Neutral Citation: 1995 ONICDRG 47
File No. A-006109
ONTARIO INSURANCE COMMISSION
BETWEEN:
ROSA BIANCA
Applicant
and
GENERAL ACCIDENT ASSURANCE COMPANY OF CANADA
Insurer
DECISION
Issues:
The Applicant, Rosa Bianca, was injured in a motor vehicle accident on April 16, 1992. She applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 6721. Weekly benefits were paid by the Insurer from April 23, 1992 to June 3, 1992. Mrs. Bianca claims to be entitled to further weekly benefits as well as housekeeping and care benefits. The parties were unable to resolve their dispute through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.S, as amended.
The issues in this hearing are:
Is Mrs. Bianca entitled to weekly benefits under section 13 of the Schedule from June 4, 1992 to April 14, 1995?
Is Mrs. Bianca entitled to housekeeping and care benefits, either under section 6(l)(f) or section 7(l)(b) of the Schedule?
Is Mrs. Bianca entitled to a special award under section 282(10) of the Insurance Act?
Mrs. Bianca also claims interest and her expenses incurred in the arbitration.
Result:
Mrs. Bianca is not entitled to section 13 weekly benefits.
Mrs. Bianca is not entitled to housekeeping and care benefits.
Mrs. Bianca is not entitled to a special award.
Mrs. Bianca is not entitled to her expenses.
Hearing:
The hearing was held in North York, Ontario, on April 18, 19, and 20, 1995, before me, Joyce Miller, arbitrator.
Present at the Hearing:
Applicant: Rosa Bianca
Applicant's Representative: Mark Heaney Barrister and Solicitor
Insurer's Representative: Gregory Heckel Barrister and Solicitor
Witnesses:
For the Applicant: Rosa Bianca Antonio Bianca Lucy Bianca Dr. G. D'Onofrio
For the Insurer: Dr. G.S. Conn Mrs. Jeannette Mary Pitcher Mr. Luciano Villella
Exhibits: Five exhibits were filed. Counsel each presented a case brief.
Introduction
This was a difficult case. The evidence was a morass of inconsistencies, contradictions, implausibilities and evasions.
Because of all of the inconsistencies and contradictions, it is difficult to set out a coherent chronology of the alleged events and facts. Therefore, first, I will set out a very brief description of the events surrounding the accident; second, I will deal with the evidence of the witnesses, and third, I will discuss Mrs. Bianca's evidence.
1. The Accident
The only thing that one can say with certainty is that on April 16, 1992, Mrs. Rosa Bianca was involved in a motor vehicle accident. Mrs. Bianca testified that she was driving, alone, on Davenport Road in Toronto, when she came to a traffic light which was changing from yellow to red. She slowed her car down, was hit from behind and pushed into the intersection.
The police report, however, states that she made a sudden stop at a green light. The car behind her tried to brake, but since it was raining and the road was slippery, the car ran into her. Mrs. Bianca testified that the reason she told the police that the light was green was because the driver in the second car told her to.
The police report notes that she required no medical attention, but that she complained about an injury to her neck. In her testimony, Mrs. Bianca stated that she told the police that she injured her knees.
Mrs. Bianca testified that as a result of the accident, she was sore all over. She suffered injuries to her knees, wrists, especially the right wrist, chest, head, shoulders and back.
Mrs. Bianca did not seek medical attention after the accident. She said she had to go home because her husband had the flu. She went to see her family doctor, Dr. Stefou, on April 22, 1992, and he prescribed Tylenol 3 for her.
She also saw her insurance broker, Mrs. Jeannette Mary Pitcher, on April 21, 1992. Mrs. Pitcher's notes indicate that Mrs. Bianca had come to see her at 1:35 p.m. to put in a claim for the accident. At that time, she told Mrs. Pitcher her only injury from the accident was that she was getting headaches. This is the information that Mrs Pitcher forwarded to General.
In July 1992, Mrs. Bianca and her husband travelled to Italy and stayed until December 16, 1992. When she returned from Italy, Mrs. Bianca was the subject of surveillance, arranged by the Insurer, on December 18, 21, 23, and 28, 1992, and on May 10, 13, and 14, 1993. I will discuss the surveillance report below.
In November 1993, Mrs. Bianca had surgery on her foot. She was in a cast for six weeks and needed a cane to walk. Although it was clear from the evidence that Mrs. Bianca's problem with her foot had nothing to do with the accident, she told Dr. Conn, who examined her for the Insurer, that she hurt her feet and ankles in the accident.
