Marcia Henry, an emergency room nurse, was injured in a car accident in 2007 when she was struck from the side on the 401. She felt light headed and dazed, with pain in her shoulder and neck. When she saw her family doctor the next day he referred her to physiotherapy for treatment.
She has suffered from constant pain and stiffness in her neck, shoulder arm and back since the accident. She also has debilitating headaches. She has attended several specialists and followed many recommended courses of treatment. She is no longer able to work as a nurse full time, and has suffered from post-accident depression.
The insurance company paid statutory accident benefits but refused to pay post-104 week income replacement benefits. The insurer stubbornly held the opinion that Ms. Henry was not substantially disabled, even though compelling evidence had been provided that Ms. Henry continued to require significant medical intervention. The insurer also argued that it should not be required to pay these benefits as Ms. Henry received payments from a collateral carrier and that those payments should be calculated as income. Ms. Henry argued that the payments from her collateral carrier were not considered income replacement, but rather damages for breach of contract, mental distress, and punitive and aggravated damages.
The Arbitrator examined Ms. Henry’s testimony, and her medical records, the insurer’s arguments, previous settlements, and the Insurance Act. Upon analysis of the evidence the Arbitrator determined that Ms. Henry was in fact entitled to post-104 week accident benefits along with a special award as the insurer unreasonably withheld or delayed payments.
This decision can be read in more detail here