Ontario Insurance Commission

Commission des assurances de l’Ontario

Neutral Citation: 1995 ONICDRG 182

Appeal P-0003929 & P-005693

OFFICE OF THE DIRECTOR OF ARBITRATIONS

BRUNA PISANI

Appellant; Respondent by Cross Appeal

and

SIMCOE & ERIE GENERAL INSURANCE COMPANY

Respondent; Appellant by Cross-Appeal

and

CANADIAN GENERAL INSURANCE COMPANY

Respondent

Before:

David R. Draper, Director’s Delegate

Counsel:

Altor Shields (for Bruna Pisani)

Ralph D’Angelo (for Simcoe & Erie)

Brian Atherton (for Canadian General)

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The appeals are dismissed, and the arbitration order, dated November 7, 1994, is confirmed.

2. Simcoe & Erie and Canadian General will each pay half of Ms. Pisani’s allowable expenses related to the appeals.

December 11, 1995

David R. Draper Director’s Delegate

Date

REASONS FOR DECISION

I. BACKGROUND

Both Ms. Pisani and Simcoe & Erie have appealed the arbitration order that Simcoe & Erie pay weekly income benefits until October 1, 1992, but not after. They are not challenging the arbitrator's findings of fact, but claim that the conclusions are not supported by the facts. The background facts, as found by the arbitrator, are as follows.

Ms. Pisani's claim arises from two automobile accidents that occurred in November 1990 and April 1992. Simcoe & Erie is responsible for paying any accident benefits related to the first accident, while Canadian General is responsible for the second. The situation is further complicated by Ms. Pisani's unfortunate history of accident-related injuries. Despite any residual injuries from these prior incidents, however, she was able to work in 1990 as a real estate agent.

Following her November 1990 automobile accident, Ms. Pisani applied to Simcoe & Erie for accident benefits, including weekly income benefits under section 12 of the Schedule¹. Simcoe & Erie accepted her claim and paid weekly income benefits at the maximum rate of $600 per week.

Through its own investigations, Simcoe & Erie discovered that Ms. Pisani returned to work in January 1991 as a restaurant hostess. As a result, her weekly income benefits were suspended until April 1991, when she stopped working, claiming that her accident-related injuries prevented her from continuing. Simcoe & Erie resumed paying weekly income benefits from April 25, 1991.

During 1991, Ms. Pisani received commissions from the sale of six properties, but did not inform Simcoe & Erie about this income. She claimed that other agents did most of the work on these transactions because she was physically unable to do it herself. However, the arbitrator did not accept this evidence, finding it likely that Ms. Pisani did the work on these transactions, and that she “was actively pursuing real estate throughout 1991.”²

In January 1992, Ms. Pisani started working part-time at a small café owned by her mother. She set her own hours, but was paid $120 per week regardless of the number of hours she worked. Simcoe & Erie was aware of this job, and reduced her weekly income benefits accordingly. In April 1992, Ms. Pisani stopped working. She claims that ongoing problems from the November 1990 accident prevented her from doing her minimal job tasks at the café. Effective May 1, 1992, Simcoe & Erie adjusted her weekly income benefits to reflect the fact that she was no longer receiving any income.

Ms. Pisani was involved in another automobile accident on April 30, 1992. Although she had stopped working on or about April 20, 1992, she maintains that she was still employed at the time of the accident. Ms. Pisani applied to Canadian General, the insurer responsible for paying accident benefits for this accident. She did not advise Simcoe & Erie about the accident, or her resulting claim to Canadian General.

Canadian General did not pay any accident benefits, but Ms. Pisani continued to receive weekly income benefits from Simcoe & Erie. When Simcoe & Erie finally learned about the April 1992 accident, her benefits were terminated, effective October 1, 1992. Ms. Pisani then applied for mediation, first with Simcoe & Erie, and later with Canadian General. The dispute was not resolved, and she applied for arbitration.

Following a two-day hearing, the arbitrator concluded that Ms. Pisani was entitled to weekly income benefits until October 1, 1992, the date they were terminated, but not after. She also concluded that Ms. Pisani’s entitlement continued to arise from the November 1990 accident, even after the April 1992 accident and, therefore, Simcoe & Erie was responsible for paying all of her weekly income benefits.

