OFSCDRS 2017

The Applicant was injured in a motor vehicle accident and sought non-earner benefits.

The Insurer terminated the benefits and argued the Applicant was statute-barred from proceeding to arbitration because the two-year limitation period had expired.

The Arbitrator found that the Insurer's termination letter was confusing and did not constitute a clear and unequivocal refusal to pay benefits, as it simultaneously requested an election form and provided a right to dispute.

Therefore, the limitation period was not triggered, and the Applicant was not precluded from proceeding to arbitration.

The applicant was injured in a motor vehicle accident and sought a determination of catastrophic impairment, income replacement benefits, housekeeping benefits, and costs of examinations.

The arbitrator found that the applicant did not meet the 55% whole person impairment threshold for catastrophic impairment, as his psychological and chronic pain impairments were moderate rather than marked.

The claim for income replacement benefits was dismissed because the applicant continued to work and his income increased post-accident, failing to meet the substantial inability test.

The claim for housekeeping benefits was dismissed as he was not catastrophically impaired.

The arbitrator awarded $2,000 for a coordinator's assessment fees but denied other examination costs.

The insurer, having successfully defended an appeal regarding statutory accident benefits, sought its legal appeal expenses.

The appellant argued that under the transitional rules, the Licence Appeal Tribunal Rules of Practice should apply to the expense request, which would preclude an award absent unreasonable or bad faith behaviour.

The Director's Delegate held that the pre-transition Insurance Act, regulations, and Dispute Resolution Practice Code continue to apply to appeals commenced before April 1, 2016, and that an expense determination is not a separate proceeding.

The insurer was awarded $4,000 in appeal expenses.

The appellant was injured in a motorcycle accident and sought a determination of catastrophic impairment.

The arbitrator found the appellant had a 49% Whole Person Impairment (WPI) by only considering physical neurological impairments and excluding psychological impairments to avoid double counting.

On appeal, the Director's Delegate held that the arbitrator erred in law by failing to combine the physical and psychological impairments.

When combined, the WPI totaled 59%, exceeding the 55% threshold.

The appeal was allowed in part, declaring the appellant catastrophically impaired, while upholding the denial of attendant care benefits and a special award.

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

The insurer denied several treatment plans and attendant care benefits, and requested the applicant attend insurer's examinations under Section 44 of the Statutory Accident Benefits Schedule.

The applicant failed to attend the scheduled examinations.

The insurer raised a preliminary issue that the applicant was precluded from proceeding to arbitration under Section 55(2) of the Schedule.

The Arbitrator found that the insurer provided sufficient medical reasons for requesting the examinations and that the applicant failed to reasonably justify his non-attendance.

Consequently, the applicant was precluded from arbitrating the disputed benefits.

The applicant was injured in a motor vehicle accident and sought Income Replacement Benefits (IRBs) from the insurer.

The applicant received Short-Term Disability, Long-Term Disability, and CPP disability benefits.

The issue was whether the insurer could deduct the gross or net amounts of these collateral benefits from the IRB payable.

The arbitrator held that the clear wording of section 4(1)(a) of the Statutory Accident Benefits Schedule refers to 'gross weekly payment for loss of income'.

Unlike the previous regime, the current Schedule does not contain provisions for calculating after-tax amounts.

Therefore, the insurer is entitled to deduct the gross amounts of the collateral benefits from the IRB.

The applicant sought accident benefits following a motor vehicle accident.

At the scheduled arbitration hearing, the applicant failed to attend despite a peremptory order.

The insurer brought a motion to dismiss the application without costs, noting a settlement had been reached but the settlement disclosure notice was unsigned.

The arbitrator proceeded in the applicant's absence under Rule 37.9 of the Dispute Resolution Practice Code.

Finding no objective evidence of a finalized settlement to apply Rule 69.4, but noting the applicant's failure to attend and lack of intent to continue, the arbitrator dismissed the application without costs.

The applicant was injured in a motor vehicle accident and sought accident benefits, including non-earner benefits and medical benefits for physiotherapy and a psychological assessment.

The insurer denied the claims.

At arbitration, the arbitrator dismissed the claim for non-earner benefits because the applicant failed to submit a completed disability certificate within 104 weeks of the accident, statutorily barring the claim, and otherwise failed to provide sufficient evidence of entitlement.

The claims for medical benefits were also dismissed as the treatment plans were unsigned, not proven to be reasonable and necessary, and could not be causally linked to the subject accident due to an intervening second accident.

The applicant sought statutory accident benefits following a motor vehicle accident but failed to attend the arbitration hearing.

The arbitrator proceeded in the applicant's absence pursuant to Rule 37.7 of the Dispute Resolution Practice Code.

As the applicant bore the onus of proving entitlement and presented no evidence, the application was dismissed.

The insurer was awarded $500 in expenses.

