Neutral Citation: 1992 ONICDRG 41
File No. A-000370
ONTARIO INSURANCE COMMISSION
BETWEEN:
JIMMIE JOE HUNT
Applicant
and
ROYAL INSURANCE COMPANY OF CANADA
Insurer
DECISION
Issues:
The Applicant, Jimmie Joe Hunt, was injured while riding on a Toronto Transit Commission bus on October 3, 1990. He was insured under a standard automobile owner's policy issued by the Insurer. Every motor vehicle policy provides the no-fault benefits set out in Ontario Regulation 273/90, the No-Fault Benefits Schedule (the "Schedule").
The Applicant applied for and received weekly income benefits in the amount of the $185.00, pursuant to section 13 of the Schedule. In May 1991, the Insurer terminated the Applicant's weekly income benefits. The Applicant disputed the termination of his benefits and, following mediation, the Insurer agreed to continue paying benefits to the Applicant until June 4, 1991. The Applicant claimed he was entitled to benefits until March 1992. He applied for the appointment of an arbitrator to resolve the issue.
The issues to be determined in this arbitration were:
Did an "accident" occur, as defined under the Schedule?
If an accident occurred, did the Applicant suffer an injury on October 3, 1990?
Has the Applicant suffered a substantial inability to perform the essential tasks in which he would normally engage from June 5, 1991 until March 1992?
Should the Applicant repay benefits paid to him previously on the grounds that he deliberately defrauded the Insurer in this matter?
The Applicant also claimed his costs of the arbitration.
Result:
An accident occurred on October 3, 1990, in which the Applicant suffered injury.
The Applicant did not suffer substantial inability to perform his essential tasks after June 5, 1991.
The Applicant did not deliberately defraud the Insurer.
The Applicant is entitled to his expenses of this arbitration.
Hearing:
An arbitration hearing was held at North York, Ontario, on August 31 and September 1, 1992, before me, K. Julaine Palmer, arbitrator.
Present at the hearing were:
Applicant:
Jimmie Joe Hunt
Applicant's Representatives:
Wendy Oughtred Barrister & Solicitor
Mark Greenstein
Barrister & Solicitor
Insurer's Representative:
Nestor Kostyniuk Barrister & Solicitor
The following witnesses testified under solemn affirmation:
Jimmie Joe Hunt, Applicant
Reba Hunt, Applicant's spouse
Rhonda Flemming, Applicant's daughter
Clinvern Bent, T.T.C. Operator
Michael Brennagh, Psychiatrist
The parties filed 27 exhibits.
Evidence:
Clinvern Bent, a Toronto Transit Commission ("T.T.C.") operator, testified that on October 3, 1990, he was driving a bus south on Kennedy Road near Progress Avenue, when a car turned directly in front of him and he was forced to brake hard and quickly. After the incident, he looked around the bus and asked if anyone was injured. The Applicant told him that he had hurt his neck. The Applicant said that he was okay, but he wanted to get some information for future reference. The bus continued to the Kennedy station and the Applicant remained on board. At the station, the operator reported the incident to his supervisor. The operator thought the Applicant spoke to the supervisor. The operator filed a report following the incident and noted that a passenger had "hit his neck on a vertical pole".
The Applicant gave evidence at the hearing. He testified that he is 61 years old and is married. He has a daughter living in Toronto and a daughter living in Florida. For the past five years, the Hunts have spent part of each year in Florida. They purchased a house there in 1988.
The Applicant testified that at the time of the accident he was seated on a bench seat, near the front of the bus. The seat faced into the centre of the bus. He testified that he was tossed forward after the bus stopped quickly and his body arched downward, his neck contacting a vertical pole. He testified that he fell forward down onto the floor for a few seconds. He believed he was injured. He continued on the bus to the Kennedy Station and reported his injuries to the supervisor there. An ambulance was called which took him to Scarborough General Hospital, where he was examined and x-rayed. The emergency doctor gave the Applicant some painkilling medication and told him to see his own doctor the next day.
The Applicant's home was only a short distance away from the hospital and he returned home by bus. He testified he intended to go to bed but, in the coming hours, his condition worsened and his headache progressed from being a dull, throbbing headache to one that he described as shooting pain, like sharp arrows protruding through his head. His neck started to pain him "as