Neutral Citation: 1993 ONICDRG 67

File No. A-002393

BETWEEN:

ALFONSO CRIMINISI

Applicant

and

AXA INSURANCE

Insurer

DECISION

The applicant, Alfonso Criminisi, was injured in a motor vehicle accident on November 27, 1990. He applied for accident benefits from the insurer, AXA Insurance, payable under Ontario Regulation 672 (the "No-Fault Benefits Schedule"), enacted under the Insurance Act, R.S.O. 1990, c. I.8.

Weekly income benefits of $480 per week were paid until August 16, 1991, when they were terminated. Mediation was unsuccessful in resolving the dispute between the applicant and the insurer, and the applicant applied for arbitration under the Insurance Act.

The issues in this hearing are:

Is Mr. Criminisi entitled to receive weekly income benefits after August 16, 1991?
At what rate should weekly income benefits be paid? AXA disputes the pre-accident and post-accident income reported by Mr. Criminisi.
AXA seeks repayment of any benefits overpaid.
Mr. Criminisi seeks a special award under subsection 282(10) of the Insurance Act.

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

Mr. Criminisi is not entitled to receive weekly income benefits after August 16, 1991.
Weekly income benefits are payable at the rate of $400 per week between December 4, 1990 and July 8, 1991, and $320 per week between July 8 and August 16, 1991.
There has been an overpayment of benefits. The insurer is entitled to repayment of benefits overpaid.
Mr. Criminisi is not entitled to a special award.

Mr. Criminisi is entitled to his expenses in the proceeding.

The hearing was held in North York, Ontario, on June 21 and 22, 1993, before me, Nancy Makepeace, arbitrator.

Present at the hearing were:

Applicant:

Alfonso Criminisi

Applicant's Representative:

Altor Shields

Barrister and Solicitor

Insurer's Representative:

Colin Jackson

Barrister and Solicitor

Ms. Fiammettia Yack

Witnesses were:

Mr. Criminisi

Mr. Frank Fata

Mr. Jeffrey Kee

Ms. Fiammettia Yack

Mr. Frank Fariello

Mr. Sam Banceri

Ms. Lisa Gardner

Mr. Chris Willcock

Exhibits and other documents on the record are listed in Appendix 1 to this decision.

Evidence and Findings

1. WEEKLY INCOME BENEFITS

Background facts

Mr. Criminisi is 32 years old, married, and the father of one child. He was injured in a motor vehicle accident on November 27, 1990. Before the accident, he was employed as a truck driver delivering furniture. He did not return to this job after the accident. Weekly income benefits of $480 per week were paid between December 4, 1990 and August 16, 1991, when they were terminated. Mr. Criminisi seeks weekly income benefits after that date.

AXA paid weekly benefits at a rate of $480 per week on the basis of Mr. Criminisi's claim that he earned $600 per week in his pre-accident job. AXA now alleges that he earned $500 per week.

Mr. Criminisi worked for a bakery for six weeks in July and August 1991. He admits that his income from this job was not reported to AXA and concedes that an overpayment has been created.

Mr. Criminisi returned to his bakery job between March and September 1992. Between October 1992 and May 1993, he worked in a supermarket bakery and cafe.

Mr. Criminisi contends that he remains substantially unable to perform the essential tasks of his pre-accident job. AXA takes the position that he was not substantially disabled after August 16, 1991. AXA does not dispute his entitlement to benefits before that date.

Entitlement to weekly income benefits

Weekly income benefits are available under subsection 12(1) of the No-Fault Benefits Schedule, which provides as follows:

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).

The amount of benefits payable is set out in subsections 12(4) and (7) and section 15 of the Schedule.

Essential tasks of pre-accident employment

At the time of the motor vehicle accident on November 27, 1990, Mr. Criminisi was employed as a truck driver for Delia Furniture. He testified that his job duties were loading, delivering and setting up furniture. He drove a cube van which he described as being in very poor condition. The furniture he delivered could weigh a few hundred pounds. Sometimes it had to be carried upstairs.