Mrs. Bianca claims that she is substantially unable to perform her essential tasks as a result of the accident, due to injuries to her right wrist, right knee, back and neck.
2. The Testimony of the Witnesses
(a) Dr. G. D'Onofrio
Dr. D'Onofrio testified on behalf of Mrs. Bianca. I give no weight to his evidence for the reasons that are set out below.
Dr. D'Onofrio testified that his medical practice deals mainly with personal injury cases. These injuries generally arise either from construction work or motor vehicle accidents. He stated that 30 per cent of his practice deals with people who have been involved in motor vehicle accidents.
Mrs. Bianca testified that she went to see Dr. D'Onofrio because her lawyer, at that time, did not like the medical report of her family doctor, Dr. Stefou. He therefore sent her to see Dr. D'Onofrio. Dr. D'Onofrio testified that when Mrs. Bianca came to see him, she told him that she was not satisfied with the treatment she was receiving from her family doctor. Dr. D'Onofrio may not have known this, but the evidence reveals that Mrs. Bianca continued to see Dr. Stefou in 1993 and 1994, after she began seeing Dr. D'Onofrio. In fact, Dr. Stefou was listed as her family doctor when she was admitted for surgery at the Toronto General Hospital in November 1993.
Dr. D'Onofrio did not take a medical history of Mrs. Bianca, nor did he request her medical file from Dr. Stefou. He stated that he did not ask for her medical file because he thought it would be embarrassing for Dr. Stefou.
Dr. D'Onofrio testified that Mrs. Bianca first came to see him on March 26, 1993. After that, he saw her biweekly and then every three weeks. His clinical notes and records however, show that he saw her once each month in March, April, June and August of 1993. In 1994, he saw her once in January, twice in April, three times in May, twice in June and November and then once a month for the rest of the year. The last entry in his notes is on January 20, 1995. Dr. D'Onofrio stated that the visits to see him were initiated by him.
I find that although Dr. D'Onofrio claimed to be Mrs. Bianca's family physician, he did not seem to know anything of significance regarding her health or previous history of injuries from accidents. In fact, while he claimed to be seeing her biweekly or every three weeks, he was not aware, and only learned at the hearing, that in November 1993, Mrs. Bianca was hospitalized and underwent foot surgery which left her in a cast for six weeks and required her to walk with a right-handed cane.
When asked why he had not taken a medial history of Mrs. Bianca, Dr. D'Onofrio stated that he believed it eventually would all come out. However, when one reads his clinical notes and records, one sees practically nothing of Mrs. Bianca's numerous pre-accident physical problems, although Dr. D'Onofrio was seeing her regularly from March 1993 to January 1995. For this reason, I give little weight to Dr. O'Onofrio's clinical notes and records.
The entries to Dr. D'Onofrio's clinical notes and records are in two distinct handwritings. On the left hand side of all the entries is a scrawled handwriting which notes the date, as well as what appears to be a code of letters and numbers. This scrawled illegible handwriting also appears at times on the right hand side, noting complaints by the patient. However, a number of entries on the right hand side, in a different handwriting, are clear and legible. Most significantly, these notes repeat almost verbatim, on different dates, the same recorded words about Mrs. Bianca's chief complaint.
Legible notations in a different handwriting, repeated almost verbatim, describing a headache and physical examination appear in the records of Mrs. Bianca's first visit to Dr. D'Onofrio on March 26, 1993, as well as in the records of her last visit to Dr. D'Onofrio on January 20, 1995. They also appear on three other dates. There were also two entries, in neat, legible handwriting, describing a sore throat, one dated April 6, 1993, repeated almost verbatim on June 7, 1994.
This discrepancy in the handwriting is one of several reasons why I conclude that Dr. D'Onofrio did not keep accurate or reliable clinical notes and records. As will be shown below, there is a significant discrepancy between his medical report and his clinical notes and records with respect to the injuries Mrs. Bianca allegedly suffered as a result of the car accident.
One of Mrs. Bianca's chief complaints is that she injured her right wrist in the car accident which has left her disabled from carrying out her essential tasks. Dr. D'Onofrio first notes a complaint from Mrs. Bianca about right wrist pain on May 9, 1994. In his two reports to General he does not mention any problems with Mrs. Bianca's wrist. However, in his report of July 5, 1994, he states that Mrs. Bianca complained to him on her first visit, March 26, 1993, that she had right knee, chest and right wrist pain. There are no notations of this in his clinical records of that date.
