Neutral Citation: 1994 ONICDRG 45
File No. A-001960
ONTARIO INSURANCE COMMISSION
BETWEEN:
ARTUR SZILWOSKI
Applicant
and
ZURICH INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Artur Szilwoski, was injured in a motor vehicle accident on January 23, 1991. He applied for and received statutory accident benefits from Zurich Insurance Company ("Zurich"), payable under Ontario Regulation 6721. Weekly income benefits were terminated by Zurich on February 4, 1992. The parties were unable to resolve their dispute through mediation and Mr. Szilwoski applied for arbitration under the Insurance Act, R.S.O. 1990, c. I.8.
The issues in this hearing are:
Did the parties settle the weekly benefits issue at mediation?
Is Mr. Szilwoski entitled to weekly benefits for any period after February 4, 1992?
Mr. Szilwoski also claims interest on any outstanding amounts owing, a special award and his expenses incurred in the hearing.
Result:
The parties agreed to a binding method of settling weekly benefits at mediation.
Mr. Szilwoski is entitled to ongoing weekly benefits until August 3, 1993.
Mr. Szilwoski is not entitled to a special award.
Mr. Szilwoski is entitled to his expenses of the arbitration.
Hearing:
The hearing was held in London, Ontario, on August 11, 1993 and December 6, 1993, before me, Fred Sampliner, Arbitrator.
Present at the Hearing:
Applicant:
Artur Szilwoski
Applicant's Representative:
Joseph J. Masterson Barrister and Solicitor
Insurer's Representative:
Ian Boundy Barrister and Solicitor
Witnesses:
Artur Szilwoski, Applicant Steve Stanley, Claims Supervisor Dr. Solomon Goldenberg
Portions of Mr. Szilwoski's testimony were translated by Bo Laurencic from London Cultural Interpretation Services.
The parties filed fourteen exhibits, which are listed in Appendix A.
Evidence and Findings:
Mr. Szilwoski is 34 years old, married with one child. He and his family emigrated from Poland to Canada in July 1990. Although Mr. Szilwoski was an engineer in Poland, he was not qualified for this profession in Canada. Mr. Szilwoski moved to London, Ontario shortly after his arrival in Canada, and obtained factory work, assembling automobile wiring at Fleck Manufacturing Company.
Mr. Szilwoski testified that he has had great difficulty with the English language since his arrival in Canada. Mr. Szilwoski used a translator from time to time during his testimony at the hearing, indicating to me that four years after his arrival in Canada he was still unable to converse freely in English. Mr. Szilwoski's difficulty with the English language is significant to the medical evidence presented in the case.
The January 23, 1991 motor vehicle accident occurred while Mr. Szilwoski and his wife were travelling to work during a snowstorm. Mr. Szilwoski's car skidded and hit a tractor trailer truck on Highway 401 near London. He was taken by ambulance to Victoria Hospital in London, where he complained of a headache, bruised chest, pain and swelling in his right knee, a broken right big toe, neck pain and left knee pain. Mr. Szilwoski was treated and released from the hospital. He testified that he saw his family physician, Dr. Antonin Kratky, about two days after the accident. He did not return to work at Fleck Manufacturing Company, and was laid off on January 25, 1991.
Mr. Szilwoski applied to Zurich for weekly benefits under section 12 of the Schedule. In order for Mr. Szilwoski to be eligible for weekly benefits under section 12 he must prove on a balance of probabilities that he is substantially unable to perform the essential tasks of his work at Fleck Manufacturing Company. The amount of his benefit is not in dispute.
Mr. Szilwoski testified about the tasks involved in his assembly job at Fleck Manufacturing Company. Ten people stood inside a circular assembly line, 10 meters in diameter. The 10 workers were divided into groups of twos or threes, depending on the task. The groups rotated tasks within the circle each hour or two. One set of workers would pick up the wiring harnesses from boxes on the floor, place a number of these harnesses around their neck, and one by one put them onto the auto body panels, which were moving along the circular assembly line. Other workers wrapped the wires with electrical tape, while a third set of workers applied plastic connectors to the wiring. Finally, the completed wiring harnesses were taken off the assembly line and tested before being placed in boxes again.
