OFSCDRS 2017

The appellant was injured in a motor vehicle accident and initially received income replacement benefits (IRBs).

After returning to work and ceasing to qualify for IRBs, he claimed non-earner benefits (NEBs).

The arbitrator held that the appellant was precluded from claiming NEBs because he had effectively elected to receive IRBs and had failed to give timely notice of his NEB claim.

On appeal, the Director's Delegate reversed the decision, finding that the appellant was never required to make an election under section 35 of the Statutory Accident Benefits Schedule because he never qualified for both benefits simultaneously.

Furthermore, the initial application for benefits constituted notice for all possible weekly benefits, meaning the appellant was not barred from renewing his NEB claim.

The applicant was involved in two motor vehicle accidents in November and December 2012.

She sought accident benefits including a non-earner benefit and payment for three assessment treatment plans (chronic pain, neurological, and attendant care needs).

The arbitrator found that the applicant's injuries from both accidents fell within the Minor Injury Guideline, noting a lack of medical evidence to support injuries outside the guideline.

The claim for a non-earner benefit was dismissed as the applicant failed to provide sufficient evidence of her pre- and post-accident life to establish a complete inability to carry on a normal life.

The proposed assessments were also denied as they were deemed neither reasonable nor necessary, and exceeded the minor injury limit.

The applicant was injured in a motor vehicle accident when she was 13 years old.

She applied for non-earner benefits upon turning 16, but the insurer failed to commence payments or schedule insurer examinations until 20 months later.

When the insurer finally scheduled the examinations, the applicant refused to attend, citing the unilateral scheduling and misleading notices.

The arbitrator found that the insurer's notices were inaccurate and failed to comply with the Schedule, and that the applicant provided a reasonable explanation for non-attendance.

The insurer was ordered to pay the withheld non-earner benefits with interest.

However, the applicant's claim for a special award was dismissed as both parties contributed to the delay.

The appellant insurer appealed an arbitrator's preliminary decision finding that the issues in dispute had not been previously settled.

The insurer argued that an agreement reached between counsel constituted a binding settlement, despite the absence of a signed Settlement Disclosure Notice or release, because it did not finally dispose of all claims.

The Director's Delegate dismissed the appeal, holding that the Settlement Regulation applies to agreements that finally dispose of one or more benefits, and that the required disclosure notice and cooling-off period are mandatory consumer protection measures.

As the respondent was a person under disability and the mandatory settlement procedures were not followed, no binding settlement was reached.

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

After mediation failed, the applicant applied for arbitration.

The applicant's counsel was removed from the record prior to the hearing.

The applicant failed to attend the scheduled arbitration hearing.

The insurer brought a motion to dismiss the application and sought costs.

The arbitrator found that the applicant had abandoned his claim and dismissed the application pursuant to Rule 68.1 of the Dispute Resolution Practice Code.

The applicant was ordered to pay the insurer's legal costs of $1,862.96.

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

Following an arbitration hearing where all of the applicant's claims were dismissed, the insurer sought its expenses totaling $125,698.25.

The arbitrator found that the insurer was 100% successful and had made a written offer to settle, entitling it to expenses.

However, applying the principle of fairness and noting that the SABS is consumer protection legislation, the arbitrator reduced the claimed fees by 50% and significantly reduced the claimed disbursements, awarding the insurer a total of $52,334.19 in expenses.

The appellant insurer appealed an arbitrator's order refusing to dismiss the respondent's arbitration on the basis of the Doctrine of Laches.

The respondent had rescinded a 2004 settlement in 2014, alleging the insurer failed to provide a Settlement Disclosure Notice as required by the Settlement Regulation.

The Director's Delegate upheld the arbitrator's decision, finding that the statutory right to rescind a settlement is a legal right, not an equitable one, and therefore the equitable Doctrine of Laches cannot be applied to bar the claim.

The appeal was dismissed.

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

After the applicant's counsel was removed from the record due to an inability to contact him, the applicant failed to respond to communications or attend the arbitration hearing.

The insurer brought a motion to dismiss the application.

The arbitrator dismissed the application for arbitration as an abuse of process due to the applicant's abandonment of the claim and awarded $500 in expenses to the insurer.

The applicant was injured in a motor vehicle accident and sought income replacement benefits (IRBs).

At the time of the accident, the applicant was receiving Long Term Disability (LTD) benefits.

The parties disputed how the LTD benefits should be deducted from the IRB quantum under the Statutory Accident Benefits Schedule.

The applicant argued for a net deduction, while the insurer argued for a gross deduction.

The arbitrator determined that, based on the language of the Schedule and the treatment of LTD benefits as gross employment income, the insurer may deduct 70% of the gross income received for LTD benefits when calculating the weekly IRB quantum.

The appellant appealed an Arbitrator's decision denying his claim for $62,877.65 for the construction of a residential aqua therapy pool as a medical or rehabilitation benefit following a motor vehicle accident.

The Director's Delegate upheld the Arbitrator's finding that the home pool was not a reasonable and necessary expense, as the appellant had access to a public pool that met his temporary treatment needs and had shown improvement with its use.