When Dr. D'Onofrio was questioned about this discrepancy, he stated that for billing purposes to OHIP, he only recorded the chief complaint of the patient that he was treating. On March 26, 1993, Mrs. Bianca's chief complaint was a headache. He kept any other information regarding the motor vehicle accident on tape, to prepare a medical-legal report in case it would be needed. As soon as he prepared the report, he erased the tape. This was his standard practice with all of his personal injury cases.
I did not find Dr. D'Onofrio's explanation to be credible. Dr. D'Onofrio's medical practice consists mainly of personal injury cases. 30 per cent of his practice deals with motor vehicle accidents. I find it incredible that he does not keep written clinical notes or records on his patients who have been injured in motor vehicle accidents. Moreover, I find it difficult to accept that as a medical practitioner, he destroys any clinical notes and records that he has on tape, by erasing them, as soon as he has prepared his medical-legal report. In my view, this not only flies in the face of common sense, but is inconsistent with reasonable medical practices and procedures.
On June 8, 1993, Dr. D'Onofrio wrote a note stating it was his medical opinion that Mrs. Bianca "... has not been able to do her household duties due to the lesions she suffered in her motor vehicle accident of April 16, 1992". He stated that it was medically necessary for her to have housekeeping assistance.
Dr. D'Onofrio was questioned about how he came to write this note on June 8, 1993, since his clinical notes and records show that the last time he had seen Mrs. Bianca before writing the note was on April 6, 1993. Dr. D'Onofrio stated that Mrs. Bianca had probably called his secretary and conveyed the need for housekeeping assistance. He said that when he saw her on March 26, 1993, she was substantially disabled.
I give no credence to Dr. D'Onofrio's explanation. I agree with Mr. Heckel's submission that on March 26, 1993, Dr. D'Onofrio did not know Mrs. Bianca's medical history, was not aware of any previous injuries from other car accidents, and, therefore, he could not have reasonably concluded that her need for housekeeping assistance was due to the car accident of April 16, 1992.
For all of the above reasons, I give no weight to Dr. D'Onofrio's evidence and his opinion that Mrs. Bianca hurt her right wrist in an automobile accident and, is therefore substantially unable to carry out her essential tasks.
(b) Mr. Antonio Bianca
Mr. Bianca's testimony was problematic. As Mrs. Bianca's husband, he has a personal interest in the outcome of this hearing. One has to be cautious as to how much weight one gives to a applicant's spouse's testimony. This does not mean that such testimony is not credible and not worthy of being given its full weight. In this case, however, I give little weight to Mr. Bianca's testimony.
Mrs. Bianca testified that one of her essential tasks before the accident was that she looked after her invalid husband, who was in his mid-eighties. Before hearing from Mr. Bianca, I asked Mr. Heaney if Mr. Bianca's testimony was necessary. He stated that Mr. Bianca's testimony was relevant to support Mrs. Bianca's assertion that before the accident she was required to assist him because of his poor health.
In his testimony, Mr. Bianca testified that he was in good health before the accident. He just had a little stomach problem and some back problems. He had had a back operation in 1967. He said he only began to have serious health problems after the accident.
On the surface this would appear to contradict Mrs. Bianca's testimony that he was an invalid before the accident. At one point while Mr. Bianca was giving his testimony, Mrs. Bianca stormed out of the hearing room in an agitated state, muttering under her breath that he did not know what he was talking about. This came after he testified that his daughter Lucy came to help out at their home three to four times a week, along with his other daughters. This was in direct contrast to Mrs. Bianca's testimony that her daughter Lucy, who she paid, came to help her out once a week. She testified that her other four daughters occasionally helped out with washing dishes if they had come over for dinner.
My impression was that Mr. Bianca was a forgetful man. I believe he was probably coached in his testimony and got confused when he was questioned. I come to this conclusion because one of the main lines of argument that Mrs. Bianca was trying to advance in her testimony was that she was in excellent health before the accident, but as a result of the accident, began to have serious health problems. This was the same evidence that Lucy Bianca, Mrs. Bianca's daughter, gave. In my view, Mr. Bianca was attempting to support Mrs. Bianca's case, but became confused in the process and claimed that he himself was in good health before the accident and only began to have health problems after the accident.