II. ANALYSIS AND CONCLUSIONS

A. Weekly Income Benefits

Previous decisions have considered the appropriate level of review on appeal.³ It is clear that my role is not to rehear the case, or to second-guess the arbitrator’s interpretation of the evidence. Although there is a transcript of the hearing, the arbitrator was in a better position to evaluate all of the evidence, including the testimony of Ms. Pisani, her family doctor and Simcoe & Erie’s claims examiner. Therefore, the decision should not be disturbed unless there was insufficient or no evidence to support the conclusions, resulting in an injustice.

Both appellants acknowledge the restricted nature of the appeal, but claim that there is no evidentiary basis for the arbitrator’s conclusion that October 1, 1992 is the cut-off date. They submit that this date has no medical significance. Rather, it is simply the date on which benefits were terminated as a result of Simcoe & Erie learning about the April 1992 accident. The parties disagree, however, about the appropriate result. I would summarize their positions as follows:

• Ms. Pisani claims that her injuries from the November 1990 continued to disable her until December 31, 1992. At that point, her injuries from the April 1992 accident prevented her from returning to her job at her mother’s café until August 31, 1993. Therefore, she submits that she is entitled to weekly income benefits at $600 per week from Simcoe & Erie until December 31, 1992, and at $222 per week from Canadian General from January 1, 1993 to August 31, 1993.

• Simcoe & Erie claims that its responsibility for paying weekly income benefits ended before October 1, 1992, and that it is entitled to repayment. Three alternative dates were suggested as the cut-off date for Simcoe & Erie’s obligation to pay weekly income benefits: January 1991, April 1991, or April 30, 1992.

• Canadian General submits that at the time of the April 1992 accident, Ms. Pisani was not employed and does not fit within section 12 of the Schedule. Therefore, her claim arising out of this accident should be considered under section 13, based on her ability to perform her essential pre-accident tasks. Canadian General’s position is that the arbitrator found that the April 1992 accident did not significantly affect Ms. Pisani’s daily activities and, therefore, no weekly benefits are payable.

This is not a simple case. Ms. Pisani's situation is complicated by her multiple accidents, her ability to return to some level of work after the November 1990 accident, her failure to keep Simcoe & Erie fully informed, and the fact that her limitations are based on pain, rather than a more easily tested injury. After reviewing the evidence and the submissions of the parties, I am not persuaded that I should interfere with the arbitrator’s decision. In my opinion, she weighed the conflicting evidence, made appropriate findings of fact, properly considered Ms. Pisani’s eligibility in light of those facts, and reached a just conclusion.

Some of the objections to the decision ignore the way in which the issues arose. Through the mediation and the pre-hearing conferences, two issues were raised about Ms. Pisani’s entitlement to weekly income benefits. First, was she entitled to any benefits after October 1, 1992, the date on which they were terminated? Second, which insurer was responsible for paying her benefits after the April 1992 accident, Simcoe & Erie or Canadian General? Therefore, the focus was on April 1992 and October 1992.

It was not until the arbitration hearing that Simcoe & Erie argued that Ms. Pisani’s disability ended at some point prior to the April 1992 accident. Even if it was legitimate to raise this claim at such a late date, I am not convinced that she was overpaid. No one suggests that Ms. Pisani was totally incapacitated as a result of the November 1990 accident. She was able to return to some level of work in January 1991, but her weekly income benefits were suspended from January 28, 1991 to April 24, 1991. As the arbitrator observed, the Schedule is not meant to penalize her for attempting to return to work. She remained entitled to weekly income benefits for any period during which, as a result of the accident, she was substantially unable to perform the essential tasks of her pre-accident work in real estate.

The arbitration decision reflects the view that although Ms. Pisani's career focus changed from real estate to restaurant work, she genuinely attempted to remain in the work force. Her efforts, however, were limited and sometimes interrupted by pain. I am not prepared to second-guess this finding, which depends largely on the arbitrator's assessment of Ms. Pisani's testimony.

Simcoe & Erie contends that by April 1991, Ms. Pisani was disabled by ankle problems unrelated to the accident. It submits that because of this intervening problem, Ms. Pisani's inability to return to work was no longer as a result of the accident and, therefore, no weekly income benefits were payable. The arbitrator accepted that Ms. Pisani's ankle problems were unrelated to the accident, but found that she was disabled by her accident-related injuries alone. I find no reason to interfere with this finding and, in my view, it is sufficient to support her conclusion.

