Neutral Citation: 1993 ONICDRG 42

File No. A-001652

ONTARIO INSURANCE COMMISSION

BETWEEN:

LUIGI GIANGIAPPO

Applicant

and

ALLSTATE INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Luigi Giangiappo, was injured in a motor vehicle accident on November 3, 1990. He received weekly disability benefits from the Insurer, Allstate Insurance Company, until July 14, 1991, when the benefits were terminated.

The issue at this hearing is whether Mr. Giangiappo is entitled to benefits from July 14, 1991, on the basis that he suffers substantial inability to perform the essential tasks of his employment as a result of the automobile accident.

Mr. Giangiappo also claims interest on the amounts found owing, and his expenses involved in the arbitration.

Result:

1. The Applicant is entitled to weekly income benefits until September 16, 1991, together with interest on payments owing. He is not entitled to weekly income benefits from that date onwards.

2. The Applicant is entitled to his expenses incurred in respect to the arbitration.

Hearing:

An arbitration hearing was held at North York, Ontario, on December 22 and 23, 1992, and resumed on January 13, 1993.

Present at the hearing were:

The Applicant:

Luigi Giangiappo

Applicant's Representative:

Ann Bourke Barrister & Solicitor

Insurer's Representative:

Ian Kirby Barrister & Solicitor

Eight witnesses, including Mr. Giangiappo, testified at the hearing. The witnesses are listed below:

Luigi Giangiappo

Frank Brundia

Erminia Giangiappo

Vito Brundia

Danny Giangiappo

Dr. S. Greenspan

Margaret Francis

Dr. Arthur Ameis

Eighteen exhibits were filed, and are listed in Appendix A. They included a number of medical reports, information about Mr. Giangiappo's employment, and photographic evidence filed on behalf of Allstate.

Regulations:

Mr. Giangiappo claims continuing weekly income benefits under section 12 of the No-Fault Benefits Schedule. The relevant part of section 12 states:

(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).

(emphasis supplied)

Evidence and Findings:

Mr. Giangiappo's pre-accident history

At the time of the accident on November 3, 1990, Mr. Giangiappo was 56 years old and was employed. He was married with four adult children. Tony, Mr. Giangiappo's youngest son, lived with his parents at the time of the accident, but moved out shortly afterwards. Recently, Mr. Giangiappo's son Danny and his wife moved into the family home.

Mr. Giangiappo testified at the hearing. His first language is Italian, and his English skills are limited. He has a grade 6 education, which he received in Italy. He came to Canada from Italy in 1956 and has been employed as a labourer in the construction industry for most of his working life.

Mr. Giangiappo was involved in a car accident in December 1987, suffering soft tissue injuries to his right shoulder and lower back. He testified that these problems resolved within a month or two of the accident, and did not cause him to lose further time off work. X-rays taken at that time showed him to have degenerative disc disease at levels C3-4. However, the disease was not symptomatic before the 1990 automobile accident which is the subject of this arbitration.

Sometime in 1988, Mr. Giangiappo changed jobs and became a foreman with a pre-fab construction company. This involved lighter work than his employment as a labourer. I accept Mr. Giangiappo's testimony that he changed jobs because of an argument with his supervisor, and not for health reasons.

The records of his family physician, Dr. Greenspan, marked Exhibit 3, show that in the summer of 1989, Mr. Giangiappo experienced hip problems and episodes of low back pain. He was referred to Dr. Chaiton, a rheumatologist.

A CT scan taken in August 1989 suggested a small right disc herniation, spinal stenosis and facet osteoarthritis (degenerative disc disease) at levels L4-5 and L5-S1. The herniation did not require surgery and no significant nerve root impingement was found.

Dr. Greenspan's clinical notes show that Mr. Giangiappo had intermittent complaints of low back pain in 1989 and 1990. However, Mr. Giangiappo continued to work without interruption, until he developed chest pains in May of 1990. Tests showed a significant degree of coronary heart disease, angina and atrial fibrillation. Mr. Giangiappo was forced to stop work because of his heart condition, and remained disabled for approximately four months, from May 1990 to September 1990.

