OFSCDRS 2011

Following the settlement of a dispute over income replacement benefits, the parties could not agree on the amount of expenses payable to the applicant.

The arbitrator awarded the applicant $26,256.74 in expenses, including 100 hours of legal preparation time at $120 per hour, maximum allowable expert report fees, and various disbursements.

The arbitrator declined to award preparation fees for experts who did not testify.

The Applicant was injured in a motor vehicle accident in July 2005 but did not notify the insurer of her claim for statutory accident benefits until December 2007.

The insurer argued the claim was out of time under section 32 of the Statutory Accident Benefits Schedule.

The Applicant submitted she had a reasonable explanation for the delay under section 31, as she developed severe depression and anxiety from acting as the sole caregiver for her husband, who sustained a traumatic brain injury in a prior accident.

The Arbitrator found the Applicant's explanation credible and reasonable, noting her psychological impairments and the overwhelming demands of caring for her husband.

The Applicant was permitted to proceed with her claims.

The insurer sought its expenses of $4,351.51 for a preliminary issue arbitration hearing after successfully appealing the initial decision.

The original arbitration decision allowed a third-party insurer to proceed with a claim in the applicant's name, but this was overturned on appeal.

The arbitrator found that the issue in dispute was novel and that the third-party insurer was entirely successful at the original hearing.

The arbitrator concluded that the insurer's subsequent success on appeal did not negate the third-party insurer's success at the preliminary hearing, and ordered each party to bear their own expenses.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits for caregiving, attendant care, and housekeeping.

At the arbitration hearing, the self-represented applicant called no witnesses and produced no documentary or medical evidence to support his claims.

The arbitrator found that the applicant failed to meet his evidentiary burden to establish a substantial inability to perform his pre-accident activities.

The application was dismissed in its entirety, and the applicant was ordered to pay $2,000 in expenses to the insurer.

The applicant sought non-earner benefits (NEBs) following a motor vehicle accident.

The arbitrator found that the applicant did not qualify for an income replacement benefit as he was not employed at the time of the accident.

Applying the test for NEBs, the arbitrator concluded that the applicant did not suffer a complete inability to carry on a normal life, as he remained independent in self-care and was not completely unable to engage in housekeeping and home maintenance.

The application for NEBs, a special award, and interest was dismissed.

The applicant applied for statutory accident benefits following a motor vehicle accident but died of unrelated causes prior to the arbitration hearing.

No court-appointed representative for the estate was obtained, and no one appeared on behalf of the applicant at the hearing.

The arbitrator proceeded in the applicant's absence and dismissed the claims, finding they were not proven on a balance of probabilities.

The insurer's request for arbitration expenses was denied because there was no party against whom a costs order could be made.

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

After a period of non-participation and failure to communicate with his counsel or the Commission, the insurer brought a motion to dismiss the claim without a hearing or deem it withdrawn.

The arbitrator found that while the applicant's conduct constituted bad faith, it did not occur at the commencement of the arbitration as required for a dismissal under Rule 68.

However, given the applicant's complete failure to participate, the arbitrator inferred that he had abandoned his claim and deemed it withdrawn pursuant to Rule 70 of the Dispute Resolution Practice Code.

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

At the hearing, a new issue arose regarding the quantum of income replacement benefits, as recent productions indicated the applicant had received collateral benefits.

Neither party could quantify the amount in dispute without further information from the collateral benefits carrier.

The arbitrator adjourned the hearing to allow the parties to obtain the necessary information, schedule a longer hearing, and address evidentiary issues.

The applicant sought expenses following a successful arbitration for statutory accident benefits.

The insurer argued the claim was barred by Rule 79.1 of the Dispute Resolution Practice Code, as the applicant waited 2.5 years to request an expense hearing instead of the required 30 days.

The arbitrator found the applicant's explanation for the delay uncompelling and declined to extend the time limit under Rule 81.

The applicant was denied his expenses of $29,008.12 due to the delay.

The arbitrator also declined to address an alleged error in the insurer's interest calculation, finding no authority to do so in an expense hearing.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits for caregiver, attendant care, and housekeeping expenses, as well as the cost of a psychological assessment.

The arbitrator dismissed all claims, finding that the applicant was not the primary caregiver for his children prior to the accident, did not require attendant care, and provided inconsistent evidence regarding housekeeping expenses.

The claim for the psychological assessment was dismissed due to a lack of evidence.

The arbitrator inadvertently read a settlement offer submitted by the insurer prior to the hearing, after he had finished writing his decision but before it was formatted and released.

The applicant requested that the arbitrator recuse himself on the grounds of a reasonable apprehension of bias.

