Dr. Selwyn Smith

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 appellant sought to appeal an arbitration decision that denied his claim for ongoing weekly income benefits for a psychological injury allegedly caused by a motor vehicle accident.

The appellant requested a referral to the Medical and Rehabilitation Advisory Panel, the admission of fresh evidence regarding an expert witness's credibility, or a new hearing.

The Director of Arbitrations dismissed the appeal, finding no basis to refer the matter to the panel, refusing to admit the new evidence as it could have been produced earlier or was irrelevant to the expert's medical opinion, and concluding there were no grounds to order a new hearing.

The Applicant sought weekly income benefits following a motor vehicle accident, claiming it caused a disabling psychological injury (panic disorder).

The Insurer had reduced and then disputed his entitlement to benefits, arguing his anxiety was caused by severe alcohol and substance abuse rather than the minor accident.

The arbitrator found that the Applicant's ongoing incapacity was the result of his long-standing alcohol dependence and withdrawal, compounded by personal stressors, rather than the accident.

The arbitrator also determined that for the purpose of calculating pre-accident income, real estate commissions are earned on the date of closing, not the date of the agreement of purchase and sale.

The claim for ongoing benefits and a special award was dismissed.