February 26, 2010 by Canadian Underwriter
The Financial Services Commission of Ontario (FSCO) has denied the appeal of an insurer that was ordered to pay auto insurance benefits to a man (now deceased) who suffered a stroke at about the same time he was involved in an accident at a Tim Horton’s drive-through.
In Dominion of Canada General Insurance Company and D.M., a FSCO arbitrator found the claimant, referred to as ‘D.M.’ in the arbitration, panicked after hitting a car in the drive-through.
“This impact caused D.M. to panic as he knew that he had been drinking and if he was convicted of impaired driving he could lose his driver’s license and, thereby, his livelihood as a truck driver,” according to the initial FSCO arbitrator, and as cited by the arbitrator in the appeal, Lawrence Blackman.
“The arbitrator found that D.M. had various risk factors that made him vulnerable to a stroke. D.M.’s panic caused a precipitous rise in his blood pressure, which, interacting with his susceptibility to stroke, led to the [stroke].”
In other words, the accident, and hence D.M.’s use and operation of the vehicle, led to his stroke, thus qualifying him for auto insurance accident benefits.
Dominion countered that the arbitrator’s findings of fact were merely speculative. The insurer argued that it could have been just as likely that the stroke caused the accident, rather than the other way around.
If the stroke had caused the accident, D.M. would not have been entitled to collect benefits, since his stroke would not have been connected to the direct use or operation of a vehicle.
Blackman dismissed Dominion’s appeal, writing that the arbitrator’s findings of fact were “reasonable,” and based on the evidence of medical experts.
The standard of proof to override findings of fact is that an arbitrator has to have absolutely no basis on which to make the findings.
“I am not persuaded that there was a complete absence of evidence or positive proven facts before the arbitrator to support the inferences that D.M.’s stroke was due to a spike in his blood pressure rather than due to a history of prior hypertension or due to some unknown cause,” Blackman wrote. “Nor am I persuaded that the arbitrator misapprehended the evidence.”