OFSCDRS 2005

The appellant appealed an Arbitrator's order requiring him to pay the respondent's arbitration expenses of $12,112.66.

The appellant argued that the Arbitrator erred by applying the amended expenses regulation retrospectively and failing to consider the merits of his unsuccessful claim.

The Director's Delegate found that while the pre-amendment regulation should have applied due to administrative delay, the outcome would have been the same under either version because the Arbitrator thoroughly rejected the appellant's claims based on credibility findings.

The appeal was dismissed, and the appellant was ordered to pay the respondent's appeal expenses of $4,183.18.

The applicant sought an assessment of expenses following a successful cross-motion for continuing interim income replacement benefits.

The insurer argued that the claimed fees were excessive and that disbursements should be reserved for the main hearing.

The arbitrator found the applicant's claimed hours reasonable given the efficient use of hearing time and the novelty of the issues.

The arbitrator also allowed the disbursements for medical reports, finding them necessary for the motion.

The insurer was ordered to pay the applicant's assessed expenses of $10,323.90.

The insurer appealed an arbitration decision regarding the calculation of the insured's income replacement and loss of earning capacity benefits following a motor vehicle accident.

The Director's Delegate upheld the Arbitrator's findings that the employer's pension contributions were not taxable for the purpose of calculating pre-accident income, and that the tax rate on deductible long-term disability benefits should be based on the insured's total post-accident income.

However, the Director's Delegate allowed the appeal in part, finding that post-accident employee benefits paid by the employer constituted an income continuation plan and were therefore deductible collateral benefits.

The issue of interest on overdue benefits was remitted to the Arbitrator to determine the exact date the benefits were converted.

The applicant claimed to have been injured while riding a TTC streetcar and applied for statutory accident benefits.

The insurer denied benefits, claiming the accident did not occur, and argued the applicant was precluded from arbitration for failing to attend insurer's examinations.

On a preliminary issue hearing, the arbitrator found that the insurer failed to make reasonable efforts to schedule the examinations at a convenient time, justifying the applicant's refusal to attend.

The arbitrator also found the applicant to be a credible witness and concluded that she was injured in an accident as defined in the Schedule.

The applicant was permitted to proceed to arbitration.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits, claiming he was catastrophically impaired due to severe cervical spondolytic myelopathy causing quadriparesis.

The insurer denied the claim.

The arbitrator found that while the applicant suffered from a catastrophic impairment, it was not caused or materially contributed to by the motor vehicle accident.

The evidence demonstrated that the applicant's neurological decline was a result of the natural progression of his pre-existing degenerative condition, as his symptoms did not abruptly worsen immediately following the accident.

The applicant sought an assessment of her arbitration expenses following a previous decision awarding her 70 percent of her expenses.

The insurer refused to pay the claimed amount of $6,038.61, arguing it was excessive and that the applicant had rejected a settlement offer.

The arbitrator found the insurer's settlement offer did not comply with the Settlement Regulation.

Applying a 1:1 ratio for preparation to hearing time, the arbitrator awarded the applicant $4,840 plus GST for legal fees and disbursements, including $200 for the assessment proceeding.

The applicant was injured in a motor vehicle accident and received income replacement benefits until they were terminated by the insurer.

An arbitration was scheduled to determine ongoing entitlement.

Shortly before the 104-week mark and the arbitration, the insurer requested four additional insurer's examinations.

The applicant refused to attend.

The arbitrator held that the insurer failed to prove the examinations were reasonably necessary to determine benefit entitlement or to ensure fairness, as the insurer had already determined the applicant was not entitled to benefits and had sufficient prior opportunity to request examinations.

The applicant was permitted to proceed to arbitration without attending the examinations.

The insurer appealed an arbitrator's preliminary order finding that the insured was not barred from proceeding to arbitration under s. 50(1)(a) of the SABS-1996.

The insurer argued the insured failed to submit an application for benefits within 30 days of receiving the forms, as required by s. 32(3).

The Director's Delegate dismissed the appeal, upholding the arbitrator's finding that the insured had provided sufficient information to allow the insurer to begin adjusting the claim within the required timeframe, despite not completing the approved forms.

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

The insurer denied the claim on the basis that the applicant was not injured in an automobile accident.

The applicant's representative was removed from the record prior to the pre-hearing, and the applicant failed to attend both the pre-hearing and the arbitration hearing despite being given notice.

As no evidence was tendered to support the application, the arbitrator dismissed the application and ordered the applicant to pay the insurer's expenses in the amount of $3,006.50.

The applicant sought an extension of time to claim expenses following an unsuccessful arbitration for statutory accident benefits.

The arbitrator granted the extension, finding the delay was inadvertent and not excessive.

However, the arbitrator dismissed the claim for expenses, rejecting the applicant's argument that the case raised a novel issue.

The arbitrator noted that under the amended O. Reg. 664, a successful party should not be penalized absent misconduct, and thus the unsuccessful applicant was not entitled to expenses.

The arbitrator previously dismissed the applicant's claim for statutory accident benefits and ordered the applicant's representative, a paralegal, to personally pay the insurer's expenses.

In this decision on expenses, the arbitrator assessed the quantum of expenses payable.

The insurer claimed $9,039.72, but the arbitrator reduced this amount, disallowing a $3,000 assessment fee that lacked legislative basis and reducing the hourly rate to the correct legal aid tariff for Toronto.

