ONTARIO INSURANCE COMMISSION
Neutral Citation: 1994 ONICDRG 132
File No. A-005675
BETWEEN:
ANTONIETTA CRISTOFOLI
Applicant
and
ZURICH INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Antonietta Cristofoli, was injured on July 18, 1991, when she was hit by an automobile while riding her bicycle. She applied for and received statutory accident benefits from the Zurich Insurance Company ("Zurich"), payable under Ontario Regulation 672.1 Zurich paid weekly income benefits until June 17, 1993, when they were terminated. Mrs. Cristofoli maintains that she continues to be entitled to weekly income benefits.
The parties participated in mediation, but were unable to resolve their dispute. Mrs. Cristofoli then applied for arbitration. The issues in this hearing are:
Is Mrs. Cristofoli entitled to weekly income benefits under section 12 of the Schedule for any period after June 17, 1993?
Is Mrs. Cristofoli entitled to rehabilitation benefits under section 6 of the Schedule?
Should Zurich Insurance be ordered to pay a special award under section 282(10) of the Insurance Act because it unreasonably withheld or delayed the payment of benefits?
Mrs. Cristofoli also claims interest on any outstanding amounts owing, and her expenses incurred in the hearing.
Result:
Mrs. Cristofoli is entitled to weekly income benefits for the period after June 17, 1993, plus interest calculated according to section 24 of the Schedule. Her ongoing entitlement to weekly income benefits under section 12(5)(b) has not been determined.
No specific request for rehabilitation benefits was presented and, therefore, no order is made.
Zurich has unreasonably failed to pay weekly income benefits and, therefore, is required to pay a special award of $2,500, inclusive of interest to the date of this decision.
Mrs. Cristofoli is entitled to her expenses related to the arbitration, calculated according to Ontario Regulation 664, Dispute Resolution Expenses.
Hearing:
The hearing was held in Windsor, Ontario, on February 16, 1994, before me, David R. Draper, arbitrator.
Present at the Hearing:
Applicant:
Antonietta Cristofoli
Applicant's Representative:
Marc S. Katzman, Barrister and Solicitor
Insurer's Representative:
T.E.D. Jaques, Barrister and Solicitor
Interpreter:
Lanfranco Degasperis
Witness:
Antonietta Cristofoli, the Applicant, was the only witness.
Exhibits:
55 exhibits were filed and are listed in Appendix 1.
Reasons for Decision:
Mrs. Cristofoli was born in Italy in 1938. She is married and has three adult daughters. She completed grade five before moving to Canada in 1953, when she was 15 years old. She did not continue in school, except for some English classes.
Mrs. Cristofoli has had a number of unskilled jobs, including bus boy, assembly line worker, sales clerk, and waitress. According to her resume, she worked from 1963 to 1965 as a waitress or counterperson at three different restaurants. She then spent twenty years at home, raising her daughters. In 1985, she returned to work at the Cleary Auditorium, where she worked as a waitress for the next five years.
In September 1989, Mrs. Cristofoli enrolled in the Adult Learning Centre. I accept her explanation that she returned to school because her husband was no longer able to work due to heart surgery, and she wanted to upgrade her education so that she could get a job that paid more than the minimum wage. Her first year at the Adult Learning Centre was designed to bring her up to grade eight level.
In February 1990, Mrs. Cristofoli started working as a part-time waitress at the Caboto Club, a local Italian club. The job involved serving meals and clearing large banquet tables. I find that the job required a significant amount of lifting and carrying.
In September 1990, Mrs. Cristofoli returned to the Adult Learning Centre for the 1990-1991 academic year for the "basic" course". During the year, she continued to work part-time as a waitress at the Caboto Club. The school year ended in June 1991.
On July 18, 1991, Mrs. Cristofoli was riding her bicycle when she was struck by an automobile. She fell on her right elbow and fractured it: a "displaced transcondylar fracture of the right distal humerus". Dr. Pepin operated on her elbow, using a number of wires to fix the broken bone.
