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Election to pursue civil action instead of WSIA benefits is assessed at the time of election, not retroactively.
The applicants were injured in a motor vehicle accident while in the course of their employment.
They elected to opt out of the WSIA scheme and join a class action lawsuit against the Province of Newfoundland and Labrador, which allowed them to claim statutory accident benefits from the respondent.
When the class action was ultimately dismissed, the respondent terminated their accident benefits, arguing they were no longer eligible.
The Tribunal held that the applicants' election to sue was made in good faith based on legal advice and not primarily for the purpose of claiming accident benefits.
The Tribunal further held that the ultimate failure of the civil action did not retroactively invalidate their election or their entitlement to accident benefits.
Applicants' good faith election to sue preserves accident benefits entitlement regardless of the lawsuit's ultimate failure.
The applicants were injured in a motor vehicle accident during the course of their employment.
They elected to opt out of the Workplace Safety and Insurance Act (WSIA) scheme to join a class action lawsuit against the Province of Newfoundland and Labrador, and subsequently claimed statutory accident benefits from the respondent.
When the class action was dismissed, the respondent terminated their accident benefits, arguing the applicants were required to seek WSIA compensation since they no longer had a viable court action.
The Tribunal held that the applicants' election to sue was made in good faith and not primarily for the purpose of claiming accident benefits.
The Tribunal further found that the legislation does not permit a retroactive reassessment of the election based on the ultimate outcome of the civil litigation, and ordered that the applicants remain entitled to accident benefits.
Insurer's method of deducting 70% of gross weekly post-accident income from IRB entitlement upheld.
The applicant was injured in a motor vehicle accident and received income replacement benefits (IRBs).
She later returned to work part-time.
The parties disputed the correct method for calculating the IRB deduction for her post-accident part-time income.
The applicant argued for an 'Equitable Approach' where her income would be prorated based on the hours she was unable to work.
The insurer argued that under section 7(3) of the Schedule, 70% of her gross weekly employment income should be deducted from her IRB entitlement.
The arbitrator agreed with the insurer, finding that the law requires the deduction to be based on the weekly income earned, not on a percentage of working versus non-working hours.
Claim for attendant care benefits provided by family member dismissed for lack of economic loss.
The Applicant was catastrophically injured in a motor vehicle accident and sought $75,461.75 in attendant care benefits for services provided by his daughter, a child and youth worker.
The Insurer denied the claim.
The Arbitrator found that the daughter did not sustain an economic loss, her employment as a child and youth worker was not analogous to providing attendant care to her father, there was no legal obligation to pay her, and the services were not reasonable and necessary given the availability of other family members.
The claim for attendant care benefits was dismissed.
Human rights application alleging sexual harassment during a medical examination dismissed for lack of evidence.
The applicant alleged that the respondent doctor sexually harassed her by unnecessarily exposing her breast during a physical examination for chronic pain.
The respondent doctor testified that examining the pectoralis muscles was medically necessary to assess her condition.
An expert witness in pain management supported the respondent's methodology as meeting the standard of practice.
The Tribunal found that the applicant failed to establish discrimination or harassment on the basis of sex, accepting the medical necessity of the examination.
Application dismissed.
