OFSCDRS 2001

Following a decision on statutory accident benefits where the applicant achieved minimal success, the parties sought their respective expenses of the arbitration proceeding.

The arbitrator rejected the insurer's proposal to apportion costs 75/25 in its favour, noting that the applicant was justified in proceeding to arbitration given the insurer's low settlement offer.

However, due to the applicant's minimal success, he was awarded only 20% of his arbitration expenses.

The insurer's claim for expenses was dismissed.

The applicant's counsel's hourly rate was set at $73.38 based on the legal aid tariff.

The insured was injured in a motor vehicle accident and received income replacement benefits until they were terminated by the insurer.

Following a successful arbitration by the insured, an appeal, and a judicial review, a new hearing was ordered.

Prior to the re-hearing, the insurer sought a stay of proceedings because the insured refused to attend further insurer examinations.

The arbitrator held that given the lengthy passage of time (four to six years) since the previous examinations, it was reasonably necessary for the insured to attend an updated examination by the insurer's orthopaedic surgeon.

The hearing was adjourned pending the insured's attendance at this examination.

The insurer's requests for a further Designated Assessment Centre evaluation and an examination by the previous DAC physiatrist were denied.

The insurer brought a motion to vary an arbitration order that had directed it to pay for three medical reports as section 24 expenses under the Statutory Accident Benefits Schedule.

The applicant did not appear.

The arbitrator found that the applicant had not formally applied for these expenses under section 24 and that the reports were commissioned primarily to establish his claims in the arbitration process.

The arbitrator varied the order, recharacterizing the medical reports as expenses of the arbitration process rather than section 24 benefits.

The applicants applied for statutory accident benefits following a motor vehicle accident.

The insurer terminated weekly income replacement benefits, and the applicants applied for arbitration.

A preliminary issue arose regarding whether the applicants were required to attend the pre-hearing discussions in person.

The insurer argued their attendance was essential because it intended to apply to disallow their representative from continuing to act for them.

The arbitrator ordered the applicants to attend in person, noting that the absence of parties can hinder settlement discussions and that the arbitrator has discretion to determine the format of the pre-hearing discussion.

Conditional expenses of $200 were ordered against each applicant if they failed to attend.

The applicant, a Mexican citizen studying English in Toronto, was injured in a motor vehicle accident in Quebec while a passenger in a vehicle insured by the respondent.

She applied for statutory accident benefits in Ontario.

The insurer denied the claim on the basis that she was not a 'resident of Ontario' and therefore not an 'insured person' under section 2 of the Bill 59 Schedule.

The arbitrator found that the applicant's stay in Ontario was temporary and for a limited purpose, lacking the permanence required to establish residency.

The applicant was found not to be an insured person under the Schedule.

The applicant claimed medical and rehabilitation benefits following a motor vehicle accident.

The insurer denied the treatment plans without scheduling a medical and rehabilitation designated assessment centre (DAC) as required by section 38 of the Statutory Accident Benefits Schedule.

The applicant brought a preliminary motion arguing the insurer was deemed to have admitted entitlement due to this procedural breach.

The arbitrator found the insurer failed to comply with the denial provisions, but held that based on existing case law, the breach raised an evidentiary rather than a jurisdictional question.

The arbitrator declined to decide the consequences of the breach on a preliminary basis, ordering the matter to proceed to a full hearing.

Following a decision denying the applicant's claims for statutory accident benefits, the insurer requested an assessment of its expenses.

The applicant had prolonged the proceeding by failing to comply with undertakings and failing to appear at the arbitration hearing.

The applicant also failed to appear at the in-person expense assessment.

The arbitrator awarded the insurer $986.30 in legal fees, applying the legal aid rate rather than the maximum allowable rate, and $1,168.75 in disbursements, for a total of $2,155.05 plus GST.

The applicant was injured in a motor vehicle accident and subsequently developed severe psychological problems, including delusions and paranoia.

He applied for income replacement benefits, which the insurer denied on the basis that his psychological condition was pre-existing and not caused by the accident.

The arbitrator found that the applicant was a 'thin-skulled' individual whose vulnerable defences were overwhelmed by the accident, establishing causation.

The applicant was awarded ongoing income replacement benefits, but his claim for a special award was dismissed as the insurer had not unreasonably delayed or withheld benefits.

The insured was involved in two motor vehicle accidents and claimed statutory accident benefits from two insurers.

The arbitrator made various orders regarding income replacement benefits, attendant care, and repayment of overpaid benefits.

Both the insured and the second insurer appealed.

The Director of Arbitrations allowed the appeals in part, finding that the arbitrator erred in applying the partial inability test to extend income replacement benefits beyond the period the insured met the substantial inability test, and erred in refusing to decide the claim for lost and damaged items.

The remaining grounds of appeal were dismissed.

The applicant, a truck driver, was assaulted and shot by unknown assailants after he exited his parked truck to ask for directions in Miami, Florida.

He applied for statutory accident benefits, which the insurer denied on the basis that the incident was not an 'accident' under the Schedule.