Mrs. Cristofoli applied to Zurich for accident benefits on August 2, 1991. Her application states that her average gross earnings in four weeks preceding the accident was $116.56 per week. The Employer's Confirmation of Income shows an average of $99.53 per week. Zurich paid her weekly income benefits at the minimum rate of $185.00 (later corrected to $185.60), per week, according to section 12 of the Schedule:
12(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident a weekly income benefit during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment if the insured person meets the qualifications set out in subsection (2) or (3). [emphasis added]
Zurich paid weekly income benefits until June 17, 1993, when they were terminated. It was conceded on behalf of Zurich that Mrs. Cristofoli is not able to return to her pre-accident employment as a waitress at the Caboto Club. In my opinion, Dr. Pepin's reports clearly support this conclusion. For example, in his report, dated October 27, 1992, he states:
In terms of future prognosis, this patient in my estimation will not improve beyond that which I have just described. As a result, she will be compromised in the market place in that she did work as a waitress using her right arm as a tray carrier and I feel that this is impossible for her to return to. She unfortunately, by virtue of education, is not fit for much other than manual labour and it would be difficult this being her dominant arm.
However, she is not totally disabled and I am sure there is something she could do. She therefore is permanently partially disabled.
Zurich's position is that by June 17, 1993, Mrs. Cristofoli was no longer entitled to weekly income benefits because she failed to mitigate her damages by returning to a less demanding job. In its Assessment of Claim form, dated August 4, 1993, Zurich stated the reasons for the termination as follows:
Claimant was released to return to suitable part time employment in January 1993. Claimant has resisted all assistance of Rehabilitation to return to part time employment as it is financially to her advantage to avoid return to employment as average weekly salary was below the minimum benefit payable under the policy.
The issue of mitigation has been raised in a number of previous arbitration and appeal hearings, but those cases were decided without the need of resolving its role in the accident benefits system [e.g. Balwinder Singh and Simcoe Erie Group, February 2, 1994, OIC File No. P-000532; Antonio Provenzano and Metropolitan Insurance Company, August 26, 1993, OIC File No. P-000380]. Similarly, I conclude that it is not necessary in this case to deal with the consequences of a failure to mitigate damages, or, more specifically, to pursue alternative employment. Even assuming that applicants must pursue reasonable alternative employment, I find no reason to conclude that Mrs. Cristofoli acted in a manner that should disentitle her to weekly income benefits.
Zurich retained Associative Rehabilitation in October 1991, approximately three months after the accident, to "evaluate this client's rehabilitation potential" and to "recommend and implement appropriate vocational rehabilitation plans." A review of the reports from Associative Rehabilitation Inc., however, gives the impression that the entire focus of Ms. Moir, the rehabilitation caseworker, was to find Mrs. Cristofoli a part-time job. This might be appropriate if it has been determined that an early return to work is the most appropriate rehabilitation plan. However, I am disturbed that in this case, it appears that there was no analysis of how Mrs. Cristofoli's particular needs would be best met. Although she was attending school and going to physiotherapy, there is little, if any, discussion about how this fit into the rehabilitation plan.
Dr. Pepin initially told Ms. Moir that Mrs. Cristofoli could not return to work as a waitress, but could work part-time starting in January 1992, as long as the work did not involve heavy lifting. Ms. Moir helped Mrs. Cristofoli begin to prepare a resume and to develop strategies to find work. Unfortunately, Mrs. Cristofoli developed problems with her elbow, and follow-up surgery was required on December 11, 1991. Dr. Pepin referred her to physiotherapy "to regain what we lost as a result of her second operative intervention."