For all of the above reasons, I give little weight to Mr. Bianca's testimony.
(c) Lucy Bianca
Lucy Bianca is Mrs. Bianca's daughter. I did not find Ms. Bianca to be a credible witness.
Lucy Bianca stated that her mother only had a few aches and pains before the accident, but suffered serious health problems after the accident. Credible evidence reveals that Rosa Bianca not only had serious physical ailments before the accident, but had also received injuries from two previous motor vehicle accidents.
Lucy Bianca stated that Rosa Bianca had only a bandage on her foot as a result of surgery not related to the accident. According to Rosa Bianca, she had a cast on her foot for six weeks and had to walk with a cane.
Lucy Bianca stated that her parents went to Italy for three months in 1992. Ms. Bianca testified that as a travel agent, she arranged for their tickets. She stated that it was a special fare ticket which only allowed them to be gone for three months. She stated that they left either in May or June. Credible evidence, however, reveals that Mr. and Mrs. Bianca left for Italy in July and returned in mid-December.
Ms. Bianca had a good reason to misrepresent her parents' time of departure and the length of their stay in Italy. Ms. Bianca had presented, for reimbursement from General, receipts for housekeeping duties performed for her mother, paid weekly from April 30, 1992 to September 18, 1993, inclusive. This would include the five months that her parents were in Italy.
Ms. Bianca testified that she went to her parents' house weekly, either when they were home or when they were in Italy, to assist her mother in keeping a clean house because she was disabled. She was paid $80.00 a week for this work. I do not find this credible. If Rosa Bianca is to be believed, her and her husband's combined monthly income consisted of pensions amounting to over $800.00. In that case, Lucy Bianca, who was one of five daughters, would be taking almost half of her parents' monthly income to do housekeeping for a few hours each week, and for five months when her parents were not even in Canada. This is not plausible.
Rosa Bianca testified that Lucy gave her a receipt for $80.00 each time after the work was done. After viewing the original receipts, I agree with Mr. Heckel's submission that the receipts were all prepared at the same time. Not only were the receipts in pristine condition, but they were all written with the same pen.
The receipts beginning with February 13, 1993 were all numbered sequentially. Two of the receipts were dated February 13, 1993, each from a different receipt book. I did not believe Lucy Bianca when she stated that for one and a half years she always carried the same pen with her receipt book. Nor did I believe that because she had lost the first receipt book, she had made an error in making out two receipts for the same day. I agree with Mr. Heckel's submission that she slipped up when she changed receipt books and that the slip-up was the result of her having prepared the receipts all at the same time.
I agree with Mr. Heckel's submission that Lucy Bianca intended to defraud the Insurer by presenting housekeeping receipts for work she did not do, believing that the Insurer would not have investigated the claim as thoroughly as it did.
For all of the above reasons, I do not find Ms. Bianca to be a credible witness. I therefore, give no weight to her testimony that she received $80.00 weekly for housekeeping duties to assist her mother because of her mother's alleged injuries from the accident.
(d) Dr. Garson Conn
Dr. Garson Conn is an orthopaedic surgeon who testified on behalf of General. I found Dr. Conn to be a credible, reliable and honest witness.
In Dr. Conn's report of August 15, 1994, he stated that in his view, Mrs. Bianca's full body pain was not in keeping with the injuries suffered as a result of the motor vehicle accident. He goes on to say that
... I would have to agree with Dr. Kreder in his assessment of her in May of 1993 that she is really not disabled from the essential duties of her daily activities except in relation to her right wrist problem ... If indeed she had no difficulties reported in regard to her wrist and her knees, then given the history of her accident one would have to conclude that her ongoing problems in these two areas at least in part are related to the accident itself.
My main problem with Dr. Conn's findings and conclusions is that, aside from his own examination of Mrs. Bianca, her x-rays and other medical information reports, he had to rely on what Mrs. Bianca told him. Dr. Conn notes in his report that what Mrs. Bianca told him about the accident is not exactly what he read in the other reports. I find that what Mrs. Bianca told him was self serving and not true.
Mrs. Bianca, under cross-examination by Mr. Heckel, admitted that she knew she was seeing Dr. Conn at the request of the Insurer and that his report would affect her entitlement to benefits.
