OFSCDRS 2004

The appellant, a pedestrian struck by a vehicle, appealed an arbitrator's decision dismissing his claim for weekly income benefits.

The appellant had returned to work for several years before being laid off due to lack of work.

The Director's Delegate upheld the arbitrator's finding that the appellant failed to prove his injuries continuously prevented him from engaging in suitable employment, as required by section 12(5)(b) of the SABS-1990, and failed to rebut the presumption of ineligibility under section 16(2) arising from his extended return to work.

The appeal was dismissed.

The insurer brought a motion to compel the applicant to attend a neurological assessment under section 42 of the Statutory Accident Benefits Schedule to determine ongoing entitlement to income replacement benefits.

The applicant refused, arguing the assessment was sought to buttress the insurer's case for an upcoming arbitration rather than to assess benefit entitlement.

The arbitrator found the assessment was authorized, noting the applicant's head injury and the lack of a prior neurological assessment by the insurer.

The issue of remedy for non-attendance was deemed premature.

The applicant's husband was electrocuted while operating a mobile crane on a highway construction site.

The applicant applied for statutory accident benefits, which the insurer denied on the basis that the crane was not an 'automobile'.

The arbitrator applied a two-step test and found that the crane was not an automobile in ordinary parlance.

Furthermore, the crane was excluded from the extended definition of a motor vehicle because it was being used as a 'road-building machine' at the time of the incident.

As the crane was not an automobile, the incident was not an 'accident' under the Schedule, and the claim for benefits was dismissed.

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

The principal issue was whether she sustained a catastrophic impairment.

Four days before the scheduled hearing, the applicant served a new medical report assessing an aspect of impairment not addressed by the Catastrophic Designated Assessment Centre (CAT DAC).

The insurer requested an adjournment to allow the CAT DAC to address the new issue, rather than seeking to exclude the report under Rule 39.1 of the Dispute Resolution Practice Code.

The arbitrator granted the adjournment, finding that a comprehensive opinion would assist in resolving the dispute and that the delay was not unfair to the applicant, as the late service was her responsibility.

The insurer appealed an arbitration decision awarding the insured ongoing income replacement benefits beyond the 104-week mark.

The insurer argued the Arbitrator erred in law by qualifying a vocational evaluator as an expert witness and allowing her to opine on the insured's physical and psychological barriers to employment.

The Director's Delegate dismissed the appeal, finding no error in the Arbitrator's application of the Mohan criteria to qualify the vocational evaluator.

The Delegate held that a vocational expert may consider an applicant's symptoms in determining whether they can perform a job, which does not constitute rendering a medical opinion.

The applicant sought a spousal death benefit of $50,000 following the death of his common-law partner in a motor vehicle accident.

The insurer denied the claim, arguing the couple had separated and were no longer cohabiting in a relationship of some permanence at the time of the accident.

The arbitrator found that despite living in separate residences for economic reasons, the couple maintained a relationship of some permanence, particularly given the recent birth of their child.

The arbitrator awarded the $50,000 death benefit, plus a $25,000 special award due to the insurer's unreasonable conduct in failing to advise the applicant of his potential entitlement and delaying the claim.

The applicant sought statutory accident benefits, claiming she was injured in a rear-end collision.

The applicant and her representative failed to attend the arbitration hearing.

The insurer presented expert forensic engineering evidence demonstrating that the physical damage to the vehicles was inconsistent with a collision having occurred.

The arbitrator accepted the expert evidence, found that no accident occurred, dismissed the claim for benefits, and ordered the applicant to pay the insurer's arbitration expenses.

The applicant, who suffered a brain injury in a motor vehicle accident, applied for arbitration regarding statutory accident benefits.

Two preliminary issues were raised: whether the applicant had the capacity to instruct counsel and conduct the arbitration without a litigation guardian, and whether her 'facilitator' could participate in the proceedings.

The arbitrator found that the applicant possessed the requisite capacity to direct her arbitration and make decisions, including the choice to self-represent.

However, the arbitrator ruled that the facilitator could not appear as an agent, representative, translator, or party, as she was performing the role of an unregistered representative for compensation and had a conflict of interest due to her financial stake in the outcome.

The applicant, a 65-year-old pedestrian, was struck by a motor vehicle and claimed statutory accident benefits for caregiver, housekeeping, and medical/rehabilitation expenses.

The insurer denied the benefits based on in-home and DAC assessments.

The arbitrator preferred the evidence of the applicant and her expert physiatrist over the insurer's assessors, finding that the applicant was the primary caregiver for her grandchildren and suffered a substantial inability to perform her pre-accident tasks.

The arbitrator awarded the claimed caregiver and housekeeping benefits, as well as the costs of ongoing chiropractic, massage, and physiotherapy treatments, medication, a medical report, and interest on overdue payments.

The applicant sought income replacement benefits following a motor vehicle accident.

The insurer refused to pay, arguing the applicant failed to provide necessary financial information to assess the claim, as required by section 33 of the Statutory Accident Benefits Schedule.

At the arbitration hearing, the applicant's newly retained counsel requested an adjournment to produce tax returns that had been requested for over two years.

The arbitrator denied the adjournment and refused to admit the late-produced documents into evidence, finding the delay was avoidable and the applicant had engaged in tactical brinkmanship.

