Neutral Citation: 1995 ONICDRG 143

File No.:A-010022

ONTARIO INSURANCE COMMISSION

BETWEEN:

GUIDO FARRUGIA

Applicant

and

SIMCOE & ERIE GENERAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Guido Farrugia, was injured in a motor vehicle accident on November 14, 1991. He received weekly benefits from the Insurer, payable under Ontario Regulation 672¹, under section 13 of the Schedule, as a person who was not employed. Mr. Farrugia claimed he was entitled to benefits under section 12 as he was self-employed as a tailor at the time of the accident. Mr. Farrugia received benefits until November 30, 1992. Mr. Farrugia claims ongoing weekly benefits.

The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this hearing are:

1. Is Mr. Farrugia entitled to receive weekly income benefits under section 12 (1) of the Schedule on the basis that he was self-employed?

2. Is Mr. Farrugia entitled to be paid weekly benefits after November 30, 1992?

The Applicant also claims interest on any amounts owing, and his expenses incurred in the hearing.

Result:

1. Mr. Farrugia is not entitled to receive weekly income benefits under section12 (1) of the Schedule as he was not self-employed at the time of the accident.

2. Mr. Farrugia is not entitled to weekly benefits after November 30, 1992.

3. Mr. Farrugia is entitled to his expenses incurred in respect to the arbitration.

Hearing:

The hearing was held in North York, Ontario, on July 27 and 28, 1995 before me, Bruce Robinson, arbitrator.

Present at the Hearing:

Applicant: Mr. Guido Farrugia

Insurer's Ralph D'Angelo Representative: Barrister and Solicitor

Insurer's Ms. Tricia Doyle Officer:

Witnesses: Mr. Guido Farrugia Ms. Tricia Doyle

Exhibits: The exhibits are listed in Appendix A.

The proceedings were recorded by Mr. John Tomczak, on July 27, 1995, and Ms. Maria Rossi, on July 28, 1995, of Professional Court Reporters Inc.

Mr. Larry Attard, a Maltese interpreter, was present throughout the hearing.

Background:

Mr. Farrugia is 52-years old, and a tailor by trade. On November 14, 1991, he was struck by a car as he walked across Lawrence Avenue on a green traffic light. Mr. Farrugia's description of the actual impact contained several inconsistencies. He initially stated that he did not see the car, but then indicated that it came from his left side. He described an impact to his right knee but during the hearing changed this to the left knee and then to both knees.

He stated that he struck his head and was "knocked out." However, his verbal evidence is not consistent with the medical reports on that point. An ambulance took him to Humber Memorial Hospital where he was kept under supervision for several hours and then released. There appears to have been no mention of a knee complaint.

Is this a section 12 or a section 13 claim?

The relevant portions of section 12 of the Schedule are:

12.-(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident a weekly income benefit during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment if the insured person meets the qualifications set out in subsection (2) or (3).

(2) The following qualifications apply to an insured person who claims a weekly benefit under subsection (1):

1. He or she must have been at the time of the accident,

I. employed or self-employed,

(3) A person who was unemployed and who was not self-employed at the time of the accident is qualified to receive a weekly benefit under subsection (1) if he or she was employed or self-employed for any 180 days in the twelve-months period before the accident, and if he or she as a result of and within two years of the accident has suffered a substantial inability to perform the essential tasks of the occupation or employment in which he or she spent the most time during the twelve-month period before the accident.

Mr. Farrugia claims that he was self-employed as a tailor at the time of the accident; and, as a result of the injuries he sustained in the accident, he suffered and continues to suffer a substantial inability to perform the essential tasks of his occupation. Therefore, he claims entitlement to weekly income benefits pursuant to section 12 of the Schedule from November 21, 1991 to the present.

Ms. Tricia Doyle, a senior claims representative of Simcoe & Erie, stated that the Insurer accepted the claim of Mr. Farrugia under section 13 and paid those benefits from November 21, 1991 until November 30, 1992. She described the difficulty the Insurer encountered in obtaining any documentation from Mr. Farrugia relating to his employment before the accident. Mr. Farrugia's evidence was consistent with that of Ms. Doyle on that point. He confirmed that he did not feel it was necessary to produce any income tax returns. He continued to refuse to do so until after the pre-hearing conference held on March 20, 1995.

