Dr. Martin Roscoe

AXA Insurance Company appealed an arbitration order awarding Mario Rocca income replacement benefits beyond the 104-week mark and a $10,000 special award.

Rocca cross-appealed the calculation of his benefits regarding commission income.

The Director's Delegate found that despite the arbitrator's adverse credibility findings against Rocca, there was sufficient objective medical evidence, including an MRI showing a large disc herniation, to support the conclusion that he was disabled from the physical aspects of his pre-accident job.

The Director's Delegate also upheld the special award, finding the insurer unreasonably reduced benefits to the minimum level without an objective basis.

Both the appeal and cross-appeal were dismissed.

The applicant was injured in a motor vehicle accident and sought ongoing income replacement benefits after the insurer terminated them at the 104-week mark.

The insurer argued the applicant was not substantially disabled and had misrepresented his pre-accident income and post-accident earnings.

The arbitrator found the applicant's evidence regarding his symptoms and finances to be highly unreliable, noting deliberate misrepresentations.

However, objective medical evidence of a large disc herniation, materially related to the accident, established that he was physically incapable of returning to the essential duties of his pre-accident employment.

The arbitrator ordered ongoing income replacement benefits and granted a $10,000 special award because the insurer had unreasonably reduced benefits earlier in the claim based solely on the applicant's receipt of unemployment insurance.