Neutral Citation: 1994 ONICDRG 2
File No. A-004249
ONTARIO INSURANCE COMMISSION
BETWEEN:
ELENA ERCOLI
Applicant
and
TORONTO TRANSIT COMMISSION (MARKEL INSURANCE COMPANY OF CANADA)
Insurer
DECISION
Issues:
The Applicant, Elena Ercoli, now age 61, was injured on a Toronto Transit Commission bus in an accident on January 16, 1991. She applied for and received accident benefits from the Insurer payable under Ontario Regulation 6721, enacted under the Insurance Act, R.S.O. 1990, c. I.8.
Mrs. Ercoli received weekly income benefits until August 2, 1991, when they were terminated. Mediation was not completely successful in resolving the dispute between the Applicant and the Insurer, although a further sum toward weekly income benefits was paid and Mrs. Ercoli agreed to attempt to return to work. Mrs. Ercoli attempted work for five days in June 1992; she claimed she could not continue and applied for arbitration under the Insurance Act to continue her weekly income benefits.
The issue in this hearing is:
Is the Applicant entitled to weekly income benefits from April 3, 1992 forward?
The Applicant also claims interest on any outstanding amounts owing and her expenses incurred in the hearing.
Result:
Mrs. Ercoli is not entitled to further weekly income benefits.
Mrs. Ercoli is entitled to her expenses incurred in respect to the arbitration.
Hearing:
The hearing was held in North York on December 1 and 7, 1993, before me, K. Julaine Palmer, arbitrator.
Present at the Hearing:
Applicant:
Elena Ercoli
Applicant's
Altor Shields
Representative:
Barrister and Solicitor
Insurer's
Brian Leck
Representative:
Barrister and Solicitor
Wendell Pilgrim
Witnesses:
Elena Ercoli, Tobia Ercoli, Michael Kelly, Steven Flood, Francesco Nigro, Terry Murphy, Wendell Pilgrim, Dr. Godfrey Fiorini.
The testimony of Elena Ercoli and Tobia Ercoli was interpreted by Joseph Crisostomo, who also assisted Mrs. Ercoli throughout the hearing.
The parties filed two briefs of documents and 16 other exhibits at the hearing.
Evidence and Findings:
Mrs. Ercoli had been a ceramic factory worker since 1967. On January 16, 1991, she was returning home from work at Spence Decorative Accessories on a TTC bus when an accident occurred. As Mrs. Ercoli was making her way to a seat, the bus moved forward and then stopped suddenly, to avoid a collision. Mrs. Ercoli was thrown to the floor. She injured her knees, particularly the right knee, and bumped her right hip against a pole when she fell. A police officer drove Mrs. Ercoli home, after she refused to go to hospital by ambulance.
The next day, Mrs. Ercoli was examined by her family doctor, Dr. Godfrey Fiorini. Dr. Fiorini continued to see Mrs. Ercoli regularly thereafter: 32 times in 1991, 28 times in 1992, and 29 times in 1993 to November 30, 1993. Dr. Fiorini testified at the hearing and his reports and clinical notes and records were filed as exhibits.
Mrs. Ercoli testified that she could no longer do her job as a ceramic factory worker after the accident.
The Job
In order to be eligible for further weekly income benefits, Mrs. Ercoli must prove, on a balance of probabilities, that after April 2, 1992 she suffered a substantial inability to perform the essential tasks of her employment as a result of injuries she received in the accident.
Mrs. Ercoli described her job duties. She was responsible for cleaning and smoothing ceramic vases moulded in the factory and for painting or glazing the insides of the vases. She completed the cleaning at a table, where she could either stand or sit. She sprayed the inside of the vases on a foot-operated turntable. Then, she placed the vases on a 3 or 4-shelved cart and pushed the cart 15 to 20 feet to the kiln. Other workers were responsible for painting the outside of the vases and for loading the kiln.
