Neutral Citation: 1994 ONICDRG 79

P-001239

OFFICE OF THE DIRECTOR OF ARBITRATIONS

BETWEEN:

JOHN BEENEN

Applicant (Appellant)

and

THE CONTINENTAL INSURANCE COMPANY OF CANADA

Insurer (Respondent)

Before:

Elisabeth Sachs Director of Arbitrations

Attendance:

John Beenen (Appellant, in person)

Thomas C. Barber(for Insurer, Respondent)

APPEAL DECISION

I. NATURE OF PROCEEDINGS

By Notice of Appeal filed January 8, 1993, the insured person, John Beenen (the appellant) appeals from the decision of Senior Arbitrator Susan Naylor dated December 10, 1992 denying the appellant weekly benefits and refusing to grant a lump sum award against the insurer, the Continental Insurance Company of Canada (the respondent) under s. 282(10) of the Insurance Act, R.S.O. 1990, c. I-8, as amended (the Act). The orders sought by the appellant are:

1. A referral by the Director to the Chair of the Medical and Rehabilitation Advisory Panel to review the medical reports submitted in evidence at the arbitral hearing under s. 283(7) of the Act;

2. A reinstatement of his weekly benefits from September 16, 1991;

3. A lump sum award under s. 283(7) of the Act;

4. An amount for supplementary medical and rehabilitation benefits.

The transcript of the oral evidence of the appellant and two witnesses given during the one day arbitral hearing was filed. Both parties provided a documents brief, the respondent's being limited to medical reports and notes originally filed at the hearing.

The parties were invited to make oral submissions and did so by way of a telephone conference call.

II. PRELIMINARY ISSUES

1. Supplementary Medical and Rehabilitation Benefits

In the Notice of Appeal, the appellant asked for "rehabilitation costs" and ticked off the box next to the heading "Supplementary Medical and Rehabilitation Benefits" at s.4 of the notice describing which benefits in the decision are being appealed.

By s.283 of the Act the Director has jurisdiction to hear an appeal from the order of an arbitrator and may determine the appeal based on what the issues were before the arbitrator for decision.

At page 2 of the decision, Senior Arbitrator Naylor notes counsel did not pursue a claim for the cost of a gym or athletic club but reserved the right to claim expenses of this nature in the future. This is borne out in the transcript.

There was no decision or order on gym or club expenses or any supplementary medical or rehabilitation benefits. While the appellant might consider claiming them at some point, they were not in issue before the arbitrator. Accordingly, I make no order or finding with respect to those issues.

2. Referral to the Medical and Rehabilitation Advisory Panel (M.R.A.P.)

The appellant argues the arbitrator misread, in his words, the complex and somewhat conflicting medical reports. He alleges the difficulty with the reports was contributed to by the respondent's actions in giving one of his medical advisors, Dr. E. Day, an incorrect or incomplete form on which to submit a medical report. The appellant further alleges, because Dr. Day was thereby unable to complete the forms in a timely manner, the respondent prematurely terminated his benefits. The appellant also argues the conclusions about his condition in the medical reports are not reconcilable, hence the arbitrator should have taken steps to put the matter before the M.R.A.P..

From page 9 to 16 of the decision, the arbitrator summarizes, and contrasts, the medical and rehabilitation evidence before her. I have the advantage of reviewing the reports as well as the transcript of the appellant's testimony about doctor visits, physiotherapy and other treatments he received. In her findings, starting at page 17, the arbitrator specifically refers to various reports in coming to the conclusions on causality and at page 25, the extent of the appellant's alleged disabilities.

The respondent contends that as the appellant did not ask the arbitrator to refer any questions to the M.R.A.P. before or at the hearing, the Director should not be asked to do so on appeal. I disagree. It may well be, having the benefit of transcripts and medical briefs, the Director in reviewing the findings of the arbitrator might conclude, notwithstanding the arbitrator's duty to determine the issue, that a question remains as to the insured person's condition or rehabilitation which was not satisfactorily addressed. Sub-section 283(7) of the Act specifically provides that the ability to refer questions to the M.R.A.P. found in ss. 282(5) applies to appeals before the Director.

As stated in Sharon Lee v. Unifund Assurance Company, (OIC File No. P-004078, September 14, 1993) at page 5:

"It is up to the arbitrator to receive medical and other evaluative reports and decide for him or herself the weight to give them in light of all the circumstances and testimony at the hearing. The arbitrator has the option, if there are unanswered questions remaining, to refer these to the panel. It was not suggested at the hearing the arbitrator do so, nor did she find it necessary after reviewing the evidence. It is not up to the Director to second guess the arbitrator's choice, nor does a review of the evidence indicate any value in a referral to the panel."

