Neutral Citation: 1994 ONICDRG 127
File No. A-001649
ONTARIO INSURANCE COMMISSION
BETWEEN:
LOUISE STANISCI
Applicant
and
WELLINGTON INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Louise Stanisci, was injured in a motor vehicle accident on May 2, 1991. She applied for Statutory Accident Benefits from Wellington Insurance Company ("Wellington"), payable under Ontario Regulation 6721. Wellington paid no weekly income benefits. The parties were unable to resolve their dispute through mediation and Mrs. Stanisci applied for arbitration under the Insurance Act.
The issues in this hearing are:
Is Mrs. Stanisci entitled to weekly income benefits for any period after the accident?
What is the amount of Mrs. Stanisci's benefit?
Mrs. Stanisci also claims interest on any outstanding amounts owing, a special award and her expenses incurred in the hearing.
Result:
Mrs. Stanisci is not eligible for weekly benefits.
Mrs. Stanisci is entitled to her expenses of the arbitration.
Hearing:
The hearing was held in North York, Ontario, on November 1, 2, and 3, 1993, before me, Fred Sampliner, Arbitrator.
Present at the Hearing:
Applicant:
Louise Stanisci
Applicant's
Domenic Trotta
Representative:
Barrister and Solicitor
Insurer's
Edmund Kent
Representative:
Barrister and Solicitor
Witnesses:
Louise Stanisci
Gregory Stanisci
Ivo Lanni, Chartered Accountant
Daniel Edwards, Chartered Accountant
Christopher Nielson, Private Investigator
Exhibits:
The parties filed 20 exhibits which are listed in Appendix A.
Evidence and Findings:
Mrs. Louise Stanisci was driving her car on the morning of May 2, 1991. It was rear-ended by another vehicle while stopped at a traffic light. Mrs. Stanisci claims that she sustained a debilitating whiplash-type of injury to her neck and back. She contends that as a result of this injury she was unable to perform her normal duties in the family-run tile business, Tiles Trust Limited ("Tiles Trust"), for the period beginning two months after the accident until December 31, 1992. Mrs. Stanisci claims that she is entitled to a $600.00 per week benefit from Wellington during that period under section 12 of the Statutory Accident Benefits Schedule.
In order to qualify for weekly benefits under section 12 of the Statutory Accident Benefits Schedule Mrs. Stanisci must prove, on a balance of the probabilities, that she suffered a substantial inability to perform the essential tasks of her job. Wellington maintains that Mrs. Stanisci was not eligible for benefits at any time after the accident.
Mrs. Stanisci testified about her job at Tiles Trust. She and her husband, Gregory Stanisci, owned all of the common shares in the company. The company operated two stores at the time of the accident. Each store contained a showroom, warehouse area, and an office. Mrs. Stanisci said that at the time of the accident she ran the larger store at 944 Lawrence Avenue West, Toronto. Her husband managed the smaller location at 3280 Steeles Avenue West, Toronto.
Mrs. Stanisci testified that the stores were open six days a week. She arrived at work between 6:00 and 7:00 a.m. She usually left the shop shortly after the 5:00 p.m. closing, but she often took book-keeping work home to finish after her children were in bed.
Mrs. Stanisci testified that her essential job tasks consisted of waiting on customers in the showroom, answering phone calls, setting showroom displays, ordering and pricing products, and maintaining the sales and general ledgers.
Mrs. Stanisci also identified certain more physically demanding aspects of her job. She testified that the most physically demanding tasks were; cleaning and maintaining the showroom, filling orders, and moving products in and out of the warehouse.
Mrs. Stanisci testified that products arrived at the warehouse by truck, once a week. She unloaded boxes of tile and bags of cement, grout, and glue. Mrs. Stanisci stated that she checked and inventoried everything herself. She stacked the goods in the warehouse by hand or sometimes by using a forklift truck.
Mrs. Stanisci stated that to fill customer orders she assembled boxes of tiles and bags of cement and adhesive from the warehouse for pickup. The orders ranged anywhere from one to 500 boxes of tiles, each box weighing from 20 to 60 pounds. According to Mrs. Stanisci, the warehousing of the goods and assembling of customer orders involved the heaviest labour.
Mrs. Stanisci also testified about her cleaning tasks. She stated that the showroom became dirty quite frequently during the day. Not only did customers track street dirt inside the showroom, but she constantly brought product samples and dust from the warehouse into the showroom for sales demonstrations. In order to keep the showroom clean, Mrs. Stanisci said that she washed the floors and cleaned the displays more than once a day.