The onus is on Mr. Farrugia to establish that he was employed or self-employed if his claim is to succeed under section 12. The evidence before me is very clear on this issue. Mr. Farrugia had not declared any employment income in his tax returns in 1989 and 1990 and he admitted that he was "avoiding work" during that period. He testified that he worked as a tailor for a short period in 1991 but I do not find this credible. He contradicted his own evidence on this point by admitting that he was avoiding work while he was in Toronto as he was considering a move to British Columbia. Further, he led no evidence to substantiate any employment during that year. He did not produce any documentary evidence such as books, records or tax returns. Nor did he call any witnesses. Mr. Farrugia bears the onus of proving, by reliable evidence, that he was employed and what his earnings were. In this case, Mr. Farrugia has failed to discharge that onus. I find that he was not "employed or self employed" as required by section 12 (2)1.i. of the Schedule, nor was he "employed or self-employed for any 180 days in the twelve-months period before the accident . . . ," as required by section 12(3).

Entitlement to weekly benefits under section 13:

The relevant portion of section 13 of the Schedule reads as follows:

(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident, a weekly 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).

The operation of section 13 of the Schedule has been examined in several earlier decisions of the Commission. At page 31 of Lily Steele and Zurich Insurance Company, December 3, 1992, OIC File No. A-001024, Arbitrator Palmer states:

To be successful in this case, the insured person must provide evidence of the essential tasks in which she would normally engage. She must then convince me, on a balance of probabilities, that she suffers a substantial inability to perform those same essential tasks.

ESSENTIAL TASKS:

Mr. Farrugia described the essential tasks of a tailor, but admitted that he was not working as a tailor in the year before the accident. His evidence is supported by the income tax returns which list no employment income in 1990 and 1991. He described his activities before the accident as personal hygiene care, walking, fishing, making fishing lures, and playing his guitar. He indicated that, in fact, he was able to carry out all these activities in late 1992, and has continued to do so to the present time.

Mr. Farrugia offered very little evidence on this crucial aspect of his case. Again, the onus of establishing a reasonable basis for his claim rests with him.

"Essential tasks" are basic and necessary tasks that are distinct from "activities". I find that the activities of fishing, making lures and playing a guitar were only casual activities and not essential tasks as defined by the case law.² Based on the very limited evidence of Mr. Farrugia, I find that the essential tasks which he normally engaged in before the accident to be:

1. Personal hygiene care

2. Walking

3. Helping his mother with cooking

On his own evidence, Mr. Farrugia admits that he is able to substantially perform the essential_tasks in which he would normally have engaged at the time of the accident. Accordingly, I do not find it necessary to discuss the medical evidence at length. However I feel that a brief summary of that evidence will further support the conclusion I arrived at above.

MEDICAL EVIDENCE:

Mr. Farrugia chose not to call his family physician, Dr. Fiorini, to support his claim. Instead he filed Dr. Fiorini's report of April 24, 1995 (Exhibit 11). He stated that even though he had disagreed with Dr. Fiorini from time to time about his physical problems, as he had with other doctors who chose not to listen to him, he followed Dr. Fiorini's directions in dealing with the insurance company.

Dr. Fiorini states in his report of April 24, 1995 as follows:

In conclusion, I would say that this gentleman did suffer a severe injury as a pedestrian when he was struck by a motor vehicle. He sustained a concussion and a head injury which has left him permanently disabled since he has constant headaches, dizziness and loss of hearing and loss of balance. He also has chronic pain in his neck and back and right knee which are related to the accident. He perceives himself as completely disabled. There are definite organic, objective findings which demonstrate a middle ear disturbance. I do not think that this patient will be able to return to any productive work in the future as a result of this accident.

Dr. Fiorini sent Mr. Farrugia to Dr. Martin W. Roscoe, an orthopaedic surgeon, for his expert opinion. On the first visit on February 10, 1992, Mr. Farrugia supplied the doctor with a history of the accident and stated he had been hit on the left side. Dr. Roscoe's opinion was that Mr. Farrugia had sustained some mild strain to his cervical and lumbar spine and that conservative treatment was indicated. Dr. Roscoe reassessed Mr. Farrugia on May 27, 1992 (Exhibit 17) and gave the following opinion to Dr. Fiorini:

This man has certainly gone on to a good recovery from his orthopaedic injuries. I think the disability from his neck and lower back are minimal and I told him from my point of view I think he should return back to the work force.

In a further reassessment on August 9, 1993 by Dr. Roscoe, Mr. Farrugia told this doctor that he was hit on the right leg. Dr. Roscoe's further opinion was:

..there is no objective findings [sic] to suggest any significant orthopaedic pathology. I personally don't feel any further tests or investigations are indicated and I tried to encourage him to continue and be as active as possible.