She told Dr. Conn that she hurt her feet and ankles in the accident, and that she had swollen feet after the accident. This is not true. Mrs. Bianca admitted in cross-examination that any problems she had with her feet were not as a result of the accident. She told Dr. Conn she only went to Italy for three months after the accident. This is not true. Credible evidence shows that she spent at least five months in Italy. Mrs. Bianca denied that she had any injuries as a result of any prior motor vehicle accidents. This is not true. She admitted under cross-examination that she had received insurance settlements from two previous car accidents in which she was injured. She denied prior problems with her neck, back, arms, legs and shoulders. This is not true. A report of her family doctor, Dr. Stefou, notes that in 1990, Mrs. Bianca suffered from neck, back and shoulder pain. The day before the accident she visited Dr. Stefou and his clinical notes stated that she complained of "severe" back pain. As well, the medical evidence showed that Mrs. Bianca had a previous condition of osteo-arthritis, as well as pseudo gout, a systemic condition which attacks the joints. She had also had four operations on her feet.
When Mrs. Bianca was presented with the fact that she had not been honest in her responses to Dr. Conn's questions, she responded that she had not understood his questions, nor had she understood the Italian interpreter who was present. She gave the same explanation for her failure to honestly respond to Dr. Kreder's questions. Dr. Kreder was another doctor who had examined her on behalf of the Insurer.
I did not find Mrs. Bianca's explanation to be credible. It was my impression that Mrs. Bianca had a fair command of the English language. Mrs. Bianca has been living in Canada for about 40 years. At the beginning of the hearing, Mrs. Bianca wanted to give her testimony in English, but her lawyer insisted that it be given through an interpreter. Many times during her testimony she would launch into her responses in English before the interpreter had a chance to translate the question.
After cross-examination by Mr. Heckel, Mrs. Bianca stated that she would not return on the third day of the hearing for re-examination and, therefore, an interpreter would not be required. However, she did show up mid-morning on the third day and indicated that she would not need an interpreter. I had the impression that Mrs. Bianca could follow the proceedings in English. A number of times when things were said by other witnesses, she would interrupt the proceedings with her comments. She clearly seemed alert and aware of what was going on.
Dr. Conn's evaluation is dependent upon Mrs. Bianca's history of her alleged injuries from the accident. The fact is that Mrs. Bianca had not been honest in stating what her injuries were or what her pre-accident medical history was.
For all the above reasons, I accept Dr. Conn's report to be a thorough and honest evaluation, but limited by the fact that he did not have credible information.
(e) Mrs. Jeannette Mary Pitcher
Mrs. Pitcher is an insurance broker. I found her to be a credible, honest and reliable witness.
Although Mrs. Pitcher was testifying on behalf of the Insurer, she stated that she really did not want to testify. She said that she worked closely with Mrs. Bianca's daughter-in-law and felt uncomfortable about having to testify. She expressed a great deal of admiration and affection for Mrs. Bianca, whom she viewed as being a warm, generous and exuberant woman.
Mrs. Pitcher testified that Mrs. Bianca had had a ten year business relationship at the firm she worked at, Michael Palermo Insurance. In 1993, their business relationship ended. Mrs. Pitcher stated that this was because of the frequency of claims made by Mrs. Bianca under her car and household insurance coverage. Mrs. Bianca refused the conditions of renewal which did not allow for additional coverage and had a higher deductibility.
Mrs. Pitcher, in her evidence, noted a number of claims under Mrs. Bianca's car insurance, including an accident on March 28, 1991, which Mrs. Bianca had not mentioned in her testimony. The claim in this accident was for collision loss of $3,214 and $241 car rental, as well as compensation for loss of a ring at the accident.
Mrs. Bianca's claims under her household insurance included water damage, wind damage, and an electrical fire, as well as the loss of a watch valued at $2,450 while shopping at Woolco and a purse stolen while shopping at Knob Hill, valued at $3,125.
Mrs. Pitcher testified that Mrs. Bianca came to see her after the accident, on April 21, 1992. She stated that the only physical complaint that Mrs. Bianca had was headaches.
Mrs. Pitcher stated that Mrs. Bianca also visited the office for social purposes because her daughter-in-law worked there. They would drink coffee, smoke and talk.
Mrs. Pitcher stated that when Mrs. Bianca travelled to Italy in the summer of 1992, she discontinued her automobile insurance coverage from July 15, 1992 until December 21, 1992, when Mrs. Bianca called her to reinstate the insurance coverage.
