Neutral Citation: 1997 ONICDRG 25
OIC A96-000640
ONTARIO INSURANCE COMMISSION
BETWEEN:
VINCENT G. DAVIS
Applicant
and
PAFCO INSURANCE COMPANY LIMITED
Insurer
DECISION on a PRELIMINARY ISSUE
Issues:
The Applicant, Vincent G. Davis, was injured in a car accident on July 20, 1994, while at work. He elected and received workers' compensation benefits until February 16, 1995, when the Workers' Compensation Board (WCB) terminated benefits on the basis that he was able to resume his pre-accident employment. Mr. Davis returned to work on March 27, 1995 but was terminated from his employment on July 13, 1995. He then applied for statutory accident benefits from Pafco Insurance Company Limited ("Pafco"), payable under the Schedule.1
Pafco declined to pay accident benefits to Mr. Davis because he had already received WCB benefits. The parties were unable to resolve their dispute through mediation and Mr. Davis applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issue in this preliminary hearing is:
- Is Mr. Davis precluded from receiving accident benefits after he elected and received WCB benefits following this accident?
Result:
- Mr. Davis is precluded from receiving statutory accident benefits, pursuant to section 76 of the Schedule.
Hearing:
The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on October 22, 1996, before me, Deena Baltman, Arbitrator.
The parties made oral submissions based on written materials and exhibits. No witnesses were called. On December 17, 1996, I received further materials from Mr. Davis, which were copied to the Insurer. I delivered my oral decision on December 20, 1996, allowing the Insurer's motion to preclude Mr. Davis from pursuing benefits. My reasons follow.
Present at the Hearing:
Applicant:
Vincent G. Davis
Pafco's
Doug McPherson
Representative:
Barrister and Solicitor
Pafco's Officer:
Dean Furzecott
Exhibits:
The exhibits are listed in Appendix A.
Evidence and Findings:
Facts
Mr. Davis is 56 years old and lives in Weston, Ontario. On July 20, 1994, he was struck by a car while working as a gas station attendant. Mr. Davis stopped working because of ankle injuries he sustained in the accident.
In August 1994, Mr. Davis received an election form from WCB. The form advised that Mr. Davis may claim WCB benefits or bring a legal action against those responsible for the accident. It also stated that if Mr. Davis brought legal action, he might be able to collect no-fault auto insurance benefits. On August 26, 1994, Mr. Davis elected to receive workers' compensation benefits. Shortly after, the WCB began paying him benefits.
By mid-October 1994, Dr. Persaud, the Applicant's family physician, indicated that Mr. Davis could perform modified work. Mr. Davis returned to his pre-accident employment on a part-time basis in October, 1994. The WCB continued paying benefits until February 1995, when a multi-disciplinary assessment concluded that Mr. Davis could resume full-time employment.
Mr. Davis returned to full-time work on March 27, 1995, but was terminated by his employer on July 13, 1995 - the same day he applied to Pafco for accident benefits.2
Analysis and Conclusions:
Pafco argues that the Schedule does not allow Mr. Davis to recover accident benefits when he has already received WCB benefits as a result of the same accident. Subsections 76(1) and (2) provide:
(1) The insurer is not required to pay benefits under this Regulation in respect of any insured person who, as a result of an accident, is entitled to receive benefits under any workers' compensation law or plan.
(2) Subsection (1) does not apply in respect of an insured person who elects to bring an action referred to in section 10 of the Workers' Compensation Act so long as the election is not made primarily for the purpose of claiming benefits under this Regulation.
Although section 76 contains somewhat different wording from its predecessor provision, (section 20 of the OMPP Schedule), its objective remains the same: generally, a person injured at work must claim benefits from the WCB, rather than from his motor vehicle insurer. The only exception is where an applicant, instead of claiming WCB benefits, elects to bring a claim in tort,3 provided the election is bona fide. As Arbitrator Sampliner stated in Brasil:4
I find the intent of section 20 is clear...it sets out the general objective that if workers' compensation pays benefits as a result of a car accident, then similar benefits under the automobile policy are not available. This avoids the double payment or duplication of benefits from two different systems..! find that section 20 reflects the general legislative policy that payments emanate from only one system, and that the no-fault insurer is the payer of last resort.