Mrs. Stanisci testified that she usually did not have assistance in performing any of her tasks. She stated that the company had laid off the non-family employees at the stores prior to the accident, due to declining sales. Occasionally, she hired day labour to assist in the warehouse and with showroom cleaning, but Mrs. Stanisci said that the vast majority of the time she worked alone.
I accept Mrs. Stanisci's testimony about her job tasks. I find the essential tasks of her job at Tiles Trust were: cleaning the showroom; unloading stock and moving it into the warehouse upon receipt; arranging tile displays; attending customers in the showroom; marking entries in the ledgers; ordering and pricing products; inventory control; filling customer orders; and processing returns of merchandise.
Post-Accident Work:
Mrs. Stanisci testified that after the accident, she went to work and worked her usual hours. During that day, she developed aches and pains, and went to the hospital that evening. She was examined, released, and advised to relax, take analgesics and bathe with salts. Despite her discomfort, Mrs. Stanisci continued to work for the remainder of that week, managing both stores while her husband was out of town.
In her testimony, Mrs. Stanisci described a general achiness over her entire body. She said that her generalized pain continued during the week after the accident. She also felt specific pain in her neck and lower back, and said that she was unable to bend down because of the muscle spasms.
Mrs. Stanisci testified that for the two months following the accident she tried to work. However, she did not specify how often she went to work, or what she could and could not do.
I find Mrs. Stanisci's failure to provide specific evidence of her declining work ability and medical condition during the two months after the accident significant. Her condition immediately after the accident is relevant to the assessment of her claim. In the absence of her own testimony I rely on the medical evidence of her condition during the months following the May 2, 1991 accident.
The medical evidence supporting Mrs. Stanisci's view of her declining ability to work during the three months after the accident is scant. Dr. Alex Donskoy, Mrs. Stanisci's family physician, reports that she saw him after the accident on May 6, 1991. She complained of headaches, insomnia, neck and back pains. Dr. Donskoy found her neck and back tender and stiff, and her shoulder movement limited to half of normal. He prescribed medication and heat applications, and asked Mrs. Stanisci to begin a physiotherapy program. Dr. Donskoy reported that Mrs. Stanisci's complaints on her second visit after the accident on May 14, 1991, were substantially unchanged, although he notes that she "appeared slightly less stiff than during the first visit".
Mrs. Stanisci did not return to see her family doctor until three months later. At her August 20, 1991 appointment with Dr. Donskoy, she reported that her headaches and neck pain continued. She also complained that her upper and lower back were uncomfortable, and that she had begun physiotherapy at the end of July 1991.
Thus, during the three months after the May 2, 1991 accident Mrs. Stanisci saw her doctor twice, both visits during the first two weeks. She did not commence physiotherapy until almost three months after the accident. In my opinion, this evidence suggests that Mrs. Stanisci's injuries were not particularly troublesome.
Dr. Donskoy's two medical reports were filed in evidence. The August 10, 1993 medical report from Dr. Donskoy lists Mrs. Stanisci's complaints at each visit after the accident, and his diagnosis and treatment. However, Dr. Donskoy does not describe Mrs. Stanisci's job duties, other than that "she worked at a tile importing company, doing paperwork". He does not provide his opinion of Mrs. Stanisci's specific capabilities in either report. Therefore, I find that Dr. Donskoy's reports do not address the central issue: Mrs. Stanisci's claim that she suffered a substantial inability to perform her essential job tasks.
Medical reports from Dr. Kliman and Dr. Birnbaum were entered in evidence. Both reports state that Mrs. Stanisci suffered soft tissue injuries, headaches, and dizziness, similar to the conditions reported by Dr. Donskoy. Dr. Kliman, an orthopaedic surgeon, recommended an exercise program in his October 10, 1991 report. Dr. Birnbaum's February 26, 1992 report concludes that Mrs. Stanisci may have had mild vertigo, but it did not cause her a "significant disability and should gradually resolve". Neither of the doctors related their diagnosis to Mrs. Stanisci's job tasks. As a result, I find that the reports of Dr. Kliman and Dr. Birnbaum do not establish Mrs. Stanisci's claimed inability to perform any of her job tasks.
I also have evidence that Mrs. Stanisci worked at her job during the three months following the accident. Dr. Donskoy's September 4, 1991 report states that Mrs. Stanisci worked part-time from May 2 to June 3, 1991; that she was totally disabled from June 3 to August 5, 1991; and that she worked part-time after August 5, 1991.