Mr. Criminisi's evidence about his job duties was essentially supported by Frank Fata, his brother-in-law and former co-worker at Delia, and by Sam Banceri, part-owner of the business. However, Mr. Fata added cleaning to the list of job duties, and Mr. Banceri added shipping and receiving, and "various" other duties. I heard no evidence about the amount of time Mr. Criminisi spent on his various tasks.

Mr. Criminisi testified that he worked on his own, or with a partner if the furniture was too heavy for one person. Mr. Banceri testified that there were usually two drivers in the truck.

Pre-accident income

Mr. Criminisi testified that his income from Delia Furniture was $600 per week, $120 of which was paid in cash, and the rest by cheque. He testified that the purpose of this arrangement was to minimize the income tax payable. Mr. Criminisi stated his salary as $600 per week on two forms he submitted to AXA, the Application for Accident Benefits and the Employer's Confirmation of Income form, which he prepared for Mr. Banceri's signature. However, the record of employment prepared by Delia reports earnings of $500 per week. Mr. Criminisi's T4 and 1990 income tax return give his 1990 employment income as $22,500, which is consistent with $500 per week, November 23, 1990 being the last day worked.

Mr. Banceri testified that Mr. Criminisi's total salary was $500 per week. However, when asked in cross-examination whether Mr. Criminisi had received an additional cash payment, Mr. Banceri did not answer, stating that he needed to protect his business. When presented with the Employer's Confirmation of Income form, Mr. Banceri initially confirmed that he had signed the form. When it was pointed out to him that the weekly salary was set out as $600, he stated that he didn't recognize the signature on the form as his own. I am unable to place any weight on Mr. Banceri's testimony about Mr. Criminisi's pre-accident earnings.

While I am not bound to accept income tax returns as conclusive evidence of pre-accident income, the applicant bears the onus of proving his income. In the absence of sufficient credible evidence, I do not accept Mr. Criminisi's claim that he earned $600 per week before the accident: I find that he earned $500 per week.

Post-accident activities and disability

On November 27, 1990, Mr. Criminisi's vehicle was rear-ended while he was stopped at a light. Mr. Criminisi described his head going "forward and back". He felt pain in his neck and mid-back as soon as he got out of the vehicle. He attended the emergency department of York-Finch Hospital on the day of the accident. He also saw a Dr. Fox, who prescribed pain medication and recommended a rehabilitation program.

The day after the accident, Mr. Criminisi visited Dr. Joseph S. Oliva, a chiropractor, complaining of pain and stiffness in his neck, right shoulder, and lower back, as well as headache. Mr. Criminisi has received chiropractic treatment including adjustments and manipulation, massage, electro-therapy and ultrasound. He saw Dr. Oliva on November 28, 29, and 30, 1990, and three or four times a week in December, 1990 and January, 1991. Between February and the end of July, 1991, there were about three visits per week.

Dr. Oliva referred Mr. Criminisi to Dr. Pizzuto, a family physician, whose report, dated May 25, 1993, describes the course of Mr. Criminisi's disability and treatment. Dr. Pizzuto first saw Mr. Criminisi on January 7, 1991. Mr. Criminisi complained of ongoing neck pain, headaches, and sleep disturbances. On initial examination, Dr. Pizzuto noted:

general tenderness overlying the right paracervical and trapezius muscle regions with evidence of increased tone and muscle spasm. There was tenderness over the dorsum of the C2-C7 spinal vertebrae, the T6-T8 thoracic vertebrae and also the L3-S1 vertebral levels. There was mild tenderness over the sacroiliac junctions bilaterally. Range of movement testing in the neck showed there to be a restriction with reduced rotation and lateral flexion and significant pain noted mostly on extension. Examination of his shoulders showed no restricted range of movement. However he did elicit pain in the right parascapular region. Examination of the range of movement of his back showed him to have forward flexion down to the knee level with pain on lateral flexion bilaterally.

Diagnosis was "moderately severe right paracervical myofascial strain and parathoracic and paralumbar strains", with "secondary tension headaches predominately in the right occipital regions" and "a mild sleep disorder secondary to the pain discomforts". Anti-inflammatory, anti-spasmodic, and pain medication were prescribed, as well as continued chiropractic treatment. Injections of anti-spasmodic medications were given for flare-ups.

