Neutral Citation: 1995 ONICDRG 66

File No. A-002690

ONTARIO INSURANCE COMMISSION

BETWEEN:

MARIANNA PRODANOVIC

Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, Marianna Prodanovic, was injured in a motor vehicle accident on July 19, 1991. She applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672¹. Weekly benefits were terminated by the Insurer on June 4, 1992. 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 Ms. Prodanovic entitled to weekly benefits under sections 13(1) and 13(8) of the Schedule from June 5, 1992 onwards?

Ms. Prodanovic also claims interest on any amounts owing, and her expenses incurred in the hearing.

Result:

1. Ms. Prodanovic is not entitled to weekly benefits pursuant to sections 13(1) and 13(8) of the Schedule.

2. Ms. Prodanovic is entitled to her expenses incurred in respect to the arbitration.

Hearing:

The hearing was held in North York, Ontario, on May 29, 30, and 31, 1995, before me, Joyce Miller, arbitrator.

Present at the Hearing:

Applicant:

Marianna Prodanovic

Applicant's Representative:

David McGhee Barrister and Solicitor

Insurer's Representative:

Robert A. Robinson Barrister and Solicitor

Insurer's Officer:

Erminio Bellissimo

Witnesses:

Marianna Prodanovic, Dr. Leszek Marchow, Helena Traill, Rosanna Colalillo, Bruce McKay

Exhibits:

Sixteen exhibits were filed. The Insurer presented a case brief.

Introduction:

(1) The Evidence

(a) Pre-Accident

Ms. Prodanovic, who is 54 years old, came to Canada in 1984 as a visitor. She applied to become a landed immigrant in 1985 and received a work permit. Ms. Prodanovic stated that she had a degree in pharmacology, but worked in a factory in Canada because she could not speak English. The Social Services file² indicates in one place that she only had a grade five education and in another that her last grade completed was grade 10. In an October 1990 counselling assessment it is noted that Ms. Prodanovic stated that her vocational goal was to work in a "factory setting"³.

Ms. Prodanovic testified that in 1985 she began to work as a machine operator in a company which manufactured mugs. She worked there for about two and a half to three years, before being laid off. She then worked for about two months in a factory which manufactured radio parts. She stated that in 1990 she worked for about six months in a factory which manufactured suspenders. Her job was to wrap the suspenders. She stated that she earned $600 to $800 per week. On July 20, 1990, she was laid off. She testified that from her lay-off until the accident, on July 19, 1991, she was unemployed and looking for work.

Ms. Rosanna Colalillo, a supervisor at Metro Community Services, Social Services Division, testified that Ms. Prodanovic had applied for social assistance on May 18, 1989. Ms. Colalillo stated that, except for a 10 week period between May and July 1990, Ms. Prodanovic collected social assistance until November 1994 when she was transferred to family benefits.

Ms. Colalillo testified that Ms. Prodanovic's eligibility for social assistance was based on the fact that she had medical problems and was unable to work. In March 1994, a medical report from a doctor deemed her to be permanently disabled.

(b) The Accident

Ms. Prodanovic's evidence about the events surrounding the accident was inconsistent and contradictory.

She testified that on July 19, 1991, at about 3:30 p.m., she was riding her bike on the sidewalk along Springhurst Street when she arrived at the corner of Dunn Avenue and stopped before she attempted to cross the road. She stated that she looked to the left and did not see any cars. However, a car hit her bicycle as she left the sidewalk.

Ms. Prodanovic stated that when the car hit her bike, she was knocked over, fell on her hands and hurt her left knee, lower leg, ankle and her hip on the right side. She also stated that the car directly hit her left knee. At another point in the examination she stated that when she was hit she fell on her side, on her shoulder and "almost" on her head. She gave this latter response when she was questioned about any head injury she may have sustained. This question arose because Ms. Prodanovic claimed to have memory and hearing problems as a result of the accident.

Ms. Prodanovic testified that when she was hit by the car she fainted. A man helped her up. He put her bike in his trunk and the drove her to St. Joseph's Health Centre at about 4 p.m. She stated that she waited a long time until she saw a doctor. She believed her kneecap was cracked and her ligament was torn.

The records from St. Joseph's indicate that she arrived at 6:55 p.m. from home, complaining of leg pain. She did not report any loss of consciousness. She was seen by a doctor at 7:03 p.m.⁴. The records do not indicate any injuries other than a ligament strain along her left knee. A tensor bandage was put on and Ms. Prodanovic was asked to come back the next day. At that time a plaster cast was put on for a week, and it was changed the following week for one more week.

