Neutral Citation: 1993 ONICDRG 72

File No. A-000571

ONTARIO INSURANCE COMMISSION

BETWEEN:

FRANCESCO COSTANTTNO

Applicant

and

WELLINGTON INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Francesco Costantino, was injured in a motor vehicle accident on July 24, 1991. He applied for and received accident benefits from the Insurer 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 April 25, 1992, 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 issue in this hearing is:

1. Is the Applicant entitled to weekly income benefits from April 25, 1992 to the present?

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

Result:

1. The Applicant is entitled to weekly income benefits to May 29, 1992 at the rate of $320 per week.

The Applicant is entitled to interest on the outstanding amount, and to his expenses of the hearing.

Hearing:

The hearing was held in North York, Ontario, on August 3, 4 and 24, 1993, before me, Christine Gooderham, arbitrator.

Present at the Hearing:

Applicant:

Francesco Costantino

Applicant's Representative:

Joseph Caprara

Legal Assistant

Insurer's Representative:

Edmund Kent

Barrister and Solicitor

Witnesses:

John Seminerio

Plant Manager, Prima Dinettes

Leslie Johnson

Occupational Therapist, F.I.T. For Work Centres

Garson S. Conn

Orthopaedic Surgeon

Alessandro Castiglia of Global Translations and Interpreters Services provided interpretation services for the Applicant.

The arbitration hearing was recorded by Karen E. Charles of Rosenberger, Weir, Macdonald, on August 3 and 4, 1993, and Lori Tobis of the same firm, on August 24, 1993.

Exhibits

The exhibits are listed at Appendix 1.

Evidence and Findings:

Background

The Applicant, a woodworker, was born on February 3, 1944. He was divorced from his wife in 1993, and his son, aged 14, resides with his former wife. The Applicant was injured in an accident on July 24, 1991.

The accident occurred while the Applicant was driving alone in his girlfriend's car eastbound on Finch Avenue, towards Islington Avenue, in Metropolitan Toronto. Upon hearing an ambulance, he stopped at a green light at the intersection of Finch and Islington to allow the ambulance to travel northbound through the intersection. The Applicant was hit from behind. The damage to the vehicle was less than $1,000 and the Applicant drove the car home.

The Applicant went to see Dr. Sokol, a family physician, the next day. He had not seen Dr. Sokol before this accident. He complained that he felt dizzy, and he had pain in his neck, his lower back and his legs. In addition, the Applicant suffered headaches and had difficulty sleeping at night. The Applicant felt that these difficulties prevented him from working at his job as a band-saw operator at Prima Dinettes. He applied for accident benefits and received weekly income benefits of $320 per week from July, 1991 to April 24, 1992. The amount of weekly income benefits he received is not in dispute.

The Applicant had worked as a carpenter and a cabinetmaker for over sixteen years. For one-and-a-half to two years before the accident, the Applicant was self-employed, operating a fast food restaurant and a bar. His businesses failed, and he had returned to work as a band-saw operator with Prima Dinettes on July 15, 1991. He worked there until the day of the automobile accident, July 24, 1991. For the purposes of this hearing, the job at Prima Dinettes is the one to which I must direct my attention.

Essential Tasks

The No-Fault Benefits Schedule provides:

s.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).

Before I can make any findings about the Applicant's ability to perform the essential tasks of his occupation, I must first determine what those essential tasks are.

Both the Applicant and Mr. John Seminerio, the plant manager of Prima Dinettes, testified about the Applicant's job duties. For the reasons set out below, where their evidence differs, I prefer the testimony of Mr. Seminerio about the Applicant's job duties.

The Applicant worked in the woodworking department of Prima Dinettes, in the manufacture of wooden seat forms for upholstered chairs. The plant manager, Mr. John Seminerio, said that the term "band-saw operator" fairly describes the essential tasks of the job, although it is not the sole function. Generally, he described the job as "light work".

Both the Applicant and Mr. Seminerio testified about the working conditions in the woodworking shop. It could be hot or cold, noisy, dusty, and the machines vibrated. However, I heard no evidence that these environmental factors, combined with the Applicant's injuries, prevented him from performing his essential tasks. I cannot find that the environmental factors of the workplace, together with the Applicant's injuries, prevented him from working as a band-saw operator.

