Brunarajan Balendra v. Security National Insurance Co./Monnex Insurance Mgmt. Inc., 2010 ONFSCDRS 60

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2010 ONFSCDRS 60

FSCO A08-002455

BETWEEN:

BRUNARAJAN BALENDRA Applicant

and

SECURITY NATIONAL INSURANCE CO./ MONNEX INSURANCE MGMT. INC. Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Fred Sampliner

Heard: December 15, 2009 at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Owen Elliot for Mr. Balendra Angela James for Security National Insurance Co./ Monnex Insurance Mgmt. Inc.

Issues:

The Applicant, Brunarajan Balendra, was a parking attendant working in the lot where he was employed in downtown Toronto when a customer’s car hit the office booth he occupied on August 16, 2007. Security National Insurance Co./Monnex Insurance Mgmt. Inc. (“Security National”) denied Mr. Balendra’s claims for accident benefits under the Schedule.¹ on the basis that he should be compensated by the Workplace Safety and Insurance Board (the “Board”) . The parties did not resolve their disputes through mediation, and Mr. Balendra applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue is:

Is Mr. Balendra precluded from receiving accident benefits under section 59(1) of the Schedule because he is entitled to receive benefits from Workplace Safety and Insurance Board?

Result:

Mr. Balendra is not precluded from receiving accident benefits under section 59(1) of the Schedule.

EVIDENCE AND ANALYSIS:

This matter proceeded on an Agreed Statement of Facts, documents in the Board file, the Application for Accident Benefits, the hospital emergency records, oral and written submissions.

Mr. Balendra applied for statutory accident benefits on August 24, 2007, and applied for benefits from the Board on September 12, 2007, indicating he suffered injuries from the accident. The Schedule clearly sets out that an accident benefits insurer is not primary when a person is injured in work-related automobile accident.

59(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.

In other words, Mr. Balendra can receive statutory accident benefits from Security National if he is not entitled to workers’ compensation benefits.²

The Board’s records demonstrate that its adjudicator investigated whether Mr. Balendra sustained personal injuries in a work accident. She telephoned the car driver who struck the parking lot booth Mr. Balendra occupied at the time of the accident, reviewed the medical records, the employer’s report of the accident and Mr. Balendra’s application materials. The Board adjudicator wrote to Mr. Balendra on October 31, 2007 setting out the policy and her jurisdiction to decide his entitlements with these words:

As an adjudicator, it is my job to decide if there is enough proof, that the accident or disablement happened as reported and, if there is, to pay benefits.

After addressing the facts, the Board adjudicator wrote:

Decision:

At this time, I do not have any medical documentation supporting that you sustained a personal injury from the incident of August 16, 2007. Therefore, I am unable to allow your claim. If you have additional information, I would be pleased to review the information when it is received to file and another decision regarding entitlement will be made.

The Board did not issue any further communications respecting Mr. Balendra’s claims after she issued her October 31, 2007 letter, and Mr. Balendra did not submit further documentation to the Board.

Security does not allege Mr. Balendra failed to satisfy his obligation to apply for workers’ compensation³ or that he did not cooperate with the Board. The Company maintains not only that the admitted facts⁴ establish the accident was work-related, but that Mr. Balendra cannot opt out of the workers’ compensation scheme until he provides the Board with requested documentation. In other words, Security argues that the Board’s October 31, 2007 letter is not a final decision.⁵

Black’s Law Dictionary (“Black’s”) defines a decision as a judicial or agency determination after consideration of the facts and law. Black’s states an appealable decision is a decree or order that is sufficiently clear to receive appellate review.⁶

The Board’s October 31, 2007 letter contains multiple hallmarks of a final appealable order, as defined by Black’s. The adjudicator sets out the jurisdiction, policy of the law and summarizes the facts she considers relevant to make her decision. The Board labels it as a decision and clearly communicates its final intention with this conclusive sentence: “Therefore, I am unable to allow your claim.” The clarity of these words establishes that the Board’s October 31, 2007 letter is a decision.

The Board’s adjudicator signs the dated letter with information about the appeal process:

I also wish to inform you that the Workplace Safety and Insurance Act imposes time limits on appeals. If you plan to appeal the decision, the Act requires that you notify me in writing by May 1, 2008.

Within this paragraph, the adjudicator does not suspend or extend the appeal time to allow Mr. Balendra to produce additional information to supplement his claims, restrict the operation of the decision or suggest it is an interim order either. The absence of specific wording that the Board’s order is temporary or interim or that the appeal is delayed or suspended completely refutes Security’s position that the order is not final.

Central to Security’s position is that the Board gave Mr. Balendra an option to submit additional documentation to support his claims, and that he is obligated to fulfill that request before the Board issues its final order: Security did not argue Mr. Balendra must obtain an appeal decision from the Workplace Safety Insurance Tribunal before he can access benefits under the Schedule.

My evaluation of Security’s argument that the Board issued a conditional order begins with the sentence, “If you have additional information” and ends with the phrase “a second decision regarding entitlement will be made.” This language clarifies that the Board can later make a second entitlement decision in reconsideration of additional evidence.

The Board distinctly separates its offer to consider additional evidence from the entitlement decision in a separate sentence. The separation of these thoughts supports the finality of the sentence dealing with entitlement, and there is no language in the entitlement decision or anywhere in the letter to indicate it is subject to Mr. Balendra’s compliance with the Board’s offer to accept additional information. Thus, the language of the Board’s October 31, 2007 letter does not support Security’s position that Mr. Balendra is obliged to provide the Board with additional information to support his worker’s compensation entitlement or that the decision is subject to a condition.

I find that the October 31, 2007 Board letter is a final appealable order denying Mr. Balendra’s entitlement to workers’ compensation benefits, and that Mr. Balendra is not precluded from receiving statutory accident benefits under subsection 59(1) of the Schedule.

EXPENSES:

I advise the parties to consider Rules 75 to 79 of the Dispute Resolution Practice Code when they discuss their expenses of the arbitration, and before they contact the Case Administrator about scheduling an expense hearing to resolve any dispute on this issue.

May 13, 2010

Fred Sampliner Arbitrator

Date