When Mr. Criminisi saw Dr. Pizzuto on January 17, 1991, Dr. Pizzuto noted that range of movement of the neck had returned to 80 per cent of normal with pain elicited on extension. Range of movement of the right shoulder was not restricted, though there was pain on extreme abduction.

On February 5, 1991, Mr. Criminisi complained of "occasional episodes of very severe spasms". On examination, Dr. Pizzuto noted spasm, marked tenderness and pain on all neck movements, and stated "it was evident that he was experiencing a severe right paracervical infrascapular muscle spasm". An anti-spasmodic injection was given.

On February 5, 1991, Mr. Criminisi was examined by Dr. J.G. Stubbs at the request of AXA. Dr. Stubbs diagnosed chronic lumbar spine strain, chronic rotator cuff lesion of the right shoulder joint, and fibromyositis of the right lateral cervical muscles. His opinion was that Mr. Criminisi "is now not fit for work" but should be able to work as a driver and furniture delivery man in six weeks.

Mr. Criminisi saw Dr. Pizzuto again on February 20, March 6, May 14 and May 21, 1991. Dr. Pizzuto noted continued improvement, with episodes of neck and right shoulder spasm becoming more intermittent until severe symptoms recurred on May 14. On May 14 "we discussed his return to work which we tentatively set at mid- June for him to resume a modified level of activity at work".

Dr. Pizzuto's May 14th Form 4 (standard form) report estimated the duration of disability as four weeks. On May 21, Mr. Criminisi was advised again to "prepare to make a reentry to work in a months time" and to increase his routine exercises on a daily basis, since his activity level was noted to be generally passive.

On June 17, 1991, Dr. Pizzuto postponed the return to work date because Mr. Criminisi was suffering another recurrence and because "there was a question that his employer would not be able to provide him with light duties as they were downsizing". In his June 17, 1991 Supplementary Claim form, Mr. Criminisi reported backache, headache, stiffness and pain, and stated that he expected to return to work in six weeks.

Another recurrence of the right neck pain was reported on July 4. Mr. Criminisi was advised "not to do anything that was exceptionally exertional with his upper extremities". "With respect to return to work, his previous employer was unable to provide him with any suitable work at this time. We discussed him doing some part-time work with a family bakery business which would permit him to reestablish a routine of return to work".

Between July 8 and August 16, 1991, Mr. Criminisi worked as a pastry chef assistant at Sicilia Bakery, a business owned by his family. His duties were light, involving filling pastry shells, preparing batches, scooping cream into pastry bags, etc. Lifting was limited to boxes of pie filling, weighing 2-3 kilograms. He testified that he tried to work three times a week for eight hours a day, but was never able to work more than six hours per day. He claims that he suffered muscle spasms and headaches at work, and often had to leave early.

Mr. Criminisi testified that he was paid $100 cash per week at the bakery. He admitted that he did not report this income to AXA or Revenue Canada. No receipts were provided.

Frank Fata, part-owner of the business, testified that he has run the business for about four years, and worked on the premises during the period of Mr. Criminisi's employment. He testified that Mr. Criminisi worked three or four hours per day at most, but that his weekly pay cheque did not vary depending on hours worked. He stated that all the part-timers were paid cash so that they would not have to pay income tax. An assistant pastry chef could make $8-10 per hour. Mr. Criminisi and Mr. Fata both testified that the arrangement was in part a matter of "helping out a family member".

I am troubled by the absence of documentary evidence of Mr. Criminisi's post-accident earnings. However, AXA could offer nothing more than speculation that Mr. Criminisi may have earned more than $100 per week. I am prepared to accept Mr. Criminisi's evidence on this point.

Mr. Criminisi saw Dr. Pizzuto twice while he worked at the bakery, both times complaining of a rash on his hands, as well as continued intermittent neck and right shoulder symptoms and headaches. A steroid cream was prescribed for the rash, and he was advised to wear gloves at work. On August 6, he complained of another severe flare-up. "We discussed his attempts at work and ... he was only able to do two to three hours of work three to four days a week and usually he experienced a recurrence of muscle spasms and tension headaches and this made it difficult for him to continue. In addition, he was experiencing acute contact dermatitis due to the exposure with the baked goods. His previous employer had no work available for him." Mr. Criminisi saw Dr. Oliva about twice a week during July and August 1991.

