Robert H. Rogers

The appellant was injured in a motor vehicle accident and applied for income replacement benefits.

The arbitrator determined the appellant was self-employed and attributed 50% of his closely held family company's profits to him, with the remainder attributed to his wife and children who also worked in the business.

The appellant appealed, arguing that 100% of the profits should be attributed to him as the sole voting shareholder and key person.

The Director's Delegate dismissed the appeal, finding the arbitrator properly considered the share structure, expectation of profit, relative contributions, and degree of risk of all family members.

The appeal regarding the applicable claim code was also dismissed.

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

The respondent denied the claims on the basis that the applicant's injuries fell within the Minor Injury Guideline (MIG).

The applicant argued that her pre-existing lymphadenopathy, psychological impairments, and chronic pain took her out of the MIG.

The Tribunal found no evidence that the pre-existing condition prevented maximal recovery.

It also found that the applicant's psychological symptoms did not constitute a severe or extreme impairment.

Finally, the Tribunal rejected the applicant's chronic pain evidence, placing little weight on her expert's report due to recent disciplinary findings against him, and preferred the respondent's medical assessment.

The application was dismissed.

The applicant sought a determination that HST paid for attendant care services should be paid outside the attendant care benefit limit under the Statutory Accident Benefits Schedule, and claimed an award for unreasonable delay.

The Tribunal found that the Schedule's silence on HST, combined with FSCO Guidelines, should be interpreted in favour of the insured, meaning HST is a tax payable outside the benefit limit.

However, the Tribunal denied the claim for an award, finding the insurer's withholding of payment was based on its own interpretation of the Schedule and did not constitute unreasonable behaviour.

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

The respondent denied several treatment plans on the basis that the applicant's injuries fell within the Minor Injury Guideline (MIG).

The Tribunal found that the applicant's injuries were predominantly minor and did not meet the threshold for chronic pain that would remove him from the MIG.

However, because the respondent failed to provide proper notice under s. 38(8) of the Schedule for a chiropractic treatment plan, it was ordered to pay any incurred expenses for that plan.

The respondent also conceded payment for a chronic pain assessment due to late notice.

The applicant's claim for a special award under O. Reg. 664 was dismissed.

The applicant sought approval for three treatment plans for chiropractic and massage therapy, and payment of the balance of a partially paid treatment plan, following a motor vehicle accident.

The insurer denied the plans on the basis that the applicant had reached maximum medical recovery.

The Licence Appeal Tribunal ordered the insurer to pay the outstanding balance on the partially paid invoices, finding that the clinical notes and records provided sufficient evidence that the services were rendered.

The Tribunal also approved the massage therapy portions of the denied plans for pain control, but denied the multiple body site therapy portions, accepting the insurer's medical examination evidence that the appellant had plateaued and the proposed therapy was not reasonable and necessary.

The applicant sought a preliminary determination on whether the costs of catastrophic impairment assessments are included in the $50,000 limit on medical and rehabilitation benefits under the Statutory Accident Benefits Schedule.

The Tribunal held that catastrophic impairment assessments are not included in the $50,000 cap and are instead payable under section 25 of the Schedule.

The respondent was ordered to restore $18,434.00 to the applicant's medical and rehabilitation benefit limit.

The appellant sought to rescind a 2003 settlement of his accident benefits claim and proceed to arbitration for further income replacement benefits.

The Arbitrator found that the Full and Final Release precluded arbitration because the Settlement Regulation's cooling-off and disclosure provisions do not apply to settlements reached after a court action has commenced.

On appeal, the Director's Delegate upheld the Arbitrator's decision, finding that binding Court of Appeal precedent established that the Settlement Regulation does not apply in the context of litigation, and subsequent regulatory amendments did not alter this principle.

The applicant was injured in a motor vehicle accident and sought a determination that he was catastrophically impaired under the Statutory Accident Benefits Schedule.

The arbitrator considered whether the applicant suffered a marked or extreme impairment due to a mental or behavioural disorder, or a whole person impairment of 55 percent or more.

The arbitrator preferred the evidence of the insurer's experts, finding that the applicant's mental and behavioural impairments were mild to moderate.

Combining the physical and psychological impairments, the arbitrator determined the applicant's whole person impairment was 31 percent.

The application for a catastrophic impairment determination was dismissed.

The appellant suffered a heart attack while driving, causing his van to crash and become stranded over a ditch.

The damage to the van prevented a bystander from immediately administering CPR, resulting in a delay in treatment and severe neurological impairment.

The arbitrator initially found the incident was not an 'accident' under the Statutory Accident Benefits Schedule, concluding the heart attack was an intervening event.

On appeal, the Director's Delegate reversed the decision, finding that the appellant's continued use of the vehicle delayed treatment and directly contributed to his impairment, satisfying the causation test for an accident.

The applicant's son was catastrophically injured in a motor vehicle accident, requiring 24-hour attendant care.

The applicant provided this care and received $6,000 monthly from her son's attendant care benefit.

The insurer reduced the applicant's income replacement benefit to zero, arguing the attendant care payments constituted post-accident income from self-employment under section 7(3) of the Statutory Accident Benefits Schedule.

The arbitrator found that the applicant was not engaged in a business and did not provide care with a view to profit.

The payments were not considered income from self-employment.

The insurer was ordered to pay the withheld benefits with interest, but no special award was granted as the insurer's position was not unreasonable.

