ACCIDENT BENEFITS NEWSLETTER - FEBRUARY 2003

- Catherine Zingg

SABS - 1996

Section 2 - Accident

In Swaby and Allstate Insurance Company of Canada, A02-000926 January 15, 2003, Arbitrator Allen held that the applicant was not involved in an “accident” within the meaning of section 2 (1) of the SABS- 1996.  The facts of the case were not in dispute.  Mr. Swaby had parked his vehicle in a school parking lot, while waiting to meet a friend.  He opened the driver's side door of the car and put his leg outside to examine the door panel because he was planning to install speakers.  Men approached him and demanded his car.  Mr. Swaby's throat was cut with a knife and he was shot in the leg.  He lost consciousness and later awoke in nearby bushes.  A passerby called an ambulance.   Mr. Swaby was taken to Sunnybrook Hospital where surgery was performed on his left femur.  The applicant's counsel filed current police statistics about car jacking incidents to establish that theft involving shootings are a normal risk created by an automobile.  The statistics showed that from January 2000 to October 18, 2002, there were a total of 245 vehicles reported to have been hijacked during this period. 106 of them involving the use of firearms.

The decision in Liu and Lombard General Insurance Company of Canada, A01-001429, October 2, 2002 was distinguished, with the arbitrator finding that in Mr. Swaby's case the automobile was not in any way used as a weapon.  Ultimately, the arbitrator followed the reasoning of the Court of Appeal in Chisholm v. Liberty Mutual Group (2002) C.36954, Ont. C.A.   

In Belair and Seale, P02-00005, January 28, 2003 Director's Delegate Makepeace upheld the arbitrator's decision that the applicant had been injured in an “accident”.  Ms. Seale had been driving home in icy conditions when she lost control of her van.  A good Samaritan stopped to help Ms. Seale and got in the vehicle while Ms. Seale pushed it.  The van then began to slide down the hill and Ms. Seale followed it, falling and breaking her arm.  The arbitrator held that Ms. Seale was injured in an “accident” within the meaning of s. 2 of the Schedule.  Belair appealed the decision.  In upholding the arbitrator's finding, the Director's Delegate found that there was a “ perfect chain” between the two events, which distinguished it from the assault cases and the cases involving unusual hazards unrelated to the use or operation of automobile (p. 28).   In contrast to the assault cases, it was found that use or the operation of an automobile was the dominant feature of the incident (p.28).   

Sections 4 and Section 37 - Refusal or Stoppage of Income Replacement Benefit

s. 15 - Rehabilitation Benefits

In Patrick and  State Farm, A01-000981, December 31, 2002, Arbitrator Sampliner found that the insurer had committed a significant breach of its obligations by ignoring Mr. Patrick's request for an independent evaluation of his claim for ongoing income replacement benefits (p.10).  No evidence was presented to show that State Farm had attempted to request a Disability DAC, despite the applicant's request for one.  The arbitrator drew an adverse inference against the insurer and ordered that until there was a compliance with the statutory obligations, the applicant was entitled to benefits.  Prior to the accident, Mr. Patrick had worked as a supervisor of a roofing crew.  He claimed the costs of re-training as an engineer at an American university under s. 15 of the Schedule.  This claim was denied, with the arbitrator finding that the claim was not a reasonable or necessary rehabilitation expense, given that an engineer is far better educated, trained, earns more and has higher status than a roofing crew supervisor (p.13).            

Section 14 Medical Benefits

In Driver and Traders General Insurance Company, A01-000841, January 8, 2003, the applicant claimed $103,727.45 for Vistasp therapy between May 29, 2002 and September 16, 2002 as either a medical benefit under s. 14 or a rehabilitation benefit under s. 15 of the Schedule.  The claim was denied, with Arbitrator Sapin finding that the evidence presented was insufficient to bring Vistasp therapy within even the very broadest possible definition of a good or service of a medical nature (p. 26).  The arbitrator commented:

I do not accept that Vistasp is a good or therapy of a medical nature on the basis of the evidence presented at this hearing, which amounts to this: that the only practitioner known to exist and whose qualifications cannot be evaluated, uses the therapy to treat certain identifiable conditions; that he believes that this therapy works and says his clients tell him that it works; that his employer believes that it works for the same reasons, and the Applicant, a vulnerable individual who suffers from psychogenic chronic pain, and possibly, a psychological disorder involving issues of dependency and somatisation of complaints, believes it works.  Furthermore, as stated above, medical witnesses who had heard of Vistap and supported Ms. Driver in pursuing it knew very little about it, and nothing about the training and qualifications of Mr. Guard (p.26).