Neutral Citation: 1994 ONICDRG 83
File No. A-002420
ONTARIO INSURANCE COMMISSION
BETWEEN:
ANGELO CASSOLATO
Applicant
and
CANADIAN SURETY COMPANY
Insurer
DECISION
Issues:
The Applicant, Angelo Cassolato, was injured in a motor vehicle accident on July 8, 1990. He applied for and received statutory accident benefits from Canadian Surety Company ("Canadian Surety"), payable under Ontario Regulation 6721. Weekly benefits were terminated by Canadian Surety on January 18, 1992. Mr. Cassolato claims he continued to be eligible for weekly benefits until July 8, 1993.
The parties were unable to resolve their dispute through mediation and Mr. Cassolato applied for arbitration under the Insurance Act.
The issues in this hearing are:
Is Mr. Cassolato entitled to weekly benefits, under section 13(1) of the Schedule, from January 19, 1992 to July 8, 1993?
Mr. Cassolato also claims interest on any amounts found to be payable by Canadian Surety, under section 24(4) of the Schedule, and his expenses relating to the arbitration, under section 282(11) of the Insurance Act.
Result:
Mr. Cassolato is not entitled to weekly benefits for the period January 19, 1992 to July 8, 1993.
Mr. Cassolato is entitled to his expenses relating to the arbitration.
Hearing:
The hearing was held in Sudbury, Ontario, on May 9, 1994, before me, Shemin Manji, arbitrator.
Present at the Hearing:
Applicant: Angelo Cassolato
Applicant's Representative: Andy Cassolato Barrister and Solicitor
Insurer's Representative: Ron Renzini Barrister and Solicitor
Insurer's Officer: Frank Castaldo
Witnesses: Angelo Cassolato Sean Bradley Shirley Racine Steven Savage Barbara Maki
Exhibits: Six exhibits were filed. A list of the exhibits and other documents before me is appended as Schedule A.
Counsel for Canadian Surety relied on several decisions of the Commission which are listed in Schedule B.
Evidence and Findings:
1. The factual background
Mr. Cassolato is 71 years old. He retired from Inco in 1984. He resides in Sudbury with his wife. He has two sons aged 36 and 33, who live in Toronto.
Mr. Cassolato was involved in a serious motor vehicle accident on July 8, 1990. He was driving on a highway near Toronto when he lost control of his car. The car slid across the lanes over the median and struck a rock on the other side of the highway.
Mr. Cassolato suffered multiple injuries to his face and back. He was transported from the scene of the accident to a nearby hospital, where he was stabilized before being transferred to Sudbury General Hospital. Mr. Cassolato required surgery to repair a nasal fracture. X-rays of the lumbosacral spine revealed two cracked vertebrae at the L3-L4 level. Mr. Cassolato was seen by an orthopaedic surgeon, Dr. McCluskey, for those injuries. No surgical intervention was required. Mr. Cassolato was discharged from Sudbury General Hospital approximately six days following his accident.
At the hearing, Mr. Cassolato testified that he was in good physical condition before the accident and did not have any problems with his back. This is confirmed by his former family physician, Dr. Tenhunen, who began treating him in 1987.
2. The issue
After the accident, Mr. Cassolato applied to Canadian Surety for accident benefits, including weekly benefits. Because he was not employed at the time of the accident, his eligibility is determined under section 13(1) of the Schedule, which provides:
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 benefit during the period in which the insured person suffers substantial inability to perform the essential tasks in which he or she would normally engage if he or she meets the qualifications set out in subsection (2).
Canadian Surety paid weekly benefits for 18 months. Benefits were terminated on January 18, 1992, on the basis that Mr. Cassolato was no longer substantially unable to perform his essential pre-accident tasks. Mr. Cassolato claims he continued to be eligible for weekly benefits until July 8, 1993.
The disagreement in this case arises in defining Mr. Cassolato's "essential tasks in which he...would normally engage", and in determining whether he was "substantially unable" to perform those tasks.
3. Mr. Cassolato's essential tasks
Mr. Cassolato testified that he was physically active before the accident and carried out a broad range of activities, some of which were physically demanding. He testified at some length about these activities.