Following an arbitration where the insurer was completely successful in defending against the applicant's claims for statutory accident benefits, the insurer requested an expense hearing.

The arbitrator reviewed the insurer's claimed expenses of $18,251.15, considering factors such as the degree of success, offers to settle, and the applicant's failure to comply with undertakings.

Finding the insurer's hours and disbursements reasonable, the arbitrator ordered the applicant to pay the full claimed amount of $18,251.15.

Following the dismissal of the applicant's claim for income replacement benefits, the insurer sought its expenses of the arbitration.

The arbitrator awarded the insurer its expenses, noting that the insurer was wholly successful and that the applicant had engaged in conduct that prolongated and obfuscated the proceeding, including failing to comply with production orders for his company's general ledger.

The insurer was awarded $15,073.22 in expenses and $2,816.88 in disbursements.

The insurer brought a motion for the production of clinical notes and records from the applicant's treating psychologist and records from the Children's Aid Society.

The applicant, a minor claiming statutory accident benefits for psychological impairment, opposed the production.

The arbitrator granted the motion, finding that the psychologist's records were prima facie relevant to the psychological impairment claim and that the probative value outweighed potential prejudice.

The arbitrator also ordered the production of the Children's Aid Society records, as they were relevant to determining whether concurrent family issues contributed to the applicant's mental distress.

The applicant sought income replacement benefits following a 2005 motor vehicle accident.

The applicant's representative, an unlicensed agent previously found by the Law Society to lack good character, appeared at the hearing without instructions from the applicant, who had moved to Ethiopia and ceased participating.

The arbitrator excluded the representative for lacking competence and instructions.

The application was dismissed as an abuse of process due to the applicant's prolonged non-participation and failure to comply with production orders.

The representative was ordered to personally pay $1,000 in expenses to the insurer for needlessly prolonging the proceeding.

The insurer requested an expense hearing after successfully defending against the applicant's claims for statutory accident benefits.

The arbitrator found the applicant's evidence wholly lacking in credibility and that his conduct prolonged and obstructed the hearing.

The arbitrator ordered the applicant to pay the insurer's expenses in the amount of $14,988.86, comprising disbursements and legal fees.

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

The insurer raised a preliminary issue arguing the applicant was precluded from arbitrating his claim for a non-earner benefit because he had previously elected to receive an income replacement benefit.

The arbitrator found that the insurer failed to demonstrate it had complied with the mandatory notice provisions under section 35 of the Schedule, which are required for an election to be valid and binding.

As a result, the applicant was not precluded from proceeding to arbitration on his claim for a non-earner benefit.

The applicant sought to invalidate a Settlement Disclosure Notice (SDN) he signed in 2011, which settled his accident benefits claim for $115,000.

He argued the SDN was defective for failing to distinguish between different periods of Income Replacement Benefits and for lacking required language regarding rescission.

The arbitrator found the SDN valid, noting the applicant was represented by counsel at the time and understood the terms.

The issue of whether the applicant was time-barred from applying for mediation was deemed moot.

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

The applicant later entered into a full and final settlement of the accident benefits claim with a priority insurer, which allocated no monies towards attendant care benefits.

The applicant then sought a special award against the original insurer for unreasonably withholding or delaying payments.

The arbitrator held that there is no jurisdiction to order a special award where the underlying claim for benefits has been resolved on a full and final basis without any finding or recognition of entitlement to benefits.

The application for arbitration was dismissed.

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

The arbitrator found the applicant's testimony to be contradictory and lacking credibility, noting discrepancies regarding her medical treatment timeline, pre-existing injuries, and simultaneous receipt of Employment Insurance and income replacement benefits.

Relying on the medical evidence, including the insurer's orthopedic expert who found the applicant's pain was related to degenerative issues rather than the accident, the arbitrator concluded the applicant did not suffer a substantial inability to work.

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

Following an arbitration decision awarding the applicant attendant care and housekeeping benefits, the parties disputed the entitlement to and quantum of expenses.

The arbitrator found the applicant achieved a sufficient degree of success to warrant an award of expenses.

The applicant's request for full indemnity costs on a solicitor/client scale or a special award was rejected, as the arbitrator's discretion is constrained by the Insurance Act and the Dispute Resolution Practice Code.

The arbitrator awarded the applicant $67,688.74 in expenses, applying an enhanced hourly rate of $150.00.

The applicant's claim for interest on overdue payments was dismissed, as the insurer was not required to pay until 10 business days after receiving a Form 1 assessment.

Following an appeal and cross-appeal regarding statutory accident benefits where both parties enjoyed mixed success, both parties sought their legal expenses of the appeal.

The Director's Delegate found that neither party enjoyed a significantly greater degree of success that would warrant an award of expenses.

The parties were ordered to bear their own expenses of the appeal and cross-appeal.