OFSCDRS 2005

The applicant was injured in a work-related motor vehicle accident and claimed accident benefits from the insurer pending determination of his eligibility for workers' compensation benefits.

The insurer paid some benefits but refused housekeeping and attendant care claims.

The Workplace Safety and Insurance Board subsequently accepted his eligibility, ending his claim for further accident benefits.

The arbitrator held that subsection 59(5) of the Schedule does not mandate the insurer to automatically pay all claims as submitted while workers' compensation eligibility is being determined.

The claims for accident benefits were dismissed, but the applicant was awarded $169 for arbitration expenses due to the novelty of the legal question.

In a pre-hearing dispute over document production for a statutory accident benefits arbitration, the applicant sought the insurer's post-mediation adjuster's notes, while the insurer sought the clinical notes of the applicant's treating psychiatrist.

The arbitrator held that mediation serves as a convenient dividing line for when parties are in an adversarial position, but litigation privilege does not automatically attach to all post-mediation adjuster's notes.

The arbitrator reviewed the notes and ordered production of those not protected by litigation or solicitor-client privilege.

The arbitrator also ordered the applicant to produce the psychiatrist's clinical notes, finding them relevant and noting no evidence that disclosure would harm the patient, but restricted the insurer from releasing them outside the health care practitioners involved in the arbitration.

The insurer brought a motion seeking an order to compel the insured to attend psychiatric and vocational assessments.

The insured opposed the motion, arguing that the arbitrator lacked jurisdiction to grant such an order, that the insurer failed to provide proper notice under section 42(2) of the Statutory Accident Benefits Schedule, and that the examinations were not reasonably necessary.

The arbitrator dismissed the motion, finding no jurisdiction to compel attendance at medical examinations.

The arbitrator also found that the notice provided by the insurer was void for failing to meet the statutory requirements and that the requested examinations were sought to bolster the insurer's case rather than to adjust the file.

The insurer appealed an arbitration decision that excluded the evidence of a replacement medical expert and ordered a $40,000 special award for unreasonably delaying and withholding income replacement benefits.

The Director's Delegate upheld the exclusion of the replacement expert's evidence, finding no error of law.

While the Delegate agreed that the insurer unreasonably delayed and withheld benefits, he found the arbitrator erred in calculating the special award by applying it to post-104 week benefits based on a late-filed medical report the insurer had no time to consider.

The Delegate also found the arbitrator failed to consider mitigating factors and proportionality.

The special award was reduced to $10,000.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits, including income replacement benefits (IRBs) and medical benefits, which the insurer denied.

The arbitrator found that the applicant suffered a substantial inability to perform the essential tasks of her pre-accident employment as a seamstress, satisfying the pre-104 week IRB test.

Furthermore, due to her chronic pain, psychological condition, and limited education and English proficiency, she met the post-104 week test of a complete inability to engage in any suitable employment.

The arbitrator also awarded the claimed medical benefits, finding them reasonable and necessary for pain management, along with interest on overdue amounts.

The applicant was injured in a motor vehicle accident in 1994 and received statutory accident benefits.

She returned to work but her condition deteriorated, forcing her to stop working in November 2000.

The insurer denied her claims for reinstated income replacement benefits and supplementary medical expenses.

The arbitrator found that the applicant's impairments were caused by the accident and that she suffered a substantial inability to perform the essential tasks of her pre-accident employment as of November 2000.

The arbitrator awarded income replacement benefits, medical expenses for chiropractic and massage therapy, and a $10,000 special award against the insurer for unreasonably withholding payments.

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

At the scheduled hearing, neither the applicant nor his representative attended.

The arbitrator dismissed the arbitration due to the applicant's non-attendance.

The insurer was awarded its reasonable expenses of the arbitration, fixed at $1,750.00, taking into account the applicant's prior costs thrown away.

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

The applicant's counsel successfully moved to be removed from the record.

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

Due to discrepancies in the applicant's evidence regarding his pre-accident occupation and his failure to provide basic information or attend the hearing, the arbitrator found that the applicant failed to discharge his burden of proof.

The claims for income replacement benefits, a special award, and interest were dismissed.

The applicant was ordered to pay the insurer's expenses fixed at $1,000.

The Applicant was injured in a motor vehicle accident and applied for other disability benefits from her insurer.

The insurer denied the claim.

The Arbitrator found that the Applicant failed to submit her application within the 90-day time limit and did not have a reasonable excuse for the delay.

Furthermore, the Arbitrator held that the Applicant was not substantively entitled to other disability benefits, as her pre-existing severe disability from fibromyalgia meant she did not suffer a partial or complete inability to carry on a normal life as a result of the accident.

The application was dismissed.

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

After failing to attend a pre-hearing discussion and losing contact with his representative, the applicant also failed to attend the arbitration hearing.

The arbitrator proceeded in his absence.

As the applicant presented no evidence, he failed to meet his burden of proof, and all his claims for benefits were dismissed.

The applicant was ordered to pay the insurer's arbitration expenses fixed at $2,500.

The applicant sought ongoing income replacement benefits (IRBs) and payment for a medical assessment following a motor vehicle accident.

The insurer sought repayment of IRBs, alleging the applicant had been working full-time while claiming complete disability.