The evidence of Dr. Greenspan confirms that Mr. Giangiappo's heart condition is serious and permanent. His heart condition prevents him from doing heavy physical labour. Mr. Giangiappo continues to take medication for his condition, and remains under the care of a cardiologist. Although his counsel suggested that the stress and anxiety associated with the accident and its aftermath somehow aggravated Mr. Giangiappo's heart condition, no evidence supports a relationship between the accident and the course of Mr. Giangiappo's heart disease.

Mr. Giangiappo's cardiac condition ruled out a return to heavy construction work. Instead, in the fall of 1990, Mr. Giangiappo secured lighter work with Highland Farms Ltd. as a vegetable produce trimmer.

Mr. Giangiappo's pre-accident employment

Mr. Giangiappo and Margaret Francis, the human resources manager at Highland Farms, testified as to Mr. Giangiappo's employment at Highland Farms. Ms. Francis testified that she did not know Mr. Giangiappo personally, and had no direct knowledge of his job duties or performance. She stated that she had, however, informed herself by speaking to Mr. Giangiappo's supervisor. Her testimony was based on Mr. Giangiappo's employment records from Highland Farms.

According to the employment records, Mr. Giangiappo worked for Highland Farms for less than two months, from September 23, 1990 to November 17, 1990. He was hired for a standard three-month probationary period, and worked a five day, 44-hour week, with one or one and one quarter hours overtime.

Mr. Giangiappo's job involved cleaning and trimming vegetables, primarily head lettuce. The vegetables were stored in boxes, which were stacked five to six boxes high on skids near Mr. Giangiappo's work station. The skids were moved by a fork-lift truck.

Each box contained 24 heads of lettuce (each box being approximately 30" long by 16" to 20" in depth, 24" high). Mr. Giangiappo was required to pick up each box and place it on his work bench. After trimming the leaves, he would place the completed box on another skid.

Mr. Giangiappo's work station was waist high. The weight of the boxes ranged from 10 to 30 pounds, depending on the variety of vegetables. Mr. Giangiappo's testimony was that some vegetable boxes could weigh as much as 45 pounds, but Ms. Frances testified that a worker would be expected to get help if a box weighed over 30 pounds. The evidence indicates that the average weight of a box of head lettuce was about 20 pounds.

Ms. Francis estimated that a person in Mr. Giangiappo's position would lift boxes about fifty times a day. He would stand at his work station when trimming the produce, and be on his feet all day. However, Mr. Giangiappo testified that he was not required to remain in the same position and could move around his work area. His job duties included sweeping and mopping the trimming area, and taking garbage to the compactor.

Although the job involved moderate physical labour, including frequent bending, it was considerably lighter than his previous work, and Mr. Giangiappo had accepted the job on that basis.

Dr. Greenspan testified that he understood that Mr. Giangiappo took the job on a trial basis. He stated that, if he had been told of the specifics of the job, he would not have recommended it for Mr. Giangiappo's heart condition. He also thought that the work might aggravate Mr. Giangiappo's back. However, Mr. Giangiappo worked for approximately six weeks before the accident without experiencing any difficulty. In the absence of further evidence, I have not relied on Dr. Greenspan's testimony on this point.

The 1990 automobile accident

Mr. Giangiappo was involved in the automobile accident on November 3, 1990. It was a Sunday, and he was not at work. He described what had happened in the accident. He had stopped to make a right turn, when, without warning, a van struck the rear of his car, causing his car to spin round 360 degrees. Another car then hit his car broadside. According to the medical records, the force of the impact broke his seat back. Mr. Giangiappo was able to get out of his car, unassisted. His wife, who was a passenger, was taken by ambulance to the North York Finch General Hospital. Mr. Giangiappo followed her there in his son-in-law's car. No x-rays were taken as it was apparent that he had not suffered any broken bones, and he was discharged the same day.

Subsequently, the Insurer paid the replacement value of the car, which was extensively damaged in the accident, suggesting that the collision was of considerable force.