Mr. Szilwoski testified that the boxes of wiring harnesses weighed anywhere from 60 to 90 pounds each. Periodically, he was required to pick up and move these boxes from storage areas to the assembly line. Mr. Szilwoski said that the work involved constant walking around the assembly line and reaching overhead to the wiring for almost the entire eight hour day. He had a one hour lunch and a 15 minute break in the morning and again in the afternoon. Mr. Szilwoski candidly admitted that this job was tedious and he did not like factory work very much.
Mr. Szilwoski testified that for six months following the accident he engaged in very little physical activity. During this time Mr. Szilwoski said that he did not participate in his usual sports pastimes; swimming, tennis or soccer.
By the fall of 1991, Mr. Szilwoski said he could function much better. His left knee was completely healed. However, his right knee still bothered him. Mr. Szilwoski indicated that he thought it was 70 percent healed at that time, but he still could not stand or walk on the leg for long periods. However, Mr. Szilwoski stated that he could shop, jog and exercise lightly by the early fall of 1991.
Although Mr. Szilwoski's pain in his right knee was much improved by the fall, he said that his lower back pain had increased. Mr. Szilwoski admitted that he had not mentioned his back problem to Dr. Kratky before August 1991. He explained that the pain in his right knee overshadowed the backache. As a result of his continuing complaints, Dr. Kratky referred Mr. Szilwoski to Dr. Kevin Gurr, an orthopaedic specialist.
Dr. Gurr examined Mr. Szilwoski on October 29, 1991 and recorded the following note:
Arthur [sicl was reviewed because of his right knee pain. Indeed, on questioning him in more detail today, his symptoms are more of leg pain and numbness involving the medial proximal aspect.
He has some radiation [of the pain] more proximally. He has occasional back discomfort with this. This apparently came on a month or so following his motor vehicle accident. It is somewhat difficult, with his language barrier, however, he does seem to at least clinically have some symptoms consistent [sicl with radicular pain.
Radicular pain refers to pressure on a nerve root.
Dr. Gurr ordered a CT scan of Mr. Szilwoski's lumbar spine. The results showed early stages of degenerative disc disease. More significantly, the radiologist diagnosed spondylolysis.
Spondylolysis is a break in the bone that joins the facet joint to a vertebral bone. The presence of this condition may or may not cause a person pain.
Dr. Gurr reviewed the CT scan results and radiologist's report. Dr. Gurr found that the spondylolysis and degenerative disc disease was not caused by the accident, but he suggested that Mr. Szilwoski's back condition was aggravated by the collision. Dr. Gurr did not recommend surgery.
Mr. Szilwoski testified that Dr. Gurr told him he could do light housework and exercises, but he should bend and twist slowly. Soccer or tennis were not recommended, and Mr. Szilwoski said that Dr. Gurr told him he should not return to any employment that was similar to his job at Fleck Manufacturing Company.
About the same time that Dr. Gurr saw Mr. Szilwoski in December 1991, Zurich conducted videotape surveillance. On December 11, 1991 Mr. Szilwoski is seen grocery shopping with his family. He carries four grocery bags in one hand and a case of soda pop under the other arm from the parking lot to his apartment without rest. Directly afterwards, he came out of the apartment and washed the exterior and interior of his car for about half an hour. Mr. Szilwoski bent down fully from the waist several times, squatted, stretched out to wash the top, front hood and rear trunk deck without any apparent sign of pain or disability.
Seeing this evidence, I can understand why Zurich questioned Mr. Szilwoski's continued eligibility for weekly benefits. On the other hand, I also recognize that carrying groceries for a few minutes and washing a car for half an hour are not comparable to the arduous assembly line tasks that Mr. Szilwoski worked at for eight hours a day. Zurich ceased paying weekly benefits on February 4, 1992, partially based upon the surveillance evidence.
After Mr. Szilwoski's weekly benefits were terminated he made an appointment to see his family physician. On February 27, 1992 Dr. Kratky examined Mr. Szilwoski and wrote the following note:
To whom it may concern:
The above named patient was able to return to return to work on 5-2-92 with restrictions of no excessive lifting and bending.
Mr. Szilwoski testified that Dr. Kratky did not understand him at the February 27, 1992 appointment due to his language difficulties. He stated that, just before the hearing, Dr. Kratky had told him that he thought Mr. Szilwoski wanted a release for work. Dr. Kratky did not testify at the hearing, and I am not willing to speculate about whether Dr. Kratky would corroborate his testimony.
