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Articles and Publications

June 2012

Featured Case

Thayalan and Wawanesa Mutual Insurance
"Credibility is Key"

Michael Kennedy, Associate Lawyer, representing the Insurers
FSCO Case A10-003528

On February 28, 2012, Arbitrator Fadel with the Financial Services Commission of Ontario (FSCO) released a decision in favour of McCague Borlack's client concerning an applicant's entitlement to accident benefits.

Issues

Mr. Thayalan (the applicant) was involved in an accident on October 7, 2007 and claimed entitlement to ongoing income replacement benefits in the amount of $400.00 per week (from the date of the accident to present) and housekeeping benefits in the amount of $100.00 per week (up to two years post-accident). Mr. Thayalan also claimed for a special award, arguing that the insurer unreasonably withheld his benefits.

Decision

Michael Kennedy from McCague Borlack LLP represented the insurer at the multi-day arbitration, following which Arbitrator Fadel held that

“in accident benefit disputes at FSCO, the applicant bears the burden of proving entitlement to the disputed benefits. Mr. Thayalan must therefore prove on a balance of probabilities that the injuries sustained in the 2007 accident entitle him to an ongoing income replacement and the claimed housekeeping benefit. For the reasons that follow, I find that, for the most part, the applicant has not met his burden and has not shown that he is entitled to the claimed benefits.”

The Arbitrator found that:

  • Inconsistent evidence provided by the Applicant to the medical experts regarding the status of his pre-accident right knee injury was problematic.
  • Evidence of a co-worker at the hearing contradicted the Applicant’s evidence regarding the physical dynamics of the workplace.
  • Evidence given by the Applicant regarding the extent of his pre-accident housekeeping and home maintenance activities was found not credible.
  • The Applicant called no medical experts, relying instead on reports.
The Insurer called their medical expert to give viva voce evidence which was accepted by the Arbitrator.

Relying on Stranges v Allstate Insurance Company 2010 ONCA 457, the Arbitrator found the applicant was required to prove his entitlement to benefits even in the face of an inadequate refusal notice by the insurer. In this case, the Applicant’s inconsistencies in his reporting to the Insurer and treatment providers and reports of symptom magnification would give the Insurer “concern when adjusting this file”, such that the termination of benefits was not unreasonable. No special award was made.  

Credibility

Credibility of the applicant is essential for his or her success at Arbitration. Thorough expert reports that address the issues without bias or the appearance of bias are also of utmost importance if the Insurer wishes to have its position recognized at Arbitration and, in particular, to defend a claim for special award.

Read Arbitrator Fadel's full report.


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