Mr. Davis argues that he is entitled to recover accident benefits because he is no longer receiving WCB benefits. He suggests that section 76 only disallows the simultaneous receipt of benefits from both sources. I disagree; the section requires an applicant to choose, at the outset, either WCB benefits or a tort claim.5 Accident benefits are available only if they spring from a bona fide election of a tort claim. Nor does the wording permit an applicant to re-elect accident benefits after exhausting his claim for WCB benefits.6 Such conduct would allow an applicant to access more than one source of benefits for the same injury, and thereby defeat the legislative goals of economy and simplicity.
Nor do I agree with Mr. Davis that once the WCB terminated benefits, his only remedy was to turn to Pafco. Although Mr. Davis dislikes the WCB's decision to terminate his benefits, this does not entitle him to now re-elect and recover benefits from Pafco; his remedy, if any, lies with the Workers' Compensation Appeals Tribunal.
When Mr. Davis initially applied for accident benefits, and before Pafco formally evaluated the claim, Pafco asked Mr. Davis to sign an "Assignment of Workers Compensation Benefits." Mr. Davis claims that by requesting an Assignment, Pafco has shown its intention to pay benefits. However, I note that neither Pafco nor the WCB completed the assignment. More importantly, an assignment in this case would have little practical effect, as Mr. Davis only completed it after WCB terminated his benefits, leaving him nothing to assign.
Mr. Davis further submits that Pafco was obliged under section 76(5) to pay him accident benefits pending this hearing at the OIC. That subsection states:
(5) Despite subsection (1), if there is a dispute about whether subsection (1) applies to a person, the insurer shall pay full benefits to the person under this Regulation pending resolution of the dispute if,
(a) the person makes an assignment to the insurer of any benefits under any workers' compensation law or plan to which he or she is or may become entitled as a result of the accident; and
(b) the administrator or board responsible for the administration of the workers' compensation law or plan approves the assignment.[emphasis added]
This provision is relevant only "if there is a dispute about whether subsection (1) applies..." No such dispute arose here; the WCB accepted that Mr. Davis was "entitled" to receive benefits, and indeed paid him for some time. The WCB terminated benefits because it disputed whether Mr. Davis continued to be disabled, and not because it denied his prima facie entitlement. In addition, I have already found that Mr. Davis was not in a position to make a meaningful assignment to Pafco of benefits, as required by subsection 76(5)(a). Nor did the WCB approve the assignment, as required by subsection 76(5)(b). For these reasons, I reject Mr. Davis' argument that Pafco was obliged to pay him any monies pending this hearing.
I conclude that Mr. Davis is not entitled to recover statutory accident benefits after having elected to receive WCB benefits. In light of this finding, it is not necessary for me to consider Pafco's alternative submission that Mr. Davis seeks to re-elect "primarily for the purpose of claiming benefits under this Regulation," and not because he has a genuine tort claim.
Result:
- Mr. Davis is precluded from receiving statutory accident benefits, pursuant to section 76 of the Schedule.
February 3, 1997
Deena Baltman
Arbitrator
Date
Appendix A
List of Exhibits:
Exhibit 1
Dr. Persaud's WCB medicals
Exhibit 2
WCB Election Form
Exhibit 3
Mr. Davis' Statement
Exhibit 4
WCB Letter of March 3, 1995
Exhibit 5
WCB Letter of May 5, 1995
Exhibit 6
Employer's Confirmation of Income
Exhibit 7
Health Practitioner's Certificate
Exhibit 8
Dr. Ford's reply of January 10, 1995
Exhibit 9
Applicant's documents
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after January 1, 1994, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94.
- I heard no evidence as to why the Applicant was dismissed from his employment. However, Mr. Davis did not suggest that it was related to his injuries from this accident.
- Subject to the provisions of section 9 of the Workers' Compensation Act, R.S.O. 1990, c. W. 11, which restrict the applicant's right to claim in tort.
- Brasil and State Farm Mutual Automobile Insurance Company (March 12, 1996), A-013383
- Where available; see footnote #3
- Arbitrator Jones came to a similar conclusion in Rocchetti and Royal Insurance Company of Canada (March 29, 1996), A-014118 at p.6