The claim for income replacement benefits was dismissed, and the applicant was ordered to pay the insurer's arbitration expenses.

The applicant was injured in a motor vehicle accident and sought arbitration after the insurer denied his claims for income replacement, attendant care, and housekeeping benefits.

The arbitrator dismissed the claim for income replacement benefits, finding the applicant's evidence regarding his self-employment as an artist and a purported employment contract to be unreliable and contradicted by his tax returns.

The claims for attendant care and housekeeping benefits were also dismissed due to a lack of supporting evidence, including the absence of a recommendation from a qualified health practitioner and no proof that outside housekeeping services were actually engaged.

All claims were dismissed.

The appellant, a representative for an insured person, appealed an arbitrator's order requiring him to personally pay the insurer's arbitration expenses.

The arbitrator found the arbitration, which pursued an $83.87 claim for a disability certificate, was an abuse of process and that the representative was on a 'frolic of his own'.

On appeal, the representative argued that the arbitrator erred in retrospectively applying s. 282(11.2) of the Insurance Act, which allows costs to be awarded against a representative personally.

The Director of Arbitrations dismissed the appeal, holding that expense provisions are procedural and apply retrospectively.

The Director also rejected the argument that the representative's alleged employer should bear the costs, affirming the personal costs order and awarding $750 in appeal expenses to the insurer.

The applicant applied for statutory accident benefits after slipping and falling on a snow and ice-covered pedestrian island.

She claimed she was forced onto the island to avoid an oncoming bus that was blocking her path.

The insurer denied the claim, arguing the fall was caused by the snow and ice, not the use or operation of a motor vehicle.

The arbitrator found that the bus rolling towards the applicant was the dominant feature of the incident and directly caused her to step onto the island, resulting in her fall.

The arbitrator concluded the applicant was injured as a result of an 'accident' under subsection 2(1) of the Schedule.

The appellant insurer appealed an arbitration decision finding that the respondent was injured in an 'accident' as defined in the Statutory Accident Benefits Schedule.

The Director of Arbitrations allowed the appeal, finding that the Arbitrator erred in law by shifting the burden of proof to the insurer to prove that an accident did not occur.

The Director held that the insured bears the burden of proving they fit within the scope of coverage.

The arbitration order was rescinded and the matter was referred back for a new hearing before a different arbitrator.

The applicants claimed statutory accident benefits following a motor vehicle accident.

During pre-hearings, their non-lawyer representative demonstrated incompetence, failed to understand the issues, and caused unnecessary delays.

The arbitrator held a preliminary hearing to determine whether the representative should be barred from the proceedings and ordered to pay costs personally.

The arbitrator found that the representative's conduct fell below minimum standards, caused wasted expenses, and amounted to an abuse of process.

The representative was barred from appearing as an agent under section 23(3) of the Statutory Powers Procedure Act and ordered to personally pay $400 in costs to the insurer under section 282(11.2) of the Insurance Act.

The parties resolved their dispute concerning the applicant's claims for statutory accident benefits on the first day of the scheduled hearing.

The insurer agreed to pay the applicant's reasonable expenses, but the parties could not agree on the quantum.

The applicant sought $40,658.73.

The arbitrator assessed the expenses, reducing the amount claimed for a medical report to the statutory maximum exclusive of GST, and deducting hours billed for an interim motion that was subject to a separate costs order.

The arbitrator allowed the hours billed for a private mediation and found the total preparation time reasonable given the complexity of the case.

Expenses were fixed at $37,622.11.

The law firm representing the applicant in a statutory accident benefits dispute brought a motion to withdraw as his representative, citing a breakdown in the solicitor-client relationship.

The applicant opposed the motion.

The arbitrator granted the motion, finding that the relationship had broken down, and ordered the firm to cooperate with the applicant's attempt to find new representation and provide a copy of his file.

The late insured was involved in a motor vehicle accident while suffering from Stage IV metastatic lung cancer.

He died several months later.

His estate and family members applied for statutory accident benefits, including death benefits, funeral expenses, and the cost of installing a Jacuzzi, arguing that the accident-related injuries interrupted his cancer treatment and contributed to his death.

The arbitrator dismissed the claims, finding based on expert oncological evidence that the accident did not materially contribute to the progression of the cancer or the insured's death, which was inevitable due to the advanced disease.

The arbitrator also found that the stepson was not a dependant and that the Jacuzzi was neither a reasonable nor necessary medical or rehabilitation expense.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits, including loss of earning capacity benefits, attendant care, and housekeeping.

The insurer terminated benefits based on a DAC report that relied on surveillance video to conclude the applicant was not disabled.

The arbitrator rejected the insurer's argument that the applicant was malingering, accepting expert evidence that she suffered a traumatic brain injury resulting in severe major depression.

The arbitrator found the applicant was substantially unable to perform the essential tasks of her employment and awarded the claimed benefits, along with interest and arbitration expenses.

The applicant was injured in a motor vehicle accident and applied for arbitration after the insurer terminated his income replacement benefits.

Shortly before the hearing, the parties settled all present issues, including the reinstatement of benefits.

The applicant requested an adjournment to a new date in case the insurer terminated benefits at the upcoming 104-week mark.

The arbitrator held that the Commission lacks jurisdiction to take reservations for potential future disputes when no actual issues remain in dispute.

The request for an adjournment was denied, and notice was given of the intention to close the file in 90 days.