Mr. Giangiappo did not lose any time off work as a result of the accident. He returned to work the next work day, as usual. He went to see his family doctor, Dr. Greenspan, outside of work hours on November 5, 1990.

Dr. Greenspan testified at the hearing. His clinical records were marked Exhibit 3. He obtained his license to practice medicine in 1969, and obtained his certification in family medicine in 1975. Dr. Greenspan has been the Applicant's family physician for over twenty years.

At first, Mr. Giangiappo complained only of neck pain. Dr. Greenspan diagnosed a whiplash injury to the neck and referred him for cervical x-rays and physiotherapy. The x-rays showed advanced C3-4 degenerative disc disease with extensive encroachment by osteophytes. According to Dr. Greenspan, the degenerative disease had considerably progressed since the x-rays taken in 1987. However, Dr. Greenspan stated that the deterioration was a result of the natural course of the disease, and would not have been caused by the accident. Subsequently, x-rays were also taken of Mr. Giangiappo's lower back. These also showed some deterioration, at the L4-5 and L5-S1 joints.

Mr. Giangiappo reported that his neck had improved, when he saw Dr. Greenspan the following week.

Mr. Giangiappo continued to work as usual until November 17, 1990 when he was laid off by the company.

There are conflicting versions of the reasons for the lay-off. The reason given by the company for the lay-off was shortage of work. However, Mr. Giangiappo felt that his injuries affected his productivity, and caused his lay-off. He testified that, although the manager told him he was being let go because of the economy, his foreman told him that it was because his productivity had "come down completely".

Mr. Giangiappo attributed his reduced productivity to his low back pain. He first complained of low back pain and pain in his left shoulder when he visited Dr. Greenspan after the lay-off on November 19, 1990. He testified that he did not experience the onset of the back pain immediately after the accident, but that it developed, possibly, several weeks later.

I cannot conclude, on the basis of the evidence before me, that Mr. Giangiappo was laid off because of productivity problems following the accident. Lay-off for lack of work is an unfortunate but commonplace reality in these recessionary times. Mr. Giangiappo was a probationary employee with no seniority. His employment records indicate that he was laid off for lack of work, and do not disclose evidence of loss of time or reduced productivity due to a disability. Mr. Giangiappo's time sheets from September 29 to November 17, 1990 were marked as Exhibit 4. They do not disclose any substantial change in the total number of hours that Mr. Giangiappo worked after the accident. Ms. Francis testified emphatically that any productivity problems would have been brought to her attention and recorded. The only evidence linking Mr. Giangiappo's termination to the accident was his hearsay testimony about the comments of his foreman. He did not call any witnesses to substantiate this testimony.

The evidence in this case does not support a finding that Mr. Giangiappo was terminated because of the effects of the accident.

Mr. Giangiappo claims that, in any event, he could not have continued working because of his deteriorating condition. It is a matter of speculation whether he would have continued to work had he not been laid off. In any event, benefits were paid on the basis that he could not perform his job duties after the lay off for approximately nine months, until July 14, 1991 when benefits were terminated.

Mr. Giangiappo claims that he remains unable to perform the tasks of his pre-accident employment. He testified that his left arm and shoulder ache continuously; the pain interferes with his sleep. He stated that his low back also aches continuously, with varying intensity, in particular when he bends down. This prevents him from working in one position for longer than about 20 minutes. He is unable to bend over for longer than 5 or 10 minutes. He cannot stay in one position for any length of time. He is able to be on his feet for about two hours, but then must sit down to rest. He feels that his symptoms have deteriorated rather than improved over time.

Mr. Giangiappo stated that he has not worked since the lay-off, save for two days when he worked as a cleaner in his son's plumbing shop. He stated that the work made his back sore and he could not continue it. He testified that he was looking for suitable light work.

Mr. Giangiappo testified that the accident has also affected his household, leisure and family activities. His daughter, Erminia Giangiappo, corroborated this testimony. She noted a change in her father's energy level and emotions after the accident - that he had "really gone down hill". Ms. Giangiappo testified that her father can no longer lift his two year old grandson, who weighs about 35 pounds, to play with him. He sometimes has difficulty lifting her baby, who is three and a half months old.