Canadian Surety's position is that not every activity which occupied Mr. Cassolato's time before the accident constitutes an "essential task". In support of its position, Canadian Surety relied on the arbitral decisions in Edgar Cowie and The Non-Marine Underwriters, Members of Lloyd's (under appeal), March 9, 1993, OIC File No. A-001159, and Jimmie Joe Hunt and Royal Insurance Company of Canada, October 15, 1992, OIC File No. A-000370.
The words "essential" and "task" are not defined in the Schedule. In Cowie, Arbitrator Janice Mackintosh considered the meaning of these words in the context of section 13(1) of the Schedule. She referred to the Concise Oxford Dictionary, Eighth Edition (1990), for the ordinary meaning of these words. According to the Concise Oxford Dictionary, "essential" means: 1. absolutely necessary; indispensable. 2. fundamental, basic. 3. of or constituting the essence of a person or thing. And, "task" means: a piece of work to be done or undertaken.
I accept these definitions of "essential" and "task", and I find that, for the purposes of determining Mr. Cassolato's entitlement to weekly benefits, his essential tasks are limited to:
personal hygiene activities, including dressing, shaving and washing;
regular program of physical fitness consisting of walking (long distance);
driving (short distances);
home maintenance, consisting of occasional repairs around the house (plumbing and painting), and snow removal;
gardening;
household activities consisting of garbage removal and occasional performance of vacuuming and dishwashing;
grocery shopping.
Mr. Cassolato testified about other activities which he also claimed were his essential tasks. I find that some of these activities, i.e., prolonged sitting, prolonged standing and sleeping without interruption, do not constitute "tasks". Mr. Cassolato also claimed that long distance driving was an essential task. I find that, in Mr. Cassolato's case, this does not constitute an "essential" task. In respect of the balance of the activities which Mr. Cassolato claimed were his essential tasks, I find that these were not his essential tasks because Mr. Cassolato's testimony in respect of these tasks was at variance with statements he made earlier to Dr. Tenhunen, and to various professionals retained by Canadian Surety to assess his level of disability, i.e., Crawford & Company, Canadian Back Institute and Northern Rehabilitation & Consulting Services Inc.
At the hearing, Mr. Cassolato testified that one of his essential tasks before the accident was to cut the grass on his property. However, Mr. Cassolato informed Ms. Racine of Northern Rehabilitation & Consulting Services Inc., in December 1993, that he did not cut grass on his property prior to the accident. He informed her that he hired a student to cut the grass. This discrepancy was not explained by Mr. Cassolato at the hearing.
Further, while the reports of Dr. Tenhunen, Crawford and Company, Canadian Back Institute and Northern Rehabilitation & Consulting Services Inc. indicate that Mr. Cassolato was asked to identify his pre-accident tasks, Mr. Cassolato mentioned certain tasks for the first time at the hearing, i.e., doing income tax returns and maintaining his car. At the hearing, Mr. Cassolato indicated that he had not previously identified those tasks because no one had ever asked him about them.
In determining Mr. Cassolato's essential tasks, where there are discrepancies between Mr. Cassolato's testimony and his earlier statements in respect of his essential tasks, I find the earlier statements to be more reliable for the following reasons: (a) one would expect that the activities that were central to Mr. Cassolato's routine would have been identified by him earlier; and, (b) the discrepancies between Mr. Cassolato's testimony at the hearing and his earlier statements were not explained.
4. Mr. Cassolato's ability to perform his essential tasks
(i) Position of the parties
(a) The Applicant
Mr. Cassolato testified that, after the accident, virtually any physical activity aggravated his back pain. He cannot walk as far as he used to before the accident; he is only able to walk a quarter of a kilometre and then he must rest. He cannot sit or stand for very long. He does not drive; he can drive short distances, but it is uncomfortable as he can only sit in the car for half an hour before his back starts to hurt. He cannot paint his house or do any plumbing. He is unable to cut the grass on his property; he is not able to garden. He cannot vacuum or do any household chores. He cannot do any grocery shopping. He cannot make wine. He cannot maintain his car. He cannot do income tax returns for his wife and himself because he cannot concentrate. He has problems sleeping; he is only able to sleep two to three hours. He then wakes up and walks around his room for five minutes before sleeping again. This happens two to three times a night. Mr. Cassolato testified that his functional limitations have negatively affected his relationship with his wife and curtailed his regular visits to his sons in Toronto, his brother in Guelph, and his sister in Montreal. They have also curtailed his social activities. Overall, in his testimony, Mr. Cassolato presented a picture of significant disability since the accident.
