The claimant applied for accident benefits following an accident while she was in the course of her employment as a personal support worker. The insurer argued that the claimant was not entitled to claim IRBs because she had elected to receive WSIB. Adjudicator Lake agreed with the insurer, holding that the claimant was not entitled to receive accident benefits because her attempted election to receive accident benefits was not primarily made for the purpose of pursuing a tort claim. Adjudicator Lake wrote that the claimant contacted WSIB immediately after the accident and she filed an election to receive WSIB. The statement of claim the claimant issued two years later did not persuade Adjudicator Lake that the claimant’s primary purpose was to pursue the tort claim. In particular, there was no evidence before the Tribunal regarding the viability of the tort claim, even though the claimant was not at fault for the accident. Adjudicator Lake indicated that an affidavit from counsel was likely necessary to persuade the Tribunal that there was merit to the tort claim and that the claimant’s true intention in electing accident benefits was to pursue the tort claim.
