Ontario Insurance Commission

Commission des assurances de l’Ontario

Neutral Citation: 1996 ONICDRG 147

Appeal P-000571

FRANCESCO COSTANTINO Appellant

and

WELLINGTON INSURANCE COMPANY Respondent

Before: Elisabeth Sachs

Counsel: Nick W. Ranieri (for Francesco Costantino) Edmund W.J. Kent (for Wellington Insurance Company)

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 November 18, 1993, is confirmed.
Mr. Costantino is not entitled to his appeal expenses.

August 28, 1996

Elisabeth Sachs Director of Arbitrations

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Francesco Costantino was injured in a motor vehicle accident on July 24, 1991. He received weekly income benefits from the Wellington Insurance Company ("Wellington") until April 25, 1992 under section 12 of O.Reg. 672, Statutory Accident Benefits Schedule—Accidents before January 1, 1994 (the Schedule), when they were terminated .

An arbitration hearing was held over three days in August 1993. The arbitrator heard oral testimony from Mr. Costantino, an occupational therapist, an orthopaedic specialist and the plant manager of his employer, Prima Dinettes ("Prima"). Sixteen exhibits, including case and documents briefs, were filed.

This appeal deals with the arbitrator's consideration of medical and rehabilitation reports before her and the weight given them, as well as her findings of credibility in coming to the conclusion that Mr. Costantino was substantially able to perform the essential tasks of a band saw operator. Mr. Costantino submits the arbitrator erred in finding him eligible for weekly income benefits up to May 29, 1992 only. He says the arbitrator was not justified in discounting the evidence which supported his position and in finding he tailored his evidence to "best suit his purposes". His objections to the decision revolve around the arbitrator's treatment of the totality of the evidence, which Mr. Costantino submits led to there being no real basis for her ultimate conclusion.

II. ISSUES AND ANALYSIS

Mr. Costantino asked for a reconsideration of the medical/rehabilitation exhibits filed at the hearing, and a review of the arbitrator's reasons as to why she preferred the oral evidence of the plant manager over his own evidence on what constituted the essential tasks of his employment. No transcript of the evidence was provided, although the hearing was recorded. I have commented previously on the difficulties parties face when attempting to refute facts found, or weight placed on oral testimony, when a transcript is unavailable.¹

The arbitrator has a duty to make findings of fact after hearing witnesses, reviewing documents tendered as exhibits, and listening to the submissions of the parties. The arbitrator weighs the evidence and accepts it, in full, in part, or not at all. The arbitrator makes findings of credibility, based on the evidence presented.

The Director does not hear witnesses directly, nor can their oral testimony be realistically evaluated, absent a transcript. Where a transcript is available, the Director is still not in the same position as the arbitrator to assess the demeanor of the witnesses, the manner in which their evidence was given and make other observations which may be relevant to findings of credibility.

The Director's function is one of appeal - to review cases where a party alleges an error in fact or law - not of first instance. Where a party alleges an error in fact has occurred, the Director may only interfere with the arbitrator's assessment and substitute another finding once it is determined that the arbitrator's conclusions have insufficient or no evidence whatsoever to support them.² If, on a re-examination of the evidence, the arbitrator's findings are supportable, it is not the Director's function to make a different finding. To do so would usurp the arbitrator's role, and undermine the integrity of the adjudicative process in the Insurance Act.³

The arbitrator set out, at some length, her reasoning for preferring certain evidence. She accepted the evidence of Mr. John Seminerio, the plant manager of Prima, about the nature and extent of the essential tasks of a band saw operator, listing them in considerable detail at pages 5 and 6 of the decision. These tasks were outlined in Exhibit 7 and augmented by oral testimony.

Mr. Costantino had been employed at Prima nine days when the accident occurred. The arbitrator then noted where she found the evidence of Mr. Costantino and Mr. Seminerio differed. She preferred Mr. Seminerio's testimony, but acknowledged his and Mr. Costantino's evidence was fraught with difficulty - both had acknowledged, or were shown, not to have told the truth. Mr. Costantino either lied to the arbitrator, or to a court in an affidavit sworn in support of a divorce action. As for Mr. Seminerio, he admitted before the arbitrator that some of the statements he made to Wellington about Mr. Costantino's job performance (Exhibit 6) were not true in order to make Mr. Costantino's collection of accident benefits harder. Faced with these less than satisfactory witnesses, the arbitrator had to make a determination of the job tasks of a band saw operator from the evidence available. This she did.

Mr. Costantino urges me to place a different weight on the evidence than that accorded it by the arbitrator. He is asking the evidence be reassessed. In line with the principles set out above, I can see no reason to overturn the arbitrator's decision in that regard. She commented at page 7:

He [the plant manager] is an independent witness...interested in maximizing production and profit, and has no personal interest in the outcome of the proceeding.

On cross-examination, I found the Applicant [Mr. Costantino] to be evasive about [an affidavit he