OFSCDRS 2003

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

The insurer terminated the benefits and the parties signed a release.

The applicant later applied for arbitration, arguing the release was ineffective and the termination notice was invalid.

The arbitrator found that the release did not meet the regulatory requirements and was therefore not a full and final settlement.

Furthermore, the termination notice did not constitute a valid refusal under the Smith test because it failed to adequately inform the applicant of the dispute resolution process.

As a result, the limitation period never commenced, and the applicant's claim was not time-barred.

The Applicant was injured in a motor vehicle accident and applied for statutory accident benefits, including housekeeping.

The Insurer scheduled an insurer's examination (IE) for the housekeeping claim, which the Applicant failed to attend.

The Insurer argued the Applicant was precluded from proceeding to arbitration on all issues under section 50 of the Schedule.

The Arbitrator held that the exclusion under section 50 would only apply to the housekeeping claim, not all claims.

Furthermore, the Arbitrator found the Insurer's notice of the IE was fatally flawed because it failed to clearly set out the consequences of non-attendance and the Insurer failed to make reasonable efforts to schedule the examination at a convenient time.

Therefore, the Applicant was not precluded from proceeding to arbitration on any issues.

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

In the course of the arbitration proceeding, the insurer requested the production of defence medical reports from the applicant's related tort claim.

The arbitrator distinguished recent Court of Appeal jurisprudence on the implied undertaking rule, finding that production in FSCO arbitrations is a matter of discretion.

The arbitrator ordered the production of reports post-dating the termination of benefits to prevent a doubling up of assessments, but declined to order production of earlier reports.

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

Following an appeal that upheld a 50% special award but remitted the matter to determine exact quantum, the arbitrator determined the outstanding amounts.

The parties agreed on the outstanding caregiver and attendant care benefits.

The arbitrator held that the special award must be calculated on the total of outstanding benefits plus interest.

Furthermore, the arbitrator ruled that post-judgment interest on the award continues at the statutory rate of 2% per month compounded monthly under the Schedule, rather than the lower rate under the Courts of Justice Act.

The insurer was ordered to pay a total of $161,144.87.

The applicant was injured in a motor vehicle accident and received income replacement benefits for 104 weeks.

The insurer terminated benefits on the basis that the applicant did not meet the post-104 week test of suffering a complete inability to engage in any suitable employment.

The arbitrator found that the applicant failed to make a bona fide effort to find suitable alternative employment and intentionally limited his job search.

Furthermore, surveillance evidence and inconsistencies in the applicant's testimony severely undermined his credibility regarding his alleged chronic pain and deterioration.

The arbitrator concluded that the applicant failed to establish a prima facie case of total disability and that the insurer had identified suitable alternative occupations.

The application for ongoing income replacement benefits was dismissed.

The appellants, lawyers who previously represented the respondent in an accident benefits arbitration, appealed an arbitrator's order that removed them as solicitors of record subject to several conditions.

The conditions included requiring the appellants' law firm to provide a lawyer to act as amicus curiae at the arbitration hearing and ordering them to pay the expenses of an adjourned hearing.

The Director's Delegate allowed the appeal, finding that the solicitor-client relationship had completely broken down and the appellants were entitled to withdraw without conditions.

The Delegate held that the arbitrator had no statutory authority to compel a lawyer to act as amicus curiae without consent or compensation, nor did the arbitrator have jurisdiction to order a representative to pay the arbitration expenses of the parties.

The arbitrator's order was revoked and the appellants were removed from the record unconditionally.

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

The applicant brought a motion for interim benefits pending the resolution of the dispute.

The insurer ultimately did not oppose the order for interim benefits but sought a ruling on whether an interim benefits order is available where an insurer is already paying the benefits, relying on a previous decision.

The arbitrator ordered the insurer to pay interim income replacement benefits, finding that the insurer failed to comply with the Schedule when terminating the benefits, and distinguished the previous decision relied upon by the insurer.

The claim for a special award was dismissed on consent.

The applicant was injured in a motor vehicle accident and sought interim income replacement and housekeeping and home maintenance benefits after the insurer terminated them.

The arbitrator found that the applicant established financial need, having exhausted his savings and borrowed money to meet living expenses.

The arbitrator also found that the applicant established a prima facie case for entitlement to the benefits based on medical evidence of his inability to perform his pre-accident job as a janitor and his housekeeping duties.

The motion for interim benefits was granted.

The applicant's son was killed in a motorcycle accident.

The applicant applied for a death benefit from the insurer, claiming he was principally dependent on his son for financial support.

The insurer denied the claim, arguing the applicant's own financial resources, including social assistance, were sufficient to meet his needs.

The arbitrator found that the applicant's monthly expenses exceeded his own financial resources and that the deceased son provided the money to make up the shortfall.

The arbitrator concluded the applicant was principally dependent on his son and awarded the $35,000 death benefit, along with interest, but denied a special award.

The insurer appealed an arbitrator's preliminary order dismissing its motion to stay the insured's arbitration proceeding.

The insurer had commenced a civil proceeding regarding the quantum of income replacement benefits one day before the insured filed for arbitration.