Mr. Criminisi left his job at Sicilia Bakery on August 19, 1991. He testified that he quit the job because of the spasms and headaches, as well as the skin rash.

Benefits were terminated as of August 19, 1991. Fiammettia Yack, a claims representative with AXA, testified that benefits were terminated when AXA was advised that Mr. Criminisi had returned to work in August. Lisa Gardner, a claims adjuster with AXA, testified about her telephone conversations with Mr. Criminisi, and her notes of those conversations were introduced into evidence. Her evidence was that Mr. Criminisi advised her in conversations on April 29, May 2, and July 30, 1991 that he expected to return to work shortly. On August 12, he advised that he would return to work on August 19. On September 25, he advised that he had returned to work as planned. Though Mr. Criminisi and Ms. Gardner had several subsequent conversations, Mr. Criminisi never told Ms. Gardner that he had not been able to continue with the bakery job.

In his testimony, Mr. Criminisi accepted Ms. Gardner's account of their conversations. His explanation for telling Ms. Gardner that he planned to return to work at a time when in fact he had already returned to work was that he wanted to see whether he would be able to return to work on a full-time basis before advising the insurer. His explanation for not telling Ms. Gardner on September 25 and subsequently that he had stopped working was that he was no longer receiving no-fault benefits and didn't know he might be eligible for further benefits. When he spoke to Ms. Gardner in February 1992, he explained that the only issue was physiotherapy expenses.

After leaving the bakery job in August 1991, Mr. Criminisi did not work again until March 30, 1992. He received regular unemployment insurance benefits during this period. In oral testimony, he stated that he continued to have flare-ups of muscle spasms and headaches about three times a week, and sometimes couldn't move his neck, right shoulder and arm.

Dr. Pizzuto's May 25, 1993 report states that he did not see Mr. Criminisi between August 6, 1991 and January 21, 1992. Mr. Criminisi's complaint on January 21, 1992 was about an unrelated matter. Dr. Pizzuto continues:

My inquiry into his motor vehicle accident injuries revealed that he was having occasional flare-ups of right sided neck pains. He treated these on an intermittent basis under the care of Dr. Oliva, the chiropractor. No examination was undertaken at that time. It was noted that Mr. Criminisi failed to keep the appointment with the orthopaedic surgeon for an assessment.

Between September 1991 and mid-March 1992, Mr. Criminisi saw Dr. Oliva about twice a month.

On March 26, Mr. Criminisi visited Dr. Pizzuto, complaining of an acute flare-up of right shoulder pain over the previous two weeks, occurring about three times per week and lasting less than a day. Mr. Criminisi had also seen Dr. Oliva on March 23, 24, 25, and 26.

Between March 30 and September 25, 1992, Mr. Criminisi returned to work as a pastry chef assistant at Sicilia Bakery. He claims that he earned $220 per week, for seven hours per day, three days per week. He conceded that this income was not reported on his 1992 income tax return. He claims that he had very bad headaches and spasms at work, and frequently left early to see the doctor; co-workers complained when he was unable to lift heavy items. Mr. Criminisi's testimony was supported by Mr. Fata.

When he saw Mr. Criminisi on April 7, Dr. Pizzuto noted that "overall his level of tenderness and muscle spasm was greatly diminished". However, the pain had recurred the day after he had received a Norflex injection on March 26. Dr. Pizzuto advised continuing with anti-spasmodic medication, routine exercises and physiotherapy and chiropractic treatment.

On April 14, Mr. Criminisi reported that the pain "had been subsiding well", though he still had "occasional intermittent flare-ups". Dr. Pizzuto noted persisting tenderness but no muscle spasms. "Discussion with respect to his work found that he had resumed some part-time work hours in the family bakery business over the preceding two weeks."

On April 24, 1992, Mr. Criminisi was seen by Dr. Martin Heller, an orthopaedic surgeon. Dr. Heller diagnosed cervical strain and myofascial strain of the right parascapular muscles. He advised symptom management, with anti-inflammatory medication for flare-ups, a maintenance stretching program, and physiotherapy concentrating on strengthening the right parascapular muscles.