In this case, only written medical evidence was tendered. Although it might have been helpful, none of the doctors and therapists whose reports or notes were filed testified. After reviewing the documents I cannot conclude they are in conflict or confusing. The evidence was summarized in detail in the decision and need not be repeated here. Except for an apparent error in a report from the physiotherapy clinic (stating the appellant was discharged) there is no question that could usefully be referred to the M.R.A.P. about the appellant's medical condition or related to his rehabilitation.

III. SUBMISSIONS & FINDINGS

The appellant divided his submissions into six categories wherein he alleges the evidence did not support the conclusions reached by the arbitrator. The respondent answered each point in turn and I will review them that way.

(1) Administrative errors by insurer

The appellant states the respondent committed several administrative errors, the most serious of which was not providing Dr. Day with the appropriate form on which to submit his medical report to the respondent. The appellant claimed the respondent never acknowledged this error and it coloured its subsequent decision to terminate his benefits.

In response, it is admitted there was a problem with the form, as some pages were missing, but in the final analysis nothing turned on it. The respondent states the claim was not denied for lack of timeliness, as Dr. Day had full opportunity to state his position. He did so in his report of July 28, 1992, commenting on the report of Dr. El-Sawy dated July 13, 1992 which concluded the appellant was physically capable and neither totally nor partially disabled.

The appellant was also seen by Dr. Jean Trepanier on a number of occasions. Dr. Trepanier found the appellant could return to normal activities as of September, 1991 and indicated certain complaints of the appellant were not related to the motor vehicle accident.

I find it significant that throughout the hearing the appellant attempted to minimize what the arbitrator and doctors described as serious pre-existing back problems. The doctors' reports reveal not all of them were apprised by the appellant of this condition. Indeed Dr. Day, in his November 20, 1991 report to Dr. Trepanier notes "Prior to the accident, this man was well." Other medical briefs and notes indicate quite the contrary.

The only medical evidence before the arbitrator was the reports, as no doctors testified. Whatever administrative error may have occurred in supplying a form to Dr. Day, this did not affect the ultimate overall medical opinion or the arbitrator's conclusions.

(2) Testimony of Cynthia Beenen

The appellant states the arbitrator misunderstood or misconstrued his daughter's testimony. In particular, he alleges there was no evidence his daughter was at their cottage that summer and he states she was working.

The respondent points out the transcript records Ms. Beenen testified she was both at the cottage and at home, as well as working during the summer of 1991. The respondent also notes and I accept, in the main Ms. Beenen's testimony supports the appellant's version of the activities he could or could not undertake subsequent to the accident.

There is no error in the description of Ms. Beenen's evidence in the arbitrator's decision.

(3) Sporting activities

The appellant objects to the arbitrator's characterization of his ability to cross-country ski and swim for 5 hours weekly, found at page 25 of the decision. He states there was no evidence he undertook these activities, and certainly not for the time period suggested.

The respondent refers to a report from the Beacon Hill Physiotherapy Clinic dated January 14, 1992, (in a letter to Dr. Trepanier) and a note of the physiotherapist dated January 9, 1992. These indicate the appellant was encouraged to cross-country ski and did so, and to work out with light weights which he did with no increase in pain except for muscle stiffness.

No reference to 5 hours of activity is found in the transcript or elsewhere. There is however a clear indication the appellant was resuming cross-country skiing activities and lifting weights. There is other evidence to show, in the summer months, the appellant swims.

Overall, considering the medical evidence, the testimony of Ms. Beenen and the physiotherapy reports, descriptions of the sporting activities undertaken by the appellant are essentially accurate.

The unsubstantiated finding of the time period is not of such great significance, given the evidence as a whole, to reverse or vary the decision on that basis alone.

(4) Campaign activities

The appellant alleged little weight should have been put on his ability to campaign for a municipal election in November, 1991. As he said, he could have done so "in a wheelchair". The appellant contended the evidence was he could walk and talk but not much more - he was still disabled when taking part in the campaign.

The respondent says the appellant's effort to minimize the extent of his campaign activity is similar to his denial of a pre-existing medical condition. The respondent's view of the appellant's testimony is the appellant put in full days, on a door-to-door campaign with little assistance; carrying and distributing flyers, speaking to people, using a sledgehammer to post campaign signs mounted on stakes, walking, climbing stairs and participating in evening meetings. Far from being minor, the respondent alleges these actions require someone to be in good condition, capable of walking long distances, during at least 6 to 7 hours daily. The respondent states if the appellant was able to undertake this level of activity, then it cannot be said, in conjunction with the medical evidence, the appellant was substantially disabled within the meaning of the Schedule.

