Maria Puopolo v. Wellington General Insurance Company, 1996 ONICDRG 126

Ontario Insurance Commission / Commission des assurances de l’Ontario

Neutral Citation: 1996 ONICDRG 126

Appeal P-006445

OFFICE OF THE DIRECTOR OF ARBITRATIONS

MARIA PUOPOLO Appellant

and

WELLINGTON GENERAL INSURANCE COMPANY Respondent

Before: David R. Draper

Counsel: Altor Shields (for Maria Puopolo) Edmund Kent (for Wellington)

APPEAL ORDER

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

1. The appeal is dismissed and the arbitration order, dated December 24, 1994, is confirmed.

2. Mrs. Puopolo is entitled to her appeal expenses.

July 25, 1996

David R. Draper Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Maria Puopolo, a homemaker, was injured in a motor vehicle accident on February 13, 1992. She received accident benefits from Wellington Insurance Company (“Wellington”), including weekly benefits under section 13 of Ontario Regulation 672, Statutory Accident Benefits Schedule - Accidents Before January 1, 1994 (“the Schedule”). Wellington stopped paying weekly benefits, effective February 24, 1993, on the basis that Ms. Puopolo was no longer substantially unable to perform her essential tasks. She disagreed with this decision.

Following an unsuccessful attempt at mediation, Ms. Puopolo applied for arbitration. In a decision dated December 24, 1994, the arbitrator ordered that she was not entitled to any additional weekly benefits. In her appeal, Ms. Puopolo asks that this order be rescinded and that Wellington be ordered to pay her ongoing weekly benefits.

II. ANALYSIS

My role on appeal is not to second-guess the arbitrator’s interpretation of the evidence.¹ Her decision was based on a two-day hearing during which she heard from four witnesses, including Mrs. Puopolo and her husband. The proceedings were not recorded and, therefore, no transcript is available for the appeal.

Counsel for Mrs. Puopolo acknowledged my limited role on appeal, but contends that a number of errors are apparent from the decision. I will deal with his submissions in the order they were presented to me.

A. The Approach to Eligibility Under Sections 12 and 13

The Schedule includes two types of weekly benefits. Section 12 applies to those who were employed or self-employed at the time of their accident, or who met one of the other work-related tests set out in the section. The amount of the weekly income benefits paid under section 12 depends on the person’s pre-accident income, although a pre-accident job offer can also be considered. Those who do not fit under section 12, such as Mrs. Puopolo, apply for weekly benefits of $185 under section 13.

The eligibility tests under the two sections are as follows:

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

13.--(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident, a weekly benefit during the period in which the insured person suffers substantial inability to perform the essential tasks in which he or she would normally engage . . .

[emphasis added]

Mrs. Puopolo contends that the arbitrator erred in applying a different, stricter test under section 13 than is applied under section 12. The relevant portion of the decision is found at page 8:

In my view, the testimony of both Giovanni Puopolo and Maria Puopolo suggests that Mrs. Puopolo is able to perform many of her essential tasks, although she may have some pain and she may need to take periodic breaks while performing tasks requiring crouching and kneeling. Further, Mr. and Mrs. Puopolo may have shifted the distribution of chores between them. In E. Simpson and Royal Insurance Company of Canada, April 6, 1994, OIC File No. A-003863 (under appeal), I made the following comments about a homemaker's entitlement to section 13 benefits:

Whereas the employer generally determines the essential tasks of an employee, and how they will be accomplished, a person who is not working has much more flexibility in deciding what his tasks are and how he will accomplish them. This is especially the case with the division of household chores within a family. In my view, it is appropriate to recognize this flexibility by considering whether the insured person's pre-accident essential tasks could be accomplished with reasonable and practical modifications.

I find the same approach to be applicable in this case. I find that since February 24, 1993, Mrs. Puopolo is substantially able to perform her essential tasks with reasonable and practical modifications.

Mrs. Puopolo submits that arbitrators recognize that applicants under section 12 must be able to work at a reasonably competitive level. She argues that it is contrary to the plain meaning of the Schedule to expect applicants under section 13 to rearrange their entire pre-accident schedule and that of their family. While I agree with this submission, I am not persuaded that it reflects the approach taken by the arbitrator in this case.

Weekly benefits are not based solely on the severity of the person’s injuries. Rather, eligibility depends on the effect of the injuries on his or her life. This means that people with similar injuries will not necessarily receive the same benefits under the Schedule.

The level of disability required in both sections 12 and 13 is a “substantial inability to perform the essential tasks.” The essential tasks being considered, however, are different. Under section 12, it is the essential tasks of the person’s occupation or employment. Under section 13, it is the essential tasks in which he or she would normally engage. The demands of each person’s essential tasks, whether employment-based or not, will be different. Some jobs are more demanding than others. Similarly, the essential tasks of those who are not employed or self-employed vary in their demands.

It is the interaction between the injuries and the person's essential tasks that is critical. Certain injuries may prevent one person from performing his or her essential tasks, while presenting only a minor disruption for others. For example, a homemaker with young children could be seriously affected by a mobility impairment, while the same restrictions might not seriously interrupt the work of a self-employed professional working from an automated home office.