Danny Giangiappo testified that he does all the heavy work around the house for his father.

Mr. Giangiappo testified that he had tried to mix concrete at his club for approximately 20 minutes, several months before the hearing. He complained that the activity made his back sore.

Mr. Giangiappo received chiropractic treatment for about three months following the accident, but is not presently receiving any rehabilitative treatment. He testified that he occasionally takes analgesics for pain and does exercises at home, including walking his dog every day for 30 minutes to an hour.

The Insurer introduced videotape and photographic evidence of Mr. Giangiappo. The photos showed Mr. Giangiappo filling up a watering can and watering plants in the garden, bending over. A videotape, marked Exhibit 13, showed him walking his German shepherd dog on an extended leash, and then off the leash. The walk lasted for about one and a half hours. Mr. Giangiappo was not in sight for much of the time.

Further tape showed Mr. Giangiappo participating in a gathering in and around the garage of his house on August 22, 1991. Frank Brundia, a private investigator retained by the Insurer, testified that he observed the activities for about four to four and a half hours, and filmed about fifty minutes of tape.

Danny Giangiappo explained that the family was cooking and canning tomatoes. Mr. Giangiappo was intermittently observed in the doorway of the garage bending over from the waist. He remained bent over for between ten to thirty seconds at a time. He was not in sight for most of the tape, and it is quite possible that he was resting during the periods when he was unobserved.

At one point, Mr Giangiappo was observed rolling a large empty steel drum across the road to a neighbour's house. Mr. Brundia estimated that the drum weighed about 40 pounds. Mr. Giangiappo rolled the drum, by kicking it or, alternately, by bending over and pushing it with his hands. When he reached the neighbour's house, the neighbour and he carried it together to the back of the house.

Further videotape, marked Exhibit 15, was apparently taken on December 12, 1992. It showed a person shovelling snow in front of what appeared to be Mr. Giangiappo's house. It showed a great deal of snow, which was heavy and compacted. It appeared that the bulk of the snow had fallen on an earlier day, as the driveway and sidewalk had apparently been cleared previously. The snow on the sidewalk was piled high, indicating that the road had recently been ploughed. I note that Danny Giangiappo testified that the road had been ploughed the previous evening.

The film recorded the individual shovelling snow from 10:20 a.m. to 10:30 a.m. He first shovelled the lower part of the driveway, and then walked to the corner of the sidewalk, and continued shovelling for several minutes. The pictures showed the individual repeatedly bending to shovel small amounts of snow from the driveway. At the corner, the individual shovelled much larger amounts of compacted snow, and chopped vigorously at ice and snow with his shovel. The individual demonstrated no apparent discomfort or restrictions.

The person was dressed in winter wear, with his face concealed by a cap and upturned collar. Vito Brundia, a private investigator who recorded the tape, firmly identified the man - "100 per cent sure" - as Mr. Giangiappo. He testified that he recognised Mr. Giangiappo from a photograph, and could clearly see his face through binoculars from his observation point across the street.

Both Danny and Erminia Giangiappo testified that their father could only shovel light snow for a maximum of twenty minutes. He would shovel the snow from a small, three foot by seven foot, walkway immediately adjacent to the front door. Danny did all the heavy shovelling. Dr. Greenspan also testified that he would be very surprised to learn that Mr. Giangiappo shovelled heavy snow.

Danny Giangiappo testified that he was living at his parents' home in December 1992. He stated that there was a heavy snowfall on Thursday night and Friday, December 10 and 11, 1992. He recalled that his father shovelled the small walkway for about five to ten minutes before the heavy snowfall. However, he stated that Mr. Giangiappo did not help with any shovelling after the heavy snowfall.

Danny Giangiappo testified that he shovelled the property before he left for work by 7:00 a.m. on the Friday morning. When he arrived at work, he learned that the job site had closed due to the inclement weather, and he returned home. He shovelled the snow on his arrival home at about 9:40 a.m. and again that night. He stated that he did not shovel at all on Saturday morning, December 12th, because it had not snowed much overnight. To the best of his knowledge, no one shovelled the yard that day.

