Dr. Denton C. Buchanan

The appellant appealed an Arbitrator's decision dismissing his claim for income replacement benefits following a motor vehicle accident.

The appellant argued the Arbitrator erred in assessing the evidence, admitting surveillance videotapes that post-dated the claim period, and finding that the insured bears the onus of proving ongoing entitlement to benefits after an insurer terminates them.

The Director's Delegate dismissed the appeal, holding that the Arbitrator's credibility findings and reliance on the insurer's medical experts were amply supported by the evidence.

The Delegate further held that the surveillance evidence was properly admitted to assess credibility and that the ultimate burden of proving entitlement to benefits remains on the insured person.

The insurer appealed an arbitration order requiring it to pay ongoing income replacement benefits and a special award to the respondent, a self-employed home daycare provider injured in a motor vehicle accident.

The insurer argued the arbitrator erred in assessing the physical demands of the respondent's job and in rejecting the evidence of the Designated Assessment Centre (DAC) assessors, who concluded she could return to work.

The Director's Delegate dismissed the appeal, finding no error of law in the arbitrator's preference for the respondent's medical evidence over the DAC assessment, nor in the finding that the insurer acted unreasonably in terminating benefits on multiple occasions.