OFSCDRS 1999

The applicant sought statutory accident benefits after being struck by a van at a self-storage facility.

The insurer denied benefits, arguing the incident was not an 'accident' and the application was out of time.

The arbitrator found the incident met the Amos test for an accident and the applicant had a reasonable excuse for the delay.

The applicant was awarded income replacement benefits for a closed period, but claims for supplementary medical and housekeeping expenses were dismissed, with the arbitrator finding the housekeeping receipts were fabricated.

The applicant claimed death benefits following her husband's fatal car accident.

The dispute centered on whether an ex gratia payment and a sick leave payout received by the deceased upon his retirement, within the 156 weeks preceding the accident, should be included as income for calculating the death benefit.

The arbitrator held that the purely discretionary ex gratia payment was income earned upon retirement and thus included in the calculation.

However, the sick leave payout accrued steadily throughout the deceased's employment and was not included as income within the 156-week period.

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

The applicant alleged that an application for arbitration was mailed within the two-year limitation period but was lost by the postal service or the Commission.

The arbitrator found that the applicant failed to provide documentation proving the Commission received the application before the limitation period expired.

As arbitrators have no jurisdiction to extend the limitation period, the application was dismissed as out of time.

The appellant appealed two arbitration decisions that dismissed her claims for statutory accident benefits.

The arbitrator held that her claim for Other Disability Benefits was time-barred because she applied for mediation more than two years after the insurer's clear refusal.

The arbitrator also dismissed her other claims because she failed to provide particulars as ordered at the pre-hearing.

The Director's Delegate upheld both decisions, finding no error of law, and noted the appellant could re-apply for mediation for her other claims if she provided the necessary details.

The respondent sought an assessment of appeal expenses following the dismissal of the insurer's appeal.

The respondent claimed an hourly rate of $150, while the insurer argued for the legal aid rate of $83.75.

The Director's Delegate found that the issues raised in the appeal were not unusually complicated and applied the legal aid rate of $83.75 per hour.

After reviewing the time spent on research, preparation, and attendance, the Director's Delegate assessed the respondent's appeal expenses at $3,059.52.

Following an arbitration decision awarding the applicant statutory accident benefits, the parties could not agree on the expenses of the hearing.

The applicant claimed approximately $40,000 in fees and disbursements, while the insurer suggested approximately $14,000.

The arbitrator assessed the costs, applying a ratio of four hours of preparation time for every hour of hearing time, and disallowed expenses related to mediation and certain expert preparation time.

The insurer was ordered to pay $23,239.21 in reimbursement of the applicant's arbitration expenses.

The applicant sought statutory accident benefits following a motor vehicle accident.

The insurer denied benefits, initially disputing that the applicant was in the insured vehicle.

The arbitrator found the applicant was a passenger but concluded his injuries were minor soft tissue strains.

Claims for extensive physiotherapy and chiropractic treatments were partially allowed, limited to what was reasonable for an uncomplicated injury.

Claims for income replacement and other disability benefits were dismissed, as the applicant was unemployed prior to the accident and his inability to carry on a normal life was attributable to a pre-existing, chronic psychosis rather than the accident.

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

The insurer terminated benefits, alleging the applicant wilfully misrepresented material facts by failing to disclose part-time employment.

On a preliminary issue motion, the arbitrator found that while section 48 of the Statutory Accident Benefits Schedule applied to the applicant, the insurer failed to prove that the applicant wilfully misrepresented material facts.

The arbitrator held that the applicant's silence did not amount to a wilful misrepresentation and that the undisclosed income was not material enough to justify terminating all future benefits under section 48.

The preliminary motion was dismissed.

The Applicant was injured in a motor vehicle accident while riding her bicycle and applied for statutory accident benefits, specifically caregiver benefits.

The Insurer denied the claim.

At arbitration, the Applicant argued she suffered a partial inability to carry on a normal life due to hip pain, balance problems, and anxiety about bicycling.

The Arbitrator found that while the Applicant could perform most household activities, her inability to walk long distances initially and her ongoing inability to ride a bicycle constituted a substantial inability to engage in her pre-accident mobility activities.

The Arbitrator awarded caregiver benefits for the two-year period following the accident, plus interest and expenses.

The applicant was injured in a motorcycle accident, suffering severe fractures to his left thumb.

The insurer terminated his weekly income benefits after two years, relying on an independent medical examination that concluded he could return to work.

The arbitrator found that the applicant, a welder who performed heavy manual labour, suffered a substantial inability to perform the essential tasks of his employment due to pain, weakness, and lack of sleep.

The arbitrator also found that the applicant was continuously prevented from engaging in any suitable occupation given his limited education, learning difficulties, and inability to cope with change.

The applicant was awarded ongoing weekly income benefits and interest, but his claim for a special award was dismissed as the insurer's decision to terminate benefits was based on conflicting medical reports and was not unreasonable.

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

The arbitrator found that the applicant, a coffee truck operator who suffered a severe shoulder injury requiring multiple surgeries, remained substantially unable to perform the essential tasks of his employment.

The arbitrator rejected the insurer's surveillance evidence and the report of its medical examiner, finding them unpersuasive.

The applicant was awarded ongoing income replacement benefits at $214.19 per week plus interest, but his claim for a special award was denied.

