ACCIDENT BENEFITS NEWSLETTER - DECEMBER 2002

CATHERINE ZINGG

SABS-1996

s. 2 - “Accident”

In Quraishi v. Belair Insurance Company, A02-000575, November 5, 2002, the applicant taxi driver was stabbed by a passenger.  Mr. Quraishi was unable to escape from the attack as he was wearing a seatbelt.  He suffered multiple stab wounds, underwent emergency surgery and was in the hospital for nine days.  Arbitrator Renahan held that the applicant was not involved in an “accident”.  The reasons in Kumar v. Coachman Insurance Company, P01-00026, August 9, 2002 were followed.  Mr. Kumar was also a taxi driver who was attacked by a passenger.  In that decision, Director's Delegate Makepeace reviewed the legislation defining “accident” as well as the case law and found that the event that set in motion the chain of causation leading to Mr. Kumar's impairment was an assault, not the use or operation of an automobile.  Belair had terminated income replacements upon receiving an opinion from counsel that the incident was not an “accident”.  The arbitrator found no evidence that Belair knew that Mr. Quraishi was not entitled to benefits but paid them anyway.  It was found that Belair did not waive its right to deny benefits upon receiving an opinion from counsel. 

In Erskine (Appellant) v. The Personal Insurance Company of Canada (Respondent), P02-00016, November 1, 2002, the appeal was dismissed.  The arbitrator had concluded that Mr. Erskine had failed to establish on a balance of probabilities that he was involved in an incident on a TTC bus as he claimed.  Moreover, she was not prepared to rely on his evidence as it was inconsistent.  At the appeal, Mr. Erskine sought to have a letter from his family physician introduced.  The letter contained an explanation of a clinical note in which Mr. Erskine had described the incident as occurring on a subway (a subway is not an automobile and therefore Mr. Erskine would not have been able to obtain accident benefits if the incident had occurred on the subway).  The information in the letter was to say that while Dr. Nguyen did not recall Mr. Erskine's exact words, when his notes say “TTC, he usually means a TTC bus and not a subway”.  The Director refused to admit the letter, finding that the evidence was not sufficiently strong to overcome the need for finality. 

The Director found that the arbitrator's decision not to rely on Mr. Erskine's evidence and her unwillingness to make a disability finding without medical evidence supporting the extent and duration of any impairment was within her authority.  In his dealings with The Personal, Mr. Erskine received a phone call from Ms. Fernandes, a claims advisor, who stated that as the accident had occurred on the subway, he was not covered for accident benefits.  After Mr. Erskine had told her that the incident had occurred on a bus, she apologized and sent him an accident benefits claims package.  Mr. Erskine submitted that by apologizing and sending him the package, The Personal accepted his application and gave up its right to contest the location of the accident.  Director Draper rejected this argument, finding that The Personal acted appropriately in sending Mr. Erskine the claims package.  It was found that while Mr. Erskine had every right to apply, The Personal had every right to evaluate his application and make a decision based on the material it received.  The Personal was awarded its appeal expenses because the appeal raised no novel or significant legal issues.     

The decision in Liu v. Lombard, A01-0001429, October 4, 2002 in which the applicant suffered injuries after being pistol whipped by armed robbers in a bus bound for Casino Rama is being appealed.  (The arbitrator had found that the incident was an “accident” within the meaning of the Schedule).  

s. 42 - Insurer Examinations

In Benn v. Certas Direct Insurance Company, A01-001296, October 25, 2002, it was found that the proposed psychiatric and neurological assessments were reasonably necessary for the purposes of s. 42 of the Schedule.  Mr. Benn was precluded from proceeding to arbitration pursuant to s. 50(b) of the Schedule.  On April 18, 1999, Mr. Benn suffered serious injuries when the vehicle in which he was a passenger rolled over into a ditch.  An arbitration hearing was scheduled for June 25, 2002 and in March 2002 the insurer requested that Mr. Benn attend insurer examinations with a psychiatrist and a neurologist.  Mr. Benn had had a turbulent background.  He lived in ten different foster homes as a ward of the Children's Aid Society and attended eight different schools.  Certas paid for the assessment and services provided by Bartimaeus, an organization which assists brain injured people.  It refused the remainder of the account in the amount of $20,880.24, which was incurred between April 2000 and February 2001.  Certas took the position that Dr. J. Stang, a specialist in developmental and clinical neuropsychology, had performed an inaccurate neuropsychological assessment of Mr. Benn in July 1999.  Certas took the position that the lack of pertinent pre-accident records hampered, and continued to hamper, its adjusting of the file, and that it prejudiced its ability to determine entitlement to benefits in a timely manner as well as its ability to properly prepare for the arbitration hearing.  The arbitrator agreed with Certas that the pre-accident records in question were essential to an informed assessment of Mr. Benn's entitlement to rehabilitation benefits under the Schedule.  She further found that it was reasonable for Certas to put off its own IE until a more accurate picture of Mr. Benn's pre-accident status could be obtained.  Correspondence indicated that Certas had repeatedly requested the records.  Finally, it was found that Certas had acted as reasonably as Mr. Benn's conduct permitted, and that the prejudice to Certas caused by Mr. Benn's conduct far outweighed any prejudice to him. 