The arbitrator further reduced the bill by $400 due to the insurer's 'less than frank' presentation of expenses.

The representative was ordered to pay $5,033.82 to the insurer.

The applicant was injured in a motor vehicle accident while driving to a job site.

He applied for statutory accident benefits from the insurer and workers' compensation benefits from the WSIB.

The WSIB determined that the applicant was not entitled to WSIB benefits because the claim was filed beyond the six-month limitation period.

The insurer argued that the applicant was entitled to WSIB benefits and that it was not required to pay statutory accident benefits under section 59(1) of the Statutory Accident Benefits Schedule.

The arbitrator held that, as the WSIB had determined the applicant was not entitled to benefits, section 59(1) did not relieve the insurer of its obligation to pay.

The arbitrator further ordered the insurer to pay benefits pending the final resolution of the WSIB dispute, pursuant to section 59(5) of the Schedule.

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

The insurer terminated his weekly income replacement benefits, and the applicant applied for arbitration.

The insurer requested that the applicant attend updated examinations with its medical and psychological experts, which the applicant refused.

On a preliminary issue, the arbitrator held that the insurer's request was not reasonable under section 42 of the Statutory Accident Benefits Schedule, as the applicant's condition had not changed and the insurer merely sought to bolster its evidence for the hearing.

The applicant's refusal to attend had no consequence.

The applicant sought to withdraw from arbitration after the parties resolved his claims for statutory accident benefits.

The insurer objected, seeking an order that the applicant pay its $3,000 assessment fee and arbitration expenses as a condition of withdrawal.

The arbitrator allowed the withdrawal, finding the claims were properly brought and resolved prior to the pre-hearing discussion.

The insurer's request for expenses was dismissed as the proceeding was not frivolous or vexatious, and the claim for the assessment fee was dismissed because the statutory provision authorizing it had been repealed.

The applicant was injured in a motor vehicle accident and received income replacement benefits until they were terminated by the insurer following an insurer examination.

More than three years later, after the applicant underwent knee and hip replacement surgeries and applied for arbitration, the insurer requested a further examination by the same doctor.

The applicant refused to attend.

The arbitrator held that the applicant was not precluded from proceeding to arbitration, finding that the requested examination did not meet the requirements of section 42 of the Statutory Accident Benefits Schedule.

The arbitrator concluded that the primary purpose of the examination was to prepare for the upcoming arbitration hearing rather than to determine entitlement to a benefit.

The applicant was seriously injured in a motor vehicle accident and subsequently developed a severe addiction to crack cocaine.

He applied for catastrophic impairment status, attendant care benefits, and income replacement benefits.

The insurer argued the addiction pre-dated the accident and was not causally linked.

The arbitrator found that the applicant was a recreational user prior to the accident but the severe addiction was a direct result of the accident, likely due to a mild traumatic brain injury and an attempt to self-medicate.

The arbitrator concluded the applicant suffered a Class 4 marked impairment under the AMA Guides, meeting the definition of catastrophic impairment.

The applicant was awarded ongoing attendant care benefits of $5,056.80 per month and income replacement benefits of $256 per week.

The applicant was injured in a rear-end motor vehicle accident and sought income replacement benefits (IRBs) after the insurer terminated them.

The central issue was whether the applicant suffered a substantial inability to perform the essential tasks of her pre-accident employment as an assembly line worker.

The arbitrator found the applicant credible and accepted the evidence of her treating family doctor over the insurer's medical examiners.

The arbitrator concluded that the physical demands of the applicant's job, which required continuous standing and repetitive lifting, combined with her accident-related soft tissue injuries and chronic pain, rendered her substantially unable to perform her essential duties.

The applicant was awarded IRBs for the disputed period, along with interest.

The applicant was injured in a motor vehicle accident when he was 14 years old.

He did not notify the insurer of his claim for statutory accident benefits until over four years later, after he had turned 18.

The insurer sought to preclude him from proceeding to arbitration due to the delay.

The arbitrator held that section 47 of the Limitations Act applied to postpone the notice period until the applicant reached the age of majority.

Furthermore, the arbitrator found that the applicant had a reasonable explanation for the subsequent delay, given his youth, limited abilities, dependence on his parents, and the lack of prejudice to the insurer.

The applicant was permitted to proceed to arbitration.

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

The insurer suspended benefits after the applicant failed to attend scheduled insurer medical examinations (IMEs) and a Designated Assessment Centre (DAC) assessment, as she had travelled out of the country.

On a preliminary issue hearing, the arbitrator found that the applicant failed to make herself reasonably available for the assessments.

However, because the insurer's notices for the IMEs were defective regarding the income replacement benefits claim, and because the housekeeping and attendant care claims pre-dated the non-compliance period, the arbitrator ruled that the applicant's arbitration could proceed as currently constituted.

The insurer brought a motion to stay the arbitration pending the applicant's attendance at a psychiatric insurer's medical examination (IME).

The applicant had previously attended a psychological IME arranged by the insurer, which concluded she suffered a complete inability to work due to depression but could not isolate the accident as the primary cause.

The insurer sought a further psychiatric IME to address causation.

The arbitrator dismissed the motion, finding the insurer had already been afforded a fair opportunity to evaluate the applicant's condition and failed to establish that the additional psychiatric assessment was reasonably necessary.

The applicant was awarded her legal expenses for the motion.