In support of his testimony that he suffered substantial inability to perform his essential tasks until July 8, 1993, Mr. Cassolato relied on the report of his current family physician Dr. G. McIntosh, dated September 24, 1992 and Dr. L. Greenspan, dated December 16, 1992. Neither Dr. McIntosh nor Dr. Greenspan were called to testify at the hearing.
Dr. McIntosh became Mr. Cassolato's family physician sometime in 1992. Dr. McIntosh examined Mr. Cassolato on May 27, 1992, after Mr. Cassolato had been working in his garden and complained of back pain. In his report of September 24, 1992, Dr. McIntosh indicated that Mr. Cassolato continued to suffer from pain and experience difficulties as a result of the injury sustained in the accident. On examination of Mr. Cassolato, Dr. McIntosh made the following findings:
...there was tenderness on the left side of the lumbar spine. It was somewhat difusse [sic], there was no muscle spasm noted. Sciatic notches were not tender on both sides. The lumbar area flexion was 80°, extension was 10°. Legs and reflexes +1 and equal, power 5 out of 5 and sensation normal.
Dr. McIntosh concluded as follows:
...your father [Mr. Cassolato] presents with some muscle strain in the lumbar area. From his history it sounds like the problems/he was having in the past and indeed from Dr. Tenhunen's notes that this is most likely. Though his level has improved and is now stable he is certainatly [sic] not fully recovered. It is unlikely that further treatment or medication would improve much beyond his present state.
Sometime before December 16, 1992, Mr. Cassolato was assessed by Dr. Lorne Greenspan at the request of Mr. Cassolato's counsel. It is not clear from Dr. Greenspan's report, dated December 16, 1992, when the assessment took place; nor was I provided with Dr. Greenspan's qualifications. At the outset of his report, Dr. Greenspan qualified his report as follows:
This report was prepared in the absence of his [Mr. Cassolato's] previous medical records.
The patient was asked to have all previous medical records transferred to me for review but none had been forthcoming.
In his report, Dr. Greenspan stated that during his examination he asked Mr. Cassolato to assess the degree of his activity in comparison to his pre-injury state and was informed by Mr. Cassolato that "...he is 20% without the pain and 50% with the pain of his previous activity/production level."
On his examination of Mr. Cassolato, Dr. Greenspan made the following findings:
Head and Neck Examination:
...His neck revealed limitation of movement in all spheres. In particular, he had poor extension and left and right lateral flexion. He had no tenderness down the cervical spines. He had some spasm of the paracervical and trapezii region with minimal trigger points.
Back Examination:
On examination of his back, he was slightly hunched forward. He had slight scoliosis to the right of the thoracolumbar region. The patient had very significant parathoracic and paralumbar spasm bilaterally. With punch percussion down his spine, he had marked pain and tenderness to the L3-L5 region. Local pressure produced significant pain to the L3-L4 vertebra. Pressure over the sacroiliac joints created marked discomfort. During examination, it was obvious that the muscles of his paralumbar area were fasciculating. He had marked limitation of back movements in all directions. His straight-leg-raising was 70°. Extension was 5°. Lateral flexion and rotation were bilaterally reduced. Each of these movements if pushed past his passive and active range produced marked pain and spasm with notable fasciculations to his back. There was no generation of central disc symptoms during the exam.
Dr. Greenspan diagnosed Mr. Cassolato as having degenerative disc disease, fractures of L3-L4 spine, and post-traumatic paralumbar strain. Dr. Greenspan concluded as follows:
I feel that this gentleman is a very highly motivated and otherwise healthy person who will suffer chronic back pain for the rest of his life. His disability, I believe, can be reduced if he is given more vigorous therapy coupled with medication and epidural steroid therapy. Even with optimal treatment, however, I believe he will never return to the same level of function without pain as he had prior to the injury. If we can return him to 50% function without pain, I think we would consider this a success.