On June 9, Mr. Criminisi saw Dr. Pizzuto about another flare-up. Dr. Pizzuto diagnosed mild residual chronic right shoulder tendonitis and advised Mr. Criminisi to continue with therapy and Norflex medication, and to do "progressively more active weight conditioning exercises" for the upper body and neck. He noted that neurological and orthopaedic findings were negative.

Between April and September 1992 (the second period of employment with Sicilia Bakery), Mr. Criminisi saw Dr. Oliva about twice a week in April, June, July and August, once in May, and not at all in September.

Mr. Criminisi left Sicilia Bakery at the end of September 1992. On October 1, he began full-time work at Big Boys Fine Foods, which he described as a small supermarket bakery and cafe. Mr. Criminisi held this job until mid-May, 1993, when Big Boys went out of business. He was responsible for serving customers, and moving trays between the oven and counter. He earned $386.50 per week, which was reported on his 1992 income tax return. Mr. Criminisi's evidence about his job duties at Big Boys was corroborated by Mr. Jeffrey Kee, manager of the mall in which Big Boys was located. Mr. Kee confirmed that Big Boys went out of business in May 1993.

After the June 9, 1992 visit, Mr. Criminisi did not visit Dr. Pizzuto till November 2; on November 2 and 19, he complained of flare-ups of right shoulder pain. On November 19, Dr. Pizzuto stated that the symptoms were consistent with mild bicep tendonitis. Mr. Criminisi reported persisting right neck and shoulder spasm on November 26. Dr. Pizzuto advised him to initiate "a much more intensive physiotherapeutic and rehabilitation program", to use Norflex more consistently, and to continue home exercises. In his May 25, 1993 report, Dr. Pizzuto noted that he had last seen Mr. Criminisi on December 14, 1992, on an unrelated matter. Mr. Criminisi was also treated by Dr. Oliva twice a week in September, not at all in October, seven times in November, and six times in December.

Between January and June 1993, Mr. Criminisi attended a rehabilitation program recommended by Dr. Oliva and provided through Dr. Oliva's office. In his report of April 15, 1993, Dr. Oliva stated that Mr. Criminisi had completed 30 sessions of the 36-session program. His progress in the program was described as "slow but encouraging": Dr. Oliva reported that Mr. Criminisi stated that he is "50% improved with a decrease in pain, intensity and duration of his neck symptoms". Dr. Oliva recommended that Mr. Criminisi complete the program, then continue with an exercise program for an additional 6 - 8 months. In his June 11, 1993 report, Dr. Oliva said:

There is a 30-40% probability of recurrent symptoms. I do not anticipate any long term sequela but, residual symptoms consisting of occasional to intermittent headaches, moderate neck and lower back pain may be expected. Residual objective findings, such as restricted spinal motion, may be expected for several years.

Dr. Pizzuto's prognosis, as of May 25, 1993, was of gradually diminishing recurrent neck and shoulder spasms over the coming 9-18 months. Dr. Pizzuto's opinion was that "he should be able to return to some form of work that would not require repetitive or heavy lifting beyond twenty five pounds until his spasms have become very infrequent in nature." Dr. Pizzuto recommended a "progressive and consistent muscle-strengthening program for his neck, upper back and shoulder muscles".

When asked by his counsel whether he is now able to return to his pre-accident job, Mr. Criminisi said that he would want to try, but he still suffers a little from spasms, and would prefer to get into better condition by completing the strengthening program recommended by Dr. Oliva.

On behalf of the insurer, Mr. Jackson submitted that Mr. Criminisi has not returned to Delia Furniture because the business is not doing well and there is no work available for him. Mr. Jackson also submitted that Mr. Criminisi does not wish to return to Delia Furniture because he is on bad terms with the owners.

Mr. Criminisi testified that he had asked his pre-accident employer about light work at the time of the accident, and was told that his pre-accident job was the only job available. After working for Delia for a couple of months, he had invested $95,000 in the company to obtain a 10 per cent interest. He asked for his money back after the accident because he felt his investment would be unprotected if he were not working for the company. He received only $80,000 of his initial investment. The company took the position that this represented the true value of the shares. Mr. Criminisi consulted a lawyer but decided not to sue.

