Neutral Citation: 1993 ONICDRG 65

File No. A-004059

ONTARIO INSURANCE COMMISSION

BETWEEN:

DOMENICO PAGLIARO

Applicant

and

HARTFORD INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, Domenico Pagliaro, was injured in a motor vehicle accident on November 19, 1991. He applied for and received accident benefits from the Hartford Insurance Company of Canada under the No-Fault Benefits Schedule (Ontario Regulation 672, enacted under the Insurance Act, R.S.O. 1990, c. I.8).

Hartford Insurance paid weekly income benefits of $600 until February 7, 1993, when it terminated benefits on the basis that Mr. Pagliaro was able to perform the essential tasks of his employment or occupation. Mr. Pagliaro claims that he continues to be eligible for weekly income benefits.

Mr. Pagliaro applied for mediation, but the matter was not resolved. He then applied for arbitration. The issues in this hearing are:

1. Is Mr. Pagliaro entitled to weekly income benefits under section 12 of the No-Fault Benefits Schedule for any period after February 7, 1993?

2. Should Hartford Insurance be ordered to pay a special award under section 282(10) of the Insurance Act because it unreasonably withheld or delayed payment of any benefits?

Mr. Pagliaro also claims interest on any outstanding amounts owing, and his expenses incurred in the hearing.

Result:

1. Mr. Pagliaro is not entitled to weekly income benefits under section 12 of the No-Fault Benefits Schedule for any period after February 7, 1993.

2. Hartford Insurance did not unreasonably delay payments and, therefore, is not required to pay a special award under section 282(10) of the Insurance Act.

3. Mr. Pagliaro is entitled to his expenses related to this arbitration, calculated according to Ontario Regulation 664, Dispute Resolution Expenses.

Hearing:

The hearing was held in North York, Ontario, on August 25, 1993, before me, David R. Draper, arbitrator.

Present at the Hearing:

Applicant:

Domenico Pagliaro

Insurer's

Zenon Fedorowycz

Representative:

Barrister & Solicitor

Witnesses:

1. Domenico Pagliaro, the Applicant

2. Denise Owen, claims supervisor, Hartford Insurance

3. Shiv Mattai, investigator, A.G. Oxlade & Associates, Inc.

Exhibits:

Sixteen exhibits were filed and are listed in Appendix A. The following documents were also before the arbitrator:

• Report of Mediator, dated March 22, 1993

• Application for Appointment of an Arbitrator, dated March 29, 1993.

• Response by Insurer

• Letter, dated July 8, 1993, from the pre-hearing arbitrator confirming the pre-hearing discussion on July 7, 1993.

Reasons for Decision:

1. Eligibility for Weekly Income Benefits

a) The Issue

Mr. Pagliaro was injured in an automobile accident on November 19, 1991. At the time of the accident, he was working as a machinist at Canian Precision Machine Shop Ltd. He stopped working and applied to Hartford Insurance for weekly income benefits under section 12 of the No-Fault Benefits Schedule, which provides:

12 (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 added]

Hartford Insurance paid weekly income benefits of $600 to Mr. Pagliaro until June 14, 1992, when it terminated his benefits on the basis that he was able to perform the essential tasks of his employment as a machinist.

After his weekly income benefits were terminated, Mr. Pagliaro applied to the local municipality for financial assistance under the General Welfare Assistance Act. As a condition of receiving welfare, he agreed to reimburse the municipality if he received other compensation for an overlapping period. He signed an Assignment and Direction, assigning to the municipality any funds owed to him by Hartford Insurance.

At some point, Hartford Insurance agreed to reinstate Mr. Pagliaro's weekly income benefits, retroactive to June 15, 1992. He received two cheques:

• $7,800 for the period from June 15, 1992 to September 13, 1992.

• $4,800 for the period from September 14, 1992 to November 8, 1992.

These cheques were sent to Mr. Pagliaro, rather than to the municipality. It appears, therefore, that for some period, Mr. Pagliaro received benefits from both Hartford Insurance and the municipality. The municipality has now assessed an overpayment for the general welfare assistance payments that it made to Mr. Pagliaro for the period from July 6, 1992.

