OFSCDRS 2008

The applicant sought to withdraw her application for arbitration regarding statutory accident benefits.

The insurer refused to consent and requested an expense hearing.

The arbitrator found that the applicant's representative, her husband acting without compensation, had complied with the requirements of Rule 70 of the Dispute Resolution Practice Code and permitted the withdrawal.

The arbitrator declined to award expenses to either party under Rule 75, finding that no aspect of the proceeding was improper, vexatious, or unnecessary, and ordered the parties to bear their own expenses.

The applicant sought photocopying expenses in the amount of $8,341.43 following a successful arbitration for statutory accident benefits.

The insurer did not contest the invoices.

The arbitrator found it reasonable that significant photocopying was required given the large number of exhibits and medical experts.

However, the arbitrator declined to award $1,817.84 in expenses incurred between the date final written submissions were received and the date the decision on the merits was issued, as the applicant did not explain why significant photocopying was required during that period.

The insurer was ordered to pay $6,089.29 in photocopying expenses.

The appellant was injured in a motor vehicle accident in Texas while in the course of employment.

He applied for statutory accident benefits and elected to pursue a tort action rather than claim WSIB benefits.

The insurer denied benefits, arguing he was required to claim WSIB.

The arbitrator held that the pay-pending provisions of s. 59(5) of the Schedule did not apply to disputes over the bona fides of a tort election under s. 59(2).

On appeal, the Director's Delegate rescinded the order, finding that s. 59(5) does apply to s. 59(2) disputes, meaning the insurer must pay interim benefits pending resolution of the dispute over the validity of the election.

The Applicant sought leave to withdraw her application for arbitration regarding the termination of her caregiver benefits, preferring to pursue the matter in Superior Court alongside a pending tort action.

The Insurer did not oppose the withdrawal but argued it should be allowed to proceed with its claim for repayment of benefits and a preliminary issue hearing on whether the Applicant was actually involved in the accident.

The Arbitrator granted the Applicant leave to withdraw, subject to resolving expenses.

The Arbitrator dismissed the Insurer's claim for repayment without prejudice, finding that the Commission lacks jurisdiction to hear a free-standing claim by an insurer when the applicant has withdrawn all issues from arbitration.

Following a fatal motor vehicle accident, the deceased's partner and her two children applied for spousal and dependant death benefits.

The insurer initially denied the claims due to insufficient evidence of cohabitation and dependency.

The applicants sought interest on the delayed benefit payments and arbitration expenses.

The arbitrator found that the partner was not entitled to interest because she failed to correct an error in her initial statement regarding the cohabitation date, which prevented the insurer from determining entitlement.

However, the children were awarded interest as the insurer had sufficient evidence of their dependency but delayed payment.

The applicants were also awarded their arbitration expenses, and a further hearing was ordered to determine if a special award was warranted for the delayed payments to the children.

The applicant was injured in a motor vehicle accident and sought various statutory accident benefits, including medical and rehabilitation benefits, housekeeping expenses, and attendant care benefits.

The insurer denied the claims.

The arbitrator found that the applicant suffered from pre-existing physical and psychological conditions due to prior incidents.

Based on the medical evidence and the applicant's level of activity before and after the accident, the arbitrator concluded that the motor vehicle accident did not significantly contribute to her ongoing physical or psychological impairments.

All claims for benefits, interest, and a special award were dismissed.

The appellant insurer filed a Notice of Appeal from an arbitrator's preliminary decision finding that the respondent was injured in an accident.

The Director's Delegate extended the time for filing both the Notice of Appeal and the Response to Appeal.

The Delegate also allowed the appeal from the preliminary order to proceed, noting that a successful appeal would completely dispose of the proceeding, making it the most efficient and cost-effective approach.

The parties were directed to request an adjournment of the scheduled arbitration hearing.

In an arbitration for statutory accident benefits, the insurer sought to file an expert report on catastrophic impairment after the hearing had commenced, missing the 30-day deadline under Rule 39.1 of the Dispute Resolution Practice Code.

The insurer argued that a recent Court of Appeal decision constituted a change in law justifying the late filing.

The arbitrator rejected this argument, finding no change in the law that would constitute extraordinary circumstances.

Furthermore, the arbitrator held that the report, which offered an interpretation of the AMA Guides, usurped the core function of the arbitrator and was therefore inadmissible under the Mohan criteria.

The applicant, a four-year-old who suffered a severe brain injury in a motor vehicle accident, claimed attendant care benefits for care provided by his parents while he was a patient at a rehabilitation hospital.

The insurer denied the claim, arguing that the hospital had OHIP-funded attendant care available which the parents failed to access, making the parents' care not "reasonable and necessary" under section 16 of the Statutory Accident Benefits Schedule.

The arbitrator found that while auto insurers are generally insurers of last resort and available hospital funding should be accessed first, the parents in this specific case were not informed about the available funding and were encouraged to use their auto insurance.

Therefore, it was reasonable for the parents to provide the care themselves.

The insurer was ordered to pay the agreed quantum of $3,418.33 for the attendant care expenses.

The applicant, who sustained a brain injury as a seven-year-old pedestrian in a motor vehicle accident, sought loss of earning capacity benefits (LECB).