The Insurer retained Dr. John Halpenny, an orthopaedic specialist, to examine Mr. Farrugia in February and October of 1992. This expert stated in his report of October 21, 1992 (Exhibit 34):

..there is very little to find on objective evaluation...Therefore, from my assessment of this individual today, I think he is entirely functional and is able to return to his usual day to day activities including his work as a tailor. He may have to make some small adjustments in his work habits when he initially returns to work, but he should be able to accommodate to these small changes quite easily. At the present time I cannot see any reasons why this patient cannot return to his regular activities including his work situation.

[Emphasis added]

Mr. Farrugia's own specialist, Dr. Roscoe, suggested an earlier return to work than did Dr. Halpenny. These opinions are consistent and indicate that at least by late October 1992, Mr. Farrugia was not only able to do his day to day activities, but also to do his job as a tailor. Mr. Farrugia's evidence regarding his "essential tasks," which I have set out above, is also consistent with this opinion. I accept the opinions of these experts over the opinion of the family physician not only because of their specialized training, but also because it appears to me that Dr. Fiorini was acting as an advocate for his patient in this case. Dr. Richard J. Magder, a neurologist, saw Mr. Farrugia and commented in his report of May 20, 1992 (Exhibit 15), that "he was not rendered unconscious" and "that his neurological examination is completely normal."

Dr. David R. Morgenthau, also a neurologist, started seeing Mr. Farrugia in early October of 1992.

In his report of November 10, 1992 (Exhibit 9) he states:

He tells me he was assessed by a psychiatrist but he did not like the psychiatrist. Similarly it seems that he does not like any physician who does not feel that he is significantly ill...This gentleman presents now with multiple complaints yet with little in the way of findings.

Mr. Farrugia continued to see Dr. Morgenthau. Dr. Morgenthau reported on November 1, 1994 that he found no new neurological problems, and expressed his frustration with a patient who did not follow his instructions.

Dr. Fiorini referred Mr. Farrugia to Dr. J. R. Johnson, a psychiatrist, on May 13, 1993. There was only one visit and no treatment. The Insurer retained Dr. J. Wyndowe to conduct a psychiatric evaluation on September 27, 1994. Dr. Wyndowe's report (Exhibit 36) described Mr. Farrugia's activities which included arising between 9:00 a.m. and 11:00 a.m., after which he did minimal work around the house, went for walks and tried to help his mother with the cooking. He painted his apartment over two months. Dr. Wyndowe stated:

I believe Mr. Farrugia is consistently and consciously exaggerating his symptomatic complaints and his disability in order to exact some higher compensation from his litigation. From the reports that I have read, there appears to be a fairly unanimous impression that Mr. Farrugia does not suffer from any significant physical disability. From my own evaluation, I do not feel that he suffers from any psychiatric abnormality either. ...

I did not see much evidence that Mr. Farrugia would be limited in performing the essential duties of his job as he described it. He certainly did not demonstrate any difficulty in sitting through 65 minutes of interview, so I was unable to understand why he would have trouble at his former occupation. He seems to be able to sit by a river and hold a fishing rod for several hours in a row, and I suspect that his sewing would not be significantly more gruelling than that.

There was a significant discrepancy between the pain symptoms that he described and his current deportment. I felt that Mr. Farrugia was consciously exaggerating the extent of his disability, and felt the most likely reason was to increase the compensation he might receive from current litigation.

Dr. Roman Chaban, who specializes in otolaryngology, supplied his opinion to Dr. Fiorini on May 29, 1992 that a CT scan and ENG were normal. An audiogram was also reported to be normal in September of 1992. The Insurer asked Dr. John Rutka to examine Mr. Farrugia on April 13, 1994. This otolaryngologist concluded that:

Mr. Farrugia should be able to perform all his activities for daily living. I personally have not identified any neurologic abnormalities that would prevent him from performing any fine motor tasks that could prevent his return to being a tailor. (Exhibit 35)

I am satisfied on the evidence of the doctors, and on Mr. Farrugia's own testimony, that the injuries he sustained as a result of the accident did not prevent him from engaging in the essential tasks in which he normally engaged, after November 30, 1992. As such, he is not entitled to those benefits provided under section 13(1) of the Schedule after November 1992.

I rely upon the evidence contained in the reports of the specialists, Dr.Roscoe, Dr. Halpenny, Dr. Chaban and Dr. Morgenthau, where there is a conflict with the evidence of Mr. Farrugia and Dr. Fiorini. I do so because Dr. Fiorini, a general practitioner, ignores the conclusions reached by the other specialists in this case. Also, Dr. Fiorini's report does not deal with the essential tasks which Mr. Farrugia normally engaged in before the accident, nor does it offer any assistance on the essential tasks that he has engaged in after the accident.