The evaluation under both sections 12 and 13 requires a realistic assessment of the consequences of the accident to the injured person. Do the injuries result in that particular person being substantially unable to perform his or her essential tasks?

This test makes it clear that eligibility does not continue until the injured person is able to perform his or her essential tasks exactly as before the accident. Eligibility only continues as long as there is a “substantial inability” to do so. In my view, the person’s ability to modify his or her essential tasks is a legitimate consideration in assessing whether he or she is “substantially unable” to perform his or her essential tasks.

Recently, I made the following comments in Bertsouklis and Liberty Mutual Fire Insurance Company (May 28, 1996, OIC P-006499), a case involving a self-employed painter claiming weekly income benefits under section 12:

In my opinion, job flexibility is an appropriate consideration in assessing an insured person's entitlement to weekly income benefits. If he can do his job tasks with minimal assistance, or can accomplish them in a different way, he may not be eligible. This analysis, however, must be realistic and reasonable. For example, I would not suggest that Mr. Bertsouklis or any other self-employed person is ineligible for weekly income benefits simply because they could reassign all of their tasks to someone else. (p.5)

This analysis also applies to section 13. For example, an applicant whose injuries prevent her from carrying groceries home without a cart would probably not be considered “substantially unable” to perform the essential task of grocery shopping, even if she never used a cart before the accident. However, she would not be disentitled simply because someone else was prepared to do all or most all of essential tasks for her.

I also accept Mrs. Puopolo’s submission that time is a factor that should be considered. Given enough time, even a severely disabled person can accomplish many tasks. Again, a realistic assessment is required. If the injured person is able to do his or her essential tasks at a somewhat slower pace, he or she may not be “substantially unable” to perform them, unless time is a critical factor. At some point, however, the reduced speed will “substantially” affect his or her performance.

The real question is whether the arbitrator went too far in considering Mrs. Puopolo's ability to modify her tasks in order to accomplish them. I am not persuaded that she did.

This is not a case where the person had to totally rearrange her pre-accident schedule and that of her family. Based on the testimony of Mrs. Puopolo and her husband, the arbitrator found that although Mrs. Puopolo may have experienced pain and required breaks when performing tasks involving crouching and kneeling, she was able to perform “many of her essential tasks” (p.8).

She also found that Mrs. Puopolo and her husband “may have shifted the distribution of chores between them.” There may have been adjustments in Mrs. Puopolo’s life, but the arbitrator was not convinced that they were substantial. I find no reason to interfere with these findings that, in my opinion, support the arbitrator’s conclusions.

B. Surveillance

The arbitrator found that a private investigator observed Mrs. Puopolo leaving a physiotherapy clinic, walking slowly and favouring her right leg. Mrs. Puopolo then drove a short distance to a cemetery, where she parked and walked about 30 yards to her mother’s grave. The investigator videotaped Mrs. Puopolo at the grave site. This videotape was an exhibit at the arbitration.

The arbitrator dealt with the surveillance in the following paragraph from page 9 of her decision:

Visiting and tending a parent's grave is likely to be an occasional task and one which an injured person is determined to perform, even if her pain prevents her from performing other tasks on a regular basis. However, it is of some significance that the tape shows Mrs. Puopolo driving, walking, and repeatedly crouching and bending from the waist for about 20 minutes. These are exactly the activities which Mrs. Puopolo claims she cannot perform. The tape reveals Mrs. Puopolo performing these functions without apparent discomfort, medical aid, or restriction of movement. I conclude that she is also able to drive, walk, bend, and crouch as required in performing her essential tasks. (p.9)

Although it was not raised as an issue, I am troubled by the nature of this evidence. Surveillance is always intrusive, but I question whether insurance companies should be involved in videotaping applicants, who are often their own clients, while they are involved in activities as personal as visiting the grave of a loved one. If the purpose is to show that the person is more active than he or she claims, surely there will be another opportunity to do the videotaping.

Mrs. Puopolo's contention is that the surveillance evidence does not support the arbitrator's findings. She submits that having found that visiting her mother's grave was an occasional activity that she was probably determined to continue whatever her limitations, the arbitrator should not have relied on this evidence to make positive findings about her functional ability.

The arbitrator did not suggest that the surveillance evidence showed Mrs. Puopolo doing her essential tasks, or equivalent tasks. She found it significant, however, because it showed Mrs. Puopolo doing things that she had told others, particularly the various doctors, that she could not do. Given the subjective nature of her complaints, the doctors had to rely heavily on Mrs. Puopolo's reports about her own symptoms. In my view, therefore, it was legitimate for the arbitrator to consider the surveillance evidence in evaluating the information provided to the doctors.

C. Cooperation with Rehabilitation

Mrs. Puopolo claims that the arbitrator erred in making an adverse finding based on her lack of cooperation with rehabilitation. She submits that unlike the Statutory Accident Benefits Schedule - Accidents on and after January 1, 1994, there is nothing in the Schedule to make this a factor. Also, there was evidence that Mrs. Puopolo continued to seek treatment even after the termination of her weekly benefits and into 1994.

