Neutral Citation: 1993 ONICDRG 71

File No. A-003173

ONTARIO INSURANCE COMMISSION

BETWEEN:

ELIZABETH ANN ARSENAULT

Applicant

and

GUARDIAN INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, Elizabeth Ann Arsenault, was injured in a motor vehicle accident on June 19, 1992. She applied for and received accident benefits from Guardian Insurance Company of Canada ("Guardian"), 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 were paid until November 12, 1992, when they were terminated. Mediation was unsuccessful in resolving the dispute between Ms. Arsenault and Guardian, and Ms. Arsenault applied for arbitration under the Insurance Act.

The issues in this hearing are:

1. Is Ms. Arsenault entitled to weekly income benefits beyond November 12, 1992?

The Applicant also claims interest on any outstanding amounts owing, and her expenses incurred in the hearing.

Result:

1. Ms. Arsenault is not entitled to further weekly income benefits.

2. Ms. Arsenault is entitled to her expenses of the arbitration.

Hearing:

The hearing was held in North York, Ontario, on September 8 and 16, 1993, before me, Fred B. Sampliner, arbitrator.

Present at the Hearing:

Applicant:

Elizabeth Ann Arsenault

Applicant's

Hugh Pattison

Representative:

Barrister and Solicitor

Insurer's

Stephen Macauley

Representative:

Barrister and Solicitor

Insurer:

Roger Potts (September 16, 1993)

Claims Representative

Witnesses:

Elizabeth Ann Arsenault

Dr. Galdino Pontarini

Cathy Montone

Dr. Robert Charles Bull

Dr. Michael C. Hall

Dr. Hugh Cameron

Exhibits:

The parties filed seven exhibits.

The proceedings were recorded by Michele Ramsey of Professional Court Reporters Inc.

Evidence and Findings:

Elizabeth Ann Arsenault testified that she was employed as a cocktail waitress one day a week at the time of the June 19, 1992 automobile accident. Ms. Arsenault stated that she returned to part-time work as a cocktail waitress at the beginning of August 1993. She claims that she qualifies for weekly benefits under section 12 of the No-Fault Benefits Schedule from the date when Guardian terminated her benefits, November 12, 1992, until the hearing.

Section 12 provides for payment of a weekly benefit to an insured person who was employed at the time of an automobile accident or has a recent record of employment. If the insured person is substantially disabled from performing his or her essential job tasks as a result of the injuries, then he or she is entitled to a weekly benefit from one week after the disability commences until he or she is fit to return to work.

Ms. Arsenault argues that, although she was a part-time employee when the accident occurred, her ability to perform her essential tasks should be assessed as if she was a full-time employee. Ms. Arsenault testified that just before the accident her employer had offered her a full-time position as a cocktail waitress.

Subsection 12(2) of the No-Fault Benefits Schedule was enacted to deal with persons who claim benefits based upon a job change which would have taken place after the accident.

(2) The following qualifications apply to an insured person who claims a weekly benefit under subsection (1):

1 .He or she must have been at the time of the accident,

i. employed or self-employed,

ii. on a temporary layoff, or

iii. entitled to start work within one year under a legitimate offer of employment made before the accident and evidenced in writing.

Section 12(2) 1.iii contemplates the case of a person who is unemployed, but has a job offer. The section sets a standard of proof for insurers to reliably assess job offers to persons who apply for section 12 benefits based upon prospective employment. I feel this section applies equally to unemployed and employed persons, such as Ms. Arsenault, who claim benefits under section 12.

Ms. Arsenault's employer did not testify, nor were any documents introduced to verify her statements about the job offer. I am not prepared to accept Ms. Arsenault's statement without corroborating evidence. Since Ms. Arsenault did not present written evidence of her job offer, in accordance with section 12(2) 1.iii, I consider her job tasks to be those of a part-time cocktail waitress.

Ms. Arsenault testified about the extent of her injuries. On the day of the accident, Ms. Arsenault went to the Mississauga Hospital emergency room, where she was examined and released. She said she developed constant headaches after the collision, "charliehorses" and cramping in the neck and back. Her legs became swollen and painful after the accident. These symptoms decreased in frequency and intensity, according to Ms. Arsenault, approximately six months after the accident, but continued to interfere with her ability to return to her job. I accept Ms. Arsenault's account of her injuries and pain directly after the accident. However, I prefer to rely on the medical evidence, rather than her own testimony, to assess Ms. Arsenault's abilities after the November 12, 1992 cutoff.

Medical Evidence:

Ms. Arsenault relies upon the evidence of Drs. Bull and Pontarini, as well as her own testimony, to support her claim.

Dr. Galdino Pontarini, Ms. Arsenault's family physician, testified that he saw Ms. Arsenault on June 22, 1992, two days after the accident. He diagnosed that Ms. Arsenault had sustained soft tissue injuries of the neck, back and legs. The diagnosis was based upon his patient's subjective complaints, as her x-rays were normal. There was no objective evidence of injury. Dr. Pontarini referred Ms. Arsenault to a chiropractor and he continued to see her two to three times a month. At each visit, Ms. Arsenault would detail her complaints, and Dr. Pontarini would examine her neck and back. Dr. Pontarini testified that Ms. Arsenault had not complained to him about her accident injuries since April 1993.

The April 27, 1993 medical report of Dr. Pontarini was filed in evidence. It provides details of his initial examination and diagnosis.

