Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 105
Appeal P05-00016
OFFICE OF THE DIRECTOR OF ARBITRATIONS
COSECO INSURANCE CO./HB GROUP/DIRECT PROTECT
Appellant
and
BLASKO NOVAKOVIC
Respondent
Before:
Nancy Makepeace
Representatives:
Alexander M. Voudouris for Coseco
H. Wayne Gardner for Mr. Novakovic
Hearing Date:
October 13, 2005
APPEAL ORDER
Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The appeal is dismissed and the arbitrator’s order dated February 22, 2005 is confirmed.
If the parties are unable to agree on appeal expenses, a hearing may be requested in accordance with Rule 77 of the Dispute Resolution Practice Code.
June 22, 2006
Nancy Makepeace Director’s Delegate
Date
REASONS FOR DECISION
I. NATURE OF THE APPEAL
This appeal concerns subsection 32(1) of the SABS–1996,1 which requires a claimant to “notify the insurer within 30 days after the circumstances arose that give rise to the entitlement to the benefit, or as soon as practicable thereafter.” Mr. Novakovic gave notice in October 2002, more than four years after his accident on March 24, 1998. The insurer appeals from the arbitrator’s ruling that Mr. Novakovic is not precluded from arbitration because he had a reasonable explanation for the delay pursuant to s. 31(1) of the SABS-1996. For the following reasons, I am not persuaded the arbitrator erred.
II. BACKGROUND
The arbitration hearing was completed in December 2004, but the parties agreed that the arbitrator should release her preliminary issue decision first. That decision, released on February 22, 2005, is the sole basis for the appeal. Coseco’s early appeal of that decision was rejected as premature in April 2005. On June 1, 2005, the arbitrator issued her second and final decision, ordering Coseco to pay medical benefits for chiropractic and psychological treatment, plus interest and arbitration expenses. This appeal was brought after release of the final decision. Coseco asks me to revoke both orders because the second is contingent on the first, but does not raise appeal issues specific to the second order. On July 21, 2005, I granted Coseco’s motion for a stay of both orders pending the outcome of the appeal.
Mr. Novakovic was a 14 year old high school student when he was struck by a car on March 24, 1998. He was taken to hospital by ambulance and discharged after a few hours. According to the arbitrator, the ambulance and emergency records indicate he presented with pain in his low lumbar back, upper legs, back of neck and occipital skull area. Dr. Katarina Rovis, the pediatrician who was then his primary treatment provider, saw him two days after the accident and diagnosed soft tissue injuries to his shoulder and back, headaches and abrasions on his back. Mr. Novakovic and his mother testified that he has suffered back pain, knee pain, headaches and low energy since the accident. The arbitrator found both to be credible witnesses, and she accepted their evidence. She summarized the evidence and her findings on impairment at pp. 4-5 of her final decision:
The evidence of both Mr. Novakovic and his mother depict a significant change in Mr. Novakovic’s behaviour and activities post-accident. They testified that prior to the accident, he was reasonably healthy, active in sports and other school activities. Following the accident his participation in school, social and employment activities was significantly restricted. Mr. Novakovic itemized numerous jobs that he has left after a short period of time due to pain. He attributes his sporadic and marginal employment to his chronic pain.
I accept Mr. Novakovic’s evidence that he has had to leave jobs after a short period of time due to pain in his lower back, right leg and headaches. I find that on a balance of probabilities Mr. Novakovic has