I find no basis for questioning the arbitrator's finding that Mrs. Puopolo failed to pursue rehabilitation. She carefully reviewed the evidence and made findings supported by that evidence.

I am also not convinced that the arbitrator found Mrs. Puopolo ineligible for weekly benefits because she failed to pursue rehabilitation. In other words, the arbitrator did not impose a penalty for non-compliance. She explained her findings as follows:

In my view, Mrs. Puopolo's non-compliant behaviour provides further support for my finding that her knee injury no longer substantially disables her from performing the essential tasks in which she would normally engage. In addition, I find that the motor vehicle accident is not a significant contributing factor in causing any ongoing disability Mrs. Puopolo has suffered after February 1993. (p.12)

This paragraph reflects two considerations, both of which I view as appropriate. First, the arbitrator felt that Mrs. Puopolo's failure to follow-up with various recommendations for rehabilitation was a further indication that her injuries were not as debilitating as she suggested. Second, given Mrs. Puopolo's failure to pursue rehabilitation and medical options available to her, the arbitrator found that any ongoing problems were no longer “as a result of the accident.” Instead, they were as a result of other factors, including her decision not to pursue treatment.

D. Termination Date

Mrs. Puopolo submits that February 24, 1993, the date the arbitrator picked for the termination of weekly benefits, has no medical basis. She claims that the first medical report providing any support for termination is Dr. Ameis' report, dated May 16, 1994, although even that report does not state that she is able to do all of her essential tasks.

The suggestion is that February 24, 1993 is an arbitrary date. However, the arbitrator was not asked to decide the date on which Mrs. Puopolo was no longer eligible for weekly benefits. The issue was whether her eligibility continued beyond February 24, 1993.

As I have said previously, “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.”²

In this case, the arbitrator had the oral testimony of Mrs. Puopolo, her husband and Dr. Ameis. She analyzed the evidence on pages 5 - 8 of her decision, finding that by the end of 1992, Mrs. Puopolo had resumed many of her pre-accident activities. I find no reason to interfere with this finding.

E. “Reasonable Person” Test

Mrs. Puopolo submits that the arbitrator erred in adopting a "reasonable person" test, rather than looking at the effect of the injuries on her. I accept that the focus of the inquiry should be the impact of the injuries on the person, including idiosyncratic responses. However, the test is not purely subjective. The question is whether the injured person is unable to perform his or her essential tasks. In my opinion, this is the test applied by the arbitrator.

Finally, Mrs. Puopolo contends that having found that her fear of further medical procedures on her knee was "reasonable," the arbitrator should have found that she was eligible for weekly benefits during the prolonged rehabilitation period. The reference is to the following portion of the decision:

Mrs. Puopolo's fear of further procedures on her knee is understandable, but the Insurer cannot be expected to subsidize the prolonged recovery which may be the result of this decision. Nor is the Insurer obliged to pay for periods of disability which are attributable to unrelated personal or family circumstances.

I am not persuaded that the arbitrator was doing any more than acknowledging that Mrs. Puopolo’s fears were genuine. This does not detract from her conclusion that by February 24, 1993, Mrs. Puopolo was no longer substantially unable to perform her essential tasks as a result of her automobile accident.

III. CONCLUSION

For these reasons, I conclude that none of the appeal grounds warrant disturbing the arbitration order. More importantly, the arbitrator did not put forward separate grounds for her decision. She made various findings, all supported by sufficient evidence, and all leading to the conclusion that Mrs. Puopolo was not entitled to any further weekly benefits. Therefore, the appeal is dismissed.

III. APPEAL EXPENSES

Mrs. Puopolo asked for her appeal expenses. Wellington submitted that expenses should be denied because the appeal involved a simple disagreement with the arbitrator’s findings of fact, raising no significant issues.

Recent decisions have made it clear that although appeal expenses do not strictly follow the result, they will not be awarded unless the appeal raises some issue beyond a mere disagreement with the result.³ In my view, the awarding of expenses in this case is a borderline proposition. I am persuaded, however, that the issues raised were of sufficient merit that Mrs. Puopolo should receive her reasonable appeal expenses. If the parties are unable to agree on the amount, an assessment may be arranged by filing written submissions with the Registrar.

July 25, 1996

David R. Draper Director’s Delegate

Date

Footnotes

1. 1See for example, Calogero and The Co-Operators General Insurance Company, (February 13, 1992, OIC P-000251; Lee and Unifund Assurance Company, (September 14, 1993, OIC P-000078); Beenan and The Continental Insurance Company of Canada, (September 8, 1994, OIC P-001239).
2. 2Pisani and Simcoe & Erie General Insurance Company and Canadian General Insurance Company, (December 11, 1995, OIC P-0003929 and P-0005693).
3. 3This approach was initially adopted in Calogero and The Co-Operators General Insurance Company, (February 13, 1992, OIC P-000251). For more recent examples, see Offeh and Allstate Insurance Company of Canada, July 3, 1996, OIC P-006494) and Bertsouklis and Liberty Mutual Fire Insurance Company, (May 28, 1996, OIC P-006499).