The arbitrator noted the appellant had an "apparent unimpaired ability to campaign for municipal office" and indicated she took this into account to determine his physical condition for the time weekly benefits were claimed.

All I have before me are the arbitral exhibits and the transcript. I cannot begin to assess those factors in receiving the evidence which confronted the arbitrator; the demeanour of the witnesses and the way the appellant presented himself. As stated in Calogero and The Co-operators General Insurance Company (OIC File No. P-000251, February 13, 1992) at page 7:

"The arbitrator had a duty to make findings of fact after hearing witnesses, reviewing documents tendered as exhibits, and the submissions of counsel. It is the arbitrator's duty to make findings of credibility based on the evidence presented. It is the arbitrator's duty to weigh and then accept all, part, or none of that evidence....

While the Director is required to re-examine the evidence to ensure no error occurred and that the arbitral findings are supportable given the evidence, it is not the Director's function to substitute her assessment for that of the arbitrator. In order to do that, my assessment must be based on finding that the arbitrator's conclusions have insufficient or no evidence whatsoever to support them."

The arbitrator correctly identified the tasks necessary for the appellant to mount a campaign and relied on the appellant's testimony in coming to her conclusions. She accepted the appellant's own evidence in that regard, and I see no reason to place a different interpretation on it.

(5) Medical attendances/physiotherapy

The appellant takes issue with the statement at page 24 to 25 in the decision, indicating when the appellant did or did not visit his then family physician (Dr. Trepanier) and attend physiotherapy. Dr. Trepanier referred the appellant to Dr. Day who saw him on November 18, 1991. As found by the arbitrator, the records from the physiotherapy centre show attendances once or twice a week during October, November and December, 1991. Dr. Trepanier's medical report states he saw his patient on October 1, 1991 and November 13, 1991 but at no other time during that period. This is as found by the arbitrator. The same report, in its last paragraph, has the following statement:

"The described pain in the mid and lower back areas referred to as facet syndrome T6-7 seemed to have come on a long time after the accident. Again I do not feel that any of these injuries are disabling to Mr. Beenen at least to the point of interfering with gainful occupation. In his own admission Mr. Beenen is only troubled by discomfort when he does manual labour around the house and has stated to me he feels that he owed (sic) something for this minor degree of impairment. I still feel that the patient had fully recovered from his cervical strain injuries as of September 1991 and stand by my previous written statements on the patient's accident insurance reports."

(6) Task performance/recovery

The appellant claims this was the most important aspect on which the decision is incorrect -the finding that he had "fully recovered" from the injuries sustained in the accident and he could undertake all of his former tasks.

The comment about full recovery is made in a discharge statement from the physiotherapy clinic. It states the appellant had full range of movement and was pain free. Subsequently, the appellant received additional physiotherapy and submitted the clinic made an error in its description of his state at the time.

The arbitrator does not conclude the appellant was restored to the condition he was in just before the accident. Considerable care was taken in construing the meaning of the words "substantial inability" found in the Schedule, the burden of proof being on the appellant to satisfy the arbitrator that he suffered a substantial inability to perform his essential tasks.

The arbitrator acknowledged some activities, such as painting and snow shovelling, were no longer being done and others were associated with pain. However, she found, based on the medical and physiotherapy reports as well as the oral testimony, the appellant had not met the test when all of his essential tasks were reviewed.

In my review of the transcript and the exhibits, I cannot say the arbitrator misdirected herself or her conclusions are so unsupported by the evidence that I would now make different findings on the appellant's circumstances. This is not a case to substitute my assessment for the arbitrator's and accordingly, the appeal is dismissed.

IV. EXPENSES

The appeal is unsuccessful but I find that it was not brought frivolously. The appellant believed the arbitrator did not appreciate his situation and had not been aware of what he thought were the respondent's deliberate attempts to frustrate the giving of relevant medical evidence. The appellant also believed his condition was complex and evidence contradictory in that regard.

The appellant represented himself before me. It was reasonable to raise the issue of a referral to the Medical and Rehabilitation Advisory Panel given his understanding of how medical evidence is used and interpreted, and the grounds on which a re-hearing may be sought. Accordingly, I exercise my discretion in awarding the appellant his expenses, limited to the filing fee paid on appeal.

V. ORDER

1. The appeal from the decision of Senior Arbitrator Naylor is hereby dismissed.

2. The appellant is entitled to his expenses limited to the filing fee paid on appeal.

September 8, 1994

Elisabeth Sachs Director of Arbitrations