Ontario Insurance Commission
Commission des assurances de l’Ontario
Neutral citation: 1996 ONICDRG 11
Appeal P-007209
OFFICE OF THE DIRECTOR OF ARBITRATIONS
DOMINION OF CANADA GENERAL INSURANCE COMPANY
Appellant/Respondent
and
CARLOTA GUZMAN
Respondent/Appellant
Before:
David R. Draper
Counsel:
Gary Spector (for Mrs. Guzman)
William McClelland (for Dominion of Canada)
APPEAL ORDER
Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The appeals are dismissed and the arbitration orders, dated February 21, 1995 and April 23, 1995, are confirmed.
Dominion will pay Mrs. Guzman's allowable expenses relating to its appeal of the preliminary decision, dated February 21, 1995. No expenses are payable with respect to Mrs. Guzman's appeal from the arbitration decision, dated April 23, 1995.
January 18, 1996
David R. Draper
Director's Delegate
Date
REASONS FOR DECISION
I. NATURE OF THE PROCEEDINGS
The dispute in this matter involves Mrs. Guzman's entitlement to weekly income benefits after March 24, 1993. The Insurer, Dominion of Canada General Insurance ("Dominion"), advanced two grounds for terminating her benefits. First, it claimed she was disentitled by section 16(2) of the Schedule1 because she worked for more than 90 days after the two-year anniversary of the accident. Alternatively, it claimed that Mrs. Guzman no longer met the eligibility test in section 12(1) of the Schedule.
The applicability of section 16(2) was addressed in a preliminary decision, dated February 21, 1995. The arbitrator concluded that Mrs. Guzman "did not work for a continuous period of ninety days after the two-year mark of the accident and, therefore, is not disentitled by s.16(2)."
Dominion appealed this decision. In its Notice of Appeal, Dominion asked that all further proceedings be stayed until the appeal was determined. The Director of Arbitrations denied this request, and the arbitration hearing on Mrs. Guzman's entitlement to weekly income benefits proceeded before a different arbitrator on April 3 and 4, 1995.
In a decision, dated April 23, 1995, the arbitrator concluded that Mrs. Guzman was not entitled to weekly income benefits after March 24, 1993. Mrs. Guzman appealed this decision, seeking an order that she is entitled to ongoing weekly income benefits.
The appeals proceeded by way of both written and oral submissions. In addition to the arbitration exhibits, I was provided with a transcript of the hearing held on April 3 and 4, 1995.
II. SECTION 16(2)
Section 16 of the Schedule provides:
16.--(1) Subject to section 15 and subsection (3), a person receiving a benefit under this Part may attend school or accept, or return to, work at any time during the first two years following the accident for any period of time without affecting his or her benefits under this Part if, as a result of the accident, he or she is unable to continue at school or in the occupation or employment.
(2) Subject to section 15 and subsection (3), after the two-year period referred to in subsection (1), a person receiving a benefit under this Part may attend school or accept, or return to, an occupation or employment for periods of up to ninety days without affecting his or her benefits under this Part if he or she, as a result of the injury, is unable to continue at school or in the occupation or employment.
(3) The insurer is not required to pay weekly benefits under section 13 for any week in which the insured person attends school.
[emphasis added]
For purposes of the preliminary issue, the parties agreed that "Mrs. Guzman did not work for more than 90 consecutive working days after August 30, 1992 [the second anniversary of the accident], but did work a total of more than 90 days after this date." The issue was the proper interpretation of the phrase, "for periods of up to ninety days." Dominion argued that section 16(2) protects the insured person's weekly benefits during any number of attempts to return to work after the two-year anniversary until the aggregate number of days worked exceeds 90. Mrs. Guzman claimed that it applies until the insured person returns to work for a single period of more than 90 consecutive working days.
The arbitrator concluded as follows:
Section 16 is designed to encourage persons receiving weekly income benefits to return to work. In my view, it would be inconsistent with this purpose to limit the number of times that the person may attempt to return to work, or to attach an adverse consequence for each failed attempt.
According to section 12 of the Schedule, weekly income benefits are to be paid during the period in which the insured person suffers the requisite disability under the section. In my view, the thrust of section 16 is on the length of time that an insured person is actually able to work, rather than on the number of attempts that she or he may make at returning to work.
Therefore, having regard to the intent and scheme of the Schedule, and in particular the purpose, structure and context of section 16, I conclude that the phrase "for periods of up to ninety days" in section 16(2) means "for one or more continuous periods of up to ninety days each". Accordingly, an insured person receiving weekly income benefits is rendered ineligible for such further benefits, only if, after the second anniversary of the accident, the person has worked for a continuous period of ninety days or more.