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

A dispute arose regarding the calculation of his pre-accident income from his self-employment at a family-owned car rental and repair business.

The applicant argued that significant personal expenses had been run through the company and should be added back to its profits, of which he claimed 100 percent.

The arbitrator determined the company's 1994 profit was $50,000, apportioned 50 percent to the applicant, and ordered that claim code 1 be used to determine his net income.

The applicant was also awarded expenses and interest on overdue benefits.

The applicant sought her expenses for an arbitration proceeding regarding statutory accident benefits following the death of her common-law spouse.

The arbitrator denied the applicant's request for expenses, finding that her claim to be the sole spouse was without merit given overwhelming evidence of the deceased's prior undissolved marriage, and that her conduct and that of her counsel unreasonably prolonged the hearing.

The insurer's request for its assessment fee under subsection 282(11.2) of the Insurance Act was also dismissed because the applicant's claim was not entirely frivolous, as she had succeeded on a claim for interest.

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

The insurer terminated the benefits, and the applicant brought a preliminary motion requesting that the insurer arrange a Designated Assessment Centre (DAC) assessment and pay interim benefits pending the assessment.

The arbitrator dismissed the motion, finding that the applicant had delayed raising the issue for over three years and that a DAC assessment would not be useful given the passage of time.

The arbitrator also declined to order interim benefits, noting that the applicant failed to establish a minimal level of disability or urgency.

The appellant was struck by a car and received weekly benefits for a period.

After 156 weeks, the insurer terminated benefits.

The arbitrator found that while the appellant's psychiatric disorder was caused by the accident, he did not meet the strict post-156 week test of being continuously prevented from engaging in substantially all normal activities.

The appellant appealed, arguing the arbitrator defined his activities too narrowly and ignored the episodic nature of his disability.

The Director's Delegate dismissed the appeal, holding that the arbitrator's factual findings were supported by the evidence and she correctly applied the legal test.

A claim for a special award was also dismissed due to lack of evidence that the insurer withheld medical records.

The applicants, a husband and wife, were injured in a rear-end motor vehicle collision and received weekly statutory accident benefits for three years.

The insurer terminated benefits on the basis that neither applicant met the stricter post-156 week disability tests.

The arbitrator found that the wife's pre-existing degenerative disc disease was aggravated by the accident, causing a herniation, but that she was not continuously prevented from engaging in substantially all of her normal activities, as evidenced by surveillance and her continued volunteer work.

The husband, who had significant pre-existing back problems, claimed ongoing disability from chronic pain syndrome.

The arbitrator dismissed his claim for ongoing benefits, noting he had returned to work briefly, played golf frequently, and his psychological evidence was inconsistent.

The arbitrator did order the insurer to pay a shortfall in the husband's pre-termination benefits based on an accountant's calculation, but denied a special award.

The applicant sought to withdraw her application for arbitration regarding a $330 physiotherapy assessment bill, claiming the arbitration was commenced by her former legal representatives and the clinic without her knowledge or consent.

The insurer did not oppose the withdrawal but sought its arbitration expenses against the clinic and the legal representatives, arguing they abused the Commission's process.

The arbitrator permitted the withdrawal without conditions.

The arbitrator found that the clinic and representatives had indeed abused the process by commencing the arbitration without the applicant's knowledge, but concluded she had no statutory jurisdiction under the Insurance Act or the Statutory Powers Procedure Act to order non-parties to pay expenses or to make orders against them to prevent future abuse of process.

The Applicant was injured in a motor vehicle accident and received income replacement benefits until he returned to modified work.

After being laid off, he brought a motion for interim benefits, alleging financial need and a breach of the benefits stoppage provisions under section 64 of the Statutory Accident Benefits Schedule.

The arbitrator dismissed the motion, finding that the Applicant's receipt of unemployment insurance benefits negated his claim of financial need.

The arbitrator also found it unclear whether section 64 applied to a consensual return to work, deferring that issue and quantum calculations to the hearing arbitrator.

A subsequent motion to reopen the hearing to admit new evidence was also dismissed.

The applicant was injured while driving a three-wheeled turf-truckster in the course of his employment at a golf club.

He applied for statutory accident benefits from his wife's automobile insurer.

The insurer denied the claim, arguing the turf-truckster was not an 'automobile' and that it was exempt from paying benefits under section 59 of the Schedule because the employer provided a private insurance plan in lieu of workers' compensation.

The arbitrator held that the turf-truckster was an automobile both in ordinary parlance and under the statutory definition, as it was a motor vehicle required to be insured when operated on a highway.

The arbitrator further held that the employer's private insurance plan did not constitute a 'workers' compensation law or plan' under section 59, and therefore the insurer was not exempt from paying benefits.

Following an arbitration decision regarding statutory accident benefits where the applicant was only successful in recovering $585 for an occupational therapy assessment, both parties sought their expenses of the proceeding.

The arbitrator considered the criteria under Rule 73.2 of the Dispute Resolution Practice Code.

Although the insurer had made an offer to settle that exceeded the applicant's recovery, the offer required a full and final release of all claims, which the arbitrator found to be a significant impediment to awarding expenses against the insured person.

Taking into account systemic considerations designed to facilitate access to speedy adjudication, the arbitrator ordered that each party bear its own expenses.