(b) The Insurer
Canadian Surety does not dispute that Mr. Cassolato continues to suffer pain related to the injury he sustained in the accident but takes the position that this pain did not substantially impair Mr. Cassolato's ability to perform his essential tasks after January 18, 1992. Canadian Surety also takes the position that some of Mr. Cassolato's complaints are due to his advancing age and not a result of the accident.
In support of its position, Canadian Surety relied on the reports of Mr. Cassolato's former family physician, Dr. L. Tenhunen, dated November 26, 1990 and May 21, 1991, and the reports and testimony of the professionals retained by Canadian Surety to assess Mr. Cassolato's disability.
In her report to Canadian Surety dated November 26, 1990, Dr. Tenhunen reported that she had last seen Mr. Cassolato on October 15, 1990. She stated that at that time he reported that he had finished his last course of physiotherapy and found that it had helped him somewhat, although he would still have pain if he pushed himself too hard. She stated that he reported that he was able to lie in bed and sleep through the night without waking up because of back pain. He reported that he was able to walk half a kilometre and then rest with no pain. He reported that he had taken up swimming two times per week. He was swimming about 15 minutes and tolerating this well, but if he swam for much longer, he would have more pain. He reported that he would still get some pain with minimal work around the house such as carrying the laundry, standing for any length of time, washing dishes or any activity involving twisting. Dr. Tenhunen concluded that on October 15, 1990, Mr. Cassolato was still disabled but was, on the whole, making steady improvement. She expected that he would make a complete recovery. She stated that, at the time, there did not appear to be any complications which would prolong his disability.
In her report to Canadian Surety dated May 21, 1991, Dr. Tenhunen reported that she had seen Mr. Cassolato on January 17, 1991, March 14, 1991, and May 16, 1991. She indicated that on each occasion Mr. Cassolato reported that his back pain was improving. She stated that on May 16, 1991, Mr. Cassolato reported that his back was feeling pretty good. He was now swimming 25 minutes, three times a week, and the only activity that was causing him back pain was prolonged stooping, i.e., if he tried to do any gardening. He also complained of a localized pain in the right flank area which would likely be the site of his transverse process fracture. Dr. Tenhunen concluded:
Over all this gentleman has recovered about 85% of his original function. He still is continuing to improve and I hesitate to say that his recovery is yet complete. I have asked him to return to see me in another three months.
Canadian Surety retained Crawford & Company to conduct a vocational assessment of Mr. Cassolato in 1991. Mr. Sean Bradley, Vocational Consultant, was assigned by Crawford & Company to Mr. Cassolato's claim. As part of his assessment, Mr. Bradley met with Dr. Tenhunen, on June 18, 1991 and December 19, 1991, to discuss Mr. Cassolato's medical condition and time frame needed for him to return to his pre-accident essential daily activities. Letters, dated July 8, 1991 and January 2, 1992, to Dr. Tenhunen from Mr. Bradley, and signed by Dr. Tenhunen, confirming the contents of the discussions held at these meetings were filed in evidence and Mr. Bradley was called by Canadian Surety to testify at the hearing in respect to the discussions and his assessment.
During Dr. Tenhunen's meeting with Mr. Bradley on June 18, 1991, she informed Mr. Bradley that Mr. Cassolato had "...recovered enormously since his motor vehicle accident, however, continues to complain from lumbar pain." She indicated that she was uncertain if Mr. Cassolato would be able to return to his pre-accident level of activity, however, she indicated that his medical condition had "...not reached his plateau and continues to improve on an ongoing basis."
Following his meeting with Dr. Tenhunen on June 18, 1991, Mr. Bradley recommended that a Functional Capacity Evaluation be conducted to accurately assess Mr. Cassolato's ability to perform his essential daily activities. After consulting with Dr. Tenhunen, Mr. Bradley also recommended that the Insurer consider sponsoring Mr. Cassolato in further physiotherapy.