In the course of a day's work, which began at 7:30 a.m. and ended at 5:00 p.m., Mrs. Ercoli testified that she would complete 100 to 150 vases, depending upon their size. The vases ranged from quite small ones to vases weighing 5, 10, and even 25 pounds. A particularly thickly moulded vase might weigh 35 pounds, she said. In order to take the vases from a cart and return them, once finished, to another cart, Mrs. Ercoli had to reach up with her arms and lower herself to place vases on the lower shelves of the carts.
On occasion, Mrs. Ercoli helped unload the kiln or package the finished vases. In the packing area she cleaned the base of the vase, then placed felt on it and a label. Next, she wrapped the vase in newsprint and placed it in a cardboard box. After she taped the box closed, another worker was responsible for moving it to the shipping department.
I find Mrs. Ercoli's essential job tasks to be the ability to clean 100 to 150 greenware ceramic vases of varying sizes, up to a maximum of 25 pounds, in both a standing and seated position over an 8 to 9 hour day; the ability to use a foot-controlled turntable to spray the interior of vases; the ability to load and unload vases from a 3 or 4-shelved cart and to push a loaded cart 15 to 20 feet. Implicit in these essential tasks is the ability to reach to shoulder height and to bend to place vases on lower shelves.
Mrs. Ercoli testified that as a result of the accident she cannot perform her essential tasks. She claims she cannot bend, that she quickly becomes tired, and that she cannot stand for a lengthy period of time. She stated that she could not clean ceramics now because, whether seated or standing for a long period of time, she gets headaches. Also, if she gets tired, she gets dizzy. She testified that if she worked for more than two minutes she believed her back pain would start and she would feel bad. She stated that her pain starts in her right hip and affects her right leg to the mid-calf.
June 1992 Laundry Job
In June 1992, Mrs. Ercoli found regular, part-time employment with Toronto Linen Rentals. She worked there for five days, folding towels for four hours each afternoon. Both Mrs. Ercoli and the owner of the company, Francesco Nigro, testified that the job was "light".
This employment is important for two reasons. Although according to the provisions of the Schedule Mrs. Ercoli's eligibility for weekly income benefits is based upon her ability to perform the essential tasks of her employment as a ceramic factory worker, the evidence relating to her work in June 1992 at Toronto Linen may be helpful in considering her ability to work at any job at that time. In addition, this evidence is also important, because it relates to an agreement that was reached at mediation.
The report of the mediator, dated April 3, 1992, summarizes the agreement succinctly:
The insurer shall pay to the insured, Mrs. Ercoli the lump sum amount of $1000.00 for weekly income benefits.
The insured, Mrs. Erocoli [sic] understands should she attempt to return to work and is not able to continue, that pursuant to the no-fault benefits schedule and within two years of the motor vehicle accident, if she suffers from a substantial inability to perform the essential tasks of her former occupation, she may re-apply for accident benefits.
At the hearing, Mrs. Ercoli testified that as of April 1992, she understood that she would have to make an attempt to return to work before her insurer would consider paying further weekly income benefits. Mrs. Ercoli testified that she applied to work at Toronto Linen Rentals one to one and a half months before she was called in. She began working June 23, 1992. Mrs. Ercoli testified she earned $6.00 per hour at the job, or $120.00 for the five afternoons she worked. On cross-examination, Mrs. Ercoli agreed that she received less income working at this job than previously, through weekly income benefits.
Mrs. Ercoli testified that at her job at Toronto Linen she folded towels, from a table in front of her, or from boxes on the floor. She stated that she could not continue working after five days because she was feeling very bad. She stated she tired easily, then got headaches. Her right hip and leg bothered her as well. She sat down for part of the time while working. On cross-examination, she agreed that she received no complaints about her work, and that no pressure was put on her to produce more.
Mr. Francesco Nigro, owner of Toronto Linen Rentals, testified. He confirmed that he had no complaints about Mrs. Ercoli's work. He recalled that she had asked to be allowed to sit while working and he had agreed. When he asked her why she wanted to sit, she told him she had back trouble. Mr. Nigro testified he asked Mrs. Ercoli to bring a certificate from her doctor, so that his business would not be charged with a workers' compensation claim for an old injury. Mr. Nigro testified that an experienced, good worker can fold 1,000 pieces per hour; he estimated that Mrs. Ercoli was folding 400 to 500 pieces per hour.