According to section 14(2) of the No-Fault Benefits Schedule, no-fault benefits are to be paid to eligible applicants regardless of their eligibility for assistance under the General Welfare Assistance Act. I find that there was confusion about precisely what the municipality was entitled to receive and who was responsible for making the payment. In my opinion, the fact that the municipality was not reimbursed by either Hartford Insurance or Mr. Pagliaro is not relevant to the issues before me. I did not take it into consideration in reaching this decision.

Following the payment of the two cheques, Hartford Insurance continued to pay weekly income benefits of $600 a week to Mr. Pagliaro. Effective February 7, 1993, however, his weekly income benefits were once again terminated on the basis that he was able to perform the essential tasks of his employment as a machinist. Mr. Pagliaro claims that he continues to be eligible for weekly income benefits.

The principal issue, therefore, is whether Mr. Pagliaro is eligible for weekly income benefits under section 12 of the No-Fault Benefits Schedule for any period after February 7, 1993. More specifically, the issue is whether he was substantially unable to perform the essential tasks of his employment as a machinist for any period after February 7, 1993.

b) Findings

Mr. Pagliaro is 46 years old and married. He has two adult daughters and a son who is almost 12 years old. He has worked for many years as a machinist. His employer at the time of the accident, Canian Precision Machine Shop Ltd., states that his job requires "someone in good physical condition in order to perform the job properly and efficiently". Specifically, his job duties were described, as follows:

• Working on two engine lathes (most of the time).

• Working of a milling machine (sometimes).

• The work piece weight most of the time is from 50 lbs to 200 lbs (lbs = pounds)

• Most of the work piece can be lifted with the aid of a crane.

• When the aid of the crane cannot be applied, the piece must be handled by hand.

• Drilling on the lathes is manual.

• To secure the work piece on the machine, the chuck closing is by hand, using a chuck key, and for safety purposes it must be very tight.

• When using the crane, the work piece must be lifted from the ground by hand to put the straps under the piece.

• The milling machine has two heavy components, vice and rotary table which can be handled only by hand. The weight is approximately 70 lbs to 100 lbs.

• In many cases, there is lifting of heavy pieces by hand which require 2 to 4 men depending on weight. [Exhibit 3]

Mr. Pagliaro agreed with this description of his job duties. He explained that each machinist works individually on a machine. The material must be placed on the machine. Smaller pieces are lifted onto the machine. Larger pieces must be lifted off the floor so that a chain or strap can be attached, allowing the piece to be lifted using a crane. When a large job is finished, a number of employees may be required to carry the piece outside the shop.

Mr. Pagliaro testified that he attempted to return to work "so many times", but has not been able to do all of his required tasks without assistance. On July 19, 1993, he returned to work at Canian Precision on a part-time basis, and was still working at the time of the arbitration hearing on August 25, 1993. He stated that his most significant problem was the lack of strength in his left hand, although he also found it difficult to stand for long periods.

Mr. Pagliaro presented very little evidence in support of his position. The fact that he was not represented at the hearing probably affected the presentation of his case. I find, however, that he chose to proceed on his own. He acknowledged that he had been encouraged to retain a lawyer, and did not object to the suggestion made by counsel that Hartford Insurance had agreed to pay his lawyer's fees. In addition, every effort was made at the hearing to explain the hearing process and to encourage Mr. Pagliaro to provide relevant evidence.

On November 20, 1991, the day after the accident, Mr. Pagliaro saw his family doctor, Dr. Teow, complaining of injuries to his neck, back and right shoulder. Dr. Teow diagnosed him as suffering:

1. Myofascial injury of the cervical spine

2. Myofascial injury of the lumbosacral spine

3. Rotator cuff tendonitis

Dr. Teow prescribed Tylenol #3 for pain and recommended physiotherapy. Mr. Pagliaro started going to the Malton Physiotherapy Centre on November 28, 1991, eight days after the accident. He attended approximately twice a week until April 9, 1992.