Mrs. Pitcher testified that Mrs. Bianca visited the office in 1993 after her vacation in Italy. She stated that Mr. and Mrs. Bianca went to Italy every year for about six months, because they were residents of Italy and collected pensions there. She stated that Mrs. Bianca seemed quite happy and excited when she came back from Italy. She had shopped quite a bit and had brought back "tons of stuff". As well, she proudly showed off pictures of the new house that she had built. Mrs. Pitcher stated that Mrs. Bianca is now looking to sell this house, because Mr. Bianca is refusing to go back to Italy.
When asked by Mr. Heckel what Mrs. Bianca's health was like after the accident, Mrs. Pitcher responded that there had been no reason to discuss Mrs. Bianca's health. She stated that Mrs. Bianca appeared to be the same as she was before the accident. She did not observe any physical disabilities.
I accept Mrs. Pitcher's testimony. Her evidence clearly contradicts Mrs. Bianca's assertions regarding her injuries after the accident, as well as Mrs. Bianca's trip to Italy in 1992.
(f) Mr. Luciano Villella
Mr. Villella is a licensed private investigator who appeared on behalf of the Insurer. I found him to be a credible witness.
In Dr. Kreder's report of May 18, 1993, he notes that Mrs. Bianca told him that as a result of the accident, she needs a cane at all times when she is walking, that she is unable to walk more than one and a half blocks at a time, and that she occasionally goes out for short drives.
The evidence of the investigator, however, through his own observations, photographs and video surveillance, contradicts Mrs. Bianca's statements to Dr. Kreder.
Mrs. Bianca was under surveillance for four days at the end of December 1992 and three days in mid-May. On December 18, she was observed walking ten city blocks and going in and out of several stores and making some purchases. She did not walk with a cane and according to Mr. Villella, she walked with a smooth gait and carried a big purse and a bag. She was able to ascend the 13 or 14 steep steps to her house without holding the handrail and in a normal stepping manner.
On May 14, 1993, Mrs. Bianca was observed for approximately five hours where she was either driving her car, or walking around shopping in different stores. She neither walked with a cane nor showed any visible signs of disability. At one point the video catches her moving at such a quick pace that she almost appears to be running. Mrs. Bianca stated that the reason she was going at such a quick pace is that she was anxious to get home to her invalid husband because she did not like to leave him alone for a long time. The surveillance evidence, however, shows that she was gone for five hours that day.
I accept the testimony and evidence presented by Mr. Villella. His evidence clearly contradicts Mrs. Bianca's assertions that she always had to use a cane after the accident, and that she could only walk one and a half blocks at a time.
3. Evidence of Mrs. Rosa Bianca
I would first like to comment on Mrs. Bianca's demeanour. Although Mrs. Bianca is 74 years old, she appears much younger than her age. Despite the fact that she has a number of physical ailments, she exudes a great deal of energy. She dominated the hearing by her strong presence, her non-stop talking, and her combative and insistent manner. I also found her to be charming, warm and genuinely kind. I nevertheless did not find her testimony or evidence regarding the April 16, 1992 accident to be credible.
My impression was that Mrs. Bianca, in the eight to ten years previous to the April 16, 1992 accident, had collected on numerous insurance claims both for car accidents and household mishaps, including loss of personal property, such as a ring, two watches and her purse. It would appear that all her claims were settled without dispute. In fact when asked what injuries she had sustained from an accident in which she collected $10,000, her response was that her lawyer had arranged everything.
It is my belief that as a result of her previous experience in collecting on claims, Mrs. Bianca did not expect the thorough investigation that this Insurer undertook with respect to her claim for benefits for the April 16, 1992 accident. The result is that the different stories she told to various doctors, as well as her testimony in light of the Insurer's investigation, were shown not to be credible.
The inconsistencies, contradictions and evasions in her testimony are numerous. I have, therefore, chosen to focus on a few relevant and material matters.
Although Mrs. Bianca responded to questions in a convoluted manner, going off into irrelevant tangents, I found that at times she was being deliberately evasive. One such example is when Mr. Heckel cross-examined her with respect to an accident she had had in which she had received $10,000 for injuries she had sustained. Mr. Heckel asked her approximately five times what her injuries were. Each time she evaded responding to the question. It was my view that this was a deliberate evasion on her part in order to minimize her pre-accident physical condition.