Zurich argues that the December 1991 surveillance and Dr. Kratky's February 27, 1992 note provide sufficient evidence that Mr. Szilwoski was fit to resume his job at Fleck Manufacturing Company on the date that weekly benefits were terminated.
Mr. Szilwoski did not agree that he was fit to resume his job. He applied for mediation, and was represented throughout the mediation and arbitration proceedings by Mr. Joseph Masterson, a lawyer.
Mediation was conducted between May 9, 1992 and July 8, 1992, at the conclusion of which the mediator issued a report on the discussions. Under the title of "Issues Settled" the mediator's report states:
Issue: Weekly Income
Details:
The parties were unable to agree on the reinstatement of weekly income benefits. However the procedure upon which the decision to pay weekly income benefits was agreed and it is outlined as follows:
Mr. Sziliwoski [sic] will attend another assessment with Dr. Gurr for the purpose of obtaining Dr. Gurr's opinion on whether Mr. Sziliwoski [sic] can perform the essential tasks of his former employment as an assembly line worker.
Mr. Masterson will write to Dr. Gurr with a copy to Mr. Stanley of Zurich Insurance, with a detailled [sic] job description and specific questions regarding Mr. Sziliwoski's [sic] disability.
The decision on whether any retroactive or further weekly income benefits will rest solely on the medical opinion of Dr. Gurr and benefits will be paid by Zurich Insurance in accordance with Dr. Gurr's opinion. (emphasis added)
The mediator also identified the issues remaining in dispute as follows:
Issue: Weekly Income
Details:
The parties were unable to agree on whether weekly income benefits would be paid retroactively nor was the decision to pay future benefits agreed.
The parties did agree on the procedure upon which these benefits would be decided and this agreement is outlined above in item 6. (emphasis added)
Each party received a copy of the mediation report.
Along with the mediation report, the mediator sent Confirmation of Settlement forms to the parties. The form states:
I confirm that the terms of settlement between the Insured person and the Insurer in respect of no-fault benefits are accurately set out under item 6, "Issues Settled", in the Report of Mediator dated July 09, 1992 by Tom Golfetto.
Zurich signed the form on August 18, 1992, and returned one to the Commission and another to Mr. Masterson.
In accordance with the mediation report, Mr. Masterson arranged for Dr. Gurr to examine Mr. Szilwoski again. He provided Dr. Gurr with a detailed description of the assembly line work. Zurich received a copy of Mr. Masterson's correspondence to Dr. Gurr under a cover letter stating:
I confirm our recent telephone conference with the mediator, Mr. Golfetto of the Ontario Insurance Commission.
At that time, we agreed that Mr. Sziliwoski [sic] would attend at [sic] medical appointment with Dr. Gurr, and that Dr. Gurr's opinion as to whether or not Mr. Sziliwoski [sic] is capable of returning to his former occupation would carry the day in determining whether or not Zurich will pay Mr. Sziliwoski [sic] his weekly income benefits.
Dr. Gurr examined Mr. Szilwoski on August 11, 1992. His opinion of Mr. Szilwoski's work fitness is set forth in his consultation note:
I continue to contend that mr. Szliwoski [sicl cannot go back to his former occupation and perform the essential duties of his former occupation due to his back problem. He should be considered for vocational retraining. I would not recommend a surgical approach to his problem or any further investigations or intervention at this time.
Dr. Gurr sent Zurich a copy of the consultation note along with a cover letter that said:
Mr. Sziliwoski [sicl, in my opinion, continues to be suffering from mechanical type symptoms which would definitely be aggravated by the essential tasks of his occupation and further, is unable to return to his former occupation. The duration of this, I suspect, is indefinite, given the fact that he has an underlying spondylolysis which appears to have been aggravated by the motor vehicle accident.
His initial knee pain, I suspect, was a manifestation of this injury and exacerbation from the accident.
Zurich responded to Dr. Gurr's opinion in a letter dated November 13, 1992:
Dr. Gurr's report does not suggest that Mr. Sziliwoski [sicl is suffering a substantial inability to perform essential tasks of his occupation. His comment that he "continues to be suffering from mechanical type symptoms which would definitely be aggravated by the essential task of his occupation and further, is unable to return to his former occupation" does not qualify as a "substantial inability". Weekly benefits will not be reinstated.
