OFSCDRS 2003

A paralegal associated with a treatment facility commenced an arbitration proceeding using forged authorizations from the insured persons.

The Arbitrator found the proceeding was unauthorized, added the paralegal as a party, and ordered him to pay the arbitration expenses of the insured persons and the insurer.

On appeal, the Director's Delegate held that the Arbitrator exceeded her authority, as there is no statutory power under the Insurance Act or the Statutory Powers Procedure Act to order a representative or non-party to pay arbitration expenses, nor to add them as a party for that purpose.

The appeal was allowed and the arbitration withdrawn.

The applicant, who was a minor at the time, filed an Application for Arbitration for statutory accident benefits.

The insurer raised a preliminary issue arguing the application was a nullity because the applicant lacked capacity to contract for legal services and failed to appoint a litigation guardian under the Dispute Resolution Practice Code.

The arbitrator held that the retainer and application were voidable, not void ab initio, as they were for the applicant's benefit.

The failure to appoint a litigation guardian was a procedural defect that did not invalidate the proceeding.

The applicant was granted time to ratify the application upon reaching the age of majority.

The insurer sought to require the insured to attend an insurer's examination under section 42 of the Statutory Accident Benefits Schedule to assess her entitlement to post-104 week income replacement benefits.

The insurer had only made an oral request at a pre-hearing discussion and did not provide written notice specifying the benefit to which the examination related.

The arbitrator held that the insurer failed to meet the basic notice requirements of section 42, which implicitly require written notice detailing the health professional and the affected benefit.

The insurer's request was denied, and the insured was awarded her expenses for the motion.

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

The insurer terminated and later reinstated the benefits with arrears.

A dispute arose over whether the insurer could set-off a deductible lump sum payment of collateral benefits against the benefit arrears, or if it had to recover the deduction through 20 per cent reductions in the reinstated benefits.

The arbitrator held that the insurer was entitled to set-off the deduction against the benefit arrears, as this prevented over-compensation and aligned with the purpose of the Schedule.

The insurer was also ordered to pay the applicant's hearing expenses.

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

The insurer requested an in-home occupational therapy assessment under section 42 of the Statutory Accident Benefits Schedule, which the applicant failed to attend on the advice of her agent.

The insurer sought a stay of the arbitration.

The arbitrator found that the applicant failed to make herself reasonably available for a reasonably necessary examination.

The arbitration was stayed until the applicant attends the examination, and the insurer was awarded $500 in expenses.

The applicant claimed she was injured in a minor motor vehicle accident and sought income replacement benefits and housekeeping expenses from her insurer.

The insurer denied the claims, arguing the collision was too minor to cause the alleged injuries and questioning the applicant's credibility.

The arbitrator found the applicant's evidence unreliable, noting numerous inconsistencies and implausible explanations regarding the accident and her injuries.

The arbitrator concluded the applicant did not suffer a substantial inability to perform her employment tasks or housekeeping duties as a result of the accident.

All claims for benefits and a special award were dismissed.

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

The insurer alleged the accident was staged and part of a fraud ring.

Mid-hearing, the applicant's representative unsuccessfully sought an adjournment and to withdraw the application, then abandoned the hearing.

The arbitrator found the insurer failed to prove the accident was staged, but dismissed all benefit claims due to severe credibility issues and lack of evidence regarding the applicant's employment and housekeeping needs.

The arbitrator awarded the insurer $5,000 in expenses and a $1,500 assessment fee due to the applicant's frivolous claims and abusive conduct.

The insurer appealed an arbitration decision awarding $35,000 in death benefits to the mother of a man killed in a motor vehicle accident.

The insurer argued the arbitrator erred in finding the mother was principally dependent on her son for financial support, specifically challenging the weight given to a decision of an Ethiopian communal court and the sufficiency of the evidence.

The Director's Delegate dismissed the appeal, finding that the arbitrator applied the correct legal principles and made no error of law in weighing the available evidence, which included statutory declarations and bank records.

The applicant's husband was struck by a cement truck and sustained physical injuries.

The applicant, who was not involved in the accident, claimed statutory accident benefits for psychological injury from the Motor Vehicle Accident Claims Fund.

The Fund denied the claim on the basis that she was not an 'insured person' under the Schedule.

The arbitrator held that the definition of 'insured person' for those not involved in an accident is clear and unambiguous, requiring the person to be a named insured, specified driver, or their spouse/dependant.

As the applicant was the spouse of an unnamed insured, she did not meet the definition and her claim was dismissed.

The appellant appealed an arbitration order that dismissed her claim for arbitration expenses following a dispute over accident benefits for acupuncture treatments.

Although the appellant had partial success at arbitration, the Arbitrator denied expenses due to the hearing being unnecessarily prolonged and concerns regarding the acupuncturist's inflated fees and treatment of non-accident-related ailments.

The Director's Delegate dismissed the appeal, finding that the Arbitrator's decision on expenses was a discretionary balancing of factors supported by the evidence and should not be disturbed.

The insurer appealed an arbitrator's decision ordering it to pay the balance of the respondent's treatment expenses and a $250 special award for unreasonably delaying benefits.