Accepting the evidence of Danny Giangiappo in full, it is quite possible that Mr. Giangiappo shovelled snow on the day in question, without his son's knowledge.

Mr. Giangiappo cannot be positively identified from the photographic evidence as the person shovelling snow. However, it was not disputed that the individual observed appeared to be the same height and build as Mr. Giangiappo, and that the activities took place in front of his house. Although a number of witnesses testified, they offered no credible alternative explanation as to who the individual might be. The period in issue was relatively recent - less than two weeks before the hearing - so that the recollections of the parties were reasonably fresh. Had the individual been a family member or neighbour, presumably one of the witnesses would have said so. However, no reasonable explanation of any kind was advanced.

I find, on the balance of probabilities and in the absence of a credible alternative explanation, that Mr. Giangiappo was indeed the person observed shovelling snow in the photographs and videotape.

Mr. Giangiappo has been examined by a number of specialists as well as his own family doctor. He has been examined by Dr. Langer, an orthopaedic surgeon, and Dr. Ameis, a specialist in rehabilitation and physical medicine, both at the request of the Insurer. He has also seen Dr. Handelsman, a rheumatologist. Medical reports from these doctors were filed in evidence. In addition, Dr. Ameis testified at the hearing.

It is not disputed that a combination of neck, shoulder and low back injuries rendered Mr. Giangiappo substantially unable to perform the duties of his employment for the period from the date of the accident until July 14, 1991, when benefits were terminated.

All the doctors agree that Mr. Giangiappo suffered a neck injury as a result of his accident, which disabled him for some period of time after the accident. However, Mr. Giangiappo testified that his neck is "not a big problem", although he continues to experience some pain and very occasional headaches. This is borne out in the medical reports. The evidence does not suggest that Mr. Giangiappo's neck was disabling by the summer of 1991.

Dr. Langer and Dr. Ameis also found that Mr. Giangiappo suffered a rotator cuff injury to his left shoulder as a result of the accident. However, the evidence does not suggest that the injury was serious or substantially limiting beyond the date benefits were terminated. Mr. Giangiappo told Dr. Langer in mid-May 1991 that his shoulder problem was no longer significant. In September, Dr. Ameis found only a modest restricted range of movement in the shoulder, and concluded that the injury was not significant or disabling. Mr. Giangiappo saw Dr. Handelsman in November 1991 and, most recently, in December 1992. On both these occasions, Mr. Giangiappo did not complain of shoulder pain and Dr. Handelsman found unrestricted range of motion in the shoulder.

I conclude, therefore, that, while Mr. Giangiappo's left shoulder continues to cause him some pain and discomfort, these problems are not sufficient to prevent him from doing the essential tasks of his employment.

Mr. Giangiappo's principal area of complaint is his low back. The medical evidence is divided as to the cause of Mr. Giangiappo's low back pain, and as to its effects.

Dr. Langer, in his report of May 14, 1991, marked Exhibit 5, noted that "his symptoms seem to be quite mild and I think they are more frustrating to him than anything else". He anticipated that Mr. Giangiappo would be able to return to work by July 1991.

Dr. Ameis essentially agreed with Dr. Langer's conclusions. He examined Mr. Giangiappo on September 6, 1991. His report is marked Exhibit 7. Dr. Ameis also testified at the hearing. He was certified as a specialist in physical medicine and rehabilitation in 1979 and is a lecturer in the department of Rehabilitative Medicine at the University of Toronto. He has authored a number of publications on motor vehicle injuries and rehabilitation.

Dr. Ameis found, on examination, that Mr. Giangiappo's back demonstrated good preservation of strength and flexibility, and that the results of flexibility tests were "excellent in a person of his age". He conducted mechanical tests of Mr. Giangiappo's pelvic area, which he thought indicated that Mr. Giangiappo's back was intact. Dr. Ameis found pain and some restriction of movement on extension, but thought that the limitations were reasonable in light of Mr. Giangiappo's age and pre-existing back condition.

