

The applicant argued she was emotionally fragile and required moral support based on past negative experiences.

The arbitrator applied the reasonableness test and found no evidence of bias or privacy concerns that would justify the condition.

The arbitrator concluded it was not reasonable for the applicant to refuse to submit to the examination unless accompanied, noting that an adverse inference could be drawn if she refused to attend alone.

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

The insurer argued that the applicant's subsequent applications for mediation and arbitration were barred by the two-year limitation period under the Insurance Act and the Statutory Accident Benefits Schedule.

The arbitrator found that the insurer's communications did not constitute a clear and unequivocal refusal to pay benefits, nor did the insurer provide the requisite notice under section 64(2) of the Schedule.

Consequently, the limitation period had not started to run, and the applicant was not precluded from proceeding to mediation and arbitration.

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

The insurer terminated benefits, arguing she was no longer substantially unable to perform the essential tasks of her employment and lacked motivation to return to work.

The arbitrator found that the applicant suffered from post-traumatic stress disorder, depression, anxiety, and chronic pain as a result of the accident.

Based on medical and psychological evidence, the arbitrator concluded that the applicant's physical and psychological limitations continuously prevented her from engaging in any suitable occupation or employment.

The applicant was awarded ongoing weekly income benefits and interest.

The applicant was injured in three motor vehicle accidents and sought statutory accident benefits for chiropractic and massage treatments.

The insurer denied the claims based on Designated Assessment Centre (DAC) reports which concluded the treatments were palliative and did not promote recovery.

The arbitrator held that pain relief is a legitimate medical goal and that treatments do not need to promote recovery to be considered reasonable and necessary.

The arbitrator ordered the insurer to pay for past and ongoing chiropractic and massage treatments, as well as interest on overdue benefits.

The applicant sought income replacement benefits following two motor vehicle accidents.

The insurer had paid some benefits but terminated them after discovering the applicant was not disabled.

At the hearing, evidence revealed the applicant had been working continuously and earning more than the benefit amount, and had wilfully misrepresented his employment status.

The arbitrator dismissed the claim for benefits.

The insurer's claim for repayment of benefits was denied because it failed to provide the required statutory notice under section 47 of the Schedule.

However, the arbitrator found the application frivolous and an abuse of process, ordering the applicant to pay a $3,000 assessment to the insurer under section 282(11.2) of the Insurance Act, plus the expenses of the arbitration.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits, including a Loss of Earning Capacity (LECB) offer, medical expenses, transportation expenses, and attendant care/housekeeping benefits.

The insurer disputed the claims, arguing the applicant was not substantially disabled and that her psychological symptoms were the result of a pre-existing histrionic personality disorder rather than the accident.

The arbitrator found that the applicant was substantially unable to perform the essential tasks of her employment due to a combination of physical and psychological factors, including fibromyalgia and depression.

Applying the thin skull rule, the arbitrator held that the accident materially contributed to her impairment, entitling her to an LECB offer.

The arbitrator also awarded transportation expenses and a modest amount of housekeeping benefits, but denied the claims for a cervical collar and orthotics.

The appellant appealed an arbitration decision dismissing her claim for income replacement benefits following a motor vehicle accident.

The arbitrator had rejected her claim on the basis that she was not employed at the time of the accident, relying in part on hearsay statements made by her alleged employer and a co-worker to an investigator.

On appeal, the Director's Delegate found that the arbitrator erred in relying on the hearsay evidence without the witnesses being called to testify.

However, the appeal was dismissed because the arbitrator's rejection of the appellant's employment evidence was supportable based on other significant inconsistencies and gaps in her own testimony.