The applicant suffered a heart attack while driving, causing him to lose control of his vehicle and crash into a ditch.

The position of the vehicle prevented a bystander from administering immediate CPR, and the resulting delay in medical assistance led to severe neurological impairment.

The applicant sought statutory accident benefits, arguing the incident was an 'accident' under s. 3(1) of the Schedule.

The arbitrator found that while the purpose test was met, the causation test was not.

The heart attack, rather than the use or operation of the vehicle, was the direct cause and dominant feature of the impairment.

The application was dismissed.

The Applicant was injured in a motor vehicle accident and applied for a determination of catastrophic impairment.

The parties agreed on a 34% physical whole person impairment but disputed the mental and behavioural impairment rating.

The arbitrator preferred the evidence of the Applicant's psychological expert, finding that the Applicant suffered a marked impairment in adaptation to work environments due to severe panic disorder and agoraphobia.

The arbitrator concluded that the Applicant sustained a catastrophic impairment under both clause 2(1.2)(g) (marked mental impairment) and clause 2(1.2)(f) (combined physical and mental impairment of 60%).

The appellant insurer appealed an arbitrator's decision finding that the respondent pedestrian sustained a catastrophic impairment under clause 2(1.1)(g) of the Statutory Accident Benefits Schedule.

The insurer argued that the arbitrator erred by requiring a marked impairment in only one of four areas of functioning, rather than an overall marked impairment, and by failing to separate physical pain from psychological impairment.

The Director's Delegate dismissed the appeal, holding that the plain language of the Schedule requires only a single marked impairment in one area of functioning.

The Delegate also found no error in the arbitrator's conclusion that the respondent's marked impairment in activities of daily living was due to a mental or behavioural disorder, specifically a pain disorder associated with both psychological factors and a general medical condition.

The insurer appealed an arbitrator's order requiring it to disclose information regarding its setting of reserve amounts in respect of the insured's claim for statutory accident benefits.

The Director's Delegate allowed the appeal, finding that reserve information is generally irrelevant to an insurer's conduct in assessing a claim and is protected by a zone of privacy.

The arbitrator's order was rescinded, and the insurer was not required to disclose its reserves.

The applicant, a minor injured in a motor vehicle accident, sought a determination of catastrophic impairment.

The insurer's section 42 multidisciplinary assessors opined that the applicant sustained a catastrophic impairment.

However, the insurer sought a paper review from Brigham & Associates and subsequently denied the catastrophic impairment designation.

The applicant brought a preliminary issue hearing to determine the admissibility of the Brigham & Associates reports at the upcoming arbitration.

The pre-hearing arbitrator declined to rule on the admissibility, finding that it was an evidentiary issue properly within the province of the hearing arbitrator who would determine the substantive issue of catastrophic impairment.

The issue was deferred to the hearing arbitrator.

The applicant moved to exclude expert reports obtained by the insurer from Brigham & Associates Inc. via a 'paper review' of his medical records, arguing the insurer breached his privacy rights and the PIPED Act by disclosing his records without consent.

The Arbitrator dismissed the motion, finding that the insurer did not breach the Schedule or the applicant's reasonable expectation of privacy, as the records were disclosed to the insurer's agent for the purpose of responding to the application.

The Arbitrator also found no breach of the PIPED Act, applying the personal purposes exemption, and held that the reports were admissible.

The insurer was not required to fund rebuttal reports.

The applicant was injured in a motor vehicle accident and sought a catastrophic impairment designation under the Statutory Accident Benefits Schedule.

The insurer sought production of the applicant's long-term disability file, property damage documentation, motor vehicle accident report, and employment file.

The applicant consented to producing the long-term disability file.

The arbitrator denied the insurer's request for the remaining documents, finding that they were not relevant to determining whether the applicant met the test for catastrophic impairment due to a mental or behavioural disorder.

The applicant was injured in a motor vehicle accident and received income replacement benefits until the insurer terminated them.

The applicant applied for arbitration, claiming ongoing entitlement due to complete inability to engage in employment.

The arbitrator found that the accident materially contributed to the applicant's disability, exacerbating pre-existing injuries and causing chronic pain and depression.

The applicant was awarded income replacement benefits for both the pre- and post-104 week periods, along with interest and arbitration expenses.

The applicant, who suffered an acquired brain injury in a motor vehicle accident, disputed the quantum of attendant care benefits paid by the insurer.

During pre-hearing discussions, the insurer sought to have the applicant undergo an in-home occupational therapy assessment and a neuropsychological assessment in Toronto pursuant to section 42 of the Statutory Accident Benefits Schedule.

The applicant objected, arguing the insurer was out of time and attempting to buttress its case for arbitration, and objected to the location and assessor for the neuropsychological assessment.

The arbitrator held that the insurer was entitled to the assessments, as nearly two years had passed since its last assessment and the request was not primarily strategic.

The arbitrator also found the choice of a neuropsychologist with adolescent expertise in Toronto was not unreasonable.

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

The insurer terminated attendant care, housekeeping, and caregiver benefits, and suspended benefits due to the applicant's refusal to attend insurer examinations.

The arbitrator found that the applicant was entitled to additional benefits for specific periods, but not beyond the end of 2004, as the medical evidence did not support ongoing disability.

The arbitrator also held that the insurer unreasonably suspended benefits by requiring the applicant to sign an undertaking to attend future examinations, and awarded a $500 special award.