Ontario Insurance Commission
Commission des assurances de l’Ontario
Neutral Citation: 1996 ONICDRG 143
Appeal P-005908
OFFICE OF THE DIRECTOR OF ARBITRATIONS
MARIA RODRIGUES
Appellant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Respondent
Before:
David R. Draper, Director’s Delegate
Counsel:
Frank Zambosco (for Maria Rodrigues)
Joseph J. Sullivan (for State Farm)
APPEAL ORDER
Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The appeal is dismissed and the arbitration order, dated June 30, 1994, is confirmed.
State Farm will pay Maria Rodrigues her appeal expenses, fixed at $750, including disbursements.
August 26, 1996
David R. Draper
Director’s Delegate
Date
REASONS FOR DECISION
I. NATURE OF THE APPEAL
This is an appeal by Maria Rodrigues from an arbitration decision, dated June 30, 1994, denying her claim for weekly income benefits after February 17, 1993.
As found by the arbitrator, Mrs. Rodrigues worked in a factory assembling transformers. On November 25, 1991, she was involved in an automobile accident. She worked that day, but did not return the next day. In March 1994, when the arbitration hearing was held, she still had not returned to work.
Mrs. Rodrigues received weekly income benefits from State Farm Mutual Automobile Insurance Company (“State Farm”) under section 12 of the Ontario Regulation 672, Statutory Accident Benefits Schedule - Accidents Before January 1, 1994 (“the Schedule”) for approximately 13 months. Effective February 17, 1993, State Farm cancelled her weekly income benefits on the basis that her accident-related injuries no longer prevented her from returning to her pre-accident employment. Mrs. Rodrigues disagreed with State Farm’s decision, claiming that she was entitled to ongoing benefits.
The arbitration hearing took place over two days. In support of Mrs. Rodrigues’ claim, the arbitrator heard from Mrs. Rodrigues, her husband, her family doctor (Dr. Louise Desrosiers) and a rheumatologist (Dr. Donald T. McNeely). State Farm called a specialist in physical medicine and rehabilitation (Dr. John Darracott) and its claims superintendent (Peter Robinson). The parties jointly filed two volumes of medical documents.
Mrs. Rodrigues claimed to be disabled due to pain - primarily headaches and pain in her neck and back. According to the arbitrator, her doctors supported a diagnosis of post-traumatic fibromyalgia. Dr. Darracott, the specialist retained by State Farm, disagreed. In his opinion, Mrs. Rodrigues may have suffered soft-tissue injuries in the accident, but her ongoing complaints were psychogenic or consciously exaggerated. He did not find any reason why she could not return to her pre-accident job.
In her decision, the arbitrator concentrated on determining Mrs. Rodrigues’ functional limitations. She did not decide whether Mrs. Rodrigues suffered from fibromyalgia, but stated that “[i]f Mrs. Rodrigues does suffer from fibromyalgia, then I am not convinced by the evidence before me, that this condition was caused by the motor vehicle accident of November 25, 1991” (p.14).
The arbitrator concluded as follows:
Overall, I am not persuaded that the symptoms that Mrs. Rodrigues describes at this time are of such a substantially disabling nature as to prevent her from performing her essential job tasks. Her job is light work which is performed seated. She can stand or move about as required. Although I believe Mrs. Rodrigues experiences some pain in her lower thoracic and lumbar-sacral spine, which appears to be aggravated by damp weather and by exercise, I am not convinced that these continuing symptoms were caused by the motor vehicle accident of November 25, 1991. Nor am I able to conclude that after February 17, 1993, any injury which she received in the accident continues to have any significant effect on her ability to return to work. Accordingly, Mrs. Rodrigues is not entitled to any further weekly income benefits. (p.14)
Mrs. Rodrigues appealed the resulting order that she was not entitled to any additional weekly income benefits.
II. THE POSITION OF THE PARTIES
The appeal focussed on the following paragraph from page 8 of the arbitration decision:
When Mrs. Rodrigues was asked at the hearing whether she could do this work, she replied that she could not, because she feels a lot of pain in her back. She stated that she could not sit in a chair for more than an hour, so questioned how she could remain at work for eight hours. However, upon reflection, I observed that during the hearing of this matter in late March 1994, Mrs. Rodrigues was able to remain seated from 10:00 a.m. until close to 6:00 p.m. on the first day, then again from 10:00 a.m. until 3:00 p.m. the following day, with occasional breaks and a pause for lunch. From time to time Mrs. Rodrigues would stand momentarily, but it could not be said that she spent any great period of time throughout the hearing on her feet. She testified that she had taken one of her prescription analgesics (Surgam), for her back, prior to attending at the hearing.
Mr. Zambosco submits that the arbitrator erred by going well beyond a consideration of Mrs. Rodrigues’ demeanor. He contends that she did not adequately consider Mrs. Rodrigues’ need to be at the hearing to testify and instruct counsel, or that she took “constant breaks.” Further, she made essentially medical findings without any of the doctors being asked about the significance of Mrs. Rodrigues’ attendance at the hearing.
Mr. Zambosco claims that the arbitrator’s “observation” was critical because it affected her assessment of the other evidence. For example, the surveillance videotapes show Mrs. Rodrigues going about her activities with little indication of limitations, except when she was walking with her rehabilitation worker. Rather than accept Mrs. Rodrigues’ explanation that she was tired from her morning walk, the arbitrator found an “almost irresistible inference that Mrs. Rodrigues can perform at different levels of activity, depending upon the audience” (p.11).
According to Mr. Zambosco, if the arbitrator’s consideration of Mrs. Rodrigues’ attendance at the hearing is removed, the evidence in her favour is overwhelming. He submits that Mrs. Rodrigues’ five treating physicians all supported her claim. The only dissenting voice was Dr. Darracott, who saw Mrs. Rodrigues only twice.
