AXA Insurance Company v. Mario Rocca, 2000 ONFSCDRS 143

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2000 ONFSCDRS 143

Appeal P99-00020

OFFICE OF THE DIRECTOR OF ARBITRATIONS

AXA INSURANCE COMPANY

Appellant

Respondent on Cross-Appeal

and

MARIO ROCCA

Respondent

Appellant on Cross-Appeal

Before:

Susan Naylor, Director’s Delegate

Counsel:

Mark Greg Abogado (for AXA Insurance Company)

David J. Levy (for Mario Rocca)

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The appeal on behalf of AXA Insurance Company is dismissed

2. The appeal on behalf of Mario Rocca is dismissed.

3. The arbitrator’s order dated March 10, 1999 is confirmed.

4. No appeal expenses are ordered.

August 1, 2000

Susan Naylor Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

AXA Insurance Company (“AXA”) appeals an arbitration order awarding Mario Rocca income replacement benefits up to and beyond the 104 week mark under s. 7(1) 1 of the Statutory Accident Benefits Schedule - Accidents after December 31, 1993 and before November 1, 1996, O.Reg. 776/93, as amended (“SABS-1994”). AXA also appeals a $10,000 special award. Mr. Rocca, in turn, appeals the arbitrator’s ruling respecting the amount of his benefit. This issue involves the treatment of commission and overtime earnings.

II. ANALYSIS AND CONCLUSION

A. Entitlement To Income Replacement Benefits

The arbitration hearing was lengthy and contentious. It concerned Mr. Rocca’s employment income, his pre-accident job duties, whether he was disabled from doing his essential job tasks and if so, whether the disability was attributable to accident-related impairment. As the arbitrator found, resolution of these issues depended to a great extent on the reliability of Mr. Rocca’s evidence. The arbitrator did not find him to be a credible witness.

Despite her adverse credibility findings, which she explains at length, the arbitrator allowed Mr. Rocca’s claim to benefits beyond July 23, 1997.¹ Mr. Rocca claimed that ongoing back pain, related to a documented disc herniation, and cognitive and behavoural problems linked to a brain injury, prevented him from returning to his pre-accident job. The arbitrator accepted that Mr. Rocca suffered a brain injury in the crash, but found that its effects did not disable him from work. She concluded that the disc herniation was caused by the accident, and, in large measure, was responsible for Mr. Rocca’s back pain. The arbitrator was ultimately satisfied that, while Mr. Rocca deliberately exaggerated his symptoms, his back problems prevented him from doing physically demanding labour which she found was an essential part of his pre-accident job.

Under s. 283(1) of the [Insurance Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-i8/