OFSCDRS 2010

The insured was injured in a motor vehicle accident and applied for a catastrophic impairment designation, which was denied by the insurer based on a CAT DAC assessment.

After the two-year limitation period expired, the insured submitted a new application based on an alleged change in condition.

The arbitrator found the limitation period applied but held that a change in condition could permit a reapplication.

On appeal, the Director's Delegate confirmed the arbitrator's finding that there was no factual change in condition, dismissing the insured's appeal.

However, on the insurer's appeal, the Delegate held that the arbitrator erred in law by finding an exception for changed conditions, ruling that under subsection 40(4) of the Schedule, a CAT DAC determination is binding and cannot be circumvented by a reapplication on the same criteria once the limitation period has expired.

The applicant, a self-employed locksmith, was injured in a motor vehicle accident in 2000 and received income replacement benefits (IRBs) until the insurer terminated them in 2006.

The applicant sought post-104 week IRBs, arguing he suffered a complete inability to engage in any employment for which he was reasonably suited.

The arbitrator found the applicant credible and accepted that his chronic pain syndrome prevented him from working an eight-hour day on a full-time basis.

The insurer's experts failed to consider whether the applicant could sustain full-time hours in a structured employment setting.

The arbitrator also dismissed the insurer's request to set off alleged past overpayments against future IRBs, as the insurer had not followed the statutory notice and repayment scheme under section 47 of the Schedule.

The applicant was awarded IRBs of $185.00 per week from March 2006 onward.

Following a decision on statutory accident benefits where the insurer was found entitled to its reasonable expenses, the parties disagreed on the quantum of the insurer's Bill of Costs.

The insurer sought $6,867.08 in legal fees based on 110.7 hours of preparation and hearing time, plus disbursements.

The arbitrator found the hours excessive for a straightforward two-day hearing involving no complex legal issues.

Applying a 1.25:1 ratio for preparation to hearing time, the arbitrator reduced the legal fees and struck unsupported disbursements for courier, parking, and court reporting services.

The applicant was ordered to pay the insurer $4,861.18 in expenses.

The applicants, a husband and wife, filed three arbitration applications for statutory accident benefits arising from two motor vehicle accidents.

At a pre-hearing, the issue was whether the three applications should be combined.

The arbitrator ordered that the wife's two applications be heard together, as they involved overlapping claims and causation issues.

However, the husband's application was ordered to be heard separately, as the issues, expert witnesses, and nature of the claims were significantly different, and combining them would not result in the most just, quickest, and least expensive means to deal with the applications.

The applicant sought arbitration regarding a catastrophic impairment designation following a 1998 motor vehicle accident.

The insurer filed its Response four days late and raised a preliminary issue that the applicant's Application for Mediation was filed beyond the two-year limitation period.

The arbitrator extended the time for the insurer's Response, finding the delay was unintentional and caused no prejudice.

On the limitation issue, the arbitrator found the insurer issued a valid denial in November 2005 that complied with the notice requirements in Smith v. Co-operators.

As the applicant did not file her Application for Mediation until July 2008, she was precluded from proceeding to arbitration.

The application was dismissed.

The applicant's counsel brought a motion to withdraw as solicitor of record following the dismissal of the applicant's substantive claims due to delay, but prior to a decision on expenses.

The applicant opposed the withdrawal, wishing counsel to remain for the expense hearing.

The arbitrator reviewed the law on withdrawal of counsel and found that the solicitor-client relationship had broken down, with a loss of mutual confidence and trust.

The arbitrator granted the motion, permitting counsel to withdraw without conditions.

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

She also received long-term disability (LTD) benefits from a group insurance plan.

The insurer deducted the LTD benefits from her income replacement benefits.

The applicant disputed the deductibility of the LTD benefits.

The arbitrator held that the LTD benefits were payments for loss of income under an income continuation benefit plan and were therefore deductible from the income replacement benefits pursuant to section 7(1) of the Statutory Accident Benefits Schedule.

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

The insurer brought a motion to exclude the applicant from receiving income replacement and housekeeping benefits under s. 30(1)(a) of the Schedule, arguing he knew or ought reasonably to have known he was driving without insurance.

The applicant's policy had been cancelled for non-payment, but he denied receiving the registered cancellation letter or being informed of the cancellation by his broker.

The arbitrator found that the insurer failed to prove the applicant received the cancellation notice or was clearly informed of the cancellation.

The arbitrator concluded the applicant reasonably believed his policy was still in effect and dismissed the insurer's motion.

The applicant sought income replacement benefits and housekeeping expenses following a motor vehicle accident.

The insurer denied the claims, disputing that the applicant was employed at the time of the accident and questioning the need for housekeeping services.

The arbitrator found the applicant's evidence regarding her alleged employment at a restaurant to be implausible and fabricated, noting inconsistencies in her testimony and the lack of corroborating evidence.

The housekeeping claim was also dismissed due to inconsistent and unbelievable evidence.

Furthermore, the arbitrator held that the insurer's minor delays in responding to the application were procedural irregularities that did not prejudice the applicant, thereby dismissing the claim for a special award.

The applicant was struck by a pickup truck while riding his bicycle, sustaining severe injuries to his left heel and ankle.

He applied for a determination of catastrophic impairment, which the insurer denied.