I find the essential tasks performed by the Applicant as follows:

1. The Applicant, assisted by one or two other workers, lifted sheets of plywood or particle board measuring 4' x 8', and weighing between 60 and 120 pounds, from a nearby skid to the table saw.

2. The Applicant, again with assistance, pushed and pulled the wood through the table saw to cut smaller pieces, 20" x 20".

Mr. Seminerio testified that the initial rip cuts on the table saw are the heaviest part of the job and take up about one-third of a day's work.

3. The Applicant placed 200 to 300 20" x 20" pieces on a waist-high, wheeled trolley. The pieces would reach between shoulder height and slightly overhead. The Applicant then restacked the material from the trolley in piles of four or five, one piece marked with the template for the shape of the seat. He then nailed the pieces together and with assistance, pushed the trolley to the band-saw, 12 to 15 feet away.

4. The Applicant next took each pile of wood squares and guided it through the band-saw (at chest height), cutting out the pre-marked design. The pieces were guided by arm and shoulder movement and sometimes tugged and pulled through the saw, requiring the Applicant to twist his body. The Applicant pushed scrap wood into a bin next to the saw, and then stacked the seat forms on another trolley.

5. Next, the Applicant moved the trolley to the boring machine, where he held two or three seat forms in place together to bore two holes through them. The Applicant had to push on a foot pedal to operate the press.

6. Finally, the Applicant restacked the pieces on the trolley and pushed it to the drum sander. The Applicant then rotated both edges of the seat around the sander. This work was done at chest height. The Applicant, with others from the woodworking department, was responsible for restacking the finished pieces on a trolley or a two-wheel cart for delivery to the upholstery department.

Mr. Seminerio's description of the job and the Applicant's account of it differed in that Mr. Seminerio stated that trolleys are used to transport material to the various work stations. The Applicant said that material was placed on the floor, and that he carried the pieces himself from station to station. The significance of this difference is that the Applicant testified that when he bends over, he suffers dizzy spells, and it is dangerous for him to operate machinery. I prefer Mr. Seminerio's testimony on this point: He is an independent witness, the plant manager interested in maximizing production and profit, and has no personal interest in the outcome of this proceeding.

I reach this conclusion with some difficulty, since in this hearing both the Applicant and Mr. Seminerio have admitted or been proven to have been untruthful in particular circumstances. In a statement given to the Insurer on July 10, 1992, Mr. Seminerio said, "The week of the injury Francesco was going to be dismissed. He was aware of this." In a letter to the Applicant's representative dated March 25, 1993, Mr. Seminerio said, "From the start we were not happy with his work performance and warned him if it did not improve we would not pay $10.00 per hour as promised." However, Mr. Seminerio's evidence, in chief as well as under cross-examination, was that these statements were untrue. Mr. Seminerio testified that the Applicant struck him as someone trying to "work the system" and he admitted to misstating the facts in an effort to make it difficult for the Applicant to collect accident benefits.

In the Applicant's case, he swore an affidavit December 3, 1992 in support of his divorce action. He swore that his usual occupation was as a "restaurant helper", and that he had not worked in the past two and one-half years. At this hearing during his examination in chief, the Applicant testified that he was a cabinetmaker by trade, and that he had always been employed, including self-employed. On cross-examination, I found the Applicant to be evasive about the contents of the affidavit. He is not required to pay child support so long as he is unemployed. He could not recall the details of his work history. If the Applicant told the truth under oath in this proceeding, then the contents of the affidavit are false. I am left with the impression that the Applicant makes statements that will best suit his purposes, given the circumstances.

I accept Mr. Seminerio's description of the job duties in the woodworking department of Prima Dinettes and I find that these duties formed the essential tasks of the Applicant's job responsibilities.