The arbitrator found overwhelming evidence, including surveillance and employment records, that the applicant had been employed full-time installing GPS units while simultaneously telling medical assessors he was completely disabled.

The arbitrator concluded the applicant obtained benefits through deliberate and material fraud.

The insurer was relieved of its obligation to pay ongoing IRBs and was awarded repayment of all IRBs paid since December 9, 2002, with interest.

The applicant's claim for the cost of a medical report was dismissed because the report was rendered useless by his intentional misrepresentations.

The insurer brought a motion to compel the insured to attend neuropsychological and psychiatric assessments, or alternatively to stay the arbitration until he attended.

The arbitrator dismissed the motion, finding that the insurer failed to provide proper notice under section 42 of the Statutory Accident Benefits Schedule.

Furthermore, the arbitrator concluded that the requested examinations were not for the purpose of determining entitlement to benefits, but rather to gather evidence for the upcoming arbitration hearing.

The insurer was ordered to pay $600 in expenses.

The applicant sought to withdraw his application for arbitration regarding statutory accident benefits after the insurer paid the outstanding treatment provider accounts.

The insurer opposed an unconditional withdrawal, seeking its expenses.

The arbitrator allowed the withdrawal but ordered expenses of $1,566 payable to the insurer, finding that the applicant's representative unreasonably delayed in responding to the insurer's notification of settlement, which unnecessarily prolonged the proceeding.

The applicant was injured in a rear-end motor vehicle accident and received income replacement benefits (IRBs) from the insurer.

The insurer terminated IRBs at the 104-week mark based on a disability DAC assessment concluding the applicant could return to work.

The applicant sought ongoing IRBs and funding for vocational retraining as a computer network technician, arguing he lacked the transferable skills for the entry-level jobs proposed by the insurer.

The arbitrator found that the insurer and its assessors overestimated the applicant's transferable skills and that he was completely unable to engage in reasonably suitable employment without retraining.

The arbitrator ordered the insurer to pay ongoing IRBs and fund a vocational retraining program, and recalculated the IRBs to include additional pre-accident cash income.

Claims for massage therapy, repayment of IRBs, and a special award were dismissed.

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

The insurer raised a preliminary issue that the applicant was barred from proceeding to arbitration because he failed to submit his application within 30 days of receiving it, without a reasonable explanation, pursuant to section 32(3) of the Statutory Accident Benefits Schedule.

The arbitrator found that the insurer failed to promptly notify the applicant that his explanation for the delay was unacceptable, leading him to believe only a signed statement was required.

Applying the doctrines of promissory estoppel and laches, the arbitrator held that the insurer was barred from relying on the 30-day time limit.

The applicant was permitted to proceed to arbitration on the substantive issues.

State Farm appealed an arbitrator's refusal to amend a previous order to specify the interest rate, start date, and expenses payable by the respondent following a finding of wilful misrepresentation.

The Director's Delegate found that the arbitrator erred in law by failing to issue an enforceable order regarding interest as required by section 17(2) of the Statutory Powers Procedure Act.

The Delegate also found the arbitrator breached the duty of procedural fairness by failing to provide written reasons for refusing to consider the assessment of expenses.

The matter was remitted to the arbitrator to determine the interest details and the entitlement to an assessment of expenses.

The insurer brought a motion seeking production of a defence medical report prepared by a rehabilitation psychologist in the context of the insured's tort claim.

The insured opposed production, arguing the report was irrelevant, would unduly complicate the arbitration, and that the insurer already had sufficient medical reports.

The arbitrator ordered production of the report, finding it relevant to the insured's claim for a non-earner benefit and noting that the insurer's existing assessments were over a year old and lacked vocational rehabilitation expertise.

The arbitrator concluded that having the best evidence available outweighed the potential for lengthening the hearing.

The insurer brought a motion to stay the arbitration hearing on the basis that the claimant refused to attend an insurer's medical examination (IME) with a neuro-psychiatrist.

The claimant argued the request was neither reasonable nor timely, as it was made close to the hearing date and the insurer already had numerous assessments in its favour.

The arbitrator found that the insurer's request was not reasonably necessary, noting that the insurer had ample time to request the IME earlier and that the chosen doctor had already concluded from a paper review that the claimant's injuries were not accident-related.

The motion was dismissed and the arbitration was ordered to proceed.

Following the dismissal of the applicants' claims for statutory accident benefits, the insurer sought $9,309.94 for its expenses of the arbitration.

The arbitrator found the insurer was entitled to expenses because the applicants failed to withdraw their claims, necessitating an unnecessary hearing of uncontested evidence.

However, the arbitrator reduced the quantum claimed, finding the preparation time excessive given the simplicity of the issues and denying travel time for retaining out-of-town counsel without justification.

The insurer was awarded $4,720.75 in expenses.

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

The insurer terminated attendant care, housekeeping, and caregiver benefits, and suspended benefits due to the applicant's refusal to attend insurer examinations.

The arbitrator found that the applicant was entitled to additional benefits for specific periods, but not beyond the end of 2004, as the medical evidence did not support ongoing disability.

The arbitrator also held that the insurer unreasonably suspended benefits by requiring the applicant to sign an undertaking to attend future examinations, and awarded a $500 special award.