Dr. Ameis noted evidence of pain behaviour in the guarded way Mr. Giangiappo moved while under observation, and felt that he might have been magnifying the intensity of his pain, or exaggerating it somewhat. None of the doctors, however, suggested that Mr. Giangiappo was not being truthful in the reporting of his symptoms.

Dr. Ameis felt that Mr. Giangiappo could perform light to medium work, as long as he could move around at his work station - physical restrictions similar to those due to his cardiac condition. He concluded that Mr. Giangiappo was not disabled from doing the tasks of his job at Highland Farms, had such work been available, and that he should be encouraged to return to work in the interests of his rehabilitation.

Dr. Handelsman, a specialist in rheumatology and internal medicine, who examined Mr. Giangiappo on November 4, 1991, and again on December 7, 1992, is of a different view. His reports are marked Exhibits 1 and 2, respectively.

Dr. Handelsman found moderate muscle spasm and tenderness of the lumbar spine. Flexion and extension were painful, as was sitting up from a supine position and standing up from a sitting position. He found no appreciable improvement on the second visit. He concluded:

I have suggested to Mr. Giangiappo that the type of work that he should look for is a job that does not require him to do any moderate to heavy lifting and allows him the liberty of changing positions every 45 to 60 minutes. Also such a job should not involve prolonged lifting or repetitive bending. In view of Mr. Giangiappo's educational background, (Grade VI in Italy), his age and the state of our economy, such a job will be extremely difficult for him to find.

The restrictions suggested by Dr. Handelsman were based on Mr. Giangiappo's own description of his limitations, together with restrictions due to his cardiac condition.

Having regard to all the evidence before me at this hearing, I am not satisfied that Mr. Giangiappo remains physically unable to perform the tasks of his pre-accident employment as a result of the accident. His job at Highland Farms required medium physical labour - lifting an average weight of 20 pounds, with a maximum weight of 30 pounds. The evidence does not suggest this is outside Mr. Giangiappo's capacity due to his back. Most of his time was spent cleaning and trimming vegetable leaves. The job required frequent lifting and bending from a standing position in order to transfer the vegetable boxes to and from his work station, but it did not require prolonged lifting or bending. Although Mr. Giangiappo was required to stand rather than sit at his work station for his trimming work, he was able to change positions and to move around, as suggested by Dr. Ameis.

After the accident, Mr. Giangiappo continued to work without interruption until he was laid off due to the economy. He told Dr. Greenspan that his symptoms had improved during this time.

On Mr. Giangiappo's own testimony, confirmed by the videotape and photographic evidence, he is able to perform tasks that require a considerable amount of physical exertion. His family doctor was surprised that he was able to perform some of these activities. The activities shown involved repetitive bending, lifting, and extended walking. Mr. Giangiappo's activities included physically strenuous tasks such as shovelling heavy compacted snow, and mixing concrete, which required both strength and flexibility.

Counsel for the Applicant submitted that Mr. Giangiappo could do some of the requirements of his job at Highland Farms for a limited time, but could not do them for a full eight-hour work day. However, I am not satisfied that the Applicant's capabilities were limited to such an extent. Dr. Ameis' objective findings indicated that Mr. Giangiappo's back was strong and flexible, particularly given his age. The evidence of Mr. Giangiappo's other activities, referred to above, supports these findings. It also lends support to Dr. Ameis' conclusion that, as of the date of his examination, Mr. Giangiappo was physically capable of the demands of his pre-accident job.

I do not question that Mr. Giangiappo continues to suffer from pain and discomfort in his low back. However, in my view, by late summer or early fall 1991, his symptoms had resolved to the point that he was no longer disabled from his pre-accident employment. Indeed, in all probability, he would have returned to work by this time, had his job at Highland Farms been available to him.

I put this date as the date of Dr. Ameis' examination on September 16, 1991. I am not satisfied that Mr. Giangiappo suffered substantial inability to perform the essential tasks of his pre-accident employment as a result of the accident from this date onwards.

