OFSCDRS 2005

The applicant sought medical, caregiver, and housekeeping benefits following two motor vehicle accidents.

Her claims were dismissed at the main arbitration hearing.

The insurer sought its arbitration expenses based on its success.

The applicant argued that a preliminary issue was novel and that she had made an offer to settle on the eve of the hearing.

The arbitrator found that the offer to settle was open for only 17 minutes and gave it no weight.

The arbitrator also found that the applicant's claim raised fundamental questions from the outset that remained unanswered.

The applicant was ordered to pay the insurer's arbitration expenses, assessed at $13,864.45.

The applicant sought statutory accident benefits following a motor vehicle accident where he was struck while riding a bicycle.

The applicant failed to attend the scheduled arbitration hearing, and the hearing proceeded in his absence.

The applicant later requested to reopen the hearing, claiming he was unaware of the date.

The arbitrator found that proper notice had been given in accordance with the Statutory Powers Procedure Act and declined to reopen the hearing, as no exceptional circumstances were shown.

The applicant's claims for income replacement, medical, transportation, and housekeeping benefits were dismissed for lack of evidence.

The insurer appealed an arbitrator's order allowing the insured to proceed with an arbitration for weekly benefits, despite earlier decisions concluding the application was untimely.

The arbitrator had found that a recent Supreme Court decision changed the law regarding notice of termination, rendering the doctrines of res judicata and issue estoppel inapplicable.

The Director's Delegate allowed the appeal, finding that the law regarding clear and unequivocal notice under the applicable schedule had not changed, and that the sufficiency of notice had already been decided in the earlier proceedings.

The insured was precluded from proceeding with the arbitration.

The insurer brought a motion seeking to compel the applicant to comply with a previous production order and to attend an insurer's orthopaedic assessment, or alternatively, to stay the arbitration until the applicant attended the assessment.

The arbitrator found that the previous production order still stood and no further order was necessary.

The arbitrator held that the Commission lacked jurisdiction to compel attendance at a medical examination.

Furthermore, the request for a stay was denied because the insurer's notice of examination failed to state the reasons for the examination, rendering it invalid under section 42(2) of the Statutory Accident Benefits Schedule.

The motion was dismissed with no costs awarded.

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

Following a denial by the insurer, the applicant sought interim income replacement benefits and funding for a work-hardening programme pending the final arbitration hearing.

The arbitrator conducted an extensive review of the jurisprudence regarding interim orders under section 279(4.1) of the Insurance Act, rejecting the strict application of injunction tests such as 'irreparable harm' and 'prima facie case.' Instead, the arbitrator applied a holistic approach focused on the consumer protection mandate of the legislation.

Finding that the applicant's uncontradicted evidence and the medical reports supported the need for a transitional work programme, the arbitrator granted the interim benefits and ordered the insurer to fund the programme.

The request for an interim special award was deferred to the final hearing.

The applicant was injured in a motor vehicle accident and later gave birth to a child.

She claimed the cost of nanny services as a rehabilitation benefit under the Statutory Accident Benefits Schedule, arguing she could not physically or psychologically care for the child due to her injuries.

A Designated Assessment Centre (DAC) report concluded the services were reasonable and necessary from a psychological perspective.

The insurer refused to pay, arguing the services were caregiver benefits to which she was not entitled, or that they represented double recovery since she had settled her income replacement benefits claim.

The arbitrator held that the nanny services were properly claimed as a rehabilitation benefit.

Under the 'pay now, dispute later' provisions of the Schedule, the insurer was required to pay the benefit pending final resolution of the dispute based on the positive DAC report.

The insurer was ordered to pay arrears of $31,738 plus ongoing monthly benefits and interest.

The applicant was injured in a rear-end motor vehicle collision and claimed income replacement benefits for fibromyalgia and psychological impairments.

The insurer terminated benefits after June 24, 2003.

The arbitrator found that the applicant's physical complaints were not objectively verifiable and preferred the insurer's psychological assessment, which concluded she was not substantially disabled from performing the essential tasks of her employment as a computer sales representative.

The application for arbitration was dismissed.

Following a substantive arbitration decision regarding statutory accident benefits, the parties sought a determination on expenses.

Mr. Narain was largely successful in his application and had made a reasonable settlement offer; he was awarded his arbitration expenses of $7,624.83.

Ms. Mangroo was completely unsuccessful in her application, and her settlement offer was deemed unreasonable; consequently, she was ordered to pay the insurer's expenses of $5,233.67.

The arbitrator applied the exhaustive criteria under the amended Expense Regulation, declining to consider public policy arguments regarding financial hardship.

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

At the outset of the arbitration hearing, the applicant's representative withdrew, and the applicant represented himself.

Following a recess, the parties advised the arbitrator that they had resolved all issues and agreed to an order dismissing the arbitration without costs.

The application for arbitration was dismissed.

The applicant, who was 17 years old and expelled from school at the time, suffered a serious brain injury in a motor vehicle accident.

He applied for a non-earner benefit, which the insurer disputed.

The arbitrator found that the applicant suffered a complete inability to carry on a normal life immediately following the accident, as his participation in activities was tempered by the effects of medication and his injuries.

