Robert Ben

The insurer requested a reconsideration of a decision finding that the claimant sustained a catastrophic impairment.

The insurer argued the adjudicator erred in law and fact by accepting a neuropsychological assessment where the Extended Glasgow Outcome Scale (GOS-E) was administered by an occupational therapist rather than the neuropsychologist.

The adjudicator dismissed the request, finding no error of law because the Schedule permits a neuropsychologist to be assisted by other regulated health professionals.

While acknowledging a factual error regarding whether the insurer's assessor administered the GOS-E, the adjudicator concluded this error would not have changed the result, as the claimant's expert evidence was more consistent with the medical record.

The applicant was involved in a motorcycle accident and sustained a traumatic brain injury.

He applied for a catastrophic impairment determination under Criterion 4 of the Statutory Accident Benefits Schedule, relying on the Extended Glasgow Outcome Scale (GOS-E).

The adjudicator found that the applicant met the threshold for a lower moderate disability, primarily due to his inability to return to work in his previous capacity, and thus qualified for catastrophic impairment status.

The adjudicator also awarded partial attendant care benefits and approved several treatment plans for occupational therapy, psychological services, and a laptop, while denying other claimed medical benefits and a claim for a special award.

The applicant was injured in a motor vehicle accident and claimed attendant care benefits for services provided by his spouse.

The spouse was a certified Personal Support Worker (PSW) who took a leave of absence from her job to care for the applicant.

The insurer argued that the spouse was not providing services in the course of her employment and therefore had to demonstrate an economic loss.

The arbitrator held that the spouse was providing attendant care services in the course of the employment, occupation, or profession in which she would ordinarily have been engaged but for the accident, pursuant to s. 3(7)(e)(iii)(A) of the Schedule.

As a result, economic loss did not need to be demonstrated.

The insurer raised a preliminary issue seeking to stay the arbitration pending the applicant's attendance at an updated occupational therapy in-home assessment and a psychological examination under section 44 of the Statutory Accident Benefits Schedule.

The applicant argued the occupational therapy assessment was causing him severe physical and psychological distress.

The arbitrator ordered the arbitration stayed until the applicant completes the psychological assessment and the remaining functional testing for the occupational therapy assessment, though the latter could be conducted by a different occupational therapist.

The arbitrator also ruled that the applicant's service provider was not required to speak with the insurer's assessor or provide further documentation under section 46.2, as sufficient information had already been provided.

The applicant was injured while riding as a passenger on an ATV.

The insurer denied certain accident benefits on the basis that the applicant knew or ought to have known the driver was operating the ATV without the owner's consent.

The applicant brought a motion for the production of the Ontario Provincial Police investigation file.

The arbitrator held that under section 22 of the Insurance Act, a FSCO arbitrator has the power to issue a Wagg order compelling the production of police records.

As the OPP and Attorney General were served but did not appear to assert any public interest immunity, and the documents were already vetted in a related tort action, the arbitrator ordered the OPP to produce the unredacted file.

The applicant, who was injured in a motor vehicle accident, applied for arbitration regarding the quantum of his attendant care benefits.

The insurer requested that the applicant attend an occupational therapy examination and a neuropsychological examination pursuant to section 44 of the Statutory Accident Benefits Schedule.

The applicant refused, arguing the insurer had sufficient information and failed to comply with section 42(7) of the Schedule.

The arbitrator found that the requested examinations were reasonably necessary given the time elapsed since the last examinations and the changing nature of the applicant's needs.

The arbitrator also held that the insurer's non-compliance with section 42(7) did not bar the request.

The arbitration was stayed pending the applicant's attendance at the examinations.

The applicant, who sustained a serious brain injury after being struck by a dump truck as a pedestrian, brought a motion for interim benefits pending arbitration.

The insurer agreed to pay ongoing attendant care, housing, and assistive devices.

The arbitrator declined to order interim benefits for past attendant care, finding that the applicant had not demonstrated a compelling case or urgency, as there was no evidence that anyone was waiting to be paid for past care.

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

The applicant claimed $75,719.35 in expenses, including legal fees and disbursements.

The insurer argued that the attendance of two senior counsel was unnecessary and disputed certain disbursements.

The arbitrator agreed that two senior counsel were not required for the hearing but allowed some time for the second counsel's pre-hearing work.

The arbitrator also disallowed disbursements for medical illustrations and a video, and reduced an expert's fee to the regulatory maximum.

The insurer was ordered to pay the applicant $50,525.60 in expenses, inclusive of HST.

The appellant insurer sought a stay of an arbitrator's order requiring it to pay tuition expenses, rehabilitation support worker expenses, and a special award to the respondent, who sustained a catastrophic brain injury in a motor vehicle accident.

Applying the Armstrong criteria, the Director's Delegate found that while the appeal was brought in good faith, the appellant failed to demonstrate that it would suffer hardship or prejudice if the stay was not granted.

The Delegate noted the exceptional nature of a stay under the Insurance Act and the legislative intent of a special award, concluding that the prejudice to the respondent in ordering a stay outweighed any prejudice to the appellant.

The motion for a stay was denied.

The applicant sought an adjournment of the hearing because a delay in starting the hearing meant his medical witnesses were no longer available to testify in his preferred order.

The insurer opposed the adjournment, arguing the applicant should testify first.

The arbitrator granted the adjournment, finding that counsel has the responsibility to present witnesses in the order they think is best, and that the psychologist's testimony was critical evidence that was unavoidably delayed.

The applicant, a minor who sustained a catastrophic brain injury in a motor vehicle accident, sought statutory accident benefits for private school tuition and rehabilitation support worker services.

The insurer denied the claims based on its own medical examinations.

The arbitrator found the insurer's denials unreasonable, preferring the evidence of the applicant's treating team that the services were necessary for his social reintegration and cognitive development.

The arbitrator awarded the claimed benefits, interest, and a $28,000 special award against the insurer for unreasonably withholding payments.