Neutral Citation: 1992 ONICDRG 8

File No. A-000082

ONTARIO INSURANCE COMMISSION

BETWEEN:

PETER BONITATIBUS

Applicant

and

WELLINGTON INSURANCE COMPANY

Insurer

DECISION

Issue:

The Applicant, Peter Bonitatibus, was injured in a motor vehicle accident on August 17, 1990. He applied for weekly income benefits, payable under Part IV of Ontario Regulation 273/90 ("the No-Fault Benefits Schedule"), enacted under the Insurance Act, R.S.O. 1990, c. I.8.

The Applicant is 56 years old and is the President of A.R.P. Construction Ltd. Since 1956, he has worked at rough and finish carpentry, cement finishing, roofing, tile setting, and many other aspects of both residential and commercial construction and renovation.

The Applicant claimed weekly income benefits at the rate of $600.00 per week. The Insurer paid the benefits until September 28, 1990, but thereafter was not convinced that the Applicant was suffering "substantial inability to perform the essential tasks of his or her occupation or employment". The Applicant applied for mediation on the issue of his entitlement to weekly benefits for the period September 28, 1990 to April 26, 1991. Mediation failed to resolve the issue and the Applicant applied for the appointment of an arbitrator.

The issue to be determined in this arbitration is:

1. Is the Applicant entitled to weekly benefits from September 28, 1990 to a date not later than April 26, 1991?

At pre-hearing discussions held before Susan Naylor, Senior Arbitrator, on May 21, 1991 and November 8, 1991, it was agreed that the issue of the amount of benefits payable to the Applicant would not be part of this arbitration hearing. Only the Applicant's entitlement to benefits for this period will be determined.

Decision:

The decision is:

1. The Applicant was substantially unable to perform the essential tasks of his occupation from the day of the motor vehicle accident to April 26, 1991.

2. The Applicant is entitled to recover the cost of the medical report of Dr. E. Ricci in the sum of $450.00 for the report of five pages, invoice dated January 29, 1992, as an expense incurred in respect of the arbitration under Section 282(11) of the Insurance Act and Regulation 275/90.

3. The Applicant is entitled to his other expenses incurred in respect of the arbitration under Section 282(11) and Regulation 275/90.

Hearing:

An arbitration hearing was held at Hamilton, Ontario, on February 24, 1992, before K. Julaine Palmer, arbitrator.

Present at the hearing were:

Applicant:

Peter Bonitatibus

Applicant's

Cono Spitale

Representative:

Barrister & Solicitor

Insurer's

Deborah Zimmerman

Representatives:

Gail Lederman

Italian Interpreter:

Dora D'Uva

Legislation:

Weekly income benefits are paid under Section 12 of the No-Fault Benefits Schedule (Ontario Regulation 273/90). Section 12(1) defines the period in which an insured person will be paid:

(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident a weekly income benefit during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment if the insured person meets the qualifications set out in subsection (2) or (3).

It was agreed that the Applicant met the qualifications of employment or self-employment at the time of the accident.

Section 23 of the No-Fault Benefits Schedule sets out the rights and obligations of an insurer and an insured person with respect to medical examinations. Section 23(2) reads as follows:

(2) In respect of claims under Part IV, the insurer may, on reasonable notice, require an examination of the insured person by a qualified medical practitioner, psychological advisor or chiropractor as often as it reasonably requires, and require an autopsy of a deceased insured person in accordance with the law relating to autopsies.

Evidence:

The Applicant, Peter Bonitatibus, gave evidence at the hearing through an interpreter, Dora D'Uva. The Applicant is now 56 years of age and has been a builder and contractor since 1956. He is proficient in carpentry, cement finishing, roofing and tile work. His evidence was that he can do any kind of work related to residential and commercial construction, except electrical work.

On August 17, 1990, the Applicant was injured in a motor vehicle accident. He was seated in his Chrysler New Yorker, when it was rear-ended. Less than $700.00 damage was caused to the Applicant's motor vehicle.

The Applicant gave evidence that this shoulders, neck and left arm were injured in the accident. He was treated by his family doctor, Dr. Elio Ricci. Dr. Ricci has been the Applicant's family doctor since 1956. The Applicant received pain medication following the accident and had physiotherapy until November 1990.

The Applicant testified that in the autumn of 1990 he intended to build a home for his son, Ascenzo Bonitatibus, on Promenade Road in Stoney Creek, Ontario. Ascenzo Bonitatibus was to pay him for this work. The Applicant testified that he was to do all the carpentry, roofing, tiling, drywall and painting of this home. It was the Applicant's evidence that, following the accident, he had to engage other contractors to do this work. The Applicant attended at the job site only to observe and see if the contractors were doing a good job. His evidence was that he would stay at the project for one hour per visit at the most.

Following the accident, the Applicant felt pain in his neck, shoulder and left arm. He is right-handed, but uses his left hand extensively in his work; for example, he holds his hammer in his left hand. The evidence of the Applicant was that throughout the months of January, February, March and April, 1991, his symptoms did not improve. He was not attending physiotherapy, but was performing neck exercises at home. The Applicant testified that he asked his doctor if he could try to work, and Dr. Ricci gave him permission to try to work, but not to force anything. The Applicant testified that when he did try to work he felt a great deal of pain. The Applicant's evidence is supported by the observations of Dr. Ricci, who examined him on nine occasions between September 7, 1990 and March 14, 1991. The report of Dr. Ricci was filed as Exhibit 1.