In his May 25, 1993 report, Dr. Pizzuto stated that Mr. Criminisi's planned return to work was postponed on June 17 and July 4, 1991 because Delia Furniture had no work available for him.

In cross-examination, Mr. Criminisi denied going back after the accident to ask about available work, although he admitted visiting to speak to his former co-workers. He denied asking Sam Banceri for work, and stated that he only greeted Mr. Banceri when he visited. He admitted that regardless of the accident, he would not want to return to Delia Furniture because of the dispute about his investment. He also agreed that the downturn in the economy had affected the company. However, he insisted that he was unable to do the work because of the accident. He could not remember telling Dr. Pizzuto that he had contacted his former employer but he may have told Dr. Pizzuto there was no work available; he knew that things were even slower than when he had worked for the company, and that there were other employees now driving the trucks.

Chris Willcock, private investigator, testified on the insurer's behalf. He said that he interviewed Mr. Banceri by telephone and in person. His testimony was that Mr. Banceri stated that Mr. Criminisi had contacted him "on numerous occasions" looking for work and that Mr. Banceri had told him there was no work because of the bad economic times.

Mr. Banceri testified that he could not recall whether Mr. Criminisi asked him about work after the accident. He saw Mr. Criminisi a few days after the accident and several times later, but Mr. Criminisi had never tried to return to work. Asked whether there would have been work available had Mr. Criminisi wanted it, he said "no, not in his condition". Mr. Banceri testified that there had been a downturn in the business, and that this accounted for the reduced value of the shares. He "didn't think" there was any bad feeling between the owners and Mr. Criminisi. He confirmed that Mr. Criminisi had been replaced.

I find that Mr. Criminisi told Dr. Pizzuto there was no work available for him at Delia, and that he knew there was no work available because he had approached Mr. Banceri about returning to work. I accept Mr. Willcock's testimony about his conversations with Mr. Banceri, and I find Mr. Banceri's failure of memory on this point to be significant. I also find it significant that after reporting to Dr. Pizzuto that there was no work available for him at Delia, Mr. Criminisi began working at the bakery.

Conclusion

All the medical reports indicate that Mr. Criminisi suffered a soft tissue injury. As early as February 1991, Dr. Stubbs predicted only six more weeks of disability. By early 1991, Dr. Pizzuto's reports indicate a pattern of continuing gradual overall recovery, with intermittent flare-ups of decreasing severity and frequency. In May, and again in June 1991, Dr. Pizzuto advised Mr. Criminisi to return to work in four weeks. Flare-ups serious enough to require Dr. Pizzuto's attention were reported June 17, July 4, and August 6, 1991.

I was presented with no evidence to support any disability between August 16, 1991, when Mr. Criminisi left Sicilia Bakery the first time, and March 30, 1992, when he went back to work at the bakery. During this period, he was unemployed and collected regular unemployment insurance benefits. He did not see Dr. Pizzuto during this period, and he saw Dr. Oliva infrequently. Though this may be partly explained by the lower physical demands of unemployment, the applicant bears the onus of proving that he is disabled for the period for which benefits are claimed.

Between March and September 1992, Mr. Criminisi returned to work at Sicilia Bakery. This time he worked about twice the number of hours and earned more than twice what he had earned the summer before. Though he reported a flare-up of his right shoulder pain in late March 1992, by early April Dr. Pizzuto reported that the pain was subsiding, leaving "occasional intermittent flare-ups". Mr. Criminisi saw Dr. Pizzuto about another flare-up two months later, in early June 1992. He did not see Dr. Pizzuto again until November, when he complained of another flare-up. In his May 25, 1993 report, Dr. Pizzuto stated that he had last seen Mr. Criminisi in December 1992 on an unrelated matter.

By April 1993, Mr. Criminisi had been employed full-time for some seven months at Big Boys, following a period of about six months, working roughly half-time at Sicilia Bakery. Between January and June 1993, Mr. Criminisi attended an active rehabilitation program. In his April 1993 report, Dr. Oliva noted slow but encouraging progress, with a 50% improvement and "a decrease in pain, intensity and duration of his neck symptoms". He predicted "residual symptoms of occasional to intermittent headaches, [and] moderate neck and lower back pain".