Dominion submits that the arbitrator erred in reading words into section 16(2). It claims that the plain meaning of the section, particularly in light of the use of the plural, "periods," is that the insured person's weekly income benefits are not affected by returning to work until the total number of days worked after the two-year anniversary of the accident exceeds 90.
Words should not be read into legislation that is clear and unambiguous unless it leads to some absurdity, repugnance, or inconsistency with the rest of the legislation. In my view, however, section 16(2) is ambiguous, and can legitimately be read as suggested by both parties. The question is whether the phrase "for periods of up to ninety days" means "for one or more continuous periods of up to ninety days each," as the arbitrator concluded, or "for one or more periods of up to a total of ninety days," as argued by Dominion.
In my opinion, the interpretation accepted by the arbitrator is preferable to the alternative urged by Dominion. The purpose of section 16(2) is to encourage those receiving weekly benefits to return to work. It does so by protecting the person's benefits until he or she demonstrates a real ability to return to work by working for a specified period. As stated by the arbitrator, "the thrust of section 16 is on the length of time that an insured person is actually able to work, rather than on the number of attempts that she or he may make at returning to work." I conclude, therefore, that the arbitrator did not err in interpreting section 16(2) to mean "for one or more continuous periods of up to ninety days each."
Two other issues were raised in the appeal with respect to section 16(2). First, Dominion submitted that the arbitrator erred in concluding that "periods of up to ninety days" means 90 consecutive work days, not including weekends or holidays. The arbitrator stated:
In calculating the number of days in a continuous period of work, days not worked by the insured person because they are not in the person's normal work schedule must not be included.
I have considerable difficulty with this approach, particularly with respect to someone who works a regular work week. In my view, the "period" referred to in section 16 is a period of consecutive days, or a calendar period.2 It is not clear from the agreed statement of facts, however, that Mrs. Guzman worked for any 90-day period, including weekends and holidays, following the two-year anniversary of the accident. Therefore, I find no reason to interfere with the arbitrator's conclusion that she was still protected by section 16(2) of the Schedule.
Finally, the parties made submissions about the effect of section 16(2). The preliminary issue was argued before the arbitrator on the assumption that if Mrs. Guzman had worked for a period of more than 90 days following the two-year anniversary of the accident, she would be precluded from receiving any further weekly income benefits. However, a subsequent arbitration decision held that working for 90 days does not preclude further entitlement to weekly benefits, but creates a rebuttable presumption that the insured person is no longer entitled.3 This issue was not considered by the arbitrator, and is not essential to my decision. In my view, it is better left for an appeal involving someone who is found to have worked for a period of more than 90 days following the two-year anniversary of their accident.
III. ELIGIBILITY
The arbitrator found that Mrs. Guzman was injured in an automobile accident on August 31, 1990. At the time of the accident, she was 35 years old, and was working as a financial analyst for AMEX Canada Inc. She returned to work following the accident, but was unable to continue for certain periods. The specifics of her return to work, as found by the arbitrator, are as follows:
. . . The Applicant continued to work until the first week of October 1990 and then stopped on account of her injuries. She returned to work part-time in November 1990 and full-time in January 1991. The Applicant was absent from work for about 40 days in 1991. From the beginning of 1992 she was off work for much of the time between January and May. The parties did not agree about how much time Mrs. Guzman missed from work between May 1992 and March 1993.
On March 25, 1993, Mrs. Guzman's employer advised that her employment was terminated and that her current salary and benefits would be maintained until September 16, 1993. The employer said that the termination was the result of downsizing. Mrs. Guzman says the termination was the result of her employer's dissatisfaction with her absences and a deterioration in the quality of her work, both of which were caused by the injuries she suffered in the accident of August 31, 1990.
Dominion refused Mrs. Guzman's claim for weekly income benefits under section 12(1) of the Schedule from the time that she stopped working on March 25, 1993. The test for eligibility is set out in section 12(1), as follows:
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 a substantial inability to perform the essential tasks of his or her occupation or employment if the insured person meets the qualifications in subsection (2) or (3).
The arbitration hearing to determine whether Mrs. Guzman met this eligibility test took place over two days. Both parties were represented. Mrs. Guzman was the only witness called in support of her claim, but she also filed medical documents from eleven health care professionals. Dominion presented documentary evidence and called three witnesses, including:
Mr. William Comeau - Director of Customer Information Management for AMEX.
Mr. Timothy Owen - Associate Executive Director of COSTI, an agency that provides training programs in association with boards of education and community colleges.
The arbitrator concluded that Mrs. Guzman was not entitled to weekly income benefits for any period after March 24, 1993. Mrs. Guzman disagrees with this result, and submits that the arbitrator erred in a number of respects.