Mr. Pagliaro initially complained to his physiotherapist of constant neck and back pain that varied in intensity and location. Certain movements caused pain in the left side of his chest. His poor posture was noted. The physiotherapy centre set up a treatment program to "alleviate pain, increase range of motion, increase strength and improve posture".

Hartford Insurance arranged for Mr. Pagliaro to be examined on February 13, 1992 by Dr. Langer, an orthopaedic surgeon. Dr. Langer found that Mr. Pagliaro's condition had improved since the accident, but that he still had some discomfort in his neck and right wrist. He concluded that Mr. Pagliaro required "about six more weeks off work." He also recommended that Mr. Pagliaro continue with his physiotherapy program.

Mr. Pagliaro continued to go to the Malton Physiotherapy Centre. On April 7, 1992, he was re-examined by Dr. Langer. He complained of intermittent and varying pain on the left side of his neck. Dr. Langer found no limitations and concluded:

I told Mr. Pagliaro that he should return to work in the next two to three weeks. I told him also that I was optimistic that he would remain well, although he might have some minor symptoms now and then.

For reasons that are not clear, Dr. Langer prepared a second report, dated April 10, 1992, also reporting on his examination on April 7, 1992. He states that Mr. Pagliaro "had no significant physical findings" and "should be considered well". The report states that he advised Mr. Pagliaro that he could return to work immediately. Although Dr. Langer's two reports are somewhat inconsistent about Mr. Pagliaro's return to work, I do not find the inconsistency to be of any significance.

The first indication that Mr. Pagliaro was having problems with his left hand appears in the physiotherapy report. It states that between the middle of March and the beginning of April 1992, the grip strength in Mr. Pagliaro's left hand decreased by half. By April 9, 1992, however, "Mr. Pagliaro was lifting 25 lb. with 15 repeats without any increase in signs and symptoms." He advised his physiotherapist that he was returning to work during the week of April 20, 1992, and did not return for physiotherapy between April 9, 1992 and his return to work.

Mr. Pagliaro worked at Canian Precision on or about April 21 to 24, 1992, but felt that he was unable to continue. According to the report of Malton Physiotherapy Centre, he advised his physiotherapist that he could not continue working due to back and neck pain.

Mr. Pagliaro saw his family doctor, Dr. Teow on April 28, 1992. Dr. Teow found:

The cervical and lumbosacral spines were tender especially at the trigger points. Flexion, extension and axial rotation of the injured spines would provoke pain. Range of motion was about 50%. The right shoulder would reproduce pain.

On May 5, 1992, Mr. Pagliaro returned to physiotherapy. He attended ten times in May and ten times in June. The physiotherapy report concludes:

His chest pain increased when his pectoral muscles and shoulder external rotators were put on a stretch, as with postural correction. Mr. Pagliaro seemed unable to persevere with continued stretching of tight muscle groups and postural correction to alleviate his pain. It was frequently explained to Mr. Pagliaro that he would initially experience an increase in pain as tight muscles were being stretched and that this pain would continue to lessen in severity as the muscles lengthened.

Therapy was discontinued on June 22, 1992. On the last treatment by this therapist, Mr. Pagliaro was mainly complaining of left chest/pectoral pain and pain on left shoulder external rotation. On discharge, Mr. Pagliaro was instructed to continue with his home exercise programme and to continue to increase his activity level. It was expected that there would be some further progress in his condition.

Hartford Insurance arranged for Mr. Pagliaro to see another orthopaedic surgeon, Dr. Hall, on June 18, 1992. Dr. Hall concluded:

Although he had full and free movement of his spine when examined by Dr. Langer in February of this year, he now shows me considerable restriction of lumbar movement, which from the character of the movement is not particularly credible.

I do not find any objective signs to suggest that this patient is disabled from doing his work and I find quite a lot in the examination that suggests that there is some voluntary and deliberate display to present himself as disabled when he knows that he does not have these limitations.