Treatment And Assessment

The Applicant was hit from behind on July 24, 1991, nine days after he started work with Prima Dinettes, when he stopped at a green light to allow an ambulance to proceed through an intersection. He drove himself home, and he attended at Dr. Sokol's office the next day. He complained of dizziness, and of pain and stiffness in his neck, upper back, middle back and lower back regions. He was diagnosed as having suffered muscle and ligamentous injuries as a result of the motor vehicle accident. Dr. Sokol also noted that the Applicant suffered tension headaches, post-traumatic fatigue and reactive depression.

In 1993, Dr. Sokol referred the Applicant to a psychologist, Dr. Lambros Mermigis, for an assessment of his psychological state. Dr. Mermigis saw the Applicant on February 4, 1993 for an in-depth clinical interview and his report of February 18, 1993 was filed at the hearing.

Dr. Mermigis diagnosed depression arising from the accident. He recommended psychological treatment to adjust to chronic pain and to alleviate the symptoms of reactive depression. Despite Dr. Mermigis' recommendations, I heard no evidence that any psychological treatment was undertaken, nor did I hear any evidence that the symptoms of reactive depression prevented the Applicant from working as a band-saw operator. I find that the Applicant was not substantially unable to perform the essential tasks of a band-saw operator by reason of symptoms of reactive depression.

Dr. Sokol stated in his report of January 23, 1992 that he started the Applicant on an aggressive but conservative treatment plan including rest when necessary, chiropractic treatments, massage, heat-ice packs, and stretching exercises. Dr. Sokol referred the Applicant to F.I.T. For Work Centres ("F.I.T."), where he underwent a functional evaluation on November 5, 1991.

F.I.T. recommended an intensive functional restoration program for which the Insurer paid. The Applicant attended on December 2 and 5, 1991. He did not return after December 5, 1991. F.I.T.'s final report dated December 30, 1991 stated that Mr. Costantino told them he was ill and could not attend. The Applicant testified at the hearing that he found it too difficult to get to F.I.T. for 9:00 a.m. because he did not sleep well, and it was too far away.

Dr. Sokol's notes for December 17, 1991 indicated that the Applicant had a cold and missed F.I.T. Dr. Sokol's report of January 23, 1992 stated that the Applicant felt the severity of his pains were so greatly increased that he was forced to withdraw after attending only two days. The Applicant never returned to F.I.T. for treatment that winter, nor did he request a treatment program more convenient to his home.

F.I.T.'s final report stated:

Mr. Costantino participated in a program of physical therapy for two days. In that length of time, it appeared he was skeptical of the program and lacked interest in partaking of the exercise program.

In March, 1992, the Insurer referred the Applicant to the Canadian Back Institute. The Applicant testified that he attended daily for half an hour to two hours for six weeks. He noticed improvement in his condition by the fifth week, and at the end of the sixth week, he said he was "given papers" to do exercises at home. On cross-examination, the Applicant could not recall any further treatment programs or specialists he attended prior to the arbitration hearing.

The Canadian Back Institute final report of May 5, 1992 states that the Applicant was able to maintain a functional level compatible with the physical and critical demands of his employment.

Fifteen months after attending F.I.T. on the recommendation of his doctor, the Applicant went there again, this time referred by his legal representative, for a Job Match Analysis. A physical examination and a clinical interview were completed on February 9, 1993 by Ricardo Tarzia, physiotherapist, and Leslie Johnson, occupational therapist. The functional components of the evaluation were completed on March 1 and 2, 1993. Because I find the F.I.T. report to be deficient in a number of areas, I place little emphasis on it.

Although the report mentions that the Applicant had attended previously, there is no reference to the assessment and report of December 30, 1991. For example, in December, 1991, the Applicant felt his standing tolerance was sufficient to operate a bar. However, in March 1993 his standing tolerance was only twenty minutes, due to low back and ankle discomfort. There were discrepancies about sitting tolerance, too, but the Applicant was not required to sit as a band-saw operator. On cross-examination, Ms. Johnson stated that she had an opportunity to review the Applicant's file and the comments by her colleagues in December, 1991. However, she did not ask the Applicant why he did not participate in the F.I.T. program when he was first referred--she said it was her role to complete the assessment only. I note striking differences between the F.I.T. report prepared on the Insurer's request and that prepared for the Applicant.