Thereupon, she presented to my office and complained of these pains. An examination was conducted whereupon it was determined that she has tenderness on palpitation of the nuchal ligament extending from the cervical C1 to C7 vertebral column and extending vertically down the spine to the sacroiliac joints at 45 degree to centre and up to the paraspinal musculature and the intrascapular rhomboid musculature with radiation anterolateral along the latissimus dorsi muscle to the pectoralis minor and the pectoralis major muscles of the anterior chest. Further to this there was also pain and injury to the anterior extensor tibialis muscles of her legs. Furthermore, her quadricep muscles were giving rise to pain and discomfort, as were the biceps, triceps and other affiliated muscles of the arms. Tenderness along these areas was elicited on palpitation and there was decrease in range of movement of the neck, the posterior spine, the cervical spine, the intrascapular spine and the sacroiliac joints. The legs although her hip joints were moving quite well caused her some degree of discomfort on moving her legs either in a rotational direction laterally or in an abduction [sic] manner sequential to adduction manner. The rotator culf [sic] of her shoulders right and left was certainly giving her some degree of distress. All these were subsequent to June 19, 1992.

The doctor's report opines that Ms. Arsenault is not able to fully enjoy her normal recreational, daily living activities or do her work.

Dr. Pontarini's clinical notes and records were introduced. The doctor's entry of June 22, 1992 contains the results of his first examination of Ms. Arsenault after the accident. The doctor testified that he usually makes his notations at or around the time of the appointment. The doctor's notes from this examination are very brief and not easily legible. The notes reflect that she was in a motor vehicle accident and the words "leg" and "neck" appear. The notes do not contain any of the detailed technical language or mention of the multitude of soft tissue muscle injuries that Dr. Pontarini set forth in his written report ten months later.

Comparing the detailed and technical jargon contained in Dr. Pontarini's medical report with the few short words contained in the clinical notes of June 22, 1992, I suspect that Dr. Pontarini went beyond the material in his records in order to prepare the April 1993 medical report. In any case, I simply do not find it plausible that when Dr. Pontarini wrote the report on April 27, 1993 he was able to provide more details of the examination than he recorded in his clinical notes at the time of the June 1992 examination.

The conflict between Dr. Pontarini's notes and the diagnosis in his report is not the only factor I consider in analysing his evidence. Dr. Pontarini stated in the April 1993 report that Ms. Arsenault "will be able to return to some functional capacity within the next five years". To me, this opinion would indicate that the patient sustained a severe injury, as she is characterized as totally disabled for a significant period.

Five months after he wrote this prognosis, Dr. Pontarini was confronted at the hearing by the opinions of other physicians who examined Ms. Arsenault, and thought that she could return to work. He was also told that Ms. Arsenault had admitted she had returned to part-time work in August 1993. Dr. Pontarini replied that he would now recommend she attempt to return to her former employment part time.

From this evidence, I suspect that Dr. Pontarini may have taken an advocacy role to promote Ms. Arsenault's claim. I am not persuaded by Dr. Pontarini's evidence, and I do not consider his assessment of Ms. Arsenault's condition and abilities reliable.

Dr. Robert Charles Bull is an orthopaedic specialist who examined Ms. Arsenault on one occasion, June 10, 1993. Dr. Bull found no functional disability other than Ms. Arsenault's inability to hop on one foot and touch her toes. He diagnosed that Ms. Arsenault suffered pain in her neck and back, which interfered with her return to full-time employment. In the summary and opinion portion of his medical report, he states:

Two of my daughters have been waitresses and this is really hard work. It's also hard on a person with upper body problems, as they have to carry heavy trays above their shoulders or head.

However, I think she should try. She could go back to one day a week and gradually increase over the course of five or six months, to Monday, Wednesday, Friday for instance.

In the last paragraph of the report, the doctor reiterates his recommendation:

Basically though, she should start into part time work and try to do these tasks,....

Thus, Dr. Bull's recommendations indicate Ms. Arsenault was fit to return to her pre-accident, part-time job in June 1993.

Dr. Michael Hall and Dr. Hugh Cameron examined Ms. Arsenault on October 23, 1992 and June 2, 1993 respectively, at Guardian's request. Both doctors found no significant impairment of Ms. Arsenault's functional ability.

Drs. Hall, Cameron and Bull found Elizabeth Arsenault fit to work part-time. Dr. Pontarini's opinion is unreliable. Therefore, from the medical evidence, I find that Ms. Arsenault has not proven, on the balance of probabilities, that she was substantially disabled from performing her essential tasks as a cocktail waitress one day a week for any period after November 12, 1992.

Expenses:

The Applicant seeks an award of her expenses incurred in this arbitration. It is within the arbitrator's discretion to award an applicant his or her expenses under section 282(11) of the Insurance Act. The prescribed expenses and amounts are set forth in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990, Dispute Resolution Expenses.

In most cases, arbitrators have used their discretion to award these expenses. Unless the claim is fraudulent, the applicant's conduct is vexatious, frivolous, or prolongs the proceedings, it is fair that an applicant be reimbursed these costs, regardless of whether the applicant has succeeded in proving their claim.

Ms. Arsenault has not been successful in proving her claim, but I find that the issues heard were entirely legitimate. As a result, she is entitled to be reimbursed by Guardian her arbitration expenses.

Order:

1. The Applicant is not entitled to section 12 weekly benefits beyond November 12, 1992.

2. The Applicant is entitled to her expenses of the arbitration.

November 17, 1993

Fred B. Sampliner Arbitrator

Date