The testimony of Mr. Comeau
Mrs. Guzman submits that Mr. Comeau should not have been allowed to testify because she was not given sufficient notice that he, or anyone else from AMEX, would be called as a witness. The representatives disagree about when notice was given, but Mrs. Guzman's representative acknowledges that he was advised on Friday, March 31, 1995 that Mr. Comeau would be called as a witness. The hearing started on the following Monday, April 3, 1995, and Mr. Comeau testified on Tuesday, April 4, 1995.
Although pre-hearing disclosure is encouraged, the Dispute Resolution Practice Code then in effect did not include any requirement that the parties exchange witness lists.4 The one exception was that prior notice was required for an expert witness. There is no suggestion, however, that Mr. Comeau was called as an expert.
Mr. Comeau testified about Mrs. Guzman's attendance and job performance at AMEX following the automobile accident. This has been a pivotal factual dispute throughout the history of this file. It was discussed at the pre-hearing conference and, as a result, Mrs. Guzman was required to produce employment records from AMEX. However, she had problems obtaining complete records. In order to deal with the lack of documentation, Dominion arranged for Mr. Comeau to review the available records, and testify at the hearing.
In my view, Mr. Comeau was an important witness, whose importance was not obvious until the parties learned that the AMEX records were incomplete. It is quite striking that Mrs. Guzman did not complain to the arbitrator that she had not been given sufficient notice. Therefore, the arbitrator had no indication that she was taken by surprise, or wanted an opportunity to arrange for someone else from AMEX to testify on her behalf.
It is difficult to conclude that the arbitrator erred in allowing Mr. Comeau to testify when there was no suggestion that he should be precluded. Even with the advantage of hindsight, I am not persuaded that there has been any violation of the principles of natural justice or fairness. Mrs. Guzman knew that her job performance at AMEX would be an issue at the hearing. She testified about it at some length. Therefore, she should not have been unduly surprised or unable to deal with Mr. Comeau's testimony.
It is also submitted that Mr. Comeau should not have been allowed to testify because he had a conflict. As I understand it, the argument is that because the limitation period for Mrs. Guzman starting a wrongful dismissal action against AMEX had not yet expired, Mr. Comeau was not in a position to give unbiased, credible testimony. Although this may have presented a legitimate area for cross-examination, I do not accept that it is a basis for excluding him as a witness.
Arbitrators must deal with issues of credibility and the weight that should be given to the evidence. In his decision, the arbitrator dealt with the conflict between the testimony of Mr. Comeau and Mrs. Guzman. He took into account the fact that Mr. Comeau was working with incomplete records, but preferred Mr. Comeau's testimony to Mrs. Guzman's. I find no error in the arbitrator's approach, and am not prepared to second-guess his evaluation of the evidence.
Mr. Owen's testimony
At the outset of the hearing, Dominion's representative advised the arbitrator that Mr. Owen, the Associate Executive Director of COSTI, was outside the hearing room with a file relating to Mrs. Guzman's participation in an employment program run by his organization. Mrs. Guzman objected to the production of this file, and presumably to Mr. Owen testifying. After hearing submissions from both representatives, the arbitrator ruled that the evidence from COSTI was admissible.
Dominion discovered that Mrs. Guzman might be involved in the COSTI program as a result of surveillance. Mrs. Guzman submits that Mr. Owen should not have been allowed to testify because she was not provided with copies of the surveillance reports. I agree with the arbitrator that Mr. Owen's evidence cannot be cast as surveillance evidence. The surveillance was simply the means by which Dominion learned that Mr. Owen might have information relevant to the arbitration. Dominion did not rely on the surveillance evidence and, therefore, was under no obligation to share the reports.
It is also submitted that the COSTI evidence should not have been accepted because Mrs. Guzman was not given sufficient notice. In my view, it is difficult for her to complain about the delay in bringing this information forward when she was not prepared to advise Dominion about her participation. Further, I agree with the arbitrator that there is no evidence that Mrs. Guzman was prejudiced by any lack of notice. Mr. Owen was the first witness in the hearing. Her representative was able to cross-examine him, and then Mrs. Guzman was able to respond when she presented her case.
Finally, it is submitted that Mr. Owen should not have been allowed to testify because he was not Mrs. Guzman's instructor at COSTI and, therefore, was the "wrong" witness. His lack of direct contact with Mrs. Guzman may well have limited his testimony, but that did not make him an inappropriate witness. Nothing was done to prevent Mrs. Guzman from calling someone else from COSTI in support of her position.
Housekeeping expenses
It is also suggested that by continuing to pay certain benefits, such as housekeeping expenses, Dominion acknowledged that Mrs. Guzman continued to be disabled. I do not accept this submission. The eligibility tests and the insurer's obligations are different for different types of benefits. The fact an insurer continues to pay some benefits does not affect its ability to argue that the person no longer is entitled to weekly income benefits.