The insurer’s obligation in section 12 of the Schedule is to pay weekly income benefits to a person who sustains injury as a result of an automobile accident during the period in which he or she is substantially unable to perform the essential tasks of his or her pre-accident work. This obligation is not interrupted by an intervening injury. If the person receives compensation as a result of the new injury, however, the insurer may be able to take it into account under section 12(4) of the Schedule.

The arbitrator quite properly focussed on April 1992. Approximately two weeks before her accident on April 30, 1992, Ms. Pisani stopped working at her mother's café. The arbitrator weighed the evidence and found that Ms. Pisani suffered a flare-up of her accident-related problems that prevented her from working. Because her tasks at the café were far less demanding than her pre-accident work as a real estate agent, the arbitrator concluded that Ms. Pisani was entitled to weekly income benefits from Simcoe & Erie. I find no reason to interfere with this conclusion.

The arbitrator then considered the effect of the April 30, 1992 accident. Simcoe & Erie objects to the finding that this accident did not substantially contribute to her disability. In my view, there is very little evidence to support a contrary finding. More importantly, the arbitrator found that it would have taken Ms. Pisani some time to recover from her flare-up even if the April 1992 accident had not occurred. Given the surveillance evidence from May 12, 1992, this finding may be somewhat generous to Ms. Pisani, but I am satisfied that there is sufficient evidence to support it.

Ms. Pisani submits that having accepted that Simcoe & Erie continued to be responsible for paying weekly income benefits following the April 1992 accident, the arbitrator had no basis for concluding that her entitlement ended at any point prior to December 31, 1992. She relies on the opinion of her family doctor, Dr. Weinstock, that her disability from the November 1990 accident would have continued until at least the end of 1992.

Medical evidence is obviously important in deciding whether an applicant is substantially unable to perform the essential tasks of her pre-accident employment. However, the arbitrator must consider all of the evidence, and is not bound by medical opinion. This is particularly true where the medical opinion is based on information that is incomplete or erroneous. In this case, there are many reasons why the arbitrator would not have accepted Dr. Weinstock’s opinion as determinative. For example:

• his opinion was based on an understanding that Ms. Pisani was unable to return to work as a real estate agent, while the arbitrator found that she had worked in real estate throughout 1991;

• he considered Ms. Pisani’s left ankle problem in his diagnosis, but the arbitrator found that this problem was not caused by the automobile accident;

• he had very little contact with Ms. Pisani between April 20, 1992 and December 31, 1992; and,

• he acknowledged that it was difficult to give this kind of an estimate, but that it was his “best guess.”

The determination of disability cannot be done with absolute precision, particularly in cases involving limitations based on pain. Although entitlement to weekly income benefits must be based on the test established in the Schedule, there is scope for the arbitrator to consider all of the evidence and reach a result that is fair in the particular circumstances of the case. While the appellant may feel that the October 1, 1992 cut-off is arbitrary, I conclude that the result is just and should not be disturbed.

The remaining question is whether Ms. Pisani is entitled to weekly income benefits for any period after October 1, 1992, as a result of injuries sustained in the April 1992 accident. She claims that she was substantially unable to perform the essential tasks of her job at her mother's café until August 31, 1993.

This raises an issue about Ms. Pisani's work status at the time of this accident. She maintains that although she had to stop working at her mother's café approximately two weeks earlier, she was still employed on the date of the accident. Canadian General submits that this was not a real job and, therefore, her entitlement to weekly benefits should be considered under section 13 of the Schedule, rather than section 12.

The arbitrator did not decide this issue because she concluded that Ms. Pisani was not entitled to any further weekly income benefits whether she was employed or unemployed at the time of the April 1992 accident. In my opinion, this was a reasonable conclusion.

As stated above, there is little evidence that the April 1992 accident significantly affected Ms. Pisani's condition. She is relying, however, on the fact that she was diagnosed in the spring of 1993 with fibromyalgia. Given her numerous soft tissue injuries and the passage of time, I see little basis to quarrel with the arbitrator's view that it is difficult to determine which accident or accidents significantly contributed to her fibromyalgia.

The arbitrator accepted that the November 1990 and April 1992 accidents aggravated Ms. Pisani's symptoms, and contributed to the subsequent development of fibromyalgia. She was not satisfied, however, that they significantly contributed to the severity or duration of her symptoms. It is submitted that the arbitrator applied the wrong test, leaving Ms. Pisani without benefits unless she can establish with certainty which of her accidents caused the fibromyalgia. In my view, that is not the significance of the decision. Rather, the arbitrator recognized that Ms. Pisani does not have to show that the injury was caused solely by the accident. However, she must establish on a balance of probabilities that she was injured as a result of the accident. This requires more than some contribution. There is ample evidence to support the arbitrator's conclusion that Ms. Pisani failed to meet her onus with respect to weekly income benefits beyond October 1, 1992.