The arbitrator dismissed the motion, finding that an informed person, viewing the matter realistically and practically, would not conclude that his impartiality was compromised, as the decision had already been written and was not changed.

The insurer applied to vary or revoke a 2007 order to pay income replacement benefits, but sought to withdraw the application during the hearing, claiming its psychological expert changed his opinion.

The arbitrator allowed the withdrawal but imposed a term precluding the insurer from filing further applications regarding the 2007 order until it substantiated the expert's change of opinion.

The arbitrator also assessed the insured's expenses, awarding $18,204.83 for legal fees and disbursements, including reduced amounts for several expert reports that were deemed inefficient or of limited value.

The applicant sought statutory accident benefits after slipping and falling on ice while traversing a snowbank immediately after parking and exiting her vehicle.

The insurer denied the claim, arguing the incident did not meet the definition of an 'accident' under section 2(1) of the Statutory Accident Benefits Schedule.

The arbitrator found that the applicant was compelled to park at the access point due to the snowbank and was still in the process of disembarking when she fell.

The use or operation of the vehicle was a dominant feature and direct cause of her injuries.

The preliminary issue was resolved in favour of the applicant.

The applicant insurer sought to vary an ongoing weekly income replacement benefits order due to the respondent's receipt of collateral benefits.

After a decision on the deductibility of those benefits, both parties sought their legal expenses for the variation application.

The Director's Delegate ordered that each party bear their own legal expenses, finding that while the insurer was successful on the deductibility issue, it had unnecessarily divided its case between the Commission and the courts, and the novel issues raised militated in favour of the insured person.

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

The insurer terminated weekly income replacement benefits.

An interim benefit order was previously made, but payments were suspended pending satisfaction of an overpayment.

The applicant requested the date the overpayment was satisfied and resumption of interim benefits.

The insurer's counsel did not respond to inquiries or make submissions opposing the request.

The arbitrator ordered the insurer to provide the date the overpayment was satisfied and to resume payment of interim income replacement benefits.

The insurer applied to vary or revoke an order granting the insured ongoing income replacement benefits.

During the hearing, the insurer sought to withdraw its application after its psychological expert changed his opinion to support the insured's disability claim.

The insured opposed the withdrawal, seeking instead a dismissal with terms requiring the production of clinical notes and an addendum from the expert.

The arbitrator deferred ruling on the dismissal and expenses, but ordered the insurer to produce a written statement from its expert explaining the change in opinion, while allowing the parties to make further written submissions.

The applicants sought expenses following the resolution of an interim benefits motion regarding a motor vehicle accident claim.

The parties had agreed on interim benefits but could not agree on expenses.

The arbitrator reviewed the applicants' Bill of Costs, allowing 30 hours of counsel time at $150 per hour after deducting duplicative and premature claims.

Disbursements for reports were allowed up to the maximum under the Expense Regulation, and photocopying was permitted, while parking was disallowed.

The applicants were jointly awarded $19,846.22 in expenses, inclusive of HST.

The appellant insurer appealed a preliminary arbitration order finding the respondent sustained a catastrophic impairment.

The respondent subsequently filed a late Notice of Cross-Appeal regarding the impairment rating for a skin disorder, which the appellant opposed as time-barred.

The Director's Delegate granted an extension of time for the cross-appeal under subsection 283(3) of the Insurance Act and Rule 52.2 of the Dispute Resolution Practice Code, finding the delay was short, the issue was succinct, and any prejudice to the appellant could be remedied by procedural directions.

The appellant was awarded $750 in costs for the preliminary motions, payable in the cause.

The applicant brought a motion for an order declaring that the in-person medical examinations proposed by the insurer to determine catastrophic impairment were not reasonably necessary.

The applicant argued that the insurer already had sufficient medical information from recent assessments for post 104-week income replacement benefits.

The arbitrator found that the tests for catastrophic impairment differ from those for post 104-week benefits, and the insurer reasonably required the new examinations.

The motion was dismissed, and the proceedings were stayed until the applicant attends the scheduled examinations.

The appellant sought to appeal an arbitrator's preliminary decision which found that her claims for housekeeping services and catastrophic impairment designation were barred by the two-year limitation period under the Insurance Act.

The arbitrator had also ruled that he lacked jurisdiction to grant relief from forfeiture under section 129 of the Insurance Act.

The Director's Delegate rejected the appeal pursuant to Rule 51.2(c) of the Dispute Resolution Practice Code, finding that it was an appeal from a preliminary order that did not finally decide the issues in dispute, and that the appellant had not raised a valid question of law or demonstrated grounds to justify an immediate appeal.