Mr. Cassolato attended at the Canadian Back Institute in Sudbury in September and October 1991 for assessment and treatment of his low back pain. Mr. Cassolato was provided with a home program of therapeutic stretching and strengthening exercises to be performed as tolerated. Mr. Robichaud, a physiotherapist at the Canadian Back Institute, reported to Dr. Tenhunen on October 24, 1991. In his report, Mr. Robichaud indicated that while he did not predict that Mr. Cassolato would be free of pain because his lumbar range of motion was limited, he felt that overall, Mr. Cassolato had improved quite satisfactorily with the program. Mr. Robichaud stated that at the time of discharge, Mr. Cassolato claimed that his condition had improved a lot by doing activities without increasing the stress on his back.
Mr. Bradley met with Dr. Tenhunen again on December 19, 1991, to discuss Mr. Cassolato's medical condition. Dr. Tenhunen told Mr. Bradley that she had received the Canadian Back Institute's summary report on Mr. Cassolato. Dr. Tenhunen indicated that she was seeing Mr. Cassolato on a bi-monthly basis and had not prescribed any medication at the time. Dr. Tenhunen stated that Mr. Cassolato was able to perform his essential daily activities but would continue to have some discomfort and pain. She stated that she was satisfied that he had had as much recovery as he was going to get. She stated that she was quite satisfied with his recovery level, and had encouraged him to maintain his activities such as swimming and walking in order to continue gaining mobility and strength.
Canadian Surety terminated Mr. Cassolato's weekly benefits on the basis of Dr. Tenhunen's opinion, as conveyed to Mr. Bradley at their meeting on December 19, 1991.
In December 1993, Canadian Surety requested Northern Rehabilitation & Consulting Services Inc. to assess Mr. Cassolato's level of disability and develop a rehabilitation plan for him. Ms. Shirley Racine, R.N., Medical Consultant, was assigned to Mr. Cassolato's claim on December 17, 1993. Ms. Racine's report, dated January 19, 1994, to Canadian Surety was filed in evidence and Ms. Racine was called by Canadian Surety to testify in respect of her findings.
Ms. Racine met with Mr. Cassolato, at his home, on December 20, 1993, to conduct an initial assessment. Ms. Racine's assessment was based on the information provided to her by Mr. Cassolato in respect of his activities since the accident, and the medical information provided to her by Canadian Surety. Ms. Racine noted that Mr. Cassolato had resumed most pre-accident activities with the exception of heavy housekeeping activities. While Ms. Racine's assessment was conducted in December 1993 and not during the period in issue, i.e., January 19, 1992 to July 8, 1993, Mr. Cassolato indicated at the hearing that his ability to perform his essential tasks had remained substantially unchanged since the accident.
In her report of January 19, 1994, Ms. Racine stated that Mr. Cassolato admitted to performing most of his pre-accident activities. At the hearing, Ms. Racine testified that Mr. Cassolato indicated that he had no difficulty attending to his personal care. He also reported minimal reduction of the following activities: doing the dishes, garbage removal and snow removal. He indicated that while doing the dishes, he had increased pain to his lower back, but he could complete the activity. He reported removing only small bags of garbage at a time. If the garbage bags appeared to be too heavy, he required the assistance of his wife. He said he could only remove the snow from his 150' driveway with the assistance of a ten horsepower self-propelled snowblower, and, he required frequent rest periods.
Ms. Racine testified that Mr. Cassolato reported moderate difficulty with driving. He had no difficulty with short distances of up to half an hour, however, any further distance caused him great discomfort to his lower back. Mr. Cassolato reported substantial difficulty with gardening. He indicated that his garden is much smaller, and that his wife is now responsible for most of the gardening. He also reported substantial difficulty with grocery shopping. He indicated having difficulties with any overhead reaching, carrying of grocery bags and prolonged journeys to the grocery store. Mr. Cassolato reported that he was unable to vacuum.
Ms. Racine made arrangements for Mr. Cassolato to attend at the Canadian Back Institute for a Functional Capacity Evaluation on January 17 and 18, 1994. The Functional Capacity Evaluation of the Canadian Back Institute dated January 17 and 18, 1994, was filed in evidence and the two individuals who conducted the evaluation, Mr. Steve Savage, Clinic Manager, Registered Physiotherapist, and Ms. Barbara Maki, Kinesiologist, were called by Canadian Surety to testify at the arbitration hearing in respect to their findings.