Mrs. Stanisci testified during her examination-in-chief that she took a couple of months off work between May and August 1991, due to her accident injuries. She did not specify the dates. On cross-examination, Mrs. Stanisci first agreed with Dr. Donskoy's report, which states that she was fully disabled for the two months between June 3 and August 5, 1991. However, after agreeing with Dr. Donskoy's post-accident work history, Mrs. Stanisci recanted and said that she may have gone to work sometime during that same period.
Mrs. Stanisci gave a different version of her work history to Dr. Weinstock at The Personal Injury Clinic. Dr. Weinstock examined Mrs. Stanisci at Wellington's request on September 25, 1991. His report states that Mrs. Stanisci told him she had been off work for the entire period of time between the accident and August 6, 1991, when she returned to her job part-time.
Mrs. Stanisci admitted that she gave this information to Dr. Weinstock, but denied it was true. Instead, she stated that she did not work for the two months stated in Dr. Donskoy's report.
Mrs. Stanisci's evidence of her post-accident work until August 6, 1991 is confusing. She gave conflicting versions of her work attendance to the doctors. Mrs. Stanisci explained at the hearing that the dates of work she reported to the doctors are only approximations. She may or may not have gone to work during the reported times.
Mrs. Stanisci also testified that her memory of the post-accident events was better at the hearing than at the time she made statements to the doctors. Yet, at the hearing she could not remember dates. Mrs. Stanisci's testimony showed that she had no independent recall of when she worked. The conflicts cause me to find that Mrs. Stanisci's testimony about her work and the histories she related to her physicians from the May 2, 1991 accident until August 6, 1991 are unreliable.
Accordingly, I do not have any reliable basis to determine when Mrs. Stanisci worked between the May 2, 1991 accident and August 6, 1991. Faced with Mrs. Stanisci's lack of recall, her admission that her reported work dates given to her physicians are approximations, and the lack of medical opinion of a specific disability, I find that there is no reliable evidence to support Mrs. Stanisci's claim that she suffered a substantial inability to perform her essential tasks before August 6, 1991.
After August 6, 1991 Mrs. Stanisci contends that she could only work part-time. The surveillance evidence indicates that Mrs. Stanisci spent considerable time at work.
Mr. Christopher Nielson, a private investigator with Skoke Investigations, testified from his notes at the hearing. On August 8, 1991 at 10:00 a.m. he found Mrs. Stanisci in attendance at the Steeles Avenue store. After browsing through the store while she talked on the telephone, Mr. Nielson spoke to Mrs. Stanisci. She told him that the company had two stores and that she worked both locations. On the morning of August 16, 1991 Mr. Nielson observed Mrs. Stanisci at the Lawrence Avenue store. She left almost immediately and Mr. Nielson followed her to the Steeles Avenue location. Mr. Nielson maintained his surveillance in the parking lot in front of the showroom window at Steeles Avenue until 11:00 a.m, during which time he saw Mrs. Stanisci help about twelve customers. The next afternoon, around 1:00 p.m., Mr. Nielson went into the Steeles Avenue store again. Mr. Neilson said that when he entered, Mrs. Stanisci was showing merchandise to customers. He continued to observe her with customers until 2:45 p.m.
Mr. Nielson testified about his further observations of Mrs. Stanisci during August 1991. Between 9:30 a.m. and 12:15 p.m. on August 20, 1991 Mrs. Stanisci was at the Steeles Avenue showroom. At 4:00 p.m. on August 21, 1991 Mr. Nielson saw Mrs. Stanisci's car parked at the Steeles Avenue store. He telephoned the store, and a woman who identified herself as "Louise" said she would be in the store until 5:30 p.m. closing.
On August 23, 1991 Mr. Nielson made about 15 minutes of videotape recordings of his observations, which are quite revealing. The videotape shows Mrs. Stanisci cleaning the showroom floor on her hands and knees, vigorously wiping the displays, moving displays, and showing customers merchandise. Throughout this video Mrs. Stanisci did not, in my opinion, appear to be in any distress or difficulty.
The last surveillance conducted that year was on September 11, 1991. Mr. Nielson observed Mrs. Stanisci assisting about six customers in the Steeles Avenue showroom.