Ms. Moir met with Mrs. Cristofoli again on December 19, 1991. Surprisingly, the resulting report does not deal with Mrs. Cristofoli's medical set-back, except to refer to her "minor surgery." A formal interview was done to assess possible occupations for Mrs. Cristofoli. Ms. Moir did some preliminary research about possible jobs and met with Mrs. Cristofoli again on February 6, 1992. It was agreed that Mrs. Cristofoli would began to look for work as a part-time restaurant hostess or retail sales clerk, while Ms. Moir continued to investigate possible positions for her.
I find that during March and April 1992, Mrs. Cristofoli submitted a number of resumes for retail sales clerk and restaurant jobs, without response. By this time, however, she had developed pain in her neck and shoulders. On April 20, 1992, Dr. Pepin saw her and advised her not to return to work:
We therefore advised ongoing therapy and we advised that she stay off of work for at least six months until I re-evaluated her.
Ms. Moir did not meet with Mrs. Cristofoli again until September 4, 1992. In my view, this once again indicates that the focus of Associative Rehabilitation was on Mrs. Cristofoli's return to work, not on her general rehabilitation. At the time of this visit, Mrs. Cristofoli was attending physiotherapy and was about to start the 1992 - 1993 academic year at the Adult Learning Centre.
Ms. Moir met with Dr. Pepin on November 20, 1992, and recorded his advice as follows:
Dr. Pepin stated that the following limitations should be considered in the client's return to work efforts: no lifting greater than five pounds, no repetitive lifting or reaching, and no overhead lifting. Dr. Pepin stated that in his opinion, due to these limitations, the client would not be able to return to her pre-accident employment as waitress. Dr. Pepin stated that he would release the client to an alternate position such as a sales clerk on a full-time basis, providing the physical demands would be within the above-stated limitations. Dr. Pepin also commented that the client may find it difficult to become re-employed in an alternate position due to her limited education and limitations.
On December 29, 1992, Ms. Moir met with Mrs. Cristofoli's family doctor, Dr. Gibb. He recommended as follows:
Dr. Gibb recommended the following restrictions with regard to a return-to-worker: no repetitive/strenuous lifting, pushing, pulling, and carrying. On a non-repetitive basis, he stated that the client might be able to lift 20 to 25 pounds, however, on a repetitive basis he recommended that the client not lift a greater weight than one pound. Dr. Gibb stated that he would support the client's return-to-work in the position of sales clerk on a part-time basis within the pre-stated restrictions.
Ms. Moir also met with Mrs. Cristofoli on December 29, 1992. Mrs. Cristofoli advised her that she had not submitted any more resumes "as she has found it difficult to find time to do such, as she attends school until early afternoon and then goes to the LeBlanc Clinic for her physiotherapy sessions." Mrs. Cristofoli also expressed concern about her ability to handle a job as a sales clerk due to her lack of education and the fact that she had been out of the work force for nearly two years.
Ms. Moir did "one final job search to provide the client with job leads to follow-up for the position of part-time retail clerk." On February 1 and 2, 1993, Ms. Moir did a search for retail sales clerk, telemarketing and sewing jobs. It is not clear why she decided to move beyond the sales clerk jobs that she had discussed in her last meeting with Mrs. Cristofoli.
Ms. Moir then met with Mrs. Cristofoli on February 2, 1993. Mrs. Cristofoli expressed concern about whether she could work as a telemarketer due to her limited English skills. She also did not feel that she had the technical or physical ability to work as a sewer. Ms. Moir appears to have agreed with this. Mrs. Cristofoli stated that she had not submitted any further resumes for sales clerk jobs because "she has not felt well enough to do so, and she also advised that she finds it difficult to find time to do a job search, as she is involved with her high school upgrading every morning and she attends therapy sessions three times per week in the afternoons." Ms. Moir suggested to Mrs. Cristofoli that she continue looking for work as a retail sales clerk, but recommended to Zurich that the rehabilitation file be closed.
