OFSCDRS 2004

The applicant withdrew his arbitration application for statutory accident benefits after commencing a court action.

The insurer brought a motion seeking to dismiss the arbitration, prohibit the applicant from commencing future FSCO arbitrations, and recover its $1,500 in expenses and $3,000 assessment fee, arguing the proceeding was frivolous, vexatious, and an abuse of process.

The arbitrator dismissed the insurer's motion, finding no evidence that the claim was trivial, commenced in bad faith, or pursued for an improper purpose.

The arbitrator also found the requested prohibition order overly broad and noted that the statutory provision allowing an award for the assessment fee had been repealed.

Each party was ordered to bear its own expenses.

Liberty Mutual appealed an arbitration order requiring it to pay a loss of earning capacity benefit based on a pre-accident earning capacity of $31,000 and a residual earning capacity of zero.

The Director's Delegate upheld the finding of zero residual earning capacity, noting it was supported by evidence that the claimant could not work reliably or consistently.

However, the Delegate allowed the appeal regarding pre-accident earning capacity, finding the Arbitrator erred in law by failing to consider the credibility of the claimant's undocumented assertion that she was about to open a third gas station.

The issue of pre-accident earning capacity was remitted to the Arbitrator.

The insured was injured in a motor vehicle accident and claimed weekly income benefits.

The insurer sought to deduct benefits the insured received from private disability insurance policies.

On appeal, the Director of Arbitrations held that the private insurance benefits were not 'payments for loss of income... under any income continuation benefit plan' within the meaning of s. 12(4)(b) of the SABS-1990, because they were not contingent on the insured being employed at the time of the accident or tied to a specific loss of income.

The insurer was ordered to pay $51,377.21 in arrears, with interest running from October 15, 2001, the date the insured first challenged the deductibility of the collateral benefits.

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

The insurer terminated these benefits based on outdated and superficial medical reports, ignoring cogent evidence of the applicant's severe cognitive and behavioural impairments.

Following an arbitration decision reinstating the benefits, a hearing was held to determine entitlement to a special award.

The arbitrator found that the insurer acted unreasonably in terminating and continuing to withhold the benefits, particularly by relying on a flawed Disability Assessment Centre (DAC) report and ignoring reports from the applicant's treating specialists.

A special award of $12,500, inclusive of interest, was granted pursuant to subsection 282(10) of the Insurance Act.

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

The insurer brought a preliminary issue arguing the applicant was barred from proceeding to arbitration under section 32 of the Statutory Accident Benefits Schedule because she did not submit her expense forms until nearly a year after receiving the application package.

The arbitrator found that the applicant had provided sufficient information to notify the insurer of her claims in a timely fashion.

Furthermore, the insurer failed to inform the applicant of the consequences of failing to provide the requested information, precluding it from relying on the time limit to defeat her claims.

The preliminary issue was resolved in favour of the applicant.

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

The parties negotiated a settlement but could not implement it because there was no suitable person to represent the minor.

At a pre-hearing, the parties consented to an order requiring the applicant's counsel to apply to the Court to appoint the Office of the Children's Lawyer to represent the applicant.

The insurer brought a motion on the eve of an arbitration hearing seeking leave to amend its response to add an issue of material misrepresentation, a stay of the arbitration, and an adjournment due to alleged non-compliance with productions and the unavailability of medical witnesses.

The arbitrator denied the motion to amend, finding that the insurer had the information necessary to raise the issue months earlier and that adding it now would cause significant delay and prejudice to the insured.

The requests for a stay and adjournment were also denied, as there were no outstanding production orders and the insurer had failed to take steps to ensure its witnesses were available for cross-examination.

The insurer was ordered to pay $900 in costs.

The insurer brought a motion to stay or adjourn the arbitration pending the applicant's attendance at a section 42 medical examination.

The examination was scheduled on the eve of the arbitration hearing, which had been set over a year prior.

The arbitrator found that the insurer had delayed unreasonably in requesting the examination, knowing that post-104 week benefits were in issue, and failed to make reasonable efforts to schedule it at a convenient time.

Granting the request would cause an unjustifiable adjournment and prejudice the applicant's right to a timely hearing.

The motion was dismissed, and the insurer was ordered to pay $600 in expenses.

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

The insurer denied the claim, alleging the accident was staged and fraudulent.

In the substantive arbitration, the arbitrator found that an accident did occur, rejecting the insurer's fraud allegations, but dismissed the applicant's claim for benefits due to a failure to prove a compensable impairment and obfuscation of his health record.

In this subsequent decision on expenses, the arbitrator held that neither party was entitled to their general expenses.

However, because the insurer raised serious, unproven allegations of fraud that unnecessarily prolonged the hearing, the insurer was ordered to reimburse the applicant for the cost of his expert report commissioned to rebut the staged accident theory.

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

The insurer terminated her income replacement benefits, arguing she was capable of returning to work.

The arbitrator found that the applicant made honest and sustained attempts to return to her pre-accident employment as an accountant, but was unable to continue due to her injuries.

The arbitrator rejected the insurer's medical assessments suggesting a lack of motivation, finding the applicant's testimony credible and her attempts to work genuine.

The applicant was found to be substantially disabled from performing the essential tasks of her employment and completely unable to engage in suitable employment, entitling her to ongoing income replacement benefits.

Following an arbitration decision awarding the applicant income replacement and medical benefits, both parties sought their arbitration expenses.

