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Ontario arbitrator finds injured trucker eligible for AB, despite his mistaken election of WSIB benefits in confusion following tribunal decision


October 7, 2011   by Canadian Underwriter


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A trucker seriously injured in an accident is entitled to accident benefits, even though he elected to receive Workplace Safety and Insurance Board (WSIB) benefits in confusion after the Workplace Safety and Insurance Appeals Tribunal (WSIAT) barred most of his tort claim.
Section 61 (formerly s. 59) of the Ontario Statutory Accident Benefits Schedule (SABS) says an insurer is not obligated to pay accident benefits if the insured person is entitled to receive benefits under any workers’ compensation scheme (such as the WSIB).
An exemption says this does not apply to insureds who elect to bring a tort action under the Workplace Safety and Insurance Act, as long as the election to pursue a tort action “is not made primarily for the purpose of claiming benefits.”
The AB applicant, Rimvydas Narusevicius, was seriously injured in a motor vehicle accident involving three tractor-trailers on Nov. 23, 2003. He applied for and received statutory accident benefits from Wawanesa, his accident benefits insurer.
The insurer and the insured agreed that Narusevicius was deemed to have elected to pursue a tort action when he did not file an election to collect benefits through the WSIB within three months of the accident.
Narusevicius commenced a court action against several of the drivers and owners of the tractor-trailers within the limitation period. In a decision dated Oct. 5, 2009, the WSIAT decided that at the time of the accident Mr. Narusevicius was a worker in the course of his employment and his tort claim was barred as against all but one of the defendants to the tort action.
Following release of the WSIAT decision, Narusevicius’s spouse filled out and filed on his behalf an election to collect WSIB benefits dated Nov. 23, 2009.
Ms. Naruseviciene testified that following receipt of the WSIAT decision, she and her husband believed he had to apply for WSIB benefits. They noted that his lawyer had not explained the effect of the WSIAT decision on their lawsuit at that time.
According to Naruseviciene, the lawyer also indicated that Narusevicius had to continue with the lawsuit.
Naruseviciene testified that she sent in the WSIB election form since Narusevicius had no income for years and they felt he had no choice but to apply to WSIB after the WSIAT decision. Her husband was not receiving accident benefits as of this time.
The insurer argued that even if the initial election to pursue a tort action was bona fide, it is no longer so, since Narusevicius “re-elected” for WSIB benefits following the issuance of the decision by the WSIAT
“I do not accept that the applicant’s evidence supports that he initiated a lawsuit primarily so that he could collect accident benefits as his evidence made clear that he was interested in suing the drivers responsible for the accident, in addition to medical benefits, so that he would have access to greater compensation,” Financial Services Commission of Ontario (FSCO) arbitrator Alec Fadel wrote.
“Even if re-election was provided for in the relevant legislation, I find that the applicant’s actions after the WSIAT decision are more reflective of the disappointment and confusion he experienced upon receiving the WSIAT decision and do not reflect an intention to no longer proceed with what they believed to be a valid tort claim.”


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