Mrs. Cristofoli acknowledged that she did not submit any resumes in 1993, stating that, "I felt I wasn't getting anywhere". In my view, her apprehension and frustration are understandable. Mrs. Cristofoli faces significant job barriers. Her only work experience over the past thirty years has been as a waitress, a job that she can no longer do. She is a fifty-six year old woman who does not have a grade 12 education, is not entirely fluent in English, has physical limitations, and has been out of the work force entirely for more than three years. In addition, she has a disabled husband, is in the process of upgrading her education, and attends physiotherapy.
It is true that Mrs. Cristofoli's weekly income benefits of $185.60 were more than she had been earning at the Caboto Club. Motivation to return to work is a relevant consideration, but it should not be assumed that people lose their motivation simply because they are receiving benefits.
Based on the evidence presented, I am not convinced that Mrs. Cristofoli has acted inappropriately. Her doctors recommended that she attend physiotherapy, which she has done. She was not advised that it would be therapeutic for her to find a part-time job, only that it would be possible, as long as the job demands fell within her restrictions. Despite this, Mrs. Cristofoli cooperated with Ms. Moir and submitted a number of resumes, without success. She has also continued with her education, which may be the most effective long-term rehabilitation plan for her.
Eligibility for Weekly Income Benefits After 156 Weeks
It was submitted on behalf of Zurich that if I found Mrs. Cristofoli eligible for benefits under section 12, those benefits should not continue past July 18, 1994, because according to section 12(5)(b) of the Schedule, the eligibility test changes:
12(5) The insurer is not required to pay a weekly benefit under subsection (1),
(b) for any period in excess of 156 weeks unless it has been established that the injury continuously prevents the insured from engaging in any occupation or employment for which he or she is reasonably suited by education, training or experience.
In my opinion, it would not be appropriate to make a prospective decision about Mrs. Cristofoli's eligibility. This is particularly true in light of the fact that the doctors were not asked to address the stricter post-156 week test.
Section 287 of the Insurance Act, R.S.O. 1990, c.I.8, deals with the effect of an arbitrator's decision on ongoing eligibility:
- An insurer shall not, after an order of the Director or of an arbitrator, reduce benefits to an insured person on the basis of an alleged change of circumstances, alleged new evidence or an alleged error, unless the insured person agrees or unless the Director or an arbitrator so orders in a variation or appeal proceeding under section 283 or 284.
Rehabilitation Benefits
It was submitted that Mrs. Cristofoli should be entitled to rehabilitation benefits under section 6 of the Schedule. It is not clear, however, that Mrs. Cristofoli has incurred any expenses for rehabilitation, or that she plans to pursue rehabilitation that will involve expenses. She stated that she is able to attend school without charge and, although she has to buy her books, she is reimbursed for the entire cost.
I am not prepared to make an order about rehabilitation in the absence of a reasonably specific proposal. As has been stated in a number of previous arbitration decisions, it is in everyone's interest that the insured person be rehabilitated as quickly as possible. In order to achieve this goal, the insured person, the insurance company and the health professionals must work cooperatively. Hopefully, the parties will be able to address any of Mrs. Cristofoli's ongoing rehabilitation needs.
Special Award
Mrs. Cristofoli seeks a special award under section 282(10) of the Insurance Act:
- (10) 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.
According to section 282(10), a special award must be based on benefits that have been unreasonably withheld or delayed. I conclude that by terminating Mrs. Cristofoli's weekly income benefits, effective June 17, 1993, Zurich unreasonably withheld benefits. In my view, mitigation is a legitimate issue, but I agree with Mrs. Cristofoli's legal representative that this was the wrong case in which to raise it.
I calculate the amount of weekly income benefits owing at the time of the hearing as approximately $6,500 ($185.60 per week x 35 weeks), plus interest. In my view, this is a reasonably serious breach by Zurich of its duty to pay benefits according to the Schedule. In its favour, Zurich paid Mrs. Cristofoli weekly income benefits for almost two years, and it provided copies of the Associative Rehabilitation reports to her lawyer as they were produced. I conclude that Zurich should be required to pay a special award of $2,500, inclusive of interest to the date of this decision. This amount is roughly equivalent to three months of additional benefits at $185.60 a week.