The Functional Capacity Evaluation compared Mr. Cassolato's functional abilities on January 17 and 18, 1994, with the physical demands associated with his pre-accident level of functioning. Both Mr. Savage and Ms. Maki testified that during their evaluation, Mr. Cassolato's demonstrated functional abilities may not have been representative of his actual physical capabilities. Mr. Savage testified that during the physiotherapy assessment, Mr. Cassolato demonstrated several positive inorganic signs which were indicative of symptom magnification. Mr. Savage also testified that Mr. Cassolato scored high on the Oswestry Profile which indicates that he perceives himself to be severely disabled. Ms. Maki testified that during the functional assessment, Mr. Cassolato demonstrated inconsistencies in the range of motion and isometric hand grip strength tests. Mr. Savage and Ms. Maki concluded that Mr. Cassolato appeared capable of returning to his pre-accident activities on a modified full time basis.
(ii) Findings
In his testimony, Mr. Cassolato presented a picture of significant disability since the accident. He indicated that he was incapacitated to the point where he was unable to do any household chores and that virtually any physical activity aggravated his pain. However, Mr. Cassolato's testimony was at variance with statements made by him in respect of the degree of his disability to Dr. Tenhunen and Ms. Racine prior to the hearing, in which he appeared to indicate that after May 16, 1991, he was able to perform substantially all of his essential tasks, albeit with pain. There may be good reasons for these discrepancies, but they were not provided by Mr. Cassolato at the hearing.
The medical evidence indicates that Mr. Cassolato's condition had improved significantly by January 18, 1992, to the point where he was able to perform most of his essential daily activities, albeit with discomfort and pain.
The only medical evidence about Mr. Cassolato's condition between January 19, 1992 and July 8, 1993, are the reports of Drs. McIntosh and Greenspan. They are not helpful in assessing the degree of disability suffered by Mr. Cassolato as a result of the accident.
In his short report, Dr. McIntosh indicates that Mr. Cassolato continues to suffer from pain and experience difficulties as a result of the injury sustained in the accident, but does not say whether he thinks Mr. Cassolato could perform the essential tasks in which he would normally engage before the accident.
Dr. Greenspan's objective physical findings appear to substantiate Mr. Cassolato's claim that he has low back pain causing a significant limitation or functional disability. However, I am unable to give much weight to Dr. Greenspan's report because at the time he prepared his report, he had not reviewed Mr. Cassolato's previous medical reports. When comparing Dr. Greenspan's findings on examination with those of Dr. Mcintosh in May 1992, it would appear that Mr. Cassolato's condition was worse at the time he was assessed by Dr. Greenspan. Unfortunately, because Dr. Greenspan was not aware of Dr. McIntosh's findings, he gave no opinion in his report as to if and why Mr. Cassolato's condition had deteriorated.
Dr. Greenspan based his findings, partly, on Mr. Cassolato's subjective assessment of the degree of his disability, i.e., 20% of his previous activity/production level without pain and 50% with pain. Dr. Greenspan was not aware of Dr. Tenhunen's opinion of May 21, 1991, that Mr. Cassolato had recovered about 85% of his original function and was still continuing to improve, or of her opinion of December 19, 1991, that Mr. Cassolato was able to perform his essential daily activities. Dr. Tenhunen's reports do not anticipate any physical deterioration that would lead to a change in Mr. Cassolato's functional ability in the future, as a result of the injuries sustained in the accident on July 8, 1990. Because Dr. Greenspan was not aware of Dr. Tenhunen's opinions, he also gave no opinion in his report as to if and why Mr. Cassolato's condition was worse than when he last saw Dr. Tenhunen.
The reports of Dr. McIntosh and Dr. Greenspan indicate that Mr. Cassolato saw each physician once during the period in question, for the purpose of an assessment. There is no evidence that, during the period January 19, 1992 to July 8, 1993, Mr. Cassolato's low back pain was so disturbing or disabling as to cause him to continue treatment with his family doctor or to follow up on the recommendations made by Dr. Greenspan for more vigorous therapy coupled with medication and epidural steroid therapy.
