Sharon Lee v. Unifund Assurance Company, 1993 ONICDRG 53

Ontario Insurance Commission

Neutral Citation: 1993 ONICDRG 53 File No. P-000078 Ontario Insurance Commission Office of the Director of Arbitrations

Between: Sharon Lee Applicant (Appellant)

and

Unifund Assurance Company Insurer (Respondent)

Before: Elisabeth Sachs, Director of Arbitrations

Counsel: Leonard Kunka (for Applicant, Appellant) John Scott (For Respondent, Insurer)

Appeal Decision

I. Nature of Proceedings

By Notice of Appeal filed September 28, 1992, the insured person, Sharon Lee (the appellant) appeals from the decision of Senior Arbitrator Rotter dated August 28, 1992 which denied the appellant weekly income and dependent care benefits and refused to grant a lump sum award against the insurer, Unifund Assurance Company (the respondent) under s.282(10) of the Insurance Act, R.S.O. 1990, c.I-8.

The orders sought by the appellant are:

1. an oral rehearing of the case;
2. a referral by the Director to the Chair of the Medical and Rehabilitation Advisory Panel to review the medical evidence given at the arbitral hearing and for an additional examination by an advisor qualified to conduct an assessment of the appellant under s.283(7) of the Act;
3. a reinstatement of the appellant's weekly benefits from December 1, 1990;
4. a lump sum award under s.283(7) of the Act.

A transcript of the oral evidence of the three day hearing was filed. Both parties relied on the medical reports and other exhibits filed at the hearing.

II. Preliminary Issues

1. Oral Rehearing

The appellant requests an oral rehearing of the evidence on the basis that the arbitrator incorrectly applied the test of substantial inability to perform essential tasks found in s. 13(1) of the No-fault Benefits Schedule to the evidence before her, equating it to a finding of total disability.

The request was not strenuously argued. Given a three volume transcript of oral testimony, numerous medical and rehabilitation reports and other material filed, it would be very unusual to permit a new hearing in the absence of admissible fresh evidence or exceptional circumstances.

The Director may determine an appeal by way of rehearing in his or her discretion by s.283(4) of the Act. Neither party questioned the arbitrator's findings and summation of the appellant's essential tasks as a homemaker set out in the decision. This case is unlike some where a rehearing is asked for when there is no transcript. A central issue is whether the arbitrator correctly interpreted and applied the oral and documentary evidence before her to an appropriate standard defining substantial inability to perform essential tasks.

In the case Vito Calogero and The Co-operators General Insurance Company (OIC File No. P-000251, issued February 13, 1992), it is stated at page 5:

"The Director is required by the legislation to be flexible and has wide powers to rehear cases on appeal. Such powers should be used sparingly, to ensure consistency and integrity in the arbitration process. ...a rehearing is not as of right. It can only occur in the proper exercise of discretion, given the nature of the case appealed from and the grounds of appeal alleged.".

All documentary evidence before the arbitrator is also before me. The transcript is the verbatim account of what transpired at the hearing. What cannot be seen or evaluated is the demeanour of the witnesses, the manner in which the parties and the arbitrator interacted and ultimately the process by which the arbitrator came to her decision. It is not alleged evidence previously not available has now come to light or an unavailable witness is now prepared to testify. I see no cogent reason, quite apart from the prejudice to the respondent, why the Director would exercise a discretion to order another multi-day hearing to cover the same ground.

2. Referral to the Medical and Rehabilitation Advisory Panel

The appellant urges a referral to the Medical and Rehabilitation Advisory Panel (MRAP) as she contends there is a conflict in the medical evidence relating to her condition at:

• the time of the accident in July, 1990;
• the termination of benefits on December 1, 1990;
• the time of Dr. Zeldin's report in January, 1991;
• the time of Dr. Kachooie's reports in June, 1991 and February 1992;
• the clinical evaluation in July, 1991; and
• other times up to the hearing in March, 1992.

In March, 1991, the appellant was involved in another automobile accident which she testified did not affect her existing condition. She signed a statement for her insurer which included the phrase "I did not sustain any injuries". In her examination-in-chief, when asked why she signed a statement to that effect, the appellant responded "because there was no new injuries then (sic) what I had had before. Nothing new."

The appellant contends the arbitrator misdirected herself in evaluating the evidence as to her condition at these different periods of time. She maintains she had the same problems and difficulties in performing her essential tasks continuously from the time of the first accident to the time of the hearing, almost two years later.