Ms. Prodanovic saw her family doctor, Dr. Leszek Marchow, on July 25, 1991. Dr. Marchow was subpoenaed by Personal to testify. He testified that his records⁵ show that Ms. Prodanovic told him at the July 25, 1991 visit that she had been hit by a car while on her bike. She reported no loss of consciousness. After the accident she walked home with her bike. When she noticed some swelling in her knee, she took the streetcar to St. Joseph's Health Centre. She indicated to Dr. Marchow that along with her knee pain she also had pain in her lower back and lower leg. He noted that the details of her injuries were difficult to elicit as Ms. Prodanovic was very excited.

Dr. Marchow testified that the lawyer she consulted at that time sent her to the Toronto Accident Clinic and that he, Dr. Marchow, had very little to do with her injuries from the accident. On February 22, 1993, although she was seeing a family doctor at the Toronto Accident Clinic, she came to see him about a fall she had when she slipped getting out of a taxi. His notes show that she had "significant pain in her lower back"⁶. Also she saw Dr. Marchow on April 30, 1993, when a taxi driver hit her in her face with his fist. These incidents do not appear in the reports of the Toronto Accident Clinic.

(c) After the Accident

The evidence shows that Ms. Prodanovic attended English classes (ESL) in January and February 1992 and only missed one class. Ms. Prodanovic testified that she went to these classes by streetcar. She has continued to attend ESL classes on a regular basis in 1993, 1994, and 1995⁷.

On June 4, 1992, her accident benefits were terminated. In June and July 1992, Ms. Prodanovic went to Poland for two months.

Ms. Prodanovic claims that she suffered psychological injuries as a result of the accident. She did not present any evidence to corroborate this. The clinical notes of Dr. Urback dated May 9, 1994, indicate that Ms. Prodanovic had seen a psychiatrist once and "apparently he felt she didn't require ongoing therapy"⁸.

Ms. Prodanovic claims that she has a hearing problem as a result of the accident. She did not present any evidence to corroborate this. In a form that she personally filled out for Dr. Haight, an ear, nose and throat specialist, she stated that her hearing returned to normal eight months after the accident⁹.

Ms. Prodanovic claims that the accident has left her with a substantial inability to perform the essential tasks that she would normally engage in.

(d) Essential Tasks

Ms. Prodanovic testified that before the accident she did housework, figure skating, high jumping, cycling, walking and looked for work. She stated that as a result of the accident, she gained a lot of weight and is unable to carry out her sport activities. She said she used to weigh 60 or 70 kilograms and now she weighs 80 kilograms. However, both a medical report in 1985 for immigration purposes¹⁰ and a medical report for social assistance¹¹ in 1989, indicated that she suffered from obesity. The medical report of 1985 notes that her weight at that time was 80 kilograms.

Ms. Prodanovic stated that she is always in a lot of pain and that although she could do her housework, it took a lot of time. A report by Dr. Becker from the Toronto Accident Clinic notes that another doctor at that clinic, Dr. Urback, stated on November 26, 1991, that Ms. Prodanovic was doing housework and exercise, although she was finding it painful¹². On December 4, 1991, Dr. Becker, in an insurance medical form, noted that it was possible for Ms. Prodanovic to do housework although it was painful¹³. He also notes that her walking was better.

Ms. Prodanovic testified that she did not cycle and that she no longer had her bike. When, at the hearing, a photograph¹⁴ of a bicycle on her balcony was introduced, which was taken the day after she made this statement, Ms. Prodanovic became very angry and belligerent, and stated that the bike was broken.

Ms. Prodanovic was the subject of surveillance¹⁵ and I viewed the videotapes¹⁶. The tapes for the most part showed Ms. Prodanovic walking, standing, taking the street car, sitting, shopping, and carrying one or two plastic bags. In the May 1995 video, she was shown throwing something high into the air. In the videos she was generally carrying a long umbrella with which she kept touching the sidewalk. She did not appear to be putting any weight on the umbrella, and seemed to be walking in a regular relaxed and easy gait.

(2) Analysis and Findings

I will first comment on Ms. Prodanovic's demeanour. Although Ms. Prodanovic requested a Polish interpreter, at the beginning of her counsel's examination of her, she asked him to speak up because she could not hear him. Although I believe that Ms. Prodanovic needed the services of an interpreter, I had the impression that Ms. Prodanovic understood enough English to understand the questions being asked. At times she would answer without waiting for the translation.

I note this because Ms. Prodanovic had to be reminded a number of times to answer the question that was being asked. I had the clear impression that she was evading answering specific questions. When faced with documentary evidence which contradicted her testimony, Ms. Prodanovic became belligerent, hostile and argumentative. When medical reports were presented to her which contradicted her testimony, she stated either that the doctor did not write it or that the doctor was a liar.

After carefully reviewing all the evidence and Ms. Prodanovic's testimony, I find that Ms. Prodanovic was not a credible witness. Whether the evidence dealt with something as material as the events surrounding the accident or as immaterial as whether she still owned a bike, I find that Ms. Prodanovic was dishonest and self-serving in her responses. Wherever the testimony of the witnesses and the documentary evidence contradicts Ms. Prodanovic's own testimony, I chose to accept and believe the other witnesses and the documentary evidence.