Additional surveillance was conducted during the winter of 1992. On February 11, 1992 Mr. Nielson saw Mrs. Stanisci arrive at the Steeles Avenue store around 9:13 a.m. He observed her doing sales work until 12:30 p.m. and then left. When he returned to the shop at 5:00 p.m. that evening she was still there. Mr. Nielson returned to the Steeles Avenue location on February 14, 1992 at 10:30 a.m. He asked Mrs. Stanisci about a new whirlpool tub, and saw her assisting other customers until 4:55 p.m. She left the store at 5:38 p.m.
While there is no suggestion in any of the surveillance evidence that Mrs. Stanisci filled orders or carried out warehousing work, it is clear to me that Mrs. Stanisci was attending to the store full-time. She certainly was able to perform cleaning and move the displays; acts she denied being able to do in her testimony.
After Mr. Nielson gave testimony and showed the videotape, Mrs. Stanisci was recalled to testify. In my opinion, she did not adequately explain her appearance at work and the tasks she was shown performing. This inability to explain her presence at work and the tasks she performed convinces me that she could accomplish the cleaning and sales portion of her job. I find that Mrs. Stanisci was capable of cleaning the showroom floors, cleaning and arranging displays, and assisting customers. Based on the surveillance, I also find that Mrs. Stanisci worked full-time after August 5, 1991.
Given the inconsistancy between the work attendance and tasks demonstrated by the surveillance and Mrs. Stanisci's testimony at the hearing I conclude that she is not reliable or credible, and I do not accept Mrs. Stanisci's evidence.
The medical evidence of Mrs. Stanisci's condition after August 5, 1991 does not establish her claim. The medical reports from the Personal Injury Clinic and the reports from her family physician, Dr. Donskoy, do not address her specific functional work disabilities.
The Personal Injury Clinic's prognosis for Mrs. Stanisci's recovery is based upon erroneous information. During Mrs. Stanisci's first medical examination with the Personal Injury Clinic on September 25, 1991, Mrs. Stanisci reported to Dr. Weinstock that she was working part-time during the mornings. Doctor Weinstock said, "I do not feel that she can work at capacity more than she is at this time," and, "it is difficult to estimate when she would be able to return to full-time work...." The surveillance evidence from that time period indicates that she worked during both the morning and afternoons. Since the other four medical reports from the Personal Injury Clinic are also based upon Mrs. Stanisci's information, I do not find them reliable.
Mrs. Stanisci contends that most of her job tasks were physically demanding. She testified that before the accident she managed the larger Lawrence Avenue store location. The accident injuries, she maintained, forced her to switch to the smaller Steeles Avenue store, where the tasks were easier. Mrs. Stanisci testified that at both locations she spent 90 to 95 percent of her time performing the heavier chores.
I do not find Mrs. Stanisci's estimate of heavier physical tasks plausible. Mrs. Stanisci indicated that she was the sole employee at either store. As the sole employee, most of Mrs. Stanisci's time would logically be spent monitoring the showroom and doing sales work. I feel the surveillance confirms my view. I find that Mrs. Stanisci's estimate that she was engaged in physical tasks 90 to 95 percent of her time is not accurate. It also reinforces my view that Mrs. Stanisci's evidence is unreliable.
Mrs. Stanisci claims that her headaches interfered with her ability to maintain the company ledgers. She testified that four days after the accident she and her husband decided to hire Advantage Bookkeeping Services to replace Mrs. Stanisci's bookkeeping duties. The invoices from Advantage Bookkeeping state that bookkeeping services were provided to Tiles Trust in sum of $15,750.00 for the period between May 6, 1991 to December 31, 1991. Mrs. Stanisci's husband, Gregory Stanisci, testified that Tiles Trust paid for these services with materials, not money. The bookkeeper who performed the services was not called to explain the services or the invoice charges. The invoice and testimony of Mr. and Mrs. Stanisci are insufficient evidence.
Moreover, I question Mrs. Stanisci's claimed inability to perform the bookkeeping. Mrs. Stanisci testified that she worked full-time during the entire week after the accident. Since Mrs. Stanisci admits attending work full-time the week after the accident, I do not understand why she hired the bookkeeper that week. Additionally, Mrs. Stanisci's admitted attendance at work until June 3, 1993 undermines her claim that she could not perform the bookkeeping during the period immediately after the accident. Without independent testimony from Advantage Bookkeeping, I find that Mrs. Stanisci has not proven that replacement bookkeeping services were hired after the accident.
