Some Results Rescinded Others upheld on Appeal - Sivananthan and Coachman

July 11, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Sivananthan and Coachman
 

Date of Decision: May 8, 2018
Heard Before: Adjudicator Jeffrey Rogers

APPEAL OF IRB DECISION: Arbitrator errs; some benefits awarded, others rescinded

Appeal P17-00087 OFFICE OF THE DIRECTOR OF ARBITRATIONS

APPEAL ORDER          

Under section 283 of the Insurance Act, R.S.O. 1990 c. I.8 as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Regulation 664, R.R.O. 1990, as amended, it is ordered that:

1. Coachman’s appeal is allowed in part.
2. Ms. Sivananthan’s appeal is moot.
3. The Arbitrator’s order is rescinded and replaced with the following:
   1. Coachman shall pay Ms. Sivananthan an income replacement benefit (IRB) based upon a weekly base amount of $255.71, from December 4, 2013, until such time that Coachman gives Ms. Sivananthan the notice required by s. 36(4)(b) of the Schedule.
   2. Coachman shall pay Ms. Sivananthan the cost of the following:
      1. $2,200 for services as set out in OCF-23 dated December 28, 2013
      2. $1,206.53 for services as set out in OCF-18 dated April 7, 2014
      3. $200 for a disability certificate dated May 16, 2014
      4. $3,089.00 for services as set out in OCF-18 dated November 1, 2014
      5. $1,234.58 for services as set out in OCF-18 dated February 9, 2015.
   3. Coachman is precluded from taking the position that Ms. Sivananthan sustained impairments to which the Minor Injury Guideline applies.
   4. Coachman shall pay Ms. Sivananthan interest for the overdue payment of IRBs and the benefits referred to in paragraph 2 above.
   5. Coachman shall pay Ms. Sivananthan her expenses of the arbitration.
   6. Coachman shall pay Ms. Sivananthan a special award with regard to the IRBs and the other benefits ordered to be paid in paragraph 2 above.
   7. If the parties cannot agree on the quantum of expenses of the arbitration an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.
4. The issues of whether Ms. Sivananthan meets the disability tests for IRBs and for non-earner benefits are remitted for re-hearing.
5. The issue of the amount of the IRB payable, after deducting post-accident income, is remitted for re-hearing.
6. If the parties cannot agree on the amount of interest payable, that issue is remitted for re-hearing.
7. The issue of the amount of the special award is remitted for re-hearing.
8. The issues of entitlement to the following benefits, including a special award, are remitted for re-hearing:
   1. Payment for an In-Home Assessment, dated March 26, 2014
   2. Payment of $1,245.64 for services as set out in OCF-18 dated February 24, 2014
   3. Payment of $3,396.10 for services as set out in OCF-18 dated May 16, 2014
9. Neither party is entitled to expenses of Ms. Sivananthan’s appeal.
10. If the parties are unable to agree about expenses of Coachman’s appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

 REASONS FOR DECISION

Both parties appeal the Arbitrator’s order of November 17, 2017. The Arbitrator awarded Ms. Sivananthan all of the accident benefits she claimed, plus interest, expenses and a special award. After issuing the order, the Arbitrator amended it to allow Coachman to deduct Ms. Sivananthan’s post-accident income from her income replacement benefits (IRBs).

Coachman submits that the Arbitrator erred by ordering payment of benefits, based only upon technical breaches of the Schedule. With regard to IRBs, Coachman submits that the Arbitrator erred in fixing the amount of Ms. Sivananthan’s weekly base entitlement and in failing to calculate the net amount to be paid, after deducting post-accident income. With regard to the special award, Coachman submits that the Arbitrator erred by failing to fix the award with precision.

In her appeal, Ms. Sivananthan submits that the Arbitrator erred by amending his order, without getting any submissions from her on whether the order should be amended.

Adjudicator Rogers concluded that the Arbitrator correctly ordered payment of medical benefits and IRBs, where the order was based upon Coachman’s complete failure to respond to Ms. Sivananthan’s claims. The order cannot be supported, where payment is based upon what the Arbitrator considered to be an improper response. The Arbitrator also erred in failing to precisely determine the amount of IRBs payable, after deducting post-accident income. Therefore, the issue of the amount of IRBs payable must be re-heard. As a result, the question of whether the Arbitrator erred in amending his order to allow deduction of post-accident income is moot. The Arbitrator also erred in ordering Coachman to pay Non-Earner Benefits (NEBs) without knowing that the conditions for entitlement to payment will be met at the time when payments will become due.

The Arbitrator correctly concluded that Coachman unreasonably delayed or denied payment of the benefits that survive this appeal, therefore his order for payment of a special award stands. However, the Arbitrator erred in failing to fix the amount of the award with precision. Therefore, the question of the amount of the special award is remitted for re-hearing.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.