Medical Evidence
Mrs. Ercoli has been examined by three orthopaedic surgeons. She was referred to Dr. Martin W. Roscoe by her family doctor. Dr. Roscoe examined Mrs. Ercoli on April 1, 1991, July 24, 1991, January 15, 1992, August 4, 1992, and January 18, 1993. Dr. Roscoe reported after his initial examination of Mrs. Ercoli that she complained of "localized discomfort directly over the right lower lumbar region. It does not radiate into her legs and she does not note any numbness or tingling in her legs." Dr. Roscoe diagnosed a lumbar contusion and strain. He found some minor degenerative changes in x-rays of her lumbar spine, but no acute injury.
By July 24, 1991, Dr. Roscoe was urging Mrs. Ercoli to return to work: "I suggested that she possibly start at part time duties, acknowledging the fact that some degree of increase in her pain will be expected initially upon her return." In January 1992, Dr. Roscoe noted that Mrs. Ercoli reported her symptoms "are unchanged since the summer of 1991". He wrote: "I think she is capable of performing modified work that does not require her to frequently bend, twist or lift. It is difficult for her to find this type of work and therefore I have encouraged her for the moment to continue on with an exercise program."
When she visited him on August 4, 1992, Mrs. Ercoli reported to Dr. Roscoe about her attempt to return to work in a laundry. Dr. Roscoe felt "in view of her age and her ongoing symptom complex, it is unlikely that this woman will ever achieve any type of employment status." In January 1993, he urged her to try to maintain herself in good physical condition and to continue her exercises.
Dr. Ernest J. White and Dr. M.C. Hall examined Mrs. Ercoli at the request of the insurer. Dr. White examined Mrs. Ercoli on July 12, 1991 and September 11, 1992. Mrs. Ercoli's daughter interpreted for her. In my view, Dr. White showed a good understanding of Mrs. Ercoli's job duties at the ceramic factory and noted that the amount of lifting "varies but would be up to 30 pounds depending on the type of material she is handling." Dr. White concluded on July 12, 1991 that:
She is still having some symptoms relating to the lower back but in my opinion at this stage she is not totally disabled and is physically capable of performing the essential duties of her household as well as regular occupation. She may very well experience some continued symptoms in her lower back for some time but an increase in her level of physical activity and work at this stage should not be physically "harmful" per se, and would be helpful in further conditioning and improvement in exercise tolerance.
On his examination of September 11, 1992, Dr. White noted Mrs. Ercoli "demonstrated essentially full extension, right and left lateral flexion and rotation movements consistent with her age and body build. She limited forward flexion to about 12 inches finger tips to floor but had a normal spinal rhythm." Dr. White concluded that ..."The degree of her disability in my opinion is relatively moderate in degree. This is not to say that she does not have some degree of ongoing symptoms that are of concern to her.
Her previous occupation as a fettler/packer requiring her to clean greenware pottery is no longer available to her. If it were, in my opinion she would be physically capable of performing this type of work and that of a laundry worker as she described this work to me. She might very well experience some symptoms with longer periods of standing and it would be preferable if she could be allowed to sit part of the time in whatever work she might pursue in the future and her work should not require repetitive bending or heavy lifting, with lifting restricted to ten pounds.
Dr. M.C. Hall examined Mrs. Ercoli on October 8, 1993. At this examination Mrs. Ercoli was assisted by a professional interpreter. Dr. Hall concluded that Mrs. Ercoli was not physically disabled from returning to her former employment.
Dr. Godfrey Fiorini, Mrs. Ercoli's family doctor, testified at the hearing. His clinical notes and records were also filed, as were 5 narrative reports and 7 form reports. Dr. Fiorini had seen Mrs. Ercoli some 89 times since the accident, up to November 30, 1993. On his examination of Mrs. Ercoli on October 5, 1993, Dr. Fiorini noted tenderness in his patient's lumbar spine and in the spinous processes of L4-5 and in the right sacroiliac joints. "Movements are reduced from one third to one half of normal range." Dr. Fiorini concluded: "Her condition has reached a status quo... She will remain distinctly disabled... She continues to be disabled from any work activities."