After reviewing all of the evidence, there is no question in my mind that, as a result of the accident, Mr. Cassolato was in pain during the period January 19, 1992 to July 8, 1993. However, the pain which is compensable under section 13(1) of the Schedule is pain which substantially impairs an insured person's ability to perform the essential tasks in which he or she would normally engage. Pain which is not disabling in that sense is not compensable (Sharon Lee and Unifund Assurance Company, September 14, 1993, OIC File No. P-000078 (Elisabeth Sachs, Director of Arbitrations)).
I am unable to conclude, based on the evidence before me, on a balance of probabilities, that during the period January 19, 1992 to July 8, 1993, the pain which Mr. Cassolato experienced as a result of the accident substantially impaired his ability to perform the essential tasks in which he would normally have engaged before the accident. Accordingly, Mr. Cassolato is not entitled to weekly benefits, under section 13(1) of the Schedule during the period January 19, 1992 to July 8, 1993.
(5) Expenses
Mr. Cassolato seeks an award of the expenses he 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 Ontario Regulation 664 (R.R.O. 1990) and in Schedule 1 of the Dispute Resolution Practice Code.
In Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139, Senior Arbitrator Susan Naylor discussed appropriate criteria guiding the exercise of an arbitrator's discretion to award an applicant his or her expenses. In that decision, she stated, at page 24:
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 these criteria in the appeal decision in Vito Luigi Calogero and The Co-Operators General Insurance Company, February 13, 1992, OIC File No. P-000251.
Having regard to the criteria set out in McCormick, I find that Mr. Cassolato is entitled to an award for expenses, as prescribed in Ontario Regulation 664, and Schedule 1 of the Dispute Resolution Practice Code. I remain seized of this matter in the event that there is a dispute in regards to the amount of expenses claimed.
Order:
Mr. Cassolato is not entitled to weekly benefits, under section 13(1) of the Schedule, for the period January 19, 1992 to July 8, 1993.
Mr. Cassolato is entitled to his expenses incurred in respect to the arbitration.
September 14, 1994
Shemin Manji
Date
SCHEDULE A - Documents Before the Arbitrator
Exhibits:
Exhibit 1
Joint Medical Brief
Tab 1
Report of Dr. Linda Tenhunen, dated November 26, 1990
Tab 2
Report of Dr. Linda Tenhunen, dated May 21, 1991
Tab 3
Crawford & Company, Initial Vocational Evaluation, dated July 8, 1991
Tab 4
Report of Crawford & Company to Dr. Linda Tenhunen, with Dr. Tenhunen's signature, dated July 8, 1991
Tab 5
Report of Canadian Back Institute, dated September 4, 1991
Tab 6
Report of Canadian Back Institute, dated October 24, 1991
Tab 7
Report of Dr. G. McIntosh, dated September 24, 1992
Tab 8
Report of Dr. Lorne Greenspan, dated December 16, 1992
Tab 9
Report of Crawford & Company to Dr. Linda Tenhunen, with Dr. Tenhunen's signature, dated January 2, 1992
Tab 10
Report of Canadian Back Institute, dated January 17/18, 1994
Tab 11
Report of Northern Rehabilitation & Consulting Services Inc., dated January 19, 1994
Exhibit 2
Curriculum Vitae of Sean L. Bradley
Exhibit 3
Crawford & Company, Benefit If No Income form, completed by Sean Bradley, dated June 4, 1991
Exhibit 4
Curriculum Vitae of Shirley Racine
Exhibit 5
Qualifications of Steven Savage
Exhibit 6
Curriculum Vitae of Barbara Maki
Documents before the Arbitrator, but not marked as exhibits;
Report of Mediator, dated November 17, 1992
Application for Appointment of an Arbitrator, dated October 1, 1993
Response by Insurer, dated December 6, 1993
Letter confirming pre-hearing discussions, dated February 17, 1994, from Suesan Alves, arbitrator
SCHEDULE B
Carlo Caring and The Wawanesa Mutual Insurance Company, February 18, 1993, OIC File No. A-000860
Edgar Cowie and The Non-Marine Underwriters, Members of Lloyd's, March 9, 1993, OIC File No. A-001159
Jimmie Joe Hunt and Royal Insurance Company of Canada, October 15, 1992, OIC File No. A-000370
Selma Taves and The Wawanesa Mutual Insurance Company, August 10, 1993, OIC File No. A-003659