Matthew Georgitis

The appellant insurer appealed an Arbitrator's decision finding that the respondent's election to opt out of Workplace Safety and Insurance Act benefits was not made primarily for the purpose of claiming statutory accident benefits.

The insurer argued that the respondent's tort claim in North Carolina was not viable due to contributory negligence and the involvement of an unidentified driver.

The Director's Delegate dismissed the appeal, holding that the Arbitrator's conclusions regarding the respondent's bona fide intent to pursue a tort claim were findings of fact supported by evidence, which an appellate body limited to reviewing errors of law cannot overturn.

The applicant, a long-haul truck driver, was injured in a motor vehicle accident in North Carolina.

He elected to opt out of the WSIB scheme to pursue a tort action and subsequently applied for statutory accident benefits.

The insurer argued that the applicant's tort claim was barred under North Carolina law due to contributory negligence, and that his election out of WSIB was made primarily to claim accident benefits, which would bar his claim under section 61 of the Schedule.

The arbitrator found the applicant credible and concluded that, at the time of the election, his primary purpose was to pursue a tort action to recover his losses.

Therefore, the election was valid and the claim for accident benefits was not barred.