It was the Applicant's evidence that he did no physical work on any project until the beginning of May 1991. If the corporation had a small project, his son, Paul, who worked with him in the business, would complete that job. At no time before the beginning of May, 1991, did the Applicant work for more than one hour at a time. On cross-examination, he was questioned as to how many hours in a single day he would work. It was his evidence that he never worked more than two single hours in one day, and then only if the weather was good and clear and he was not feeling much pain.

On cross-examination, the Applicant admitted that, beginning in the late fall of 1990 until April 1991, he was capable of supervision of the type engaged in by a general contractor. He stated that he was able to observe how things were running. His evidence was, however, that during the period September 1990 to April 1991 he had no ongoing jobs for which he was the general contractor. A.R.P. Construction Ltd. received three or four small contracts, and these were performed by Paul Bonitatibus. The Applicant stated he had to turn down some small jobs. He admitted that he would go with his son to do estimates for small jobs.

The Applicant testified that if he had been capable of working at Ascenzo Bonitatibus' home, he would have taken four months to complete the house. By engaging other contractors, the house was completed by the end of December, 1990, one month earlier. It was the Applicant's evidence that he would have continued to accept other projects related to his trade had he not been injured in the accident. He would have sub-contracted larger jobs and would have performed smaller contracts himself. The Applicant stated that he received no fee as a general contractor for the work he performed at the home of his son.

Ms. Zimmerman, the Insurer's representative, questioned the Applicant about a project at 565 Sanatorium Road involving renovation of medical offices. The Applicant testified that this job was finished before the accident, by the end of August or the beginning of September, 1990. Exhibit 15, filed by the Insurer, is a copy of a building permit dated January 15, 1991. This building permit was issued to Paul Bonitatibus for work by a constructor named as A.R.P. Construction Ltd. There was no evidence before me to explain the purported relevance of Exhibit 15 to this arbitration.

The Applicant gave evidence concerning surveillance photographs taken of him and his son Paul measuring the foundation of the new home of Ascenzo Bonitatibus on October 2, 1990. He testified that throughout the period of his recovery he tried to perform a few tasks, despite the fact that he was in pain. However, he was never able to work more than one hour at a time.

There was very little evidence before me about the nature of the business carried on by A.R.P. Construction Ltd. The Applicant testified that between August 1989 and March 1990 the company had built five houses. These were not houses ordered by customers, but houses constructed by the corporation for sale. In the winter of 1990-91, the plan had been to build two houses and a six-unit condominium. None of these projects went forward, firstly, because Peter Bonitatibus was not capable of working on the two houses and, secondly, because the blueprints for the condominium were not yet ready. The Applicant further testified that he had turned down a contract to complete a deck for a customer because he was physically unable to do the work at the time the customer needed it.

Three tradesmen gave evidence on behalf of the Applicant: they each knew him for periods of time ranging from six years to 17 years.

Sam Gualtieri, a carpenter, gave evidence that he was called by the Applicant in September 1990 to work at framing the home of Ascenzo Bonitatibus in October 1990. It was Sam Gualtieri's evidence that the Applicant would attend at the lot each morning, sometimes bringing coffee, for approximately one hour.

Steven Infanti, a tile setter, gave evidence that he was called to lay ceramic flooring at Ascenzo Bonitatibus' house in December 1990. Mr. Infanti's evidence was that he was somewhat surprised to receive this call from the Applicant, because he knew that the Applicant could do this kind of work. This witness testified that the Applicant would bring coffee to the site, but he did not work at the house during the ten days in December 1990, when Mr. Infanti and his partner were completing the ceramic floor.

Giuliano Aloisio gave evidence, through the interpreter, that he had known the Applicant for 17 years. His evidence was that in September or October 1990 his roofing company put the roof on Ascenzo Bonitatibus' house in Stoney Creek, because the Applicant could not do it himself. It was Mr. Aloisio's evidence that it was a very easy job, which the Applicant could normally have done himself.

Lorri Frederick gave evidence on behalf of Wellington Insurance Company, and filed notes from her claims file. Ms. Frederick has three years' experience as an insurance claims adjuster. On two occasions, she took statements from the Applicant, which she asked him to read before he signed. The Applicant signed both statements. On cross-examination, the adjuster testified that the Applicant appeared to read the statements and indicated no trouble with reading.

