Neutral Citation: 1994 ONICDRG 34
File No. A-000881
ONTARIO INSURANCE COMMISSION
BETWEEN:
MICHAEL McNAMARA
Applicant
and
ZURICH INSURANCE COMPANY
Insurer
DECISION
Issues
The Applicant, Michael McNamara, was injured in a motor vehicle accident on November 25, 1990. He applied for statutory accident benefits from the Insurer, Zurich Insurance Company ("Zurich"), payable under Ontario Regulation 6721. Weekly benefits of $750 per week were paid between December 2, 1990 and May 1991, when they were terminated. Mr. McNamara claims additional weekly benefits to December 31, 1991. Zurich seeks repayment of weekly benefits paid. The parties also dispute the proper amount of benefits payable. The Applicant contends that he is entitled to benefits of $1,050 per week. The Insurer contends that if the Applicant is entitled to any benefits, he is entitled only to the minimum of $185.60 per week.
The parties were unable to resolve their dispute through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c. I.8.
The issues in this hearing are:
Is Mr. McNamara entitled to weekly benefits between December 2, 1990 and December 31, 1991?
If so, what is the proper amount of benefits owing?
Is Zurich entitled to repayment of any overpaid benefits?
Mr. McNamara also claims interest on any outstanding amounts owing, and his expenses incurred in the proceeding.
Result
Mr. McNamara is only entitled to weekly benefits between December 2, 1990 and March 11, 1991. He is not entitled to further benefits after that date.
Benefits are payable at the rate of $185.60 per week.
The Insurer is entitled to repayment of benefits overpaid, less the benefits payable for Mr. McNamara's "muscle tracing" treatment.
Mr. McNamara is entitled to his expenses incurred in the proceeding.
Hearing
The hearing was held in North York, Ontario, on July 22, July 29 and September 10, 1993, before me, Nancy Makepeace, Arbitrator.
Present at the Hearing:
Applicant:
Michael McNamara
Applicant's Representative:
Altor Shields Barrister and Solicitor
Insurer's Representative:
Brian Atherton Barrister and Solicitor
Insurer's Officer:
Mark Sones
Witnesses:
Michael McNamara, the Applicant Martin McNamara, the Applicant's brother Mark Radman, a former member of Twin Dragons Kung Fu & Kickboxing Club Robert Dallaire, Private Investigator Karl Adhihetty, Accountant Jeffrey Smith, Chartered Accountant
Exhibits entered into evidence and other documents on the record are listed in an appendix to this decision.
The proceedings were recorded by Diane Martin and Glen Horenblas of Rosenberger Weir Macdonald, Court Reporters.
Background Facts and Issues
The Applicant, Michael McNamara, is the self-employed operator of the Twin Dragons Kung Fu & Kickboxing Club. His identical twin brother, Martin McNamara, owns and operates another "Twin Dragons" club at another location. The two brothers also work together as business partners: producing, promoting and starring in kickboxing films, and training and promoting fighters. They have also been involved in promoting the sport of kickboxing in Ontario. Michael McNamara and Martin McNamara - the "twin dragons" - are the main instructors and the main drawing cards in the Twin Dragons Kung Fu & Kickboxing Clubs.
Michael McNamara contends that as a result of neck, back and knee