Expenses
Mrs. Cristofoli claims the expenses that she has incurred in this arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:
282 (11) The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.
Given Mrs. Cristofoli's success in this matter, I conclude that she should receive her expenses, calculated according to Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990.
If the parties are unable to agree on the amount of the expenses, I remain seized of this matter and either party may apply for an assessment of the expenses.
Order:
Mrs. Cristofoli is entitled to weekly income benefits for the period after June 17, 1993, plus interest calculated according to section 24 of the Schedule. Her ongoing entitlement to weekly income benefits under section 12(5)(b) has not been determined.
No specific request for rehabilitation benefits was presented and, therefore, no order is made.
Zurich has unreasonably failed to pay weekly income benefits and, therefore, is required to pay a special award of $2,500, inclusive of interest to the date of this decision.
Mrs. Cristofoli is entitled to her expenses related to the arbitration, calculated according to Ontario Regulation 664, Dispute Resolution Expenses.
David R. Draper
Arbitrator
Date
APPENDIX 1
The Applicant's submitted a brief containing photocopies of the following documents:
Exhibit 1
- List of job applications submitted by Mrs. Cristofoli.
Exhibit 2
- Resume of Mrs. Cristofoli.
Exhibit 3
- Report card of Mrs. Cristofoli, dated June 24, 1993.
Exhibit 4
- Report card of Mrs. Cristofoli, dated February 12, 1993.
Exhibit 5
- Mrs. Cristofoli's student card, student schedule and pre-registration form.
Exhibit 6
- Certificates of Completion (7) granted to Mrs. Cristofoli.
Exhibit 7
- Clinical notes and records of Dr. Robert A. Gibb.
Exhibit 8
- Report of Dr. John Pepin, dated October 27, 1992.
Exhibit 9
- Letter, dated October 21, 1991, from Janet Moir of Associative Rehabilitation to Mrs. Cristofoli's lawyers.
Exhibit 10
A number of documents which duplicate other exhibits, plus the following documents:
Assessment of Claim by Insurer, dated August 4, 1993
Employer's Confirmation of Income, dated October 10, 1991.
Medical or Psychological Report, dated August 12, 1991, completed by Dr. Pepin.
The Insurer submitted a brief containing photocopies of the following documents:
Exhibit 11
- Letter, dated February 10, 1993, from Janet Moir of Associative Rehabilitation to Zurich Insurance.
Exhibit 12
- Report of Associative Rehabilitation to Zurich Insurance, dated February 10, 1993.
Exhibit 13
- Standard Job Search Form, dated February 2, 1993, re GWE Group.
Exhibit 14
- Standard Job Search Form, dated February 2, 1993, re Olan Mills Studio.
Exhibit 15
- Standard Job Search Form, dated February 2, 1993, re Dynamic Displays.
Exhibit 16
- Standard Job Search Form, dated February 2, 1993, re Blonde Cleaners.
Exhibit 17
- Standard Job Search Form, dated February 2, 1993, re Garden Corp.
Exhibit 18
- Standard Job Search Form, dated February 1, 1993, re Devonshire Mall.
Exhibit 19
- Progress Report of Associative Rehabilitation, dated January 4, 1993.
Exhibit 20
- Letter, dated January 4, 1993, from Janet Moir of Associative Rehabilitation to Dr. Gibb, as returned and signed by Dr. Gibb.
Exhibit 21
- Letter, dated November 27, 1992, from Janet Moir of Associative Rehabilitation to Dr. Pepin, as returned and signed by Dr. Pepin.
Exhibit 22
- Report of Associative Rehabilitation to Zurich Insurance, dated November 27, 1992.
Exhibit 23
- Report of Associative Rehabilitation to Zurich Insurance, dated September 14, 1992.
Exhibit 24
- Report of Associative Rehabilitation to Zurich Insurance, dated April 9, 1992.