B. Post-accident Income

Simcoe & Erie claims that it should be able to reduce Ms. Pisani's benefits by $6,065.00 as a result of the real estate commissions she received after the November 1990 accident. Ms. Pisani maintains that the parties agreed that her benefits would be reduced by $1,200.00. She accepts this amount, but objects to any further reduction.

Prior to the arbitration, a pre-hearing was held. The pre-hearing arbitrator confirmed the discussions in a letter, dated November 9, 1993, stating as follows:

The parties agree that, because of amounts earned by Ms. Pisani while she was receiving weekly income benefits in June 1991 and October 1991, Simcoe & Erie is entitled to a credit of $1,200 against any weekly income benefits owed by them or to a repayment of $1,200 in the event no further sums are owing by them.

The arbitrator found no reason to interfere with this agreement and ordered that Ms. Pisani comply with the agreement, including interest.

The treatment of real estate income has been a matter of some controversy. It is not surprising, therefore, that the parties would attempt to resolve the issue by agreement. After reviewing the transcript, I find no reason to interfere with the arbitrator's order.

C. Supplementary Medical and Rehabilitation Benefits

Ms. Pisani claims benefits under section 6(1) of the Schedule for massage therapy and chiropractic treatment. The arbitrator concluded as follows:

I heard no evidence which would establish that Ms. Pisani’s chiropractic treatment in 1993 was any therapeutic benefit to her.

In his report of July 8, 1993 (Exhibit 1, Tab 14), Dr. Weinstock stated that Ms. Pisani was treated appropriately for fibromyalgia starting in February 1993. Treatment included antidepressants and active exercise. Dr. Weinstock also stated that “massage therapy also helps.” For the reasons given above, I am not satisfied that the November 13, 1990 or April 30, 1992 accidents significantly contributed to Ms. Pisani’s fibromyalgia. Therefore, I do not accept that Ms. Pisani required treatment in 1993 as a result of the 1990 or 1992 accidents.

It was submitted on behalf of Ms. Pisani that the first two sentences of this excerpt are inconsistent. I am not persuaded that they are. The arbitrator’s use of separate paragraphs suggests that she evaluated the treatments separately. This makes sense because Ms. Pisani had been receiving chiropractic care for many years, while the massage therapy was for her fibromyalgia.

The problem with Ms. Pisani's claim for massage therapy is that it is linked to her fibromyalgia. For the reasons set out above, I accept the arbitrator's conclusion that Ms. Pisani did not establish a sufficient connection between this condition and the November 1990 and April 1992 accidents. Therefore, she has not shown that the massage therapy is a reasonable expense resulting from either or both accidents, as required by section 6 of the Schedule.

Very little evidence was presented at the arbitration hearing about Ms. Pisani's need to continue with chiropractic treatment in 1993. The only evidence of its effectiveness was her own testimony that she saw her chiropractor depending on how she felt, but tried not to rely on him. The arbitrator's reasons for denying this claim are brief, but given the lack of evidence, I am not persuaded that she erred in her conclusion.

III. EXPENSES

Ms. Pisani claims her expenses related to both appeals, including the cost of the transcript. No serious argument was made by either insurer that expenses should be denied, or that they should not be shared, as suggested by Ms. Pisani. Therefore, I conclude that Ms. Pisani should receive her expenses related to the appeals, calculated according to Ontario Regulation 664, R.R.O. 1990, with each insurer paying one-half.

If an agreement cannot be reached about the amount of Ms. Pisani's expenses, an assessment may be requested by filing written submissions with the Registrar.

December 11, 1995

David R. Draper Director’s Delegate

Date

¹ The term “Schedule” will be used to refer to Ontario Regulation 672. Before January 1, 1994, Regulation 672 was called the No-Fault Benefits Schedule. As of that date, it became the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994.

² Arbitration decision, p.14.

³ See for example, Vito Luigi Calogero and The Co-operators General Insurance Company, February 13, 1992, OIC File No. P-000251; Sharon Lee and Unifund Assurance Company, September 14, 1993; John Beenan and The Continental Insurance Company of Canada, September 8, 1994, OIC File No. P-001239.