The insurer argued the arbitrator erred in calculating the collateral benefits reasonably available from the respondent's supplementary insurer and in imposing the special award.

The Director's Delegate dismissed the appeal, finding that the insurer's arguments were merely disagreements with the arbitrator's findings of fact, which were supported by the evidence, and raised no errors of law.

In a preliminary issue hearing for a statutory accident benefits arbitration, the insurer sought to admit the medical report of an expert who died before the hearing, as well as a critique report by a different doctor to stand in his place.

The arbitrator admitted the deceased doctor's report, noting it was prepared at a crucial time when benefits were terminated and no other examination could be obtained, though its weight would be adjusted since he could not be cross-examined.

However, the arbitrator refused to admit the second doctor's report or allow him to testify, as there was no evidence he shared the same medical specialty as the deceased expert.

The insurer appealed an arbitration order requiring it to pay interest on medical and rehabilitation expenses and a $1,000 special award.

The Director's Delegate held that interest under s. 46(2) of the SABS-1996 is not payable on expenses incurred after a negative Designated Assessment Centre (DAC) report until an adjudicator determines the benefits are owing, as the amounts are not 'overdue' prior to that determination.

The appeal was allowed in part, adjusting the interest payable and reducing the special award to $500 to comply with the statutory maximum under s. 282(10) of the Insurance Act.

The insurer appealed an arbitration order requiring it to pay interest on medical and rehabilitation expenses.

The central issue was whether interest under s. 46(2) of the SABS-1996 is payable on expenses awarded at arbitration when a Designated Assessment Centre (DAC) previously reported the expenses were not reasonable and necessary.

The Director's Delegate held that a negative DAC report generally suspends the obligation to pay, meaning benefits are not 'overdue' prior to adjudication.

However, the appeal was dismissed because the insurer had voluntarily paid for the sessions but at a reduced hourly rate, making the shortfall an overdue payment subject to interest.

The parties cross-appealed an arbitration decision regarding statutory accident benefits following a motor vehicle accident.

The insured appealed the denial of interest on medical and rehabilitation benefits awarded at arbitration, arguing they were overdue.

The Director's Delegate dismissed this ground, holding that under the SABS-1996, benefits are not overdue prior to adjudication if a Designated Assessment Centre (DAC) concludes they are not reasonable and necessary.

The insurer appealed the award of s. 24 assessment expenses, arguing the insured had unreasonably refused to attend insurer examinations.

The Director's Delegate allowed the insurer's appeal in part, rescinding the award for two assessments because the insured used them to thwart the insurer's legitimate assessment requests.

The insured was awarded an additional $990 for a psychological assessment after proving collateral benefits were exhausted.

The insurer appealed an arbitration order requiring it to pay interest on chiropractic and exercise expenses awarded to the insured.

The central issue was whether interest under s. 46(2) of the SABS-1996 is payable on medical expenses that a Designated Assessment Centre (DAC) had previously deemed not reasonable and necessary, but which an arbitrator later awarded.

The Director's Delegate held that because the DAC report was negative, the insurer had no obligation to pay the expenses prior to the arbitrator's decision.

Consequently, the benefits were not 'overdue' within the meaning of the Schedule prior to adjudication, and no interest was payable for that period.

The appeal was allowed and the order for interest was rescinded.

In a dispute over statutory accident benefits, the insurer requested production of the transcript of the applicant's examination for discovery from a related tort action.

The arbitrator denied the request, noting that the dispute resolution system at FSCO does not include examinations for discovery.

Allowing the insurer to obtain the transcript would give it an unfair advantage and distort the FSCO process, allowing the insurer to do indirectly what the legislature chose not to allow directly.

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

During the arbitration process, the insurer failed to have a representative attend a mandated pre-hearing discussion, resulting in the discussion being rescheduled.

The applicant sought $125 for expenses thrown away due to the adjournment.

The arbitrator found that the insurer's failure to have a principal participate frustrated the purpose of the pre-hearing discussion and ordered the insurer to pay $125 in legal expenses pursuant to subsection 282(11.1) of the Insurance Act.

The applicant sought interim income replacement benefits after the insurer terminated them despite a positive disability Designated Assessment Centre (DAC) report.

The arbitrator held that an insurer is not bound by a pre-104 week positive DAC assessment for post-104 week benefits, as the test for entitlement changes significantly at that threshold.

However, the arbitrator ruled that a mere change in the insured's medical condition does not allow an insurer to bypass the dispute resolution process and terminate benefits contrary to a positive DAC, unless the change is as significant and material as the passage of the 104-week mark.

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

The insurer terminated benefits, alleging the applicant wilfully misrepresented his employment status by failing to disclose a six-week return to work.

The arbitrator found that while the applicant's failure to report his return to work was a wilful misrepresentation, it was not a 'material' fact under Section 48 of the Statutory Accident Benefits Schedule, as it did not affect the fundamental relationship between the parties and the insurer had a remedy for overpayment under Section 47.

The applicant's claim for a special award was dismissed.