The appeal was dismissed.

The Applicant sought payment for the outstanding costs of catastrophic impairment assessments, arguing that the $2,000 cap under the new SABS did not apply because the assessments were rebuttal reports, a vested right under the old SABS.

The Arbitrator held that while the right to reimbursement for a rebuttal report survived as a vested right, the legislature expressed a clear intention in the new SABS to cap the costs of all assessments at $2,000, regardless of whether the entitlement arose under the old or new SABS.

The claim for the outstanding amount of $10,359.90 was dismissed.

Following an arbitration where the applicant's claims for statutory accident benefits were dismissed, the insurer requested an expense hearing, claiming $32,402.64 in costs.

The arbitrator found the insurer's claimed fees and disbursements excessive for an uncomplicated Minor Injury Guideline case.

Noting that the Statutory Accident Benefits Schedule is consumer protection legislation and that the applicant received poor legal representation, the arbitrator fixed the insurer's expenses at a nominal amount of $1,000.00.

The applicant was injured in a motor vehicle accident and sought accident benefits from the insurer.

After reaching a settlement at a pre-hearing, the applicant failed to execute the settlement documents and stopped instructing his counsel, who was subsequently removed from the record.

The insurer brought a motion to dismiss the claim.

The applicant did not respond to the motion or participate further.

The arbitrator found the application abandoned and frivolous, dismissing it under Rule 68.1 of the Dispute Resolution Practice Code.

The insurer was awarded $500 in expenses.

The insurer appealed an Arbitrator's decision finding that the insured sustained a catastrophic impairment due to a mental or behavioural disorder.

The insurer argued the Arbitrator erred in law by applying a quantitative formula to the definition of marked impairment and misapprehended the evidence.

The Director's Delegate dismissed the appeal, holding that the Arbitrator properly applied a qualitative and contextual assessment of the insured's adaptability domain.

The Delegate further noted that the appeal process is restricted to questions of law, and it is not the Delegate's role to reweigh the evidence or substitute findings of fact.

The applicant was involved in two motor vehicle accidents and sought statutory accident benefits.

The arbitrator found that the applicant suffered a catastrophic impairment as a result of the second accident, primarily due to psychiatric impairments including major depressive disorder, which resulted in a marked impairment in work adaptation.

The claims for attendant care and housekeeping benefits were dismissed as statute-barred because the applicant failed to provide timely notice and an assessment of attendant care needs prior to mediation.

Various medical and rehabilitation benefits were found to be reasonable and necessary and were awarded.

The claim for a special award was dismissed as the insurer acted reasonably in adjudicating the complex claims.

The applicant was injured in a motor vehicle accident and sought accident benefits from the insurer.

The insurer denied a medical benefit of $1,822.04 for an occupational therapy treatment plan, arguing the applicant's injuries fell within the Minor Injury Guidelines (MIG).

The arbitrator found that the insurer had sufficient medical information, including hospital records indicating a concussion, to remove the applicant from the MIG much earlier.

The arbitrator refused to qualify the insurer's medical examiner as an expert and concluded the treatment plan was reasonable and necessary.

The applicant was awarded the medical benefit and interest, but the claim for a special award was dismissed as the insurer's conduct did not rise to the required level of unreasonableness.

Following an arbitration where the insured was unsuccessful on all issues, the parties requested an expense hearing.

The parties subsequently agreed on the quantum of expenses.

The Arbitrator ordered the insured to pay the insurer's expenses fixed at $12,289.81, inclusive of fees, disbursements, and HST, finding the agreed amount to be reasonable.

The appellant sought the expenses of an appeal in which she was partially successful in overturning an arbitrator's decision regarding statutory accident benefits.

The Director's Delegate found that the appellant had the greater degree of success on the appeal and was entitled to her expenses.

The Director's Delegate fixed the appellant's legal expenses of the appeal proceedings at $2,000.00, inclusive of disbursements and HST.

The applicant claimed he was injured in a motor vehicle accident while riding his bicycle and sought statutory accident benefits.

The insurer denied the claim, arguing the injuries resulted from a physical altercation with the driver of an SUV, not from the use or operation of an automobile.

The arbitrator found the applicant's testimony inconsistent with the police and emergency room reports, which indicated no physical contact between the SUV and the bicycle.

The arbitrator concluded that the physical altercation was an intervening act that broke the chain of causation, meaning the injuries were not directly caused by the use or operation of a motor vehicle.

The application was dismissed as there was no 'accident' within the meaning of the Schedule.

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

The insurer denied ongoing IRBs, arguing that the applicant's impairments were due to pre-existing depression or a subsequent head injury caused by a falling Jacuzzi motor.

The arbitrator rejected the insurer's arguments, accepting expert evidence that the applicant suffered from post-traumatic stress disorder and a concussive injury directly resulting from the accident.

The arbitrator found the applicant completely unable to engage in any employment for which she was reasonably suited, entitling her to ongoing IRBs.

The claim for a special award was dismissed as the insurer had genuine issues to try.