The Insurer questioned whether Mr. Giangiappo's continued back symptoms were, in fact, attributable to the accident. The Insurer relied on the conclusions of Dr. Langer and Dr. Ameis, who felt that Mr. Giangiappo's low back pain was the result of the normal progression of his pre-existing degenerative disc disease. On the other hand, Dr. Handelsman concluded that the accident had exacerbated Mr. Giangiappo's degenerative disc disease, accounting for his symptoms.

Dr. Ameis described Mr. Giangiappo as "orthopaedically vulnerable" to the effects of the car accident, because of his age and history. However, he thought that, in such circumstances, if Mr. Giangiappo had suffered a serious back injury from the accident, he would have experienced back pain within, at most, 48 hours of the accident. This was the time when the swelling, spasm, bleeding and tearing from the trauma was at its peak. In this case, however, Mr. Giangiappo was able to continue working after the accident and did not complain of back pain for several weeks.

Dr. Ameis testified that, given the clinical history, Mr. Giangiappo was likely to experience intermittent symptoms from his degenerative disc disease in any event, particularly during periods of inactivity.

Although Mr. Giangiappo experienced low back pain before the accident due to degenerative disc disease, his symptoms were intermittent and did not interfere with his employment. Mr. Giangiappo was forced to change employment because of his heart condition and not because of back problems. The accident was quite severe. It is not unreasonable in the circumstances to infer that his continued symptoms related to the accident, superimposed on a pre-existing vulnerable orthopaedic condition. Regardless of this finding, however, I am not satisfied that Mr. Giangiappo's symptoms were sufficient to disable him from work after September 16, 1991.

Expenses

Mr. Giangiappo claims the expenses he has incurred in respect to the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I-8, and Ontario Regulation 664, R.R.O. 1990.

Prior arbitration decisions, for example Ralph McCormick and Economical Mutual Insurance Company, Commission File no. A-000139, have suggested some criteria that might be considered in the exercise of arbitral discretion under section 282(11). These include whether the application was fraudulent or frivolous, or whether the actions of the applicant unduly prolonged the hearing. I heard no submissions to suggest that these general criteria were inappropriate or inapplicable in this case.

I am satisfied that the dispute in this case involved a legitimate issue, in respect of which there was a divergence of medical opinion. I award Mr. Giangiappo his expenses in connection with the arbitration.

Order:

1. The Applicant is entitled to weekly income benefits until September 16, 1991. He is not entitled to such benefits from that date onwards.

2. The Applicant is entitled to his expenses incurred in respect to the arbitration.

July 29, 1993

Susan Naylor Senior Arbitrator

Date

APPENDIX A

Exhibits:

Exhibit 1

Report of Dr. S. Handelsman, dated November 4, 1991.

Exhibit 2

Report of Dr. S. Handelsman, dated December 7, 1992.

Exhibit 3

Dr. Greenspan's clinical notes and records.

Exhibit 4

Report of Dr. Fred Langer, dated February 18, 1991.

Exhibit 5

Report of Dr. Fred Langer, dated May 14, 1991

Exhibit 6

Letter from Margaret Francis, Highland Farms Inc., dated December 15, 1992

Exhibit 7

Report of Dr. Arthur Ameis, dated November 6, 1991

Exhibit 8

Task List from Highland Farms Inc., dated June 13, 1990

Exhibit 9

Seven punched-in duplicate time card reports of Luigi Giangiappo

Exhibit 10

Record of Employment for Luigi Giangiappo, dated November 22, 1990

Exhibit 11

Letter from Margaret Francis, Highland Farms Inc., dated August 28, 1991

Exhibit 12

Series of 30 photographs of Luigi Giangiappo

Exhibit 13

Videotape taken August 22, 1992

Exhibit 14

Series of 24 photographs, dated December 13, 1992

Exhibit 15

Videotape number 2, dated December 13, 1992

Exhibit 16

Report from Dr. A. Chaiton, dated July 11, 1989

Exhibit 17

X-ray report, dated August 25, 1989

Exhibit 18

Report of Dr. Ivan Hronsky, dated October 1, 1991