In reaching my decision, I place less emphasis on the evidence of Dr. Fiorini than the orthopaedic surgeons' reports. In my view, it is evident both from his oral testimony and his written reports that Dr. Fiorini, at least latterly, has acted more in the role of an advocate for income benefits for his patient than as an impartial medical advisor. In addition, it was clear from his testimony that he had only a very vague idea of the job tasks Mrs. Ercoli performed prior to her accident.
Credibility
In this hearing, it was my role to examine the evidence regarding Mrs. Ercoli's ability to perform the essential tasks of her job as a ceramic factory worker after April 1992. Her experience of pain as a result of the accident is not compensable under the legislation and regulations. Still, I must consider whether the pain from her injuries substantially disables her from performing her essential job tasks, as described above.
The weight that I may place on Mrs. Ercoli's evidence of disabling pain and her insistence that she cannot perform her essential job tasks rests largely on my view of Mrs. Ercoli's credibility. I believe that Mrs. Ercoli continues to suffer some symptoms from the accident of January 16, 1991; however, I found Mrs. Ercoli's testimony lacking in credibility in several areas. This lack of credibility, coupled with the expert medical evidence and the surveillance evidence of 1992 and 1993, leads me to conclude that Mrs. Ercoli has not proven she suffers a substantial inability to perform her essential job tasks after April 2, 1992.
In her testimony, under oath, Mrs. Ercoli made several contradictory statements. She also denied making many statements, some of which were trivial in nature, but which, in my view, were likely to have been made and accurately recorded in the contemporaneous notes of her physician or the adjuster. In her testimony, Mrs. Ercoli exaggerated and embellished her evidence as to experiencing pain in performing various activities and exaggerated her inability to perform simple household tasks. She failed to allude to one or two possible other attempts to return to work. When taken together, I find that Mrs. Ercoli's testimony is unreliable and I prefer to rely on the objective evidence of the three orthopaedic specialists and the surveillance evidence. I place little weight on Mrs. Ercoli's failure to maintain the Toronto Linen employment.
The following are the particulars with respect to the inconsistent evidence at the hearing:
1/ Mrs. Ercoli did not agree with Dr. Fiorini's statement in his form report of March 5, 1991 that her condition was "improving".
2/ She denied telling the adjuster on April 11, 1991 that she would likely return to work in a few weeks.
3/ At the hearing Mrs. Ercoli admitted holding a garden hose to spray the veranda in June 1991. She denied telling the adjuster that her daughter had sprayed the driveway and front porch when he visited on June 14, 1991. She denied the adjuster even asked her about the wet porch on his July 5, 1991 visit.
4/ Mrs. Ercoli admitted that on June 26, 1991 she told the adjuster she was waiting for Dr. Fiorini to tell her to return to work. However, Dr. Fiorini's notes from June 4, 1991 indicate that Mrs. Ercoli was still denying she was able to work.
5/ Mrs. Ercoli agreed that on August 22, 1991 she had a meeting with the adjuster and told him that three days before she had spoken with Marco Spence, her boss, in person, and he told her there was no light duty work or reduced hours available. When confronted by the adjuster on August 29, 1991 with the information that this was unlikely, since the landlord had locked out the tenant ceramics business on August 7, 1991, Mrs. Ercoli explained that she must have mistaken the date of her meeting with her boss. At the hearing she attempted the same explanation.
However, her husband, who had not heard this testimony, later testified that when his wife went to the business to ask about working reduced hours, the factory was closed. A bailiff testified that on August 7, 1991 Supreme and Company Bailiffs Ltd. posted a notice of termination of lease for the landlord of 9 Advance Road and changed the locks.
I do not accept the version of the story as related by Mrs. Ercoli.
6/ Some notations in Dr. Fiorini's clinical notes are relevant to the question of credibility. They relate to attempts to work, about which I head no evidence from Mrs. Ercoli.