Her pre-accident physical condition is an area in which I found Mrs. Bianca to be inconsistent and contradictory. She misrepresented her pre-accident condition to Drs. Kreder and Conn. She told Dr. Kreder that prior to the accident her health was excellent and she denied having any previous accidents or injuries of any sort. In the examination in chief, she testified that before the accident she had a few aches and pains because of the weather. She also stated that she did not suffer any injuries from previous accidents.
However, after a thorough cross-examination by Mr. Heckel, she admitted that prior to the accident she had a hiatus hernia, a stomach ulcer for which she took medication, and arthritis for which she took anti-inflammatory medication. She also had problems with the joint in her right knee and had had four operations on her feet. As well, she admitted to having previous car accidents in which she had sustained neck, back and shoulder injuries.
For all of these reasons, I find that Mrs. Bianca did not give credible evidence regarding her pre-accident physical condition.
With regard to her activities after the accident, I found Mrs. Bianca's testimony and evidence to be a morass of contradictions and inconsistencies, especially regarding her essential tasks as a housekeeper. It was difficult to assess what she could or could not do after the accident. I will, therefore, focus on the evidence surrounding her trip to Italy which occurred a few months after her accident.
In Dr. Kreder's report, he notes that Mrs. Bianca told him that shortly after the accident, near the end of April, she went to Italy until September or October 1992. When she came back she started physiotherapy in September or October which lasted through November of 1992. In her testimony, Mrs. Bianca stated that she went to Italy either in June or July and returned on November 30, 1992.
Mr. Villella, whose evidence I found credible, testified that Mrs. Bianca's travel agency told him that she left in June and returned on December 16, 1992. Mrs. Pitcher, whose testimony I found credible, stated that car insurance coverage was taken off in mid-July and reinstated on December 21, 1992.
Counsel for Mrs. Bianca conceded that whether she left in June or July, she returned from Italy on December 16, 1992.
Mrs. Bianca stated that because of her injuries from the accident, she was disabled and could not do anything when she was in Italy. She had to hire someone to assist her in her housework. However, she did admit, when confronted by Mr. Heckel, that while she was in Italy she had single-handedly organized a petition to the mayor to install a lamp post on her street. To do this she had to approach the mayor, the prefect and the highway officials. Moreover, she had to personally convince her neighbours to sign the petition and to collect 10,000 Lire from them. She said there were about 10 to 15 families living on her street. She admitted that this was quite a formidable achievement.
Mrs. Bianca testified that the only reason she went to Italy was because she had to sell her house. She said because of her injuries from the accident, she could do very little shopping. This is in contradiction to what Mrs. Pitcher had testified. I choose to believe Mrs. Pitcher's testimony, which I found credible.
Mrs. Pitcher testified that Mrs. Bianca regularly went on holidays to Italy because she and her husband collected pensions there. She stated that after Mrs. Bianca's 1992 visit to Italy, Mrs. Bianca told her that she had done lots of shopping and brought back "tons of stuff", as well, that Mrs. Bianca proudly displayed pictures of a new house that she had built.
For all of the above reasons, I find that Mrs. Bianca did not give credible or trustworthy evidence about her trip to Italy and the activities she was able to engage in after the accident. I therefore do not find it credible that because of her alleged injuries from the accident, she was disabled and could not do anything when she was in Italy.
One of the principal complaints that Mrs. Bianca alleges is a right wrist injury she received as a result of her "jamming her wrist" in the accident. This disables her from carrying out her essential tasks of housekeeping. Dr. Conn's evaluation is based on the fact that she received this injury during the accident. Mrs. Bianca testified that she had wrist pain from the first day of the accident.
The problem with Mrs. Bianca's allegation is that despite many visits to doctors in the two years post-accident, there is no recorded mention of wrist problems until May 9, 1994. Her medical history reveals that prior to the accident, Mrs. Bianca suffered from osteo-arthritis and was taking a powerful anti-inflammatory, Indocid. She also had pseudo gout, which is systemic and attacks the joints causing swelling and pain.
I agree with Mr. Heckel's submissions that Mrs. Bianca's wrist pain is not related to the car accident. After her November 1993 foot surgery, Mrs. Bianca admitted that she had to use a right-handed cane to move around. Mr Heckel submitted that it is more likely than not that the problems Mrs. Bianca had with her right wrist in May 1994, came from the pressure on her right wrist joint as a result of using the cane. In his view, the pressure of using the cane aggravated her underlying arthritic and pseudo gout conditions. I agree with this conclusion.