The appellant further submits both reports of Dr. Kachooie (June 25, 1991 and February 14, 1992) specifically Dr. Kachooie's conclusions that the applicant was "significantly limited and disabled", were ignored by the arbitrator although referred to in the decision.

Dr. Louise Koepfler and the therapy team at the Health Recovery Clinic of Toronto conducted an assessment and evaluation of the appellant at her request. A report of the clinic's findings (July 30, 1991) was filed. The report covers a period approximately one year after the accident and eight months after the termination of benefits. At page 5 the report describes the appellant as stating she is able to do most of her homemaking activities but they take "much longer to do" and "she does not have the strength to complete them in succession". In the summary and opinion section it is noted the appellant "has reasonably good mobility and her strength loss is minimal" but "she has a greatly reduced endurance for prolonged activities and as a consequence all activities take much longer.". It was further noted the appellant was "constantly pushing to the limit and exacerbating her pain".

The arbitrator referred to Dr. Koepfler's report and noted the limitations in the appellant's abilities to perform household and childcare tasks, primarily because of her fatigue and pain.

I also reviewed the reports of the appellant's family doctor and other specialists she consulted.

The appellant stated in her written submissions that the major issue in this case is the determination of the proper definition of disability as applied to the medical evidence and the only persons competent in this area are doctors. On that basis, it is suggested the Director refer the appellant to the MRAP and its selected advisor could give a truly independent evaluation on which the determination would rest.

I do not accept this submission. Except for the report of Dr. Zeldin, all other medical reports and evaluations submitted by the appellant were by professionals of her own choosing. There is little benefit in another doctor evaluating the appellant three years post-accident and drawing conclusions as to what the physical state of the appellant might have been, which was not already canvassed by the chiropractors, psychologists and medical doctors who evaluated the appellant closer to the time of her injuries.

It is up to the arbitrator to receive medical and other evaluative reports and decide for him or herself the weight to give them in light of all of the circumstances and testimony at the hearing. The arbitrator has the option, if there are unanswered questions remaining, to refer these to the panel. It was not suggested at the hearing the arbitrator do so, nor did she find it necessary after reviewing the evidence. It is not up to the Director to second guess the arbitrator's choice, nor does a review of the evidence indicate any value in a referral to the panel.

III. Submissions & Findings

The appellant submits the report of Dr. Zeldin, who examined the appellant at the request of the respondent, is unreliable. Further, it is contended Dr. Kachooie's reports and the evaluation of Dr. Koepfler were disregarded by the arbitrator without reason.

At pages 22 to 23 of the decision the arbitrator reviews the medical evidence including the above reports in some detail. Having found from the appellant's own evidence that the appellant continued to do her essential tasks, albeit with pain and more effort, she concludes the medical evidence supports her finding. The arbitrator referred to the limitations outlined in the various reports. She decided they did not support a finding the appellant suffered a substantial inability to perform essential tasks as required by the s. 13(1) of the No-fault Benefits Schedule.

The appellant says the arbitrator found her to be credible, had no doubt that she was in pain which adversely affected her and also found she was limited in her tasks. The appellant says having made these findings, the arbitrator had to conclude she met the test of "substantial inability". As the arbitrator also found that the appellant from time to time did not carry out certain tasks, or did them at a later period, it was an error to say she could perform them in 1990 as well as in 1992. Indeed, the appellant says that the arbitrator's descriptions refer to her condition at the time of the hearing and not at the time of the termination of benefits.

The critical error, it is submitted, is having accepted the evidence and quoting the appellant's own estimate of her disability the arbitrator then did not apply the appropriate standard. The appellant says if she is not functioning at her pre-accident level, this constitutes a substantial inability to perform her essential tasks.

If that is not the case, then the appellant contends a homemaker is being treated differently from other workers who would not be permitted to return to their duties on a limited or inefficient basis. The standard the appellant urges be applied is that a finding of limited ability to perform tasks is the same as being substantially disabled from doing those tasks.

The respondent contends that no medical expert or other evaluator ever made the statement that the appellant was substantially unable to do her essential tasks. The family doctor was not called on to testify and his reports note a mild injury. On the issue of whether the insurance company representative could testify as to conversations with the family doctor, the respondent points out while that evidence may be hearsay, it was the appellant who put the insurer's file in evidence and cannot now say the arbitrator should disregard it.

That evidence was the appellant's doctor could not see any medical reason for the appellant's disabilities and "felt that she should be fit". The statement was alleged to have been made to the insurer's representative three months after the accident.