Exhibit 25
- Standard Job Search Form, dated March 31, 1992, re Sam's Record Man.
Exhibit 26
- Standard Job Search Form, dated March 31, 1992, re Japan Camera.
Exhibit 27
- Standard Job Search Form, dated March 31, 1992, re Caryl Baker Visage.
Exhibit 28
- Standard Job Search Form, dated March 31, 1992, re Things Engraved.
Exhibit 29
- Standard Job Search Form, dated March 31, 1992, re Lotto Centre.
Exhibit 30
- Standard Job Search Form, dated March 31, 1992, re Best Wishes.
Exhibit 31
- Standard Job Search Form, dated March 31, 1992, re Paper Chase.
Exhibit 32
- Report of Associative Rehabilitation to Zurich Insurance, dated March 27, 1992.
Exhibit 33
- Standard Job Search Form, dated March 24, 1992, re Dutch Girl Cleaners.
Exhibit 34
- Standard Job Search Form, dated March 24, 1992, re Red Lobster.
Exhibit 35
- Standard Job Search Form, dated March 24, 1992, re Swiss Chalet.
Exhibit 36
- Standard Job Search Form, dated March 24, 1992, re Things Engraved.
Exhibit 37
- Standard Job Search Form, dated March 24, 1992, re Penningtons.
Exhibit 38
- Standard Job Search Form, dated March 24, 1992, re The News Room.
Exhibit 39
- Standard Job Search Form, dated March 24, 1992, re Farron's Gourmet Shop.
Exhibit 40
- Standard Job Search Form, dated March 24, 1992, re The Olive Garden.
Exhibit 41
- Report of Associative Rehabilitation to Zurich Insurance, dated March 13, 1992.
Exhibit 42
- Standard Job Search Form, dated March 5, 1992, re MacKenzie's.
Exhibit 43
- Standard Job Search Form, dated March 5, 1992, re Bowrings.
Exhibit 44
- Standard Job Search Form, dated March 5, 1992, re Mariposa.
Exhibit 45
- Standard Job Search Form, dated March 5, 1992, re Ardene.
Exhibit 46
- Standard Job Search Form, dated March 5, 1992, re Cotton Ginny.
Exhibit 47
- Standard Job Search Form, dated March 5, 1992, re Esprit.
Exhibit 48
- Standard Job Search Form, dated March 5, 1992, re United Colors of Benetton.
Exhibit 49
- Standard Job Search Form, dated March 5, 1992, re Shirley K. Maternity.
Exhibit 50
- Report of Associative Rehabilitation to Zurich Insurance, dated February 12, 1992.
Exhibit 51
- Report of Associative Rehabilitation to Zurich Insurance, dated January 7, 1991.
Exhibit 52
- Report of Associative Rehabilitation to Zurich Insurance, dated November 27, 1991.
Exhibit 53
- Letter, dated November 12, 1991, from Janet Moir of Associative Rehabilitation to Dr. Pepin.
Exhibit 54
- Report of Associative Rehabilitation to Zurich Insurance, dated November 11, 1991.
Exhibit 55
- Letter, dated November 12, 1991, from Janet Moir of Associative Rehabilitation to Dr. Pepin.
Cases cited by the parties:
Antonio Provenzano and Metropolitan Insurance Company,August 26, 1993, OIC Appeal File No. P-000380.
Balwinder Singh and Simcoe Erie Group, December 31, 1992, OIC File No. A-000532.
Gianna Tritto and Wellington Insurance Company, August 10, 1992, OIC File No. A-001178.
Chuong Vo and Maplex Insurance, October 4, 1993, OIC File No. A-002777.
In addition to the exhibits, the following documents were before the arbitrator:
Report of Mediator, dated August 23, 1993.
Application for Appointment of an Arbitrator, dated August 26, 1993
Response by Insurer, dated September 24, 1993.
A letter from the pre-hearing arbitrator confirming the pre-hearing discussion held on November 9, 1993.