Zurich's letter ignores the doctor's opinion in the clinical note. In my view, Dr. Gurr clearly expressed his opinion that Mr. Szilwoski could not perform his essential job tasks in the clinic note.
Zurich contends that even if the opinion is clear, it did not agree to be bound by Dr. Gurr's view. Zurich's claims supervisor, Mr. Steve Stanley, testified that he did not read the "Issues Settled" in the mediation report. However, he acknowledges that he signed the confirmation of settlement, and returned it to the Commission. He said that in his mind it was not a settled matter. Yet, he agrees that he never objected to the mediator's report or Mr. Masterson's letter which reiterated the terms of the agreement.
Mr. Stanley's claim that he did not read the agreement is not credible. I do not find it plausible that Mr. Stanley, a claim's supervisor with nine years experience, would sign a confirmation of settlement unless he had read the contents and agreed with it. And if he did not agree, Mr. Stanley should have indicated the fact to Mr. Masterson or the Commission within a short period after the mediation. Since Zurich signed the agreement and did nothing afterwards to indicate it did not agree, and there is no evidence to corroborate Mr. Stanley's statements, I find that Zurich knew and understood the terms of the settlement agreement reached at mediation.
The agreement settles a substantive right using a third party opinion. In mediation, parties signify their agreement to settle a dispute about a substantive right by signing a Confirmation of Settlement, prepared by the mediator.
Sometimes parties do not reach a full settlement of the issues, but do agree to obtain medical opinions or other information to further their discussions. The parties in this matter went further. They agreed to obtain a medical opinion and to be bound by it. Thus, the parties agreed to a process of determining the dispute.
Zurich did not present any statutory authority or case law interfering with the parties right to enter into this type of agreement. I do not find that it is contrary to the policy or spirit of the innovative dispute resolution mechanisms which are part of Ontario's no-fault scheme. Parties should be free to not only seek guidance from the opinions of specialists, but also to choose to have that opinion fully dispose of an issue.
I find that the parties acted in accordance with this agreement subsequent to the mediation, thereby confirming that Mr. Szilwoski and Zurich understood that the terms were binding on the parties. Therefore, I find that Zurich must pay weekly benefits to Mr. Szilwoski in accordance with Dr. Gurr's opinion.
Dr. Gurr continued to express his opinion that Mr. Szilwoski was not able to resume his duties at Fleck Manufacturing Company. On April 13, 1993, Dr. Gurr examined Mr. Szilwoski at his orthopaedic clinic. He found increasing mechanical back pain and right buttock/thigh pain. Dr. Gurr prescribed anti-inflammatory medication and continued physiotherapy.
Dr. Gurr last expressed his opinion about Mr. Szilwoski's work ability on August 3, 1993:
I have reviewed the list of Artur's essential duties at Fleck Manufacturing. I do feel that Mr. Szilwoski suffers a substantial inability to perform the essential tasks of his occupation.
I find that under the agreement Zurich must accept the opinion of Dr. Gurr and pay Mr. Szilwoski weekly benefits until August 3, 1993.
Even if there were no agreement, there is considerable evidence to support Mr. Szilwoski's disability at least until August 1993. On November 12, 1993 Dr. Kratky wrote to Mr. Szilwoski's lawyer:
After reviewing the letter to Dr. Gurr and yourself giving the patients [sicl job description, it is my opinion that a patient with this type of injury would not be able to fully perform his occupation as described in the letter.
And on November 9, 1993 Dr. Gurr examined Mr. Szilwoski again, and said:
Art was reviewed again with respect to his back and right leg pain. He did appreciate some improvement in his clinical symptoms after the course of anti-inflammatories and physiotherapy started in April 1993. He continued with the therapy for about two months, working quite hard. He did have some reduction in his symptoms to the point he has been able to return to work at his previous job delivering for a chinese food restaurant. His working hours are a maximum of 25 a week. He continues to have difficulty with a chronic level of back pain.
However, under the terms of the mediation agreement the parties bound themselves to Dr. Gurr's opinion, and I find no evidence that Dr. Gurr found Mr. Szliwoski disabled from his essential job tasks after August 3, 1993.