I think he has some apprehension that if he is uncomfortable this is a sign that he should not do anything, and it is not uncommon for people to believe that they will damage themselves if they do anything heavy while they are uncomfortable. I do not think that I can persuade him to believe otherwise, but I agree with Dr. Langer that the patient is fit to resume his previous occupation...

Hartford Insurance terminated Mr. Pagliaro's weekly income benefits, effective June 14, 1992. Although it is unclear why the termination slightly preceded Dr. Hall's report, I do not find it unreasonable that Hartford Insurance concluded that Mr. Pagliaro was no longer eligible for weekly income benefits.

It appears that Mr. Pagliaro was not very active during the summer and fall of 1992. In a letter dated July 27, 1992, Dr. Teow advised Hartford Insurance that Mr. Pagliaro was "still disabled". The value of this report is limited, however, because Dr. Teow does not specify how often he was seeing Mr. Pagliaro, or what information he used to form his opinion. In spite of its doubts about Mr. Pagliaro's eligibility, Hartford Insurance reinstated his weekly income benefits.

According to Mr. Pagliaro's employer, he worked a total of eighteen hours from November 30 to December 2, 1992. The employer states:

While working he experienced the following difficulties:

1. Unable to lift any heavy equipment

2. Unable to use left arm or hand

3. Unable to bend properly without feeling distress

4. Needed assistance from co-workers for every type of set up involving heavy equipment

In conclusion, Domenico Pagliaro was unable to perform his job duties to its full potential without feeling pain and distress, and needed assistance for the most part of his duties.

Mr. Pagliaro's family doctor referred him to Dr. Tountas, another orthopaedic surgeon. Dr. Tountas saw him on December 8, 1992 and reported:

... He continues to have pain and because of this he states that he is unable to return back to his previous job. I got a letter from his employer dated December 7, 1992, which indicated the fact that Domenico is unable to carry on with his duties. I do not consider him a candidate for further investigations. At the same time, I am not as optimistic as the other orthopaedic surgeons that this man will be able to return back to his full previous employment...

Hartford Insurance contacted Dr. Tountas and asked him to provide some additional explanation for his opinion. He responded in a letter, dated January 12, 1992 [sic]:

I cannot explain why this man continues having pain. Also I am puzzled why he doesn't come to try to work. I am not optimistic that he will return back to full employment but from my viewpoint I do not consider him as a candidate for any further investigations.

Mr. Pagliaro relied heavily on the reports of Dr. Tountas. He submitted that Dr. Tountas clearly states that he is unable to do his job. I do not agree with this reading. In my view, Dr. Tountas does not find that Mr. Pagliaro is physically unable to do his job. In fact, he is puzzled why Mr. Pagliaro is not attempting to work. His pessimism about Mr. Pagliaro's return to work appears to be based more on the fact that Mr. Pagliaro and his employer have concluded that he is unable to do the job.

In light of the questions that had been raised about Mr. Pagliaro's condition, particularly by Dr. Hall, Hartford Insurance retained a private investigation company to conduct surveillance of Mr. Pagliaro. Mr. Mattai, the private investigator, observed Mr. Pagliaro on January 6, 8 and 11, 1993, and made a videotape recording.

The videotape shows Mr. Pagliaro in various activities, including walking, driving a car, shopping and shovelling snow. I accept Mr. Pagliaro's submission that the activities shown on the videotape do not approximate the demands of his pre-accident job. In my view, however, it is significant that no disability is evident. Mr. Pagliaro walks, bends, stretches, twists, and lifts without any obvious restriction. He uses both hands, without any clear preference.

c) Conclusion

Based on the evidence presented at the hearing, I accept that Mr. Pagliaro continues to experience pain that is related to his accident on November 19, 1991. According to the No-Fault Benefits Schedule, however, he is not eligible for weekly income benefits unless he establishes that he is substantially unable to perform the essential tasks of his pre-accident employment.