Although I do not find Ms. Prodanovic to be a credible witness, I, nevertheless, find that she was involved in an accident and that she suffered a sprain to the ligament of her left knee. The question then is whether Ms. Prodanovic is entitled to weekly benefits under section 13(1) and 13(8) of the Schedule because of any injuries she suffered from the accident.

In order to be eligible for weekly benefits under section 13(1) of the Schedule, the insured person must suffer an injury in an accident which causes a "substantial inability to perform the essential tasks in which he or she would normally engage". The test is not some inability to perform essential tasks, but a substantial or sizeable inability to perform these tasks¹⁷.

The Applicant's substantial inability is considered in relation to those activities that are determined to be the essential tasks in which the Applicant would normally engage, rather than the complete range of activities, pastimes and pleasures pursued by the Applicant prior to the accident¹⁸.

The No-fault Benefits Schedule is not intended to replace general damages under the tort law system and does not compensate individuals for loss of enjoyment of life or a reduction in the general quality of life¹⁹. The experience of pain itself is not compensated under the Schedule, except in a case where pain impairs function to such a degree that the person is substantially unable to perform his or her essential tasks²⁰.

In his submissions, Mr. McGhee stated that Ms. Prodanovic was suffering from chronic pain syndrome which substantially disabled her from performing the essential tasks²¹ in which she would normally engage. The evidence, however, reveals that as early as November 1991, Ms. Prodanovic was able to do her housework, although with some pain. In January and February 1992. she was attending ESL classes every day and going there on her own, by street car. This was a new activity that she was not doing before the accident. As well, Ms. Prodanovic has continued to regularly attend ESL classes in 1993, 1994 and 1995²².

I accept the evidence that I saw on the videotape that Ms. Prodanovic can walk, stand, sit and bend with relative ease, considering her weight. Even if I accepted, which I do not, that Ms. Prodanovic engaged in figure skating and high jumping before the accident, I do not consider either of these activities or bicycling to be essential tasks that she would normally engage in²³. Whether or not Ms. Prodanovic is employable, I believe she is capable of the task of seeking employment which she alleged that she was doing before the accident.

For all of the above reasons, I find that Ms. Prodanovic is not entitled to section 13(1) benefits. Given my finding on this point, it is not necessary for me to consider whether Ms. Prodanovic satisfies the more stringent definition of disability for benefits post-156 weeks under subsection 13(8).

Expenses:

Ms. Prodanovic seeks an award of the expenses she has incurred in this arbitration. In accordance with section 282(11) of the Insurance Act and the case law that has evolved, I find that Ms. Prodanovic is entitled to her expenses as set out in Schedule 1 of the Dispute Resolution Practice Code. In the event that the parties cannot agree as to the total amount of expenses, I remain seized of this matter and a party may apply for assessment of the expenses before me.

Order:

1. Ms. Prodanovic is not entitled to weekly benefits pursuant to sections 13(1) and 13(8) of the Schedule.

2. Ms. Prodanovic is entitled to her expenses incurred in respect to the arbitration.

June 9, 1995

Joyce Miller Arbitrator

Date

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. 2Exhibit 13
3. 3Exhibit 13
4. 4Exhibit 1, Tab 44
5. 5Exhibit 6(e)
6. 6Exhibit 6(e)
7. 7Exhibit 16
8. 8Exhibit 1, Tab 45
9. 9Exhibit 1, Tab 47
10. 10Exhibit 6(c)
11. 11Exhibit 12
12. 12Exhibit 1, Tab 15 at p. 5
13. 13Exhibit 1 tab 5
14. 14Exhibit 14 taken on May 31, 1995
15. 15Mr. Bruce McKay testified that she was under surveillance on February 12, 13, 14, 20, 1992; September 23, 24, 25, 1992; August 31, 1993; September 8, 1993, October 19, 20, 21, 1993; November 4, 1993. See also Exhibits 7 and 8.
16. 16Exhibit 9, video for October 19, 20, 21, 1993; Exhibit 10, video for November 4, 9, 1993; Exhibit 11, video for May 17, 19, 1995.
17. 17Lily Steele and Zurich Insurance Company, December 3, 1992, OIC File No. A-001024
18. 18Chor Ting Lui and Wellington Insurance Company, April 28, 1993, OIC File No. A-001894
19. 19Edgar Cowie and The Non-Marine Underwriters - Members of Lloyd's, March 9, 1993, OIC File No. A-001159 (under appeal)
20. 20Norman Downs and Allstate Insurance Company of Canada, July 18, 1991, OIC File No. A-000064
21. 21These essential tasks as noted above included housework, walking cycling, figure skating, high jumping and looking for a job.
22. 22Exhibit 16
23. 23See Cowie supra for a definition of "essential"```