Entitlement to weekly income benefits under section 12 requires "substantial inability" to perform the essential tasks of the pre-accident job. As has been stated in a number of previous arbitration decisions, "substantial inability" is neither "some inability" nor "total inability"; it is a "significant" or "important" inability. I find that while Mr. Criminisi has continued to suffer some inability to perform his pre-accident job after August 16, 1991, he was not "substantially unable" to do the job.

Dr. Pizzuto opined on May 25, 1993 that Mr. Criminisi should be able to do work "that would not require repetitive or heavy lifting beyond twenty five pounds until his spasms have become very infrequent in nature". I accept that Mr. Criminisi continues to suffer intermittent muscle spasms. However, the reports of Dr. Pizzuto and Dr. Oliva indicate that Mr. Criminisi's symptoms are much reduced in frequency and severity from the immediate post-accident period. Since August 1991, only three recurrences have been serious enough to require treatment by Dr. Pizzuto.

In addition to the medical reports, I considered Mr. Criminisi's conduct after the accident. I find that in early 1991 Mr. Criminisi approached Mr. Banceri on several occasions about returning to his pre-accident job, and was refused because of a downturn in business. Moreover, Dr. Pizzuto's May, 1993 report indicates that Mr. Criminisi was often non-compliant about medication and failed to attend his first appointment with Dr. Heller. As early as June, 1991, Dr. Pizzuto recommended that he increase his activity level; he appears not to have done so until January, 1993. I also find it significant that after August 16, 1991, Mr. Criminisi did not tell anyone from AXA that he had failed in his attempt to return to work. Instead, he claimed and received regular unemployment benefits. When they ran out, he returned to work at the bakery. The only evidence I heard of any disability he may have suffered in doing that job was his own evidence, and that of Mr. Fata, a relative. No independent witness testified about Mr. Criminisi's work at the bakery. I heard no evidence about any hobbies or other non-work activities that Mr. Criminisi was unable to enjoy after the accident. After leaving the bakery, he began working full-time at Big Boys. He does not claim to have had any substantial difficulties doing that job.

The applicant must prove entitlement on the balance of probabilities. On balance, I find that Mr. Criminisi was not substantially unable to perform his pre-accident job after August 16, 1991.

2. AMOUNT OF BENEFIT

For the reasons given earlier, I find that Mr. Criminisi earned $500 per week before the accident and $100 per week while working at Sicilia Bakery in 1991. He is entitled to a weekly income benefit of $400 between December 4, 1990 and July 8, 1991, and $320 per week between July 8 and August 16, 1991.

An overpayment has been created with respect to benefits paid to August 16, 1991. AXA is entitled to repayment of benefits paid to which Mr. Criminisi was not entitled.

3. SPECIAL AWARD

On behalf of Mr. Criminisi, Mr. Shields requested a special award under subsection 282(10) of the Insurance Act, which provides as follows:

If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the No-Fault Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

The applicant alleges that the insurer unreasonably terminated and withheld weekly income benefits. I find that the insurer was not unreasonable in denying benefits after August 16, 1991.

The applicant's request for a special award is also based on correspondence between the insurer and the Ontario Chiropractic Association concerning the applicant's continuing entitlement to chiropractic benefits. Since the insurer continues to pay these expenses, and they were not an issue before me, a special award is not payable. However, the insurer's conduct in this matter calls for comment.

Correspondence between Sharon Clark, Casualty Claims Manager with AXA, and Dr. Jan J. Kempe, D.C., Chair of the Insurance Committee of the Ontario Chiropractic Association, was entered into evidence. Ms. Yack confirmed in her testimony that Ms. Clark had written Dr. Kempe on March 24, 1993. In that letter, Ms. Clark briefly described the treatment being given and requested an independent opinion about whether Mr. Criminisi's ongoing chiropractic treatment "at this stage, is necessary for Mr. Criminisi's treatment/rehabilitation". Enclosed with the letter were Dr. Stubbs' February 5, 1991 report, and Form 4 reports and narrative reports from Dr. Oliva and Dr. Pizzuto, as well as all invoices received for chiropractic treatment.