Dr. Fiorini's note of July 25, 1991 states that Mrs. Ercoli saw Dr. Roscoe the previous day--"should try light work." His note of August 13, 1991 records --"told to try light work - yet no work available... to try work August 19/91". August 27, 1991: "still no work available". On September 23, 1991, he wrote to the TTC:
Her condition has been improving with conservative therapy and she was able to return to modified work as of August 19, 1991. She consulted her employer about modified work and began working four hours a day initially. However, her employer has gone out of business in the meantime and there is no work available for her.
It may be that Dr. Fiorini was mistaken about Mrs. Ercoli beginning this employment. Dr. Fiorini was not questioned about this letter by counsel for either party.
As this hearing concerns particularly the period after April 2, 1992, Dr. Fiorini's testimony interpreting his notes of June 1992 is important. His note of June 5, 1992 reads: "Still LBP ... - found a job 4 hours/day (June 8/92) - Mississauga". He interpreted his note of June 18, 1992 to read:
... worked June 8/92 for 1 wk. 4 hr/day in spite of low back pain - ceramic factory. Last day worked June 17/92 but unable to work anymore.... June 19/92 Unable to obtain a certificate that she worked 1 wk. 4 hr.
I heard no other testimony whatsoever about this job at a Mississauga ceramic factory. Mrs. Ercoli, on the contrary, testified only as to her attempted employment at Toronto Linen beginning June 23, 1992. She testified she searched for work at many places, going factory-to-factory applying for 4 hours per day of light work. I am concerned that this employment was concealed from me since testimony about this job, presumably somewhat like her previous employment with Spence Decorative Accessories, would have been helpful.
Surveillance Evidence
Steven Flood, private investigator, testified of his observations of Mrs. Ercoli on June 11, 1991 and May 11 and 12, 1993. On May 11, 1993, he observed Mrs. Ercoli walk to the bus stop at 9:40 a.m., wait there, travel on two buses, window shop for 20 minutes around Dufferin and St. Clair Avenue, enter the Dufferin Medical Clinic building for 50 minutes, then return home by bus, arriving at 12:25 noon.
The next day he observed her leave the house at 9:10 a.m. and walk more than 2.2 km to two fruit markets on Jane Street where she looked at potted plants and flowers for almost one hour then walked home, arriving at 11:25 a.m.
Mr. Flood took videotape of his observations of Mrs. Ercoli. I reviewed those videotapes, particularly the footage of May 12, 1993, carefully. I noted that Mrs. Ercoli walked at a normal, casual pace; she bent frequently from the waist to pick up pots of flowers from the ground, often using both hands at the same time. She appeared to carry the plants easily. Mr. Flood testified that Mrs. Ercoli moved steadily throughout the time of his observation of her, with no pause for rest.
Wendell Pilgrim, the adjuster, testified that he observed Mrs. Ercoli on March 20, 1992, by chance, at the Dufferin Mall. He followed her for 45-50 minutes as she shopped and window-shopped at 11 stores, before she purchased a pastry and sat on a bench to eat it. Mr. Pilgrim took four still photographs.
I am sympathetic to Mrs. Ercoli, who I am sure suffers occasional low back pain as a result of the accident of January 16, 1991. However, if her job as a ceramics factory worker were available after April 2, 1992, I am of the view that she could substantially perform her essential tasks.
Expenses:
Mrs. Ercoli seeks an award of the expenses 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:
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 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 Ralph McCormick v. Economical Mutual Insurance Company case (O.I.C. File No. A-000139), Arbitrator Susan Naylor made the following comments about expenses, with which I agree:
The discretion to award expenses should be exercised, 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.
The Director of Arbitrations approved this statement of the principles guiding an award of expenses in the appeal decision in Vito Luigi Calogero v. The Co-Operators General Insurance Company (O.I.C. File No. P-000251, issued February 13, 1992).
I find Mrs. Ercoli is entitled to her expenses as 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 event that the parties cannot agree as to the total amount of expenses, I remain seized of this matter and a party may apply for assessment of the expenses before me.
Order:
Mrs. Ercoli is not entitled to further weekly income benefits.
Mrs. Ercoli is entitled to her expenses incurred in respect to the arbitration.
January 18, 1994
K. Julaine Palmer
Arbitrator
Date