It also appears that Dr. Fiorini acted as an advocate for Mr. Farrugia in dealing with the Insurer, as demonstrated by a letter dated February 5, 1992, which was sent to the Insurer. The unusual aspect of this letter is that it was prepared by Dr. Fiorini on his stationary, however it bears Mr. Farrugia's signature. Furthermore, Mr. Farrugia said that he did not wish to send it, but Dr. Fiorini insisted. The contents of this letter, which indicated an income of $50,000 a year as a tailor, were inconsistent with Mr. Farrugia's own testimony and the income tax returns.

All these factors give me much concern with any opinions expressed by Dr. Fiorini and I must therefore assign little weight to Dr. Fiorini's report as it bears on the section 13 issue.

Expenses

Mr. Farrugia seeks an award for expenses under section 282(11) of the Insurance Act, which provides as follows:

282 (11) The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.

In Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No.A-000139, Senior 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.

Arbitrators have consistently granted expenses unless the claim was found to be fraudulent, manifestly frivolous or vexatious, or the applicant's conduct unduly prolonged the proceedings. I find that Mr. Farrugia has a true belief in his complaints and their direct relationship to the accident. Therefore, I exercise my discretion to award Mr. Farrugia his expenses as prescribed in Schedule 1 of the Dispute Resolution Practice Code.

Order:

1. Mr. Farrugia is not entitled to receive weekly income benefits under section 12 (1) of the Schedule as he was not self-employed at the time of the accident.

2. Mr. Farrugia is not entitled to weekly benefits after November 30, 1992.

3. Mr. Farrugia is entitled to his expenses incurred in respect to the arbitration.

October 12, 1995

Bruce Robinson Arbitrator

Date

APPENDIX A

Exhibits:

1. 1988 Tax Return

2. 1989 Tax return

3. 1990 Tax Return

4. 1987 Tax Return

5. Report Dr. Morgenthau Nov. 1, 1994

6. Report Dr. Morgenthau Sept. 27, 1994

7. Report Dr. Morgenthau August 18, 1994

8. Report Dr. Morgenthau Nov.26, 1992

9. Report Dr. Morgenthau Nov. 10, 1992

10. Report Dr. Morgenthau Nov. 29, 1994

11. Report Dr. Fiorini (unsigned) April 24, 1995

12. Accident Benefits Medical Reports

13. Motor Vehicle Accident Forms

14. Clinical Notes of Dr. Michael Henry

15. Report Dr. Magder May 20, 1992

16. Report Dr. Johnson May 16, 1995

17. Reports of Dr. Roscoe ( Feb. 10, 1992; May 27, 1992; August 9, 1993; Sept. 13, 1994. )

18. Clinical Notes of Dr. Chaban

19. Toronto Accident Clinic notes

20. Medvisit Note 27/06/94

21. Toronto Hospital Emergency Report

22. Revenue Canada Letter June 14, 1995

23. Bundle of Letters

24. Letters from Dr. Fox ( July 27, 1993; Dec. 7, 1994. )

25. 1670 Dufferin Physiotherapy Clinic Letters ( Jan. 9, 1992; Feb. 13, 1992; Mar. 2, 1992; Apr. 9, 1992 )

26. Application for Arbitration Oct. 11, 1994

27. Tinnitus Association of Canada Letter Apr. 22/94 and attachments

28. Letter Feb. 5, 1992 from Mr. Farrugia to Simcoe & Erie (Photocopy)

29. Letter from Mr. Dimech July 18, 1963

30. Statement of Mr. Farrugia March 3, 1992 (Handwritten)

31. Statement of Mr. Farrugia March 3, 1992 (Typed)

32. Letter Feb. 5, 1992 from Mr. Farrugia to Simcoe & Erie (Original)

33. Report Dr. Halpenny Feb. 25, 1992

34. Report Dr. Halpenny Oct. 21, 1992

35. Report Dr. Rutka Apr. 15, 1994

36. Report Dr. Wyndowe Sept. 28, 1994.

37. Report Dr. Fiorini Apr. 24, 1995 (Original)

Edward Cowie and The Non-Marine Underwriters, Members of Lloyds, London, England, March 9, 1993, OIC File No. A-001159; Lawrence Whitney and Co-Operators General Insurance Company, March 31, 1993, OIC File No. A-001005 (under appeal).

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.
2. 2Norman Downs and Allstate Insurance Company of Canada, July 18, 1991, OIC File No. A-000064;