Richard Brady also gave evidence. He has been a licensed private investigator for three years. Prior to this, he worked with the Ontario Provincial Police. The investigator testified that on October 2, 1990, he observed the Applicant at Lot 92, Promenade Road, Stoney Creek, Ontario, between the hours of 8:13 a.m. and 8:30 a.m. The Applicant arrived at the construction site of his son's new home, driving a Chevrolet van. The Applicant used both hands in getting out of his van quickly, carrying a roll of what appeared to be plans, and slamming the door of the van. He walked quickly over rough ground on the construction site, met with his son, Paul Bonitatibus, and stood and walked on the cement block foundation as he and his son took measurements. The investigator testified that sometimes the Applicant kept his knees straight and sometimes he squatted slightly as he made measurements on the top of the foundation. The Applicant appeared to swivel his head and neck easily, and there appeared to be no hesitation or restriction in his movements. Peter Bonitatibus turned his head over his shoulder. Mr. Brady took photographs of the Applicant on this occasion, which were entered as Exhibit 17. At 8:28 a.m. the Applicant returned to the van and drove to his home on Christopher Drive, Hamilton. Surveillance was then discontinued.

Submissions:

Counsel for the Applicant submitted that the occupation of the Applicant involved laying cement blocks, cement finishing, roofing, rough and finish carpentry, as well as general contracting work. He submitted that supervision is only part of the task of the Applicant. Counsel submitted that three tradesman testified that they worked at Ascenzo Bonitatibus' house. They were not working there because the Applicant was doing other jobs in the meantime: the Applicant was incapable of work altogether.

The Insurer's representative, Deborah Zimmerman, submitted that the primary issue was one of the Applicant's credibility. She submitted that the Applicant's credibility should be assessed based on facts she submitted were contradictions in the evidence, which she outlined: (1) On the first meeting with Lorri Frederick on September 6, 1990, she believed the Applicant to be moving in an exaggerated and stiff manner; (2) Ms. Frederick was of the view that because Peter Bonitatibus was in good physical condition and had the kind of injury that was, in her opinion, not likely to be too long standing, it was suspicious that he had not returned to work by the end of September 1990. At the end of six weeks, she engaged an investigator; (3) The investigator saw him driving the van on October 2, 1990 - he had told his doctor on September 24 he could not drive alone; (4) The adjuster obtained two signed statements that he had done no work whatsoever, yet she had a report that he had attended at a construction site and taken measurements there. Ms. Zimmerman submitted that the test of the policy is substantial inability. The Applicant may have been suffering, but after September 28, 1990 he was still capable of performing the essential tasks of his occupation.

Ms. Zimmerman referred to the income from supervisory work in the 1990 income statement of A.R.P. Construction Ltd. However, I am not able to take into account her submission in my decision, because no evidence of the income earned by the corporation was put forward at the arbitration hearing. What is said in submissions is not evidence before the tribunal.

Findings:

I am asked to determine whether the Applicant suffered "substantial inability to perform the essential tasks of his occupation" from the date benefits were cancelled to April 26, 1991. Under Section 12(1) of the Regulation, the onus is on the Applicant to establish disability to the extent required.

The evidence was that the Applicant's essential tasks consisted of physical work: hammering, sawing, cement finishing, block laying, and tile setting. He also supervised the work of others in the capacity of a general contractor. Three witnesses, called by the Applicant, worked on a project that would have been carried out by Peter Bonitatibus, had the accident not intervened.

I am satisfied that, on a balance of probabilities, the Applicant was substantially unable to perform the essential tasks of his occupation for the period following the accident until December 31, 1990.

From the period of time after Ascenzo Bonitatibus' house had been completed, until the Applicant returned to more active work in May 1991, I have only his evidence and a single medical report by the family doctor upon which I can rely. Dr. Ricci saw the Applicant on January 3, 1991 and on March 14, 1991. The following are the comments from Dr. Ricci's report with respect to those visits.

On January 3, 1991 the pain, stiffness and limited movements have increased during the winter months. Peter has became totally incapable of a full days work due to pain and stiffness along the areas of the head, neck, and shoulders. Physiotherapy and use of heat and medications were continued with very little progress.

On March 14, 1991 the headache, back pain, neck pain and left shoulder pain were still present and in addition pain to the left chest. Peter felt quite depressed. The pain and inactivity had worsened his ability to cope with work. Medication was changed again, this time it was Voltren SR 75 1 tablet at night. After several days he developed pain in the stomach and this had to be changed.

There is no other evidence before me with respect to this man's condition during the entire four months of January, February, March and April, 1991. The Insurer filed no medical reports and provided no evidence about the Applicant's abilities to perform his essential tasks.

In this claim, dealings between the parties were hampered by poor communication including a lack of attention to the sensitive nature of communications in a second language.

The Insurer based its denial of the Applicant's claim partly on the investigator's observations of October 2, 1990. Once the adjuster became convinced that the Applicant was "working" at a job site, relations between the Insurer and the Applicant deteriorated to a very low point. By October 17, 1990, Peter Bonitatibus knew he was being watched and communicated this to the Insurer. At this time, he was still attending regular physiotherapy.

In the end, I have been satisfied, on a balance of probabilities, that the Applicant was unable to perform the essential tasks of his occupation or employment until April 26, 1991. The Applicant is entitled to his expenses incurred in respect of the arbitration, including the report of Dr. Ricci.

There remains to be resolved the issue with respect to the amount of the Applicant's weekly benefit. If the parties cannot agree on the amount, they may apply for the immediate reconvening of this arbitration hearing.

March 16, 1992

K. Julaine Palmer Arbitrator

Date