Neutral Citation: 1995 ONICDRG 186
ONTARIO INSURANCE COMMISSION
BETWEEN:
IVAN PAVKOVIC
Applicant
and
AXA INSURANCE (CANADA)
Insurer
DECISION ON PRELIMINARY ISSUE
Preliminary Issue:
Mr. Pavkovic was involved in an accident and applied for workers' compensation benefits. The Workers' Compensation Board ruled that he was not entitled to workers' compensation benefits. Mr. Pavkovic then applied for accident benefits from AXA Insurance ("AXA").
AXA claims that Mr. Pavkovic properly should be receiving workers' compensation benefits and takes the position that pursuant to section 20 of Regulation 6721, it is not responsible for paying the accident benefits.
Result:
The Commission has no jurisdiction in light of the decision of the Workers' Compensation Board.
Preliminary Hearing:
The motion at the preliminary hearing was heard by me, M. Guy Jones, arbitrator, in Barrie, Ontario, on November 1 and November 2, 1995.
Applicant's Representative: Robert Besunder, Barrister and Solicitor AXA's Representative: Geoffrey Adair, Barrister and Solicitor Court Reporter: Phyllis Torrance
Reasons for Decision:
The facts:
For the purpose of this motion only, it was agreed as follows:
The Applicant, Ivan Pavkovic, was injured on October 28, 1992, when a ladder upon which he was standing was struck by a motor vehicle. Mr. Pavkovic subsequently applied to the Workers' Compensation Board for benefits. He indicated that at the time of the accident, he was simply visiting a friend who was working on the roof of the mall where the accident happened.
After reviewing the application and interviewing Mr. Pavkovic, the Workers' Compensation Board on May 14, 1993, denied Mr. Pavkovic's claim for workers' compensation benefits, deciding that he was not in the course of his employment at the time of his accident.
On October 17, 1994, Mr. Pavkovic's lawyer wrote to the Workers' Compensation Board and provided the Board with additional information, including information that while Mr. Pavkovic was not working on the roof at the time of the accident, he had gone to the mall and noticed a piece of loose facia that he had installed earlier. Mr. Pavkovic alleged that he climbed the ladder in order to nail it in place. He further stated that Mr. Pavkovic was not being paid at the time for this work. In light of this fresh information, Mr. Pavkovic's solicitor asked that Mr. Pavkovic's claim be reopened and reconsidered.
On November 25, 1994, the Workers' Compensation Board Entitlement Adjudicator turned down Mr. Pavkovic's request for workers' compensation benefits on the grounds that he was not in the course of his employment at the time of the accident.
Mr. Pavkovic appealed the decision of the Adjudicator, however on August 22, 1995, the Workers' Compensation Board Decision Review Specialist, after reviewing the matter, confirmed that Mr. Pavkovic was not entitled to workers' compensation benefits as he was not in the course of his employment at the time of the accident.
In addition, for the purpose of this motion only, it was agreed that the Insurer would be able to prove the following:
The Applicant was at all material times, acting in the course and scope of his employment.
Mr. Pavkovic told the Workers' Compensation Board at the time he initially presented the claim that he was not in the course of his employment when injured and that he was not really attempting to collect workers' compensation benefits. He told the Board that his insurance company would not pay him for his injuries until the Workers' Compensation Board denied his claim.
On October 4, 1994, when Mr. Pavkovic provided additional information to the Workers' Compensation Board, he falsely maintained that he was not acting in the