The insurer brought a motion to compel a new neuropsychological assessment.

The arbitrator dismissed the insurer's motion, finding that the applicant had already undergone numerous neuropsychological assessments, her cognitive function had plateaued, and a new in-person assessment was not reasonably required.

On the preliminary issue, the arbitrator held that the insurer was precluded from disputing the applicant's entitlement to an offer for LECB because it had paid 104 weeks of education disability benefits based on a partial inability to carry on a normal life, thereby triggering entitlement under the Schedule.

The applicant sought statutory accident benefits, including income replacement and non-earner benefits, following a motor vehicle accident.

The arbitrator found the applicant was not entitled to income replacement benefits because he was not employed or self-employed at the time of the accident, as his pawn shop business had not yet opened.

The claim for non-earner benefits was also dismissed because the applicant failed to prove the accident caused or materially contributed to his impairments, given his extensive pre-existing medical conditions and similar pre-accident complaints.

Claims for a special award and interest were consequently dismissed.

The insurer's counsel of record sought to be removed just days before the scheduled arbitration hearing, and the insurer's newly retained counsel requested an adjournment to prepare.

The claimant opposed the adjournment, citing prejudice, her advanced age, and costs already incurred.

The arbitrator granted the removal of counsel and the adjournment to ensure a full and fair hearing, but awarded the claimant $5,000 in expenses for costs thrown away due to the late adjournment request.

Following a previous arbitration decision finding that the insurer unreasonably withheld payment for two treatment plans, the parties made submissions on the quantum of a special award.

Applying the criteria from Persofsky, the arbitrator determined that the insurer's imprudent and unreasonable conduct warranted a modest special award.

The arbitrator ordered the insurer to pay a special award of $3,500.00.

The insurer brought a motion for an order compelling the applicant to attend further psychological and orthopaedic assessments under section 42 of the Statutory Accident Benefits Schedule, and for an adjournment of the upcoming arbitration hearing.

The arbitrator dismissed the motion, finding it to be an exercise in tactical brinkmanship on the eve of the hearing.

The insurer failed to provide a reasonable explanation for its delay in requesting the assessments, despite having early notice of the psychological and orthopaedic components of the claim.

Furthermore, the arbitrator noted a lack of jurisdiction to directly compel attendance at a section 42 examination.

The insurer brought a motion to have issues regarding the applicant's compliance with sections 34, 55, and 56 of the Statutory Accident Benefits Schedule heard as preliminary issues.

The arbitrator found that hearing these issues preliminarily would not serve judicial economy, as they would require extensive evidence that would likely be duplicated at a substantive hearing.

The motion was dismissed, and the issues were ordered to be determined at the main arbitration hearing.

The appellant, a paralegal representative, appealed an arbitrator's order requiring him to personally pay the insurer's legal expenses of $2,910.41.

The arbitrator found that the appellant had commenced an arbitration proceeding for statutory accident benefits without the insured's authority, constituting an abuse of process.

On appeal, the appellant argued the arbitrator lacked jurisdiction to award costs against him once he was removed from the record.

The Director's Delegate dismissed the appeal, holding that section 282(11.2) of the Insurance Act applies to anyone who represented or purported to represent a party at some point in the proceeding, and that the arbitrator also had residual power under section 23(1) of the Statutory Powers Procedure Act to prevent abuse of process.

The applicant was injured in a motor vehicle accident while riding his bicycle and claimed statutory accident benefits, including a non-earner benefit, medical benefits, and housekeeping benefits.

The arbitrator found that the applicant did not meet the test for a non-earner benefit, as there was insufficient evidence that the accident materially contributed to his complete inability to carry on a normal life, given his pre-existing chronic pain and opiate addiction.

The claim for medical benefits was also dismissed for lack of evidence linking the expenses to the accident.

However, the arbitrator granted the claim for housekeeping benefits, finding that the accident aggravated the applicant's pre-existing pain, resulting in a substantial inability to perform heavy housekeeping tasks.

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

The insurer denied claims for non-earner, caregiving, housekeeping, and attendant care benefits.

The applicant failed to commence mediation within the two-year limitation period following the denials.

At a preliminary issue hearing, the arbitrator found that the applicant offered no reasonable explanation for the delay and had failed to provide the insurer with requested information to assess his claims.

The arbitrator dismissed the applicant's claims for benefits as statute-barred.

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

An arbitrator issued a preliminary order precluding the appellant from receiving income replacement benefits for a specific period due to non-compliance with section 33 of the Insurance Act.

The appellant sought to appeal this preliminary order.

The Director's Delegate accepted the appeal, finding that the issue of whether section 33(2) authorizes forfeiture or merely delay of benefits was of fundamental importance and that hearing the appeal expeditiously was the most just and efficient approach.

The applicant was injured when her bicycle was struck by a parked car's door.

She was later diagnosed with Multiple Sclerosis (MS) and claimed statutory accident benefits, arguing the trauma from the accident triggered her MS.

The arbitrator reviewed expert neurological evidence on the theory that trauma can disrupt the blood-brain barrier and trigger latent MS.

The arbitrator found the theory speculative and concluded the applicant failed to prove the accident triggered her MS, noting she had pre-accident neurological symptoms and lacked evidence of serious trauma.

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