The arbitrator awarded expenses to the applicant, finding he was entirely successful and that the insurer's counsel and representative caused undue delays through fruitless cross-examination and uncooperative behaviour.

The applicant's claimed costs of over $39,000 were reduced to $20,000 due to excessive hours billed, lack of complexity, and the applicant's own contribution to some delays.

The insurer's claim for expenses was dismissed.

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

In a preliminary motion on production, the applicant requested information on whether the insurer had conducted any surveillance upon which it did not intend to rely at the hearing.

The insurer objected, arguing the Dispute Resolution Practice Code did not require such production.

The arbitrator ordered the insurer to produce the information, finding it might be relevant to the issues in dispute and that no prejudice would result to the insurer.

The applicant was injured in a motor vehicle accident in 1997 and received income replacement benefits until the insurer terminated them in November 1997 based on early medical opinions.

The applicant applied for arbitration, claiming ongoing entitlement to income replacement benefits due to cognitive, psychological, and physical impairments.

The arbitrator found that the applicant sustained impairments as a result of the accident and met the tests for both substantial inability within the first 104 weeks and complete inability thereafter.

The arbitrator preferred the evidence of the applicant, his family, and his medical-legal experts over the insurer's experts.

The insurer was ordered to pay ongoing income replacement benefits, interest from the date the applicant's counsel first contacted the insurer in 2001, and a $5,000 special award for unreasonably failing to reinstate benefits after receiving further medical evidence of disability.

The applicant applied for arbitration regarding statutory accident benefits following a 1993 motor vehicle accident.

A preliminary issue hearing was scheduled to determine the applicant's mental capacity to proceed with the arbitration.

The applicant failed to attend the hearing or provide requested medical evidence.

The arbitrator found the applicant was presumed to have capacity.

As the applicant provided no evidence to support her claims for weekly and child care benefits, the arbitration was dismissed.

No arbitration expenses were awarded against the applicant due to concerns about her mental capacity.

The applicant's son was catastrophically injured in a motor vehicle accident.

The applicant, who was not involved in the accident, claimed statutory accident benefits for physical injuries sustained while providing attendant care to her son, as well as for psychological injuries.

The insurer conceded she was an insured person under s. 2(1)(a)(ii) of the Schedule for her psychological injuries but argued she was limited to benefits flowing from those injuries.

The arbitrator held that the applicant did not qualify under s. 2(1)(a)(i) as she was not involved in the accident.

However, under s. 2(1)(a)(ii), she has potential entitlement to all benefits under the Schedule, provided she meets the specific requirements of the particular benefit section, such as proving the expenses were incurred as a result of the accident.

The insurer appealed an arbitration order requiring it to pay income replacement benefits pending the resolution of a dispute.

After a Designated Assessment Centre (DAC) concluded the insured met the disability test, the insurer continued paying benefits but later restarted the stoppage process based on new insurer examinations.

The Director of Arbitrations dismissed the appeal, holding that under section 37(5) of the SABS-1996, once a DAC concludes benefits are payable, the insurer must continue paying them and can only challenge ongoing entitlement through the dispute resolution process, rather than unilaterally restarting the stoppage process.

The applicant was involved in a motor vehicle accident and delayed applying for statutory accident benefits for several months, hoping to recover without going through the claims process.

The insurer raised a preliminary issue that the applicant was disentitled to benefits for failing to apply within the 30-day time limit under section 32(1) of the Statutory Accident Benefits Schedule.

The Arbitrator found that the insurer, having been notified of the accident, failed to promptly inform the applicant of the time limit and the potential consequences of non-compliance, which is required to assist the person in applying for benefits under section 32(2)(c).

Therefore, the insurer could not rely on the time limit to defeat the claim, and the applicant was not disentitled to benefits.

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

During the arbitration hearing, the insurer sought to introduce three surveillance videotapes from September 2002 into evidence.

It was revealed that the insurer also possessed a fourth videotape from November 2003, which it had not disclosed and did not intend to produce.

The applicant brought an interlocutory motion to exclude the surveillance evidence.

The arbitrator held that under Rule 40 of the Dispute Resolution Practice Code, an insurer must produce all surveillance material generated in relation to the issues in dispute if it intends to rely on any portion of it.

The insurer was not permitted to 'pick and choose' which tapes to produce.

The motion was granted, and the insurer was not permitted to file the three September 2002 videotapes into evidence.

The appellant appealed an arbitration decision that dismissed her claims for income replacement and housekeeping benefits following a motor vehicle accident.

The Arbitrator had excluded the expert testimony of the appellant's two medical witnesses regarding her disability because she failed to serve a will-say statement under Rule 42 of the Dispute Resolution Practice Code.

On appeal, the Director's Delegate found that the Arbitrator erred in law by failing to consider whether the medical reports already filed provided adequate notice of the substance of the experts' testimony.

The appeal was allowed, the arbitration orders were revoked, and the matter was remitted for a new hearing before a different arbitrator.

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

The applicant sought payment of $2,500 for a physiatrist's assessment under section 24 of the Statutory Accident Benefits Schedule.

The insurer denied the claim, arguing the assessment was not incurred for the purpose of the Schedule.

The arbitrator found that at the time the report was requested, the insurer was paying income replacement benefits and no benefits were in dispute.

The report was requested by the applicant's counsel for a medical-legal opinion on employability.

The arbitrator concluded the assessment was not a reasonable expense incurred for the purpose of the Schedule and dismissed the arbitration.