The Director's Delegate rejected the appeal, finding that the insured's right to elect arbitration should be respected, the arbitration was further advanced, and staying the arbitration would cause significant prejudice to the insured.

The arbitration was permitted to proceed.

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

The insurer issued a settlement cheque, but the applicant maintained he did not receive his full entitlement and applied for arbitration.

A pre-hearing arbitrator divided the dispute into preliminary jurisdictional issues and main issues.

At the preliminary hearing, the arbitrator found that the witnesses and evidence for both sets of issues would be substantially similar.

Consequently, the arbitrator ordered that all issues be heard together at a new hearing date and directed each party to bear its own expenses for the preliminary hearing.

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

He returned to work for several years before being laid off and claiming benefits again.

The insurer argued his return to work disqualified him as he was not 'continuously prevented' from engaging in suitable employment under s. 12(5)(b) of the Schedule.

The arbitrator held that whether the applicant was continuously prevented from working is a question of fact requiring full evidence, and that under s. 16(2), the applicant bears the burden of rebutting the presumption that his return to work for more than 90 days makes him ineligible for further benefits.

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

The applicant applied for arbitration, claiming ongoing neck and back pain, headaches, and sleep loss prevented him from returning to his job as a machine operator.

The arbitrator found the applicant's evidence unreliable due to a lack of candour regarding pre-existing conditions.

Relying on functional abilities evaluations and medical evidence characterizing the injuries as mild to moderate, the arbitrator concluded the applicant failed to establish a substantial inability to perform the essential tasks of his pre-accident employment.

The claim for ongoing income replacement benefits was dismissed.

The insured person was fatally injured in a motor vehicle accident.

Her estate applied for statutory accident benefits, including caregiver benefits, arguing that death constitutes an 'impairment' under the Statutory Accident Benefits Schedule.

The insurer denied the claim, arguing that death is distinct from impairment and that post-mortem benefits are limited to death and funeral benefits.

The arbitrator held that death is not an impairment for the purpose of qualifying for caregiver benefits, as interpreting it as such would create absurdities and contradict the clear distinction between death and impairment in the Insurance Act.

The applicant was injured in a motor vehicle accident while driving a truck weighing over 11,000 kilograms.

At the time, he held only a G2 class driver's licence, which authorized him to drive vehicles up to 11,000 kilograms.

The insurer denied income replacement benefits under s. 30(1)(b) of the Statutory Accident Benefits Schedule, arguing the applicant was driving without a valid driver's licence for that specific vehicle.

The arbitrator agreed, finding that driving beyond the scope of one's licence constitutes driving without a valid driver's licence, thereby excluding the applicant from receiving income replacement benefits.

The applicant sought interim weekly income replacement benefits (IRBs) and housekeeping benefits following two motor vehicle accidents.

The insurer had terminated benefits based on an insurer's medical examination which concluded the applicant could return to work.

The arbitrator found that the insurer's medical assessment improperly ignored the applicant's pain and relied on flawed heart rate testing to conclude a lack of effort.

Finding that the applicant established a very probable case for ongoing entitlement, the arbitrator ordered the insurer to pay interim IRBs of $400 per week for a 17-week period.

The claim for interim housekeeping benefits was dismissed for lack of evidence.

Following an arbitration decision regarding statutory accident benefits, the applicant sought hearing expenses of $5,093.02.

The insurer argued each party should bear its own expenses.

The arbitrator considered the criteria under the Expense Regulation, noting mixed success on the issues and that the applicant's representative unnecessarily prolonged the hearing and took meritless legal positions.

However, the applicant recovered more than double the insurer's settlement offer.

The arbitrator awarded the applicant half her counsel fees and all disbursements, totalling $2,211.96.

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

The insurer refused to pay income replacement benefits because the applicant failed to attend an independent medical examination.

The arbitrator held that the applicant was not barred from proceeding to arbitration because she had no outstanding claim for benefits when the examination was requested, and she had valid reasons for distrusting the insurer's doctors based on prior examinations.

The arbitrator also determined that pre-accident self-employment losses are not deducted from employment income when calculating gross income for income replacement benefits.

The applicant's claim for a special award was dismissed because her late application prejudiced the insurer.

The applicant, a Colorado resident, was injured in a motor vehicle accident in New York State while a passenger in an Ontario-insured vehicle.

He received New York no-fault benefits but sought Ontario statutory accident benefits from the insurer, State Farm.

The applicant argued that the Power of Attorney and Undertaking (PAU) filed by State Farm required it to pay Ontario benefits.

The arbitrator held that the PAU must be read as a whole and only applies to accidents occurring within a province or territory of Canada.

Since the accident occurred in New York, the PAU did not entitle the applicant to Ontario statutory accident benefits.

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

After failing to attend an insurer's examination and failing to return required forms, the insurer raised preliminary issues.

The applicant and her representative failed to attend the preliminary issue hearing.

The insurer sought its expenses of the arbitration and a special award under section 282(11.2) of the Insurance Act.

The arbitrator found that the applicant had authorized the arbitration but subsequently failed to participate, making the proceeding frivolous and an abuse of process.

The applicant was ordered to pay the insurer's reasonable expenses of $6,965.21 and an additional $3,000 for commencing a frivolous arbitration.