Terry G. Pearce

The applicant was injured in a motor vehicle accident and received statutory accident benefits until the insurer terminated his weekly income benefits.

The applicant applied for arbitration, seeking weekly income benefits for the period from August 1994 to August 1996.

Although the arbitrator found the applicant to be a poor witness whose statements to medical assessors were unreliable, the arbitrator accepted the testimony of a lay witness who observed the applicant's physical limitations during a home renovation project.

The arbitrator concluded that the applicant suffered a substantial inability to perform the essential tasks of his pre-accident factory job due to back and leg pain caused by the accident.

The applicant was awarded weekly income benefits for the disputed period, plus interest.

The Director's Delegate issued a correction to an appeal order dated March 20, 1997.

The original order incorrectly referenced the Statutory Accident Benefits Schedule for accidents before January 1, 1994 (O. Reg. 672).

The corrected order substitutes the reference with Ontario Regulation 776/93, the Statutory Accident Benefits Schedule for accidents on or after January 1, 1994, confirming the respondent was not injured in an 'accident' within the meaning of that regulation.

The appellant insurer appealed an arbitration decision finding that the respondent was injured in an 'accident' under the Statutory Accident Benefits Schedule.

The respondent was a passenger in a vehicle that backed into another vehicle.

The driver of the other vehicle subsequently assaulted the respondent while he was still seated in the vehicle.

The Director's Delegate allowed the appeal, finding that the assault was an intervening act and the injuries were not caused, directly or indirectly, by the use or operation of an automobile.

The respondent was therefore not entitled to accident benefits.