In my opinion, the various doctors and physiotherapists have consistently concluded that Mr. Pagliaro is not as disabled as he believes. He has been encouraged to increase his activity level and to return to work. Based on this evidence, and on the surveillance evidence, I am unable to find that Mr. Pagliaro was substantially unable to perform the essential tasks of his pre-accident employment as a machinist for any period after February 7, 1993.

2. Special Award

In view of the conclusion that I have reached with respect to Mr. Pagliaro's entitlement to weekly income benefits, I also conclude that Hartford Insurance did not unreasonably withhold or delay payments. Therefore, an order for a special award is not warranted in this case.

3. Expenses

Mr. Pagliaro seeks payment of the expenses that he incurred in this arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:

282 (11) The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.

The prescribed expenses and amounts are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990.

Although Mr. Pagliaro was unsuccessful in his application, I conclude that I should exercise my discretion to award him his expenses. The issues raised in this arbitration were legitimate and there was no suggestion of improper conduct in the hearing process. I would expect that Mr. Pagliaro's expenses are minimal because he was not represented, he did not need to travel very far for the hearing, and he did not present extensive documentary evidence.

If the parties are unable to agree on the amount of the expenses, I remain seized of this matter and either party may apply for an assessment of the expenses.

Order:

1. Mr. Pagliaro is not entitled to weekly income benefits under section 12 of the No-Fault Benefits Schedule for any period after February 7, 1993.

2. Hartford Insurance did not unreasonably delay payments and, therefore, is not required to pay a special award under section 282(10) of the Insurance Act.

3. Mr. Pagliaro is entitled to his expenses related to this arbitration, calculated according to Ontario Regulation 664, Dispute Resolution Expenses.

October 29, 1993

David R. Draper Arbitrator

Date

APPENDIX A

Exhibit 1

Copy of a letter, dated January 12, 1992, from Dr. Tountas to Ms. Owen of Hartford Insurance [the parties agree that the correct date is January 12, 1992].

Exhibit 2

Copy of a letter, dated December 8, 1992, from Dr. Tountas to Dr. Teow.

Exhibit 3

Copy of a letter, dated July 14, 1993, from Canian Precision Machine Shop Ltd.

Exhibit 4

Copy of a handwritten note, dated July 14, 1993, from Dr. Teow.

Exhibit 5

Copy of a letter, dated February 13, 1992, from Dr. Langer to Hartford Insurance.

Exhibit 6

Copy of a letter, dated April 7, 1992, from Dr. Langer to Hartford Insurance.

Exhibit 7

No exhibit.

Exhibit 8

Copy of a letter, dated April 10, 1992, from Dr. Langer to Hartford Insurance.

Exhibit 9

Copy of a letter, dated June 18, 1992, from Dr. Hall to Hartford Insurance.

Exhibit 10

Copy of a report, dated July 17, 1992, from Ms. Maynard, physiotherapist, Malton Physiotherapy Centre.

Exhibit 11

Copy of a letter, dated July 27, 1992, from Dr. Teow to Hartford Insurance.

Exhibit 12

Copy of a letter, dated January 14, 1993, from Mr. A.G. Oxlade, A.G. Oxlade & Associates, Inc., to Hartford Insurance.

Exhibit 13

Videotape, marked "Domenico Pagliaro, Surveillance, January 6, 8 & 11, 1993".

Exhibit 14

Copy of a letter, dated July 21, 1992, from Peel Social Services to Hartford Insurance, together with the following attachments:

a) An "Agreement to Release" form, signed by Mr. Pagliaro on July 21, 1992. b) An "Assignment and Direction" form, signed by Mr. Pagliaro on July 21, 1992.

Exhibit 15

Copy of a letter, dated December 7, 1992, from Canian Precision Machine Shop Ltd.

Exhibit 16

Copy of a letter, dated June 16, 1992, from Canian Precision Machine Shop Ltd.

Exhibit 17

Copy of a cheque for $1,000, dated August 16, 1993, from Canian Precision Machine Ltd. to Mr. Pagliaro.