Statutory Accident Benefits Schedule matters (SABS) - OFSCDRS

The applicant taxicab driver was assaulted by a passenger who struck him on the head with a rock in an attempted robbery.

Following the assault, the taxicab rolled into a ditch.

The applicant sought statutory accident benefits, which the insurer denied on the basis that the incident was not an 'accident' under the Schedule.

The arbitrator found that while the use of the taxicab met the purpose test, the injuries were not directly caused by the use or operation of the vehicle.

The vehicle was merely the location of the attempted robbery, and the intervening act of the assault was the direct cause of the impairment.

The application was dismissed.

The applicant filed for arbitration over a $650 claim but later sought to withdraw on a without-costs basis after his engagement broke off and his former fiancée no longer wished to pursue the matter.

The insurer refused to consent to the withdrawal unless the applicant repaid the $3,000 assessment fee the insurer was required to pay to the Commission, arguing the arbitration was frivolous, vexatious, and an abuse of process.

The arbitrator found that the application was not frivolous or vexatious, noting that applicants with small claims must have the opportunity to pursue arbitration.

The arbitrator ordered that each party bear its own expenses, concluding that both parties could have avoided costs with more sincere informal attempts to settle.

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

Prior to the arbitration hearing, the parties engaged in settlement discussions.

The insurer argued that a binding oral agreement was reached to fully and finally settle all claims, which was confirmed in writing the next day.

The applicant's paralegal representative argued the amount discussed was merely a proposal and no binding agreement was formed.

The arbitrator found the insurer's evidence more credible, concluding that an unconditional oral agreement was reached and confirmed in writing in compliance with the Settlement Regulation.

As the applicant failed to rescind the agreement within the statutory two-day cooling-off period, the settlement was binding and the arbitration was dismissed.

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

The insurer terminated benefits on multiple occasions but subsequently reinstated them after mediation and assessments.

The insurer argued the applicant's arbitration was time-barred under the two-year limitation period.

The arbitrator held that the insurer's reinstatements of benefits nullified its prior refusals, and its final termination failed to comply with the notice requirements under section 71 of the Statutory Accident Benefits Schedule.

Therefore, the limitation period had not begun to run, and the arbitration was permitted to proceed.

In a dispute over statutory accident benefits, the insurer requested production of examination for discovery transcripts from a related tort action arising from the same motor vehicle accident.

The applicant objected, relying on the deemed undertaking rule in Rule 30 of the Rules of Civil Procedure.

The arbitrator held that under sections 20 and 22 of the Insurance Act, arbitrators have the jurisdiction to grant relief from the deemed undertaking rule pursuant to Rule 30.1.01(8).

Finding the transcripts relevant to credibility issues regarding pre-accident employment and earnings, and noting that the applicant waived privacy rights by disclosing the transcripts in the tort action involving the same insurer, the arbitrator ordered the applicant to produce the transcripts.

The applicant was injured in a motor vehicle accident and received income replacement benefits (IRBs) until the insurer terminated them on June 25, 1997.

The applicant later attempted to return to school and work but was unable to continue.

He applied for arbitration on February 28, 2000, seeking reinstatement of IRBs from May 1999 onwards.

The insurer argued the application was time-barred under the two-year limitation period in the Insurance Act and the Statutory Accident Benefits Schedule.

The arbitrator found that the applicant failed to request reinstatement of benefits after his temporary return to work, meaning there was no new refusal by the insurer to trigger a new limitation period.

The application was dismissed as time-barred.

The applicant sought interest on an award of expenses previously made against the insurer following an arbitration for statutory accident benefits.

The insurer disputed the arbitrator's jurisdiction to award interest on expenses.

The arbitrator held that the Insurance Act and the Statutory Accident Benefits Schedule do not grant an arbitrator the authority to award interest on expenses, as interest is a substantive right requiring express statutory authorization.

However, the arbitrator noted that the applicant could enforce the expenses order in the Superior Court of Justice to obtain post-judgment interest under the Courts of Justice Act.

Despite being unsuccessful on the motion, the applicant was awarded $350 in expenses because the insurer had delayed payment of the original expenses award and the issue raised was novel.

The applicant was injured in a motor vehicle accident and received income replacement benefits for 104 weeks.

The insurer terminated benefits, and the applicant sought ongoing income replacement, attendant care, and housekeeping benefits.

The arbitrator found that the applicant did not suffer a complete inability to engage in suitable employment due to physical injuries, but did suffer such an inability due to psychological complications (severe depression and anxiety) until her condition stabilized.

The arbitrator awarded income replacement benefits for a closed period.

The claims for attendant care and housekeeping expenses were dismissed because the applicant failed to prove she incurred a cost or obligation to pay her husband for those services.

The applicant sought her expenses following an arbitration decision regarding statutory accident benefits.

The arbitrator found that success was divided, as the applicant was unsuccessful in her claim for ongoing income replacement benefits and a special award, but successful in correcting the amount of her income replacement benefit and resisting the insurer's claim for repayment based on alleged fraud.

The arbitrator awarded the applicant one-half of her assessed expenses, calculated at Legal Aid rates rather than the requested maximum rate, resulting in an award of $11,414.28.

In a supplementary arbitration decision, the applicant sought reimbursement for medical and rehabilitation expenses initially funded by the Workers' Compensation Board (WCB) following a motor vehicle accident.

The insurer had reimbursed most of the amount but withheld $2,901.54, arguing it was covered by OHIP.

The arbitrator found no settlement had been reached between the parties and ordered the insurer to pay the remaining $2,901.54, as it failed to provide sufficient evidence of OHIP coverage.

The arbitrator also awarded interest on the overdue amounts from October 1, 1998, and set the applicant's counsel fee rate at $125 per hour for the arbitration proceeding.