Ms. Johnson explained that she assessed the Applicant using both subjective and objective information. The subjective information consisted of the Applicant's complaints of pain and discomfort while doing a particular task. The objective information was her observations of the Applicant's ability to function and information about the time it took him to complete a particular task.

Ms. Johnson testified that the Applicant was able to perform work at a "sedentary" to "light" level, but she doubted whether he could sustain his performance for a full work day. Work can be classified as sedentary where the worker handles material weighing up to 10 pounds. Light work involves handling material weighing up to 20 pounds.

Dr. Conn, an orthopaedic surgeon, examined the Applicant on the request of the Insurer on May 29, 1992 and again on April 23, 1993. I note a great discrepancy between the conclusions reached by F.I.T. and those reached by Dr. Conn in his second report, yet both reports were prepared approximately at the same time (March 26, 1993 and April 23, 1993 respectively). In his first report, Dr. Conn noted no spasm in the Applicant's neck; that his neck movements were full with complaints of pain at the extremes; shoulder movements were full; back movements were good, but there were some problems with extension; and hip and knee movements were full. Dr. Conn reviewed x-rays taken July 25, 1991 and noted degenerative changes in the Applicant's upper and lower back.

The Applicant complained of dizziness at the April 23, 1993 examination. He told Dr. Conn that the dizziness prevented him from operating a band-saw and other machinery, because of the danger of having a dizzy spell while operating machinery. He said that he got dizzy when he reached down to place the cut pieces of wood on the floor. Dr. Conn said he could not comment on the dizziness because it was "more within the province of a neurological condition than related to his neck or back strain". (I note that Dr. Sokol did not refer the Applicant to any specialist for investigation or treatment of the dizziness.)

Dr. Conn testified that the Applicant may well be feeling pain, but this was "an annoyance, not a disability". On cross-examination, Dr. Conn was asked whether his opinion would change if he were told that the Applicant lifted between 50 to 120 pounds for one-third of a working day. Dr. Conn responded that kind of work would give trouble to anyone, including a healthy person. He testified that hard physical labour is not pain free, and a person would be sore and tired at the end of a working day.

I prefer Dr. Conn's evidence regarding the Applicant's disability in the early spring of 1993 to that of Ms. Johnson. Dr. Conn performed a "hands on" examination and found no back spasm in the Applicant's neck or back. The F.I.T. assessment by Ms. Johnson and Mr. Tarzia was based upon the statements of the Applicant, and their observations of him. More importantly, the F.I.T. report of April, 1993 does not account for the difference in the Applicant's complaints of December, 1991 or the earlier report of December 30, 1991.

While I accept the Applicant's evidence that he suffers pain as a result of the accident, I do not find that this pain is of such a debilitating nature that it prevents him from performing the essential tasks of a band-saw operator. As noted by Senior Arbitrator Naylor, at page 23 of her decision Norman Downs and Allstate Insurance Company of Canada, Commission File No. A-000064, July 18, 1991:

Pain and suffering which is experienced as a result of injuries sustained in an automobile accident are not, per se, compensable under section 13, unless the experience of pain causes an insured to be substantially disabled, within the meaning of the section.

As Arbitrator Mackintosh stated in her decision Barbara Edwards and State Farm Mutual Automobile Insurance Company, Commission File No. A-001707, July 12, 1993 (at page 27), "This observation also applies to claims under section 12 of the Schedule".

Although the Canadian Back Institute report of May 5, 1992 stated that the Applicant was able to function at a level to return to his employment, it also noted some end range movement restrictions in his neck. The Applicant was discharged following his final visit on April 15, 1992 with a home exercise program. Dr. Conn, in his examination of May 29, 1992, found neck movements full, with complaints of some pain at extremes. I find that the Applicant was more likely than not still unable to perform his essential tasks for a few more weeks following his discharge from the Canadian Back Institute program. Accordingly, I award weekly benefits of $320 per week to May 29, 1992, the date Dr. Conn first examined the Applicant.