At arbitration, the arbitrator preferred the evidence of the applicant's experts, finding that his need for two crutches and a short leg brace resulted in a 55% Whole Person Impairment under the AMA Guides.

Furthermore, the arbitrator accepted that the applicant's chronic pain and depression resulted in a Class 4 marked impairment in at least one area of functioning.

The arbitrator concluded that the applicant sustained a catastrophic impairment under both paragraphs 2(1.2)(f) and (g) of the Schedule.

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

The insurer denied two treatment plans and raised a preliminary issue regarding the applicant's failure to attend an insurer's examination.

The insurer later sought to withdraw the preliminary issue after learning the applicant had not received notice of the examination.

The applicant requested $500 in costs as a condition of the withdrawal.

The arbitrator found the insurer's initial request for a preliminary issue was not improper or vexatious, and permitted the insurer to withdraw the issue without terms.

The appellant was injured in a motor vehicle accident and claimed income replacement benefits.

He initially failed to report income earned from a numbered company on his tax return, but later filed an amended return and was reassessed by the CCRA.

The arbitrator excluded this income from the benefit calculation under s. 64.1(1) of the SABS-1996.

On appeal, the Director's Delegate held that s. 64.1(2) permits the inclusion of income that is subsequently reported by the insured, reversing the arbitrator's decision.

Following the dismissal of the appellant's appeal regarding statutory accident benefits, the parties made written submissions on the costs of the appeal.

The appellant sought $3,657.80, while the respondent sought $8,569.58.

The Director's Delegate found the respondent's claimed hours disproportionate but noted the respondent was successful in the main appeal.

Balancing the criteria under the Expense Regulation, the Director's Delegate ordered the appellant to pay the respondent $1,500 in legal expenses.

The applicant was injured in a motor vehicle accident and sought approval for a neuropsychological assessment.

The insurer denied the request in September 2005, stating it was unreasonable and unnecessary, and offered a Designated Assessment Centre (DAC) assessment, which never took place.

The applicant underwent the assessment anyway and submitted the invoice in 2006, which the insurer refused to pay.

The applicant filed for mediation in January 2008.

The insurer raised a preliminary issue that the application was filed beyond the two-year limitation period under the Insurance Act and the Statutory Accident Benefits Schedule.

The arbitrator held that the insurer's September 2005 refusal was clear and unequivocal, and the failure to conduct a DAC assessment did not invalidate the refusal.

The applicant was therefore precluded from proceeding to arbitration.

The applicant, who was self-represented, sought statutory accident benefits following a motor vehicle accident.

The insurer raised concerns about the applicant's mental capacity to manage the arbitration process without counsel, citing a past psychological report and her conduct at pre-hearings.

The arbitrator considered whether a litigation guardian should be appointed under Rule 10 of the Dispute Resolution Practice Code.

Applying the presumption of capacity under the Substitute Decisions Act, the arbitrator found insufficient medical evidence to displace the presumption.

The arbitrator ruled that the applicant was not barred from proceeding without a litigation guardian.

The applicant brought a motion for interim income replacement benefits pending the resolution of his dispute with the insurer over statutory accident benefits arising from a motor vehicle accident.

At the motion, the parties reached an agreement to reinstate the applicant's interim income replacement benefits at the rate of $400 per week, plus interest.

The arbitrator ordered the reinstatement of benefits on consent and adjourned the main hearing.

The insurer brought a motion for production of various medical and financial records.

The applicant subsequently sought an adjournment of the hearing and an order to change his representative of record.

The arbitrator granted the change of representative and adjourned the hearing to allow new counsel to prepare.

On the production motion, the arbitrator ordered the applicant to produce specific diagnostic scan reports and clinical notes from certain treating physicians, but declined to order production of records beyond one year pre-accident, personal bank statements, or records from third parties who had not been given notice.

The insurer brought a motion seeking an order to compel the insured person to attend psychiatry, physiatry, and neurology assessments, and to adjourn the ongoing arbitration hearing pending her attendance.

The insurer had not served a proper Notice of Examination under section 65 of the Statutory Accident Benefits Schedule prior to the motion.

The arbitrator dismissed the motion, finding no jurisdiction to order attendance without proper Notice.

Furthermore, the arbitrator noted that the insurer did not intend to rely on the assessment reports in the current arbitration, and that the insurer's delay in requesting the assessments was unreasonable.

The insurer brought a motion to adjourn the scheduled arbitration hearing on the grounds that it intended to seek a stay of the arbitration in favour of a companion tort action, for practical reasons related to mediation, and because the applicant failed to comply with her production obligations.

The arbitrator rejected the first two grounds due to the insurer's delay in pursuing them.

However, the arbitrator granted the adjournment because the applicant had failed to provide agreed-upon productions, finding it would be unfair to the insurer to proceed to a hearing under those circumstances.

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

The insurer denied income replacement benefits in November 2005.

The applicant applied for mediation in January 2008, beyond the two-year limitation period.

The applicant argued the initial denial was invalid because he had not yet claimed the benefits, and alternatively, that the insurer was estopped from relying on the limitation period due to its delay in responding to a later inquiry.

The arbitrator found the initial denial was valid and the insurer's conduct did not amount to estoppel.

The application was dismissed as statute-barred.