The applicant was injured in a motor vehicle accident and sought payment from her insurer for a multidisciplinary assessment, including a medical assessment and a Functional Abilities Evaluation (FAE), after the insurer denied further treatment based on a prior Designated Assessment Centre (DAC) report.

The arbitrator found that the medical assessment was a reasonable expense as it provided necessary treatment recommendations that the DAC report lacked.

However, the FAE was deemed unreasonable as it duplicated a recent assessment without justification.

The arbitrator dismissed the applicant's claim for a special award, finding the insurer's conduct did not amount to unreasonably withholding benefits.

Due to the applicant's representative's unfounded allegations of bias and obstructive conduct, no expenses were awarded to the applicant despite her partial success.

The applicant was injured in three motor vehicle accidents and received statutory accident benefits from the insurer.

The insurer terminated weekly income replacement benefits, arguing the applicant was only entitled to a non-earner benefit.

At a preliminary issue hearing, the insurer argued the applicant had an income continuation benefit plan available to him through his former employer.

The arbitrator found that the applicant did not have collateral benefits available to him because he applied for long-term disability benefits outside the limitation period without any tactical intent to hide information.

Furthermore, the eligibility test under the collateral disability policy was stricter than the test under the Statutory Accident Benefits Schedule.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits for treatment plans from a rehabilitation centre.

The insurer denied several treatment plans, relying on physiotherapy utilization guidelines rather than medical opinions, and delayed payments for initial treatments.

The arbitrator found the insurer unreasonably withheld and delayed payments, ordering payment of $1,285 for treatment and a special award of $1,223.63.

However, because the applicant flagrantly refused to comply with a pre-hearing order to produce pre-accident health records, the arbitrator denied the applicant's claim for arbitration expenses.

An application for arbitration for statutory accident benefits was filed in the name of a deceased insured by a law firm retained by a treatment provider, without authorization from the deceased's estate.

The arbitrator held that the application was a nullity because an action cannot be commenced in the name of a deceased person without the involvement of a duly appointed estate representative.

The agency relationship between the deceased and the treatment provider or law firm, if any existed, terminated upon the insured's death.

In a preliminary issue decision regarding statutory accident benefits, the arbitrator determined whether the applicant, a French-speaking person, was entitled to be assessed at a Designated Assessment Centre (DAC) by French-speaking assessors without interpreters.

The arbitrator found that the DAC was located in a designated area under the French Language Services Act and was obliged to provide services in French.

The Minister's Committee, which permitted DACs to use interpreters, bore the onus under section 7 of the Act to justify this limitation but failed to do so.

Consequently, the applicant's refusal to be assessed with an interpreter was reasonable, and he did not fail to make himself available for the DAC assessment.

However, as previously decided, he was not entitled to French-speaking assessors for the insurer's examinations and remained barred from arbitration until he attended those.

The applicant, a Colorado resident, was injured in a motor vehicle accident in New York State while a passenger in a vehicle insured by the respondent under an Ontario policy.

The applicant applied for statutory accident benefits in Ontario.

The insurer argued the applicant did not qualify as an 'insured person' under the Schedule because he was not living and ordinarily present in Ontario.

The arbitrator found that the applicant met the expanded definition of 'insured person' under section 2.2.3(g) of the OPF 1 standard policy, as he had no recourse against any other insurer.

The arbitrator held that the insurer is bound by the terms of its own policy and ordered the insurer to pay statutory accident benefits.

The applicant was injured in a motor vehicle accident and received income replacement benefits until the insurer terminated them, relying on an ergonomist's report.

The applicant applied for arbitration, arguing he remained substantially unable to perform the essential tasks of his pre-accident job as a machine operator due to a shoulder injury and a traumatic brain injury.

The arbitrator found the ergonomist's report fundamentally flawed and accepted the evidence of the applicant's experts and an orthopaedic specialist retained by the insurer.

The arbitrator concluded the applicant was entitled to ongoing income replacement benefits, subject to deductions for post-accident earnings, and ordered a 15% special award against the insurer for unreasonably withholding benefits.

The applicant estate sought expenses following a successful arbitration to enforce a settlement reached at mediation prior to the insured's death.

The insurer had refused to pay the settlement funds without a prior release, necessitating the arbitration.

The arbitrator found that the insurer's failure to fulfill its original obligations and its insistence on a prior release made the hearing necessary.

The estate was awarded its reasonable expenses of $3,108.07, with the arbitrator approving the senior counsel's enhanced hourly rate of $150 due to the complexity of the jurisdictional issues raised by the insurer.

During an arbitration hearing for a special award under the Insurance Act, the applicant sought production of the insurer's adjusters' notes.

The insurer produced the notes but redacted certain entries, claiming solicitor-client privilege.

The applicant argued that solicitor-client privilege does not exist in a first-party claim until benefits are terminated, and that any privilege was implicitly waived by the insurer's reliance on its state of mind.

The arbitrator held that solicitor-client privilege can apply to communications with in-house counsel prior to the termination of benefits.

The arbitrator found that most of the redacted entries were protected by solicitor-client privilege and that the insurer had not implicitly waived the privilege merely because the applicant claimed a special award.

However, the arbitrator ordered the production of one entry authored by a claims person and a portion of another entry unrelated to reserves.

The applicant sought statutory accident benefits for physiotherapy expenses after allegedly being struck by a slow-moving vehicle while walking on a sidewalk.

The insurer denied the claim, arguing there was no contact between the vehicle and the applicant.

The arbitrator found the applicant's version of events credible, supported by her immediate actions and her family doctor's evidence, despite her misrepresentations regarding her employment status.

The arbitrator concluded the applicant sustained an impairment from the accident and awarded the physiotherapy expenses, but dismissed claims for a special award and the insurer's assessment fee.