Quantum of Weekly Benefit

The amount of weekly income benefits paid to the Applicant is not in dispute. Nevertheless, counsel for the Insurer submitted that any further award of weekly benefits I might make should be based upon the amount of money actually received by the Applicant for his hours worked at Prima Dinettes.

The Applicant contracted to work at a rate of pay of $10 per hour. He worked a total of 72 hours over nine days at Prima Dinettes up to the accident. However, he ultimately received only $500 from his employer.

Mr. John Seminerio, manager of Prima Dinettes, explained that the Applicant was paid as "casual labour", with a "nominal amount" deducted to represent income tax and other statutory deductions.

Counsel for the Insurer submitted that I should recalculate any further weekly income benefits based on $277.78 per week instead of $400 per week. I do not agree. Weekly benefits in this case were calculated on the Applicant's average gross weekly income based on his contracted rate of pay of $10 per hour for a 40-hour week. In my view, the employer's unilateral action in reducing the Applicant's pay by an arbitrary amount intended to reflect statutory deductions should not affect the amount of weekly benefits to which the Applicant is entitled. I am further supported in my view by the fact that under the Schedule if the accident had occurred several days before the Applicant started work, weekly benefits would be based upon the contracted rate of pay. The fact that it occurred nine days later should not alter the Applicant's weekly benefits.

Costs

The Applicant seeks an award of expenses in this arbitration proceeding. An award for expenses may be made under section 282(11) of the Insurance Act:

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.

Ontario Regulation 664 (R.R.O. 1990) prescribes Dispute Resolution Expenses.

In her decision, Ralph McCormick and Economical Mutual Insurance Company (Commission File No. A-000139, October 2, 1991), Arbitrator Susan Naylor made the following comments about expenses, with which I agree:

The discretion to award expenses should be exercise, having regard to the intent and purpose of the legislative scheme. The arbitration process has been established under the Insurance Act, as amended, in order to facilitate applicants' access to relatively inexpensive, speedy and informal adjudication of disputes regarding no-fault benefits. The discretion to award expenses should be exercised in accordance with this objective, having regard to the individual circumstances of each case.

Accordingly, it is appropriate to award an applicant his or her expenses, unless, in the circumstances of the particular case, it is determined that the application for appointment of an arbitrator was manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings.

Although the Applicant was not entirely successful in this proceeding, I find he is entitled to his expenses.

Order:

1. The Applicant is entitled to weekly income benefits of $320 per week to May 29, 1992.

2. The Applicant is entitled to interest on the outstanding sum, and his expenses incurred in respect of the arbitration.

November 18, 1993

Christine Gooderham

Arbitrator

Date

APPENDIX 1

Exhibits:

Exhibit 1

Affidavit of Applicant sworn December 3, 1992

Exhibit 2

Photocopy of cheque at Tab 12 of the Applicant's Exhibit Brief

Exhibit 3

Photograph of vehicle July 29, 1991

Exhibit 4

Photocopy of job description by John Seminerio of July 10, 1992

Exhibit 5

Employer's Confirmation of Income Form (undated)

Exhibit 6

Letter from Prima Dinettes dated March 25, 1993 at Tab 12 of the Applicant's Exhibit Brief

Exhibit 7

Job description from Prima Dinettes dated March 22, 1993 at Tab 12 of the Applicant's Exhibit Brief

Exhibit 8

Photocopy of time card for Frank Costantino at Tab 12 of the Applicant's Exhibit Brief

Exhibit 9

Application for Employment by Francesco Costantino

Exhibit 10

Applicant's Exhibit Brief, except for the document at Tab 7

Exhibit 11

Report of Dr. Lotto dated September 12, 1991

Exhibit 12

F.I.T. For Work Centres letter dated December 2, 1991 and Final Report dated December 30, 1991

Exhibit 13

Canadian Back Institute Report dated March 6, 1992

Exhibit 14

Canadian Back Institute Report dated May 5, 1992, with Weekly Progress Reports attached

Exhibit 15

Curriculum Vitae of Garson S. Conn

Exhibit 16

Report of Dr. Conn dated May 29, 1992