SABS-1994

s. 33 - Mandatory Review of Amount of Benefits

On January 13, 1995, Ms. Hill was injured in a motor vehicle accident.  She received income replacement benefits for 104 weeks and then received a LEC offer from the insurer.  As there was a dispute with respect to the amount of her LEC, the matter went to arbitration on May 10, 1999.  The arbitration was adjourned, to August 9, 1999, to allow counsel for Mrs. Hill to provide particulars of the dispute concerning her pre-accident earning capacity.  The arbitration then continued on the basis that there was no dispute as to the pre-accident earning capacity.  At the three year mandatory review, the parties disagreed as to the exact effect of, and the extent of the agreement to withdraw the issue of the pre-accident earning capacity (PEC) benefit from that hearing.  Arbitrator Wilson held that Ms. Hill was bound by her solicitor's agreement as to the quantum of the PEC, and was thereby precluded from raising the issue in a new arbitration.  He found that on the face of the transcript there was some sort of an agreement between the parties that the PEC number be fixed.  While there was a generalized onus on the insurer in the motion, there was also an onus on a person, such as Mrs. Hill, alleging that an agreement is not as it appears to be on its face.  The arbitrator quoted Cheshire and Fifoot's Law of Contract which states:

It should also be emphasized that the burden of persuading the court to disturb what to outward appearances is a binding contract falls on the party who alleges the mistake.  Moreover, the burden is not light, for the result of holding that there is no contract may seriously prejudice a third party who has in good faith made a bargain relating to the subject-matter of the apparent agreement (p.7).

The arbitrator went on to reject the applicant's contention that the PEC number was simply part of a limited procedural agreement.  He stated:

Counsel for the applicant stretches credulity in asking this tribunal to accept that the agreement should be interpreted as a limited, procedural, agreement that preserved the applicant's right to challenge the PEC once again.  I find that, based on the clear evidence of the transcript, Mr. Ipacs waived any future right to challenge the PEC calculation.

I further find that there are no grounds for setting aside or amending the agreement on the basis of a mistake.  Any belief that the agreement had any effect other than that articulated by Mr. Cormack, could only be sustained by wilful blindness or wishful thinking (p.7).

It was further found that there was no evidence that the insurer had ever waived its reliance on the agreement or agreed to re-open the PEC issue.  It was also held that any agreement, or concession on the PEC calculation that the PACE law firm may have made is binding on Mrs. Hill, whatever her instructions to her lawyer may have been at that time.  (See Hill v. Wawanesa Mutual Insurance Company, A01-000550, October 25, 2002). 

Dispute Resolution Practice Code - Rule 9.5 - Withdrawal of Representative

In Burke v. Allstate Insurance Company of Canada, A01-000969, November 8, 2002, the arbitration was stayed pending a determination of the identity of the person or persons who commenced the proceeding.  Following a motor vehicle accident on November 3, 1999, Ms. Burke applied to Allstate for accident benefits.  Some benefits were paid, but disputes arose with respect to medical benefits and the parties went to mediation.  The preliminary issue hearing was scheduled to determine whether Ms. Burke should be precluded from proceeding to arbitration pursuant to s. 50 of the Schedule as she had failed to attend an insurer examination and had not returned the OCF 14 for the medical and rehabilitation DAC. 

At the pre-hearing, Mr. Volfson gave an undertaking to provide an authorization in the form outlined in Glinka v. Dufferin Mutual Insurance Company, Appeal, P01-0000, March 7, 2001.  This undertaking, however, had not been complied with at the time of the preliminary issue hearing.  Also, on the day before the preliminary issue hearing Mr. Volfson wrote to the Commission to say that he was no longer representing Ms. Burke and would not appear.  Arbitrator Muir phoned Ms. Burke at work from the hearing.  Ms. Burke indicated that she was not aware of the proceeding and directed any inquiries concerning her case to Mr. Volfson.  Ms. Burke also advised that she moved, but would not provide a new address.  She confirmed, however, that the address on file was still a good address for making contact with her by mail.  The arbitrator noted that Ms. Burke had been in attendance at the pre-hearing and found that she had received notice of the preliminary issue hearing. 

The arbitrator questioned the authenticity of the documents in the Commission file, stating:

A review of the documents filed at the hearing as well as documents in the Commission file, give rise to some questions about who brought this arbitration on.  There are a number of documents in the Commission file and others tendered in evidence, which include what purports to be Ms. Burke's signature.  I claim no particular expertise in handwriting and heard no evidence in respect of this issue, but the signatures on these documents, said to be that of Ms. Burke, do not appear to have been made by the same person (p.4).

In light of his concerns as to who the true applicant was, the arbitrator determined the matter should be stayed until the issue was resolved. 

Mr. Volfson had not complied with the procedure set down in the Dispute Resolution Practice Code - he had not provided Ms. Burke's written consent and had not brought a motion as contemplated by Rule 9.8 of the Practice Code and therefore was not permitted to withdraw from being Ms. Burke's representative.