The medical evidence
Mrs. Guzman submits that the arbitrator erred in giving insufficient weight to her medical documents. Her argument is that because disability is a medical issue, the arbitrator should have accepted the opinions of a number of her doctors that she was unable to work.
Although medical evidence is clearly important, the determination of an applicant's entitlement to weekly income benefits is ultimately a legal question - has she established on a balance of probabilities that she was injured as a result of an accident to the extent that she is substantially unable to perform the essential tasks of her pre-accident occupation or employment?
The arbitrator must evaluate the weight to be given to all of the evidence, including medical evidence. This appropriately involves a consideration of the information that the medical practitioners relied upon in forming their opinions. In this case, the arbitrator found that the strength of some of the reports was diminished because they were based on incomplete or misleading information.
Rather than pointing to any factual or legal error, Mrs. Guzman is asking me to reconsider the evidence and substitute my opinion. Previous appeal decisions have clearly established that it is not my function to rehear the case, or to second-guess the arbitrator's interpretation of the evidence.5 The arbitrator was in a better position to evaluate all of the evidence and, therefore, the decision should not be disturbed unless there was insufficient or no evidence to support the conclusions, resulting in an injustice. After reviewing the evidence, including the transcript, I conclude that there was ample evidence to support the arbitrator's conclusion.
IV. EXPENSES
The remaining question is whether Mrs. Guzman should be awarded her appeal expenses. I have no hesitation in awarding them in relation to Dominion's appeal of the preliminary decision. I am not convinced, however, that she should recover her expenses from her unsuccessful appeal.
Section 283(7) of the Insurance Act makes the provisions of section 282(11) applicable to appeals. Section 282(11) 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 order to facilitate access to the dispute resolution system, arbitration expenses have generally be awarded unless the arbitration was manifestly frivolous or vexatious, or the applicant's conduct unreasonably prolonged the proceedings. This approach was first articulated in McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139, and was approved, "in the main," by the Director in Calogero and The Co-Operators General Insurance Company, February 13, 1992, OIC File No. P-000251.
Reasonable access is also a concern for appeals, but the considerations are somewhat different. An appellant has already had an opportunity to present his or her case to an arbitrator, and has been given a written decision, with reasons. The purpose of the appeal is not to rehear the matter, but rather to determine whether there is some compelling reason to interfere with the decision. Therefore, an appeal is ill-advised unless some error can be demonstrated.
Appeal expenses do not strictly follow the result, but should not be seen as automatic. Unsuccessful appellants have been awarded their expenses where their appeal raised an important or substantive issue, or was reasonable in some other respect6. Expenses have been denied, however, where the appellant was unable to point to any error in the arbitration decision, where the allegations made in the appeal were unfounded, or where the appeal was seen as unreasonable.7
In my opinion, Mrs. Guzman's appeal is similar to that considered by the Director in Calogero, where she stated as follows:
This appeal is unsuccessful. It offered no grounds of appeal other than the arbitrator's preferring objective evidence over subjective testimony and hearsay. In other words, the appellant did not like the result of the arbitral hearing but that alone is not a reason for a substitution of the Director's opinion for that of the arbitrator. It was not reasonable to expect the Director to do so. I decline to award expenses to the appellant in this case.
Mrs. Guzman advanced some grounds for her appeal, but for the reasons set out above, I found them of little substance. Her real objection is to the arbitrator's evaluation of the evidence. In these circumstances, I decline to award her expenses.
January 18, 1996
David R. Draper
Director's Delegate
Date
Footnotes
- 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.
- This is the approach taken in the arbitration decision in Phillip Ralston and Progressive Casualty Insurance Company, August 8, 1995, OIC File No. A-004609.
- Rene G. Lafleur and Zurich Insurance Company, May 11, 1995, OIC File No. A-004141.
- Section 36.3 of the revised Dispute Resolution Practice Code (effective August 1, 1995), now requires that notice of witnesses be given not less than 10 days before the hearing.
- 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.
- For example, Salmon and Toronto Transit Commission (Markel Insurance), June 29, 1992, OIC File No. P-000235; Menard and Royal Insurance Company, December 3, 1992, OIC File No. P-001055; Sharon Lee and Unifund Assurance Company, September 14, 1993, OIC File No. P-000078; Beenan and The Continental Insurance Company of Canada, September 8, 1994, OIC File No. P-001239; Zeppieri and Royal Insurance Company of Canada, December 2, 1994, OIC File No. P-005237; Ramjeet and State Farm Mutual Automobile Insurance Company, February 28, 1995, OIC File No. P-004685.
- For example, Calogero and The Co-Operators General Insurance Company, February 13, 1992, OIC File No. P-000251; Kahkesh and Lloyd's Non Marine Underwriters, August 19, 1992; Epps and Co-operators General Insurance Company, December 14, 1994, OIC File No. P-002340.