In fact, there is evidence that Mr. Szilwoski had resumed a great deal of activity by August 1993. Mr. Szilwoski testified that he began delivering food for a London restaurant called The Dragon's Gate on October 3, 1992. He gradually increased work from nine to 25 or 30 hours per week, and sometimes helped with food preparation and dishwashing. The job paid less than his factory job, but Mr. Szilwoski said it was easier and he could take rest breaks when he wanted.
Mr. Szilwoski said he took the job because he wanted to stop relying on the welfare payments his family had been receiving since July 1992. The lesser job hours involved with food delivery also allowed him time to take English language courses and physiotherapy during the day.
I have also reviewed the surveillance of Mr. Szilwoski waxing his car on November 20, 1992. Mr. Szilwoski appears quite agile for the approximately one half hour that he polished the vehicle.
Dr. Solomon Goldenberg testified that he thought Mr. Szilwoski would have been able to resume his job earlier than August 1993. Although I was impressed with Dr. Goldenberg's credentials and analysis, he did not conduct a physical examination of Mr. Szilwoski. His opinion was based upon a review of the other health practitioners' records, and viewing of the surveillance videotapes.
Dr. Goldenberg admitted that he could not cast doubt on Dr. Gurr's objective finding that Mr. Szilwoski's spondylolysis and nerve root irritation were aggravated by the accident. Dr. Goldenberg questioned the treating practitioner's opinion because he felt that the physical abilities Mr. Szilwoski demonstrated in the surveillance was inconsistent with his reported complaints. However, in my view, Dr. Goldenberg's opinion based upon the surveillance and his review of the other health practitioners reports, is not sufficient to discount the opinion of Dr. Gurr to any degree.
In summary, the parties agreement to pay weekly benefits consistent with the opinion of Dr. Gurr is binding. Dr. Gurr opined that Mr. Szilwoski was unable to perform the essential tasks of his job until August 3, 1993. The evidence at the hearing does not manifestly conflict with Dr. Gurr's opinion, and Zurich is liable to pay Mr. Szliwoski weekly benefits accordingly.
Special Award:
Mr. Szilwoski requests a special award under section 282(10) of the Insurance Act. For Mr. Szilwoski to recover a special award I must find that Zurich has unreasonably withheld or delayed payment of weekly benefits. The surveillance and Dr. Kratky's limited work release provided Zurich with reason to question the conclusion reached by Dr. Gurr. But Zurich had this information before entering into the agreement, and I am not impressed by Zurich's failure to abide by it.
However, Zurich did have some cause to question the binding nature of this type of procedural agreement. On the facts of this case, I am not prepared to make a special award against Zurich.
Expenses:
I exercise my discretion to award Mr. Szilwoski his expenses of the arbitration in accordance with the Dispute Resolution Practice Code. If the parties cannot resolve the amount, they may apply to me for an assessment.
Order:
Zurich will pay Mr. Szilwoski weekly benefits until August 3, 1993, plus interest in accordance with the Schedule.
Zurich will pay Mr. Szliwoski his expenses incurred in respect to the arbitration, as provided under the Dispute Resolution Practice Code.
May 12, 1994
Fred Sampliner Arbitrator
Date
APPENDIX A
Exhibit 1
Confirmation of Settlement
Exhibit 2
Mr. Szilwoski's Production Brief
Exhibit 3
Mr. Szilwoski's Case Brief
Exhibit 4
Note of Dr. A.J. Kratky, dated February 27, 1992
Exhibit 5
Report of Dr. A.J. Kratky, dated January 8, 1991
Exhibit 6
Victoria Hospital Orthopaedic Clinic note, dated May 21, 1991
Exhibit 7
Victoria Hospital Orthopaedic Clinic note, dated July 23, 1991
Exhibit 8
Clinical notes and records of Dr. A.J. Kratky
Exhibit 9
Partial treatment history of Dr. A.J. Kratky
Exhibit 10
Curriculum Vitae and Report, dated August 5, 1993, of Dr. Solomon Goldenberg
Exhibit 11
Report of Dr. Kevin R. Gurr, dated November 29, 1993
Exhibit 12
Report of Dr. Antonin Kratky, dated November 12, 1993
Exhibit 13
Report of Nancy Haston & Associates Inc., dated February 10, 1992
Exhibit 14
Six surveillance videotapes, marked A, B, C, D, E, F