Mrs. Stanisci also claims that Tiles Trust replaced her sales, warehouse and delivery labour. Four documents typed on Tiles Trust letterhead were introduced which purport to show that the company hired casual labour. Each document briefly states the name of the person who worked, the beginning and ending dates of work, rate of pay, hours or weeks worked, and total paid. The documents were obviously created by Mr. and Mrs. Stanisci, and are not, in my opinion, reliable evidence that Tiles Trust replaced Mrs. Stanisci's services as a result of her inability to work after the accident. No receipts or checks were introduced to substantiate the payment of these expenses. The individuals named as labourers were not called. In my opinion, Mr. and Mrs. Stanisci's testimony and their self-created documents are not sufficient proof that the company hired replacement casual labour as a result of the accident.
Mrs. Stanisci also submitted that Tiles Trust replaced her cleaning duties after the accident. A copy of a proposal by North York Maintenance Limited was introduced. There is no signature or date of acceptance on the proposal to Tiles Trust, and it is not a contract obligating the company to pay for janitorial services. Mrs. Stanisci did not introduce proof of payment for any cleaning service. Without either corroborating testimony from North York Maintenance Limited or proof of payment, I find that Mrs. Stanisci has not proven that Tiles Trust engaged cleaning services after the accident.
Ignoring the issue of necessity of the replacement services, Mrs. Stanisci has failed to prove that Tiles Trust replaced any of her services after the accident.
Summary and Conclusion:
I find that Mrs. Stanisci's evidence is not credible. She reported different versions of her post-accident work to the physicians she saw. She exaggerated the percentage of her job's heavy physical labour. Contrary to Mrs. Stanisci's testimony, the surveillance evidence demonstrates that she attended work more than part-time after August 6, 1991, and that she was able to accomplish many of her tasks which she denied being able to perform. Most important, the medical evidence does not address Mrs. Stanisci's specific work disability, and the medical evidence is based upon Mrs. Stanisci's inaccurate work history.
While I might sympathize with the fact that Mrs. Stanisci may well have suffered some discomfort on the job, it is clear to me that her difficulties did not meet the eligibility test in section 12 of the Statutory Accident Benefits Schedule. I find that Mrs. Stanisci has failed to prove, on the balance of the probabilities, that she suffered a substantial inability to perform her essential job tasks for any time after the accident.
Because I find that Mrs. Stanisci is not eligible for weekly benefits I need not address quantum.
I exercise my discretion to award Mrs. Stanisci her expenses of the arbitration.
Order:
Mrs. Stanisci is not entitled to weekly benefits.
Mrs. Stanisci is entitled to her expenses of the arbitration.
Fred Sampliner
Arbitrator
Date
APPENDIX "A"
Exhibit 1
Medical report of Dr. Alex Donskoy dated December 10, 1992
Exhibit 2
Medical report of Dr. Alex Donskoy dated August 10, 1993
Exhibit 3
1990 Revenue Canada return of Louise Stanisci
Exhibit 4
1991 Revenue Canada return of Louise Stanisci
Exhibit 5
1992 Revenue Canada return of Louise Stanisci
Exhibit 6
Advantage Bookkeeping Services statements, one undated and another dated September 15, 1991
Tiles Trust statements of labour dated January 7, 1992; January 25, 1992; January 25, 1992; and January 26, 1992
North York Maintenance Limited proposal dated May 29, 1991
Exhibit 7
Accounting report of Coopers & Lybrand dated March 18, 1992
Exhibit 8
Accounting report of Linder, Kideckel & Lanni dated April 14, 1993
Exhibit 9
Curriculum vitae of Daniel Edwards
Exhibit 10
Accounting report of D'Angela Sorrenti Canale Palombo Collins Barrow dated February 19, 1992
Exhibit 11
Wellington Insurance Company calculation of income
Exhibit 12
Clinical notes and records of Dr. James Meschino
Exhibit 13
OMPP medical report from Dr. Alex Donskoy dated September 4, 1991
Exhibit 14
Medical report of Dr. Michael Kliman dated October 10, 1991
Exhibit 15
Medical report of Dr. A. Birnbaum dated February 26, 1992
Exhibit 16
Medical report of Dr. Michael Weinstock dated September 27, 1991
Exhibit 17
Medical report of Dr. Stephen McLoughlin dated September 27, 1991
Exhibit 18
Medical report of Dr. Michael Ford dated October 8, 1991
Exhibit 19
Medical report of Dr. Anthony Spriggins dated February 20, 1992
Exhibit 20
Medical report of Dr. E.P. Urovitz dated February 24, 1992