The Statutory Powers Procedure Act, R.S.O. 1990, c.s-22, s.15 permits a tribunal to admit as evidence any oral testimony or document whether or not given under oath or admissible as evidence in court proceedings. The Dispute Resolution Practice Code contains a similar provision (s.18.1 and 18.2). If it is suggested the arbitrator could not entertain evidence with respect to conversations with the family doctor, the Act and Code certainly permit the arbitrator in the exercise of her discretion, to do so.

The respondent submits that for the Director to review the oral testimony and documentary evidence and simply come to a different conclusion is not within the Director's jurisdiction on appeal. The respondent says, in any event, the arbitrator evaluated the evidence before her and exercised her discretion appropriately in determining the weight to be given to it.

There are only two or three statements in the decision where the arbitrator indicates the appellant did not satisfy her that she had suffered a substantial inability to do her essential tasks. These are found at pages 21 and 23. There is no extensive discussion of what the words "substantial inability" mean.

Numerous arbitration decisions have analyzed these words. In summary, using dictionary definitions and common sense, these cases have held that pain and suffering are not compensable under the No-fault Benefits Schedule unless they result in a sizeable inability or large and important impairment of a person's ability to perform the previously defined essential tasks. While the impairment may be mental, psychological or physical, it must be proven by the claimant on a balance of probabilities that, to a significant degree, he or she is disabled because of the effects of the injuries sustained. These interpretations are then brought to bear on each claimant's individual circumstances. I accept these interpretations and application of the words "substantial inability to perform the essential tasks" set out in s. 12 and s.13 of the Schedule.

Although the arbitrator did not perform a detailed analysis of the meaning of the words, it cannot be said an error in law was committed such that the decision must be overturned on that basis.

The oft repeated principle first outlined at pg. 7-8 in the Calogero case cited above is applicable here:

"The arbitrator had a duty to make findings of fact after hearing witnesses, reviewing documents tendered as exhibits, and the submissions of counsel. It is the arbitrator's duty... to weigh and then accept all, part, or none of that evidence. For an appellate function to overturn those findings without a specific error being alleged, either in fact or law, would be to render the arbitral process impotent.

...While the Director is required to re-examine the evidence to ensure no error occurred and that the arbitral findings are supportable given the evidence, it is not the Director's function to substitute her assessment for that of the arbitrator. In order to do that, my assessment must be based on finding that the arbitrator's conclusions have insufficient or no evidence whatsoever to support them."

In this case, there is more than sufficient evidence the appellant did not suffer a substantial inability to perform her essential tasks at the time benefits were terminated on December 1, 1990 and thereafter. While she ignored some tasks, performed others to the point of exhaustion, and lived with pain which made tasks take longer, at no time did the appellant not perform her essential tasks. Even those left for another time were eventually undertaken. To paraphrase the appellant, everything took longer, was tiring, made her irritable and generally she was not in the same top physical condition as she was before the accident.

However, the No-fault Benefits Schedule does not compensate for a diminution in ability, only for a substantial inability. Like the arbitrator, I have sympathy for the appellant in her circumstances. She is the mother of two young children in a traditional homemaker role with little assistance from her spouse. She did not, though, engage or ask the respondent to arrange for homemaking assistance or childcare. While the appellant's chiropractor recommended hiring help, the appellant only asked the respondent's adjuster whether the latter thought this might be reasonable. She did not pursue the issue. Even though clearly, as outlined in the evidence, in pain and with difficulty, the appellant continued with household and childcare tasks. In these circumstances, I cannot find the arbitrator misdirected herself or made an error that compels me to overturn the decision.

Having so found, it is unnecessary for me to consider a "special" lump sum award under s.282(10) of the Act.

IV. Expenses

The appellant requests her expenses of this proceeding.

In exercising the discretion to grant them, I have regard not only to the outcome but whether the appeal was frivolous or unwarranted, or by filing an appeal the appellant unreasonably lengthened the case, or there is some other circumstance which might disentitle her to expenses.

The appellant raised an important issue on the use of the Medical and Rehabilitation Advisory Panel. The appellant, understandably, was also concerned as to the definition of the words "substantial inability" given the disagreements about the nature of her condition. In these circumstances the appellant is entitled to her expenses of the appeal proceedings in accordance with O.Reg. 664, R.R.O. 1990, "Dispute Resolution Expenses".

V. Order

1. The appeal from the decision of Senior Arbitrator Rotter is dismissed.

2. The appellant is entitled to her expenses of this appeal.

September 14, 1993

Elisabeth Sachs Director of Arbitrations

Date