State Farm submits that the arbitrator’s findings were supported by the evidence and, therefore, should not be disturbed on appeal. It claims that Mrs. Rodrigues’ doctors based their opinions on her complaints, while the arbitrator had a duty to assess the accuracy of those complaints, which she did. Mr. Sullivan pointed to nine places in the decision where the arbitrator dealt with Mrs. Rodrigues’ credibility, submitting that her ability to sit at the hearing was only one consideration, not the “lynchpin” of the decision.
III. ANALYSIS
The fact that a number of doctors provided opinions supporting Mrs. Rodrigues’ claim is important, but not determinative. As stated by the arbitrator, her role is different from the doctors’. She was faced with a dispute about the extent of Mrs. Rodrigues’ injuries, their relationship to the automobile accident, and their impact on her ability to do her pre-accident job. Her task was to consider all the evidence, assess its strength, and make a decision.
In evaluating the importance of any medical opinion, the arbitrator must consider factors such as the expertise of the doctor, his or her opportunity to evaluate the applicant, and the accuracy of the information upon which the opinion is based. In cases, such as this one, where a doctor is relying on the subjective complaints of his or her patient, the accuracy of those complaints is crucial.
It is clear from the reports that Mrs. Rodrigues’ doctors relied on her complaints, not only to diagnose and treat her, but also as the basis for their opinions about her ability to work. Perhaps the most extreme example is Dr. Naumitz, who stated:
This lady has complained of headaches, neck pain and back pain, and an inability to sit for more than half an hour.
Given that these are her complaints, it may be impossible for her to return to the type of work that has been described, namely sitting for 95% of the day . . .1
With respect, this kind of opinion provides little assistance. It is undoubtedly true that someone who cannot sit for more than half an hour is substantially unable to perform the essential tasks of a job that demands prolonged sitting. However, the arbitrator had to determine whether Mrs. Rodrigues was actually limited to this extent, whether her limitations resulted from the accident, and whether her job duties required her to sit continuously, or offered a chance to stand and stretch from time to time.
The arbitrator’s role is to evaluate the evidence, not perform a medical assessment. I would be concerned, therefore, if the arbitrator had relied on her own observations to conclude that
Mrs. Rodrigues’ was capable of working. In my opinion, however, that is not what she did. Mrs. Rodrigues told the arbitrator she could not work because she was unable to sit in a chair for more than an hour. She told her doctors roughly the same thing, and they based their opinions on this information. I see nothing wrong with the arbitrator evaluating this evidence in light of apparently inconsistent observations of Mrs. Rodrigues’ activities, whether at the hearing or on videotape, subject to three limitations.
First, the observation itself must be accurate. With surveillance evidence, this may involve issues of identification or editing. In this case, the arbitrator relied on her own observations. She acknowledged that there were occasional breaks during the hearing, including a “pause for lunch,” and that Mrs. Rodrigues stood “from time to time,” but it “could not be said that she spent any great period of time throughout the hearing on her feet” (p.9). Other than Mr. Zambosco’s assertion that Mrs. Rodrigues took “constant breaks,” there is nothing to suggest that the arbitrator’s observations are wrong.
Second, observations will rarely prove that the person can do his or her job. The question is whether the observation is consistent or inconsistent with the limitations that the person reports. As I read the decision, the arbitrator simply stated that in light of Mrs. Rodrigues’ ability to participate in the hearing, her evidence about her inability to sit, and the medical opinions based on that understanding, could not be accepted at face value.
Finally, the value of any observation is reduced if the person is not given an opportunity to respond to the apparent inconsistency. There may be a good reason why the arbitrator should not treat the observation as representative. In essence, that is what Mr. Zambosco argued here: Mrs. Rodrigues had to be at the hearing and, therefore, she suffered through it.
It is not clear what Mrs. Rodrigues was asked about her participation in the hearing. According to the decision, however, she testified that she took medication beforehand, suggesting that the issue was raised. I also note that in his appeal submissions, Mr. Zambosco argued that the doctors were never asked to comment on the significance of Mrs. Rodrigues’ attendance at the hearing, but did not suggest that she was not asked.
I am satisfied that the arbitrator made appropriate use of her observations of Mrs. Rodrigues. She did not treat them as determinative, but as raising a question about the evidence. Starting at page nine of the decision, the arbitrator went on to explain her reasons for concluding that the evidence did not establish Mrs. Rodrigues’ entitlement to weekly income benefits after February 17, 1993. In my view, her approach was proper and her conclusion was supported by the evidence.
IV. APPEAL EXPENSES
Mrs. Rodrigues claimed her appeal expenses. Mr. Sullivan submitted on behalf of State Farm that the appeal was without merit and was not pursued in a timely manner. He argued, therefore, that Mrs. Rodrigues should not receive her expenses. Further, he submitted that she should be ordered to pay an assessment under sections 283(7) and 282(11.2) of the Insurance Act because the appeal was frivolous, vexatious or an abuse of process.
In previous decisions, it has been held that the principles for granting appeal expenses are different from those governing arbitration expenses.2 Appeal expenses do not strictly follow the result, but unsuccessful applicants cannot expect to recover their appeal expenses unless they raise a substantial issue. Mere disagreement with the arbitrator’s evaluation of the evidence is not sufficient.
Although I agree with Mr. Sullivan that this appeal was primarily fact-based, it raised an important issue about an arbitrator’s ability to observe and consider the physical capacity of the applicant during the hearing. I conclude that Mrs. Rodrigues should recover her appeal expenses, fixed at $750 including disbursements.
August 26, 1996
David R. Draper
Director’s Delegate
Date