However, by September 2002, the applicant had ceased taking the medication, resumed his pre-accident social life, and demonstrated independence, returning to a trajectory consistent with his pre-accident potential.

The arbitrator awarded the non-earner benefit for the period from September 18, 2001, to August 31, 2002, along with interest on overdue payments.

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

The Insurer refused to pay for certain treatments and examinations, leading the Applicant to apply for arbitration.

At the hearing, the Applicant failed to appear.

In the absence of any evidence from the Applicant, the Arbitrator dismissed the application.

The Insurer was awarded $1,650 for the expenses of the arbitration proceeding.

The insurer sought expenses following its success in a preliminary issue hearing where it was determined that the insured was precluded from proceeding with her arbitration due to a full and final settlement.

The arbitrator considered the criteria under Rule 75.2 of the Dispute Resolution Practice Code.

While the insurer was entirely successful, the insured's position was not manifestly unfounded and raised a legitimate issue regarding the cooling-off period.

The arbitrator awarded the insurer $1,500 in expenses.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits, including income replacement and medical benefits.

The arbitrator found that the applicant was substantially disabled from his pre-accident employment as a vacuum installer due to an exacerbation of a pre-existing back condition, entitling him to income replacement benefits for the 104-week period.

However, he did not meet the test for a complete inability to engage in any employment thereafter.

The arbitrator also awarded partial medical benefits, noting the insurer failed to comply with the Schedule's procedures for denying treatment plans, but denied other medical benefits as not reasonable or necessary.

Interest and arbitration expenses were awarded to the applicant.

The applicant sustained a catastrophic brain injury in a motor vehicle accident, requiring 24-hour attendant care.

The insurer, despite knowing the severity of the impairment, failed to inform the applicant of her entitlement to enhanced benefits, arbitrarily reduced her paid attendant care based on flawed occupational therapy assessments, and failed to arrange required designated assessment centre (DAC) evaluations.

The arbitrator found the insurer's conduct unreasonable and in breach of its statutory obligations.

The applicant was awarded $178,928.33 in retroactive attendant care benefits, interest on overdue payments, and a special award for the insurer's unreasonable withholding and delay of benefits.

The applicant was injured in a motor vehicle accident and claimed statutory accident benefits, including housekeeping and home maintenance benefits.

The insurer requested an in-home assessment under section 42 of the Statutory Accident Benefits Schedule, which the applicant refused to attend, arguing it was duplicative of her own assessment.

The arbitrator held that the applicant was properly notified of the examination and her failure to attend meant no benefits were payable for the period of non-compliance.

However, the arbitrator also found that the applicant's claim was not statute-barred, as the insurer's notice of refusal was not clear and unequivocal, meaning the two-year limitation period had not commenced.

The insurer appealed an arbitration decision awarding spousal death benefits to the natural father of the deceased's child.

The couple had separated and were living apart at the time of the fatal motor vehicle accident.

The Director's Delegate found that the arbitrator erred in law by applying a rebuttable presumption that common-law cohabitation continues despite separation when the couple has a child, until concrete steps are taken to terminate the relationship.

The appeal was allowed, the arbitration order revoked, and the matter remitted for a new hearing.

The appellant appealed an arbitrator's decision finding that he was not catastrophically impaired following a motor vehicle accident.

The appellant argued that the Designated Assessment Centre (DAC) assessment was flawed and not binding, but provided no independent evidence of catastrophic impairment.

The Director's Delegate held that the arbitrator committed no error of law in weighing the merits of the DAC assessment and relying on it in the absence of contrary evidence.

The appeal was dismissed, and the arbitrator's costs award against the appellant was upheld.

The insurer brought a motion for the production of documents from third parties in a dispute over statutory accident benefits arising from a motor vehicle accident.

The insurer sought clinical notes and records from the applicant's family doctor, income tax returns from Revenue Canada, and a letter from the applicant's accountant.

The arbitrator found that the insurer had made reasonable efforts to obtain the documents, the third parties had been properly served, and the documents were relevant to the applicant's claims for income replacement and other benefits.

The motion was granted, and the third parties were ordered to produce the requested documents at the insurer's expense.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits, including loss of earning capacity benefits (LECBs).

The parties agreed on the applicant's pre-accident earning capacity (PEC) but disputed how to calculate his residual earning capacity (REC).

The specific issue was whether the applicant's voluntary overtime earnings at his post-accident employment should be included in the calculation of his REC.

The arbitrator held that overtime earnings are not relevant in the calculation of REC, as the legislative scheme for LECBs is intended to provide security and stability based on full-time employment income, exclusive of fluctuating overtime earnings.

The applicant was injured in a motor vehicle accident and sought payment for a physiotherapy treatment plan and an in-home assessment.

The insurer denied the claims, arguing the applicant's ongoing symptoms were related to pre-existing health conditions rather than the accident.

The arbitrator found that while some symptoms were pre-existing, the accident was a significant contributing factor to the applicant's shoulder and neck pain.

The arbitrator ordered the insurer to pay for the portion of the physiotherapy plan related to the neck and shoulders, as well as the cost of the in-home assessment.