In her response of April 14, 1993, Dr. Kempe stated that she had contacted Dr. Oliva, relayed AXA's concerns, and "questioned him as to the possibility that maximum therapeutic improvement may have been attained". Dr. Kempe continued:

Dr. Oliva relates that he has previously discharged this patient only to have him reappear with acute symptoms. In any event Dr. Oliva states that he is now infrequently "treating" this patient but instead has placed him on a supervised course of therapeutic and rehabilitative exercises for 12 weeks. This should be completed about the end of April. Dr. Oliva states that your client seems to be much improved. He suggests some type of arrangement whereby the patient may continue exercising on at least a once a week basis. He expects the need for therapeutic intervention to be minimal/infrequent.

I heard no evidence that AXA intended to interfere with Dr. Oliva's treatment of Mr. Criminisi. However, while the insurer has a legitimate interest in assessing the applicant's claim on an ongoing basis, I find that AXA failed to obtain the appropriate releases from Mr. Criminisi. AXA provided Dr. Kempe with medical information and reports about Mr. Criminisi. It appears that Mr. Criminisi authorized Dr. Oliva and Dr. Pizzuto to release this information to AXA, but I heard no evidence that he authorized its release from AXA to third parties. Further, AXA must have known that Dr. Kempe would respond to its enquiry by contacting Dr. Oliva to obtain more information about Mr. Criminisi. I heard no evidence that Mr. Criminisi authorized Dr. Oliva to release information to Dr. Kempe.

4. EXPENSES

Mr. Criminisi claims his expenses in the arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:

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 maximum amounts are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664 (R.R.O. 1990), Dispute Resolution Expenses.

In the circumstances of this case, I find it appropriate to award Mr. Criminisi his expenses in the arbitration. If the parties are unable to agree on the amount of expenses, I remain seized of this matter and either party may apply for assessment of the expenses before me.

Order

Mr. Criminisi is not entitled to receive weekly income benefits after August 16, 1991.
Weekly income benefits are payable at the rate of $400 per week between December 4, 1990 and July 8, 1991, and $320 per week between July 8 and August 16, 1991.
Benefits have been overpaid. The insurer is entitled to repayment of benefits overpaid.
Mr. Criminisi is not entitled to a special award.

Mr. Criminisi is entitled to his expenses in the proceeding. I remain seized with respect to any dispute the parties may have about the amount of expenses payable.

November 10, 1993

Nancy Makepeace Arbitrator

Date

APPENDIX 1 - EXHIBITS

Exhibit 1

Applicant's Document Brief

Tab 1

Report of Dr. Michael Pizzuto, dated May 25, 1993

Tab 2

Clinical notes and records of Dr. Pizzuto

Tab 3

Report of Dr. Joseph Oliva, dated June 11, 1993

Tab 4

Clinical notes and records of Dr. Oliva

Tab 5

Income tax return for 1990

Tab 6

Income tax return for 1991

Tab 7

Income tax return for 1992

Tab 8

Letter from Ontario Chiropractic Association to AXA Insurance dated April 14, 1993

Tab 9

Report of Dr. Oliva, dated April 15, 1993

Exhibit 2

Application for Accident Benefits, December 3, 1990

Exhibit 3

Record of Employment, dated June 17, 1991

Exhibit 4

Employer's Confirmation of Income, dated December 3, 1990

Exhibit 5

Letter of Sicilia Bakery, dated August 28, 1992

Exhibit 6

Letter of Dr. J.S. Oliva, D.C., to Mr. Phil Presutti, dated April 15, 1993

Exhibit 7

Letter of Dr. J.G. Stubbs to Rawle Wood, dated February 5, 1991

Exhibit 8

Report prepared by Rehabilitation Resource Management, dated September 10, 1991

Exhibit 9

Letter of Ms. Sharon Clark to Dr. Jan Kempe, dated March 24, 1993

Exhibit 10

Letter of Dr. Jan J. Kempe to Ms. Sharon Clark, dated April 14, 1993

Exhibit 11

Summary of dates Mr. Criminisi worked at Sicilia Bakery in 1992, dated June 22, 1993, prepared by Maria Fata

Exhibit 12

Adjuster's notes

Alfonso Criminisi v. AXA Insurance, 1993 ONICDRG 67

Case Summary