I therefore find that Mrs. Bianca did not suffer an injury to her right wrist in the car accident.
For all of the above reasons, I find that Mrs. Bianca has not presented any credible or trustworthy evidence to show that she sustained injuries in the car accident of April 16, 1992, which substantially disabled her from performing her essential tasks. I therefore find that Mrs. Bianca is not entitled to benefits under the Schedule.
4. Special Award
At the conclusion of his submissions, Mr. Heaney, without giving any particulars, stated that a special award should be given to Mrs. Bianca.
Mr. Heckel submitted that no mention of a special award was made at mediation, at the pre-hearing, or at the commencement of the hearing. No particulars were given as to why a special award should be granted. He submitted that in light of the evidence presented at the hearing, this was a perverse request.
A special award may be made under section 282(10) of the Insurance Act because an insurer unreasonably withheld or delayed the payment of benefits. Section 282(10) states:
(10) If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.
An arbitrator has an inherent jurisdiction to consider a claim under section 282(10) of the Insurance Act once he or she finds an insurer has acted unreasonably, whether or not such a claim has been raised in the Application for Appointment of an Arbitrator, Reply by Insurer, at the pre-hearing conference, or otherwise.
In Plowright, Arbitrator Palmer made the following comments with respect to when an arbitrator might find that an insurer has unreasonably withheld or delayed payments:
"Unreasonable" behaviour by an Insurer in withholding or delaying payments can be seen as behaviour which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate.
A special award is based on the amount owing at the time of the award. Because I have concluded that there are no benefits owing, I have no authority to order a special award in this case. Even if I had authority to order a special award, I conclude that the Insurer has not unreasonably withheld or delayed the payment of benefits to the Applicant.
5. Expenses
I decline to award expenses in this case. I agree with Mr. Heckel's submission that this is a fraudulent claim.
In the McCormick case, 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.
Having regard to the criteria set out in McCormick, and based on the contradictory and confusing evidence presented at the hearing and my finding that Mrs. Bianca did not present any credible or trustworthy evidence on the relevant and material elements of her claim, I decline, in this case, to exercise my discretion to award expenses to Mrs. Bianca.
Order:
Mrs. Bianca is not entitled to section 13 weekly benefits.
Mrs. Bianca is not entitled to housekeeping and care benefits.
Mrs. Bianca is not entitled to a special award.
Mrs. Bianca is not entitled to her expenses.
May 5, 1995
Joyce Miller Arbitrator
Date
Exhibit 1, Tab 27
Exhibit 1, Tab 12 at page 2
Exhibit 1, Tab 16
Exhibit 1, Tab 17
Exhibit 1, Tab 18
Exhibit 1, Tab 18
Exhibit 1, Tab 18. See entries for June 24, 1993, April 8, and August 29, 1994.
Exhibit 1, Tab 11
Exhibit 1, Tab 18
Exhibit 1, Tab 3, reports from Dr. D'Onofrio dated April 6, and August 31, 1993
Exhibit 1, Tab 11
Exhibit 1, Tab 6
Exhibit 1, Tab 18
See also Exhibit 1, Tab 17, where the Toronto General Hospital records note that Mrs. Bianca had a cast put on her foot after surgery.
See Exhibit 1, Tab 23
In Dr. Conn's report of August 15, 1994, Exhibit 1, Tab 12, he notes that he reviewed the reports of Dr. Kreder, Dr. Stefou, and the report from the F.I.T. for Work Centre.
In Dr. Kreder's report of May 18, 1993, he notes that Mrs. Bianca told him that she travelled to Italy in April of 1992 for family reasons and returned in September or October 1992. When she came back in September or October, she began physiotherapy until November 30, 1992. She told him that she had never had any previous accidents or injuries of any sort, and that prior to the accident she was in excellent health. Credible evidence, however, has proven these statements to be untrue (Exhibit 1, Tab 4).
Exhibit 1, Tab 4
Exhibit 1, Tabs 24, 25 and 26
Exhibit 1, Tabs 25 and 26
Exhibit 5
Exhibit 1, Tabs 24, 25 and 26
Exhibit 1, Tab 4
Exhibit 1, Tab 4
- Wayne Allan Plowright and Wellington Insurance Company, October 29, 1993, OIC File No. A-003985.
Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139.