The arbitrator found that the assault was an intervening act from an independent source, breaking the chain of causation.

Therefore, the injuries were not directly caused by the use or operation of an automobile, and the application for benefits was dismissed.

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

The insurer sent a notice terminating her income replacement benefits.

The insurer argued the applicant's subsequent application for mediation was filed beyond the two-year limitation period.

The arbitrator held that the limitation period begins to run from the date the insurer stops paying benefits or the date specified in the stoppage notice, not the date the notice is mailed or received.

As the application was filed within two years of the specified stoppage date, it was not statute-barred.

The appellant appealed an arbitrator's decision regarding his residual earning capacity following a motorcycle accident.

The appellant argued that the arbitrator erred in her interpretation of the phrase 'exists in the area in which the person lives' by considering employment outside his immediate municipality, and that she erred in preferring the REC DAC's conclusions over his own experts.

The Director's Delegate dismissed the appeal, finding no error in the arbitrator's flexible interpretation of the search area, which was supported by the appellant's own expert evidence.

The Delegate also found no basis to interfere with the arbitrator's weighing of the evidence and rejected the appellant's late allegations of impropriety against the REC DAC.

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

The Insurer terminated benefits and scheduled insurer examinations, which the Applicant did not attend.

The Insurer argued the Applicant was precluded from arbitrating her claims under sections 42 and 50 of the Schedule.

The Arbitrator found that the Applicant's counsel had requested a postponement and that the Applicant had reasonable medical explanations for her non-attendance, including a confused state and impending back surgery.

The Arbitrator ruled that the Applicant may proceed with the arbitration.

Allstate sought to appeal an arbitrator's preliminary decision that collateral benefits were not available to the respondent, Mr. Torok, because his application to the collateral insurer was out of time.

The Director's Delegate rejected the appeal pursuant to Rule 46.2 of the Dispute Resolution Practice Code, which generally prohibits appeals of preliminary orders until all issues are finally decided.

The Delegate found that the appeal was not compelling on its face, involved factual disputes, and would likely delay the scheduled entitlement hearing, causing prejudice to the respondent.

Following a previous decision determining the applicant's entitlement to medical benefits, the parties could not agree on the quantum payable for treatment.

The arbitrator determined that the insurer must pay $3,070 plus interest for treatment received in accordance with the submitted treatment plans, finding that while the duration of treatment was significantly extended without new plans, the frequency and cost did not vary significantly from the estimates.

The arbitrator also ordered the insurer to pay the applicant's arbitration expenses, noting that the applicant achieved a more favourable outcome than the insurer's settlement offer and her claims were not frivolous.

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

The insurer denied the benefit on the basis that the applicant was not employed at the time of the accident.

The applicant, a seasonal construction worker, had stopped working months prior due to a work-related injury but believed he would be recalled.

The arbitrator found that as a seasonal worker, the applicant had no guarantee of continuous employment and was no longer an employee once he stopped working due to his prior injury.

The arbitrator concluded the applicant was not employed at the time of the accident.

The insured person was injured in a motor vehicle accident and hospitalized.

His mother took a leave of absence from work to visit him daily, losing $3,966.43 in wages.

The insured claimed this amount as visitor's expenses under s. 21 of the SABS-1996.

The arbitrator allowed the claim, but the insurer appealed.

The Director of Arbitrations allowed the appeal, holding that lost income is not an 'expense incurred' within the meaning of s. 21, distinguishing it from attendant care benefits which explicitly cover lost income or the value of services.

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

The insurer denied certain treatment plans and requested the applicant attend insurer's examinations and a Designated Assessment Centre (DAC).

The applicant failed to return the required OCF-14/59 forms for the DAC and did not attend the insurer's examinations.

On a preliminary issue, the arbitrator held that the insurer's notice for the examinations was defective for failing to specify the benefits to which they related, meaning the applicant was not barred from arbitrating other issues.

However, the applicant's failure to return the DAC forms constituted a failure to make himself reasonably available for an assessment, barring him from arbitrating the specific treatment plans related to those DACs.

Following an arbitration and appeal regarding statutory accident benefits, the applicant sought an assessment of his arbitration expenses.

The insurers argued that the appeal automatically stayed the arbitration expenses order, but the arbitrator noted that under the Insurance Act, an appeal does not stay an order unless the Director decides otherwise.

The arbitrator assessed the applicant's claimed legal fees and disbursements, allowing a portion of the preparation time and expert witness fees.

After accounting for set-offs for collateral benefits and the insurers' appeal expenses, Allstate was ordered to pay $3,569.45 and Wellington was ordered to pay $6,381.95.

The applicant was injured in a motor vehicle accident and sought payment for exercise therapy under the Statutory Accident Benefits Schedule.

The insurer denied the claim, arguing the treatment was not reasonable and necessary.

The arbitrator found that the applicant had pre-existing shoulder issues and lacked credibility regarding his medical history.

Relying on expert medical assessments, the arbitrator concluded the applicant had regained almost full mobility prior to the disputed therapy and did not have an impairment requiring the treatment.

The claims for medical benefits and a special award were dismissed.