Ontario Insurance Commission
Commission des assurances de l’Ontario
Neutral Citation: 1996 ONICDRG 119
Appeal P96-000009
OFFICE OF THE DIRECTOR OF ARBITRATIONS
ECONOMICAL MUTUAL INSURANCE COMPANY
Appellant
and
DENNIS TRENDLE
Respondent
Before:
David R. Draper
Counsel:
Randall B. Carter (for the Appellant)
Dennis Trendle (in person)
APPEAL ORDER
Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- The arbitration order, dated November 2, 1995, is rescinded and the following order is substituted:
Mr. Trendle must repay $8,987.92 to Economical Mutual Insurance Company, plus interest from the date of this order at the “bank rate”, according to section 27(5) of Ontario Regulation 672, Statutory Accident Benefits Schedule - Accidents Before January 1, 1994.
- appeal expenses are payable.
July 11, 1996
David R. Draper Director’s Delegate
Date
REASONS FOR DECISION
I. NATURE OF THE APPEAL
This is an appeal by Economical Mutual Insurance Company (“Economical”) from an arbitration order, dated November 2, 1995, that it pay Mr. Trendle an additional $18,671.41, plus interest, for weekly income benefits.
II. BACKGROUND
This has been a contentious matter with an unusual procedural history. Because the issues are best understood in this context, I am setting out the background in considerable detail.
On May 31, 1992, Mr. Trendle’s car collided with a horse and buggy. The arbitrator found that the horse crushed the roof of the car and broke through the windshield, leaving Mr. Trendle with head abrasions and injuries to his neck and back. At the time of the accident, he was 31 years old, married and had two young daughters. He was a self-employed plumber, working mostly on a cash basis.
Mr. Trendle met with his insurance broker 15 days after the accident, and signed an accident report stating that he was injured, but was “back at work having only missed the two weeks following the accident.”1 The focus was initially on Mr. Trendle’s property damage claim. In a letter to his lawyer, dated July 20, 1992, the insurance adjusters raised concerns about Mr. Trendle’s insurance coverage, but suggested that he return the accident benefits forms if he intended to pursue a claim “for the two week period he informed us he was unable to complete his occupational duties.”2
Mr. Trendle did not apply for accident benefits until November 1992, more than five months after the accident. In the application filed by his lawyer, Mr. Trendle reported gross weekly income of $1,102.77 in each of the four weeks preceding the accident, and $30,000 in the 52 weeks preceding the accident. In support of his claim, Mr. Trendle submitted invoices that he Economical and Trendle Appeal Order P96-000009 later conceded were not created until well after the accident.
Economical accepted Mr. Trendle’s claim for weekly income benefits, but at the minimum rate of $185.60 per week. Economical also arranged for surveillance of Mr. Trendle. Starting in November 1992, the investigator observed and videotaped Mr. Trendle doing a variety of things, including frequent trips to two companies, Roylco Ltd. and Conestoga Material Handling.
Mr. Trendle applied for mediation, claiming his weekly income benefits should be $600 per week, not $185.60. The mediator’s report, dated October 20, 1993, says that the mediation was unsuccessful. Economical maintained that Mr. Trendle had not provided sufficient, credible information to establish his pre-accident income. It also raised the possibility that he had been overpaid as a result of undisclosed post-accident income.
At Mr. Trendle’s request, an arbitration hearing was scheduled to determine the proper amount of his weekly income benefits. Before the hearing, however, Economical cancelled Mr. Trendle’s weekly income benefits, effective February 26, 1994, on the basis that he was substantially able to perform the essential tasks of his occupation. Mr. Trendle objected, claiming he was still unable to return to his pre-accident work as a plumber.
The arbitration hearing was adjourned to allow mediation of the entitlement issue. Although the second mediation led to a “procedural agreement,” it did not resolve the dispute. An arbitration hearing was then scheduled to deal with the following issues, identified at a pre-hearing:
Weekly income benefits - Quantum: What is the correct amount of Mr. Trendle’s weekly income benefits?
Weekly income benefits - Ongoing entitlement: Is Mr. Trendle entitled to weekly income benefits after February 26, 1994?
Supplementary medical and rehabilitation benefits: Is Mr. Trendle entitled to expenses for transportation to and from swimming?
Interest: Is Mr. Trendle entitled to interest on amounts payable?
The arbitration hearing was scheduled for June 22, 1994, to deal primarily with the quantum issue, and October 24 and 25, 1994, to deal with the rest of the issues. As set out below, additional issues were added later.
During the pre-hearing process, Economical was required to give Mr. Trendle an opportunity to view its surveillance evidence. The day before the hearing started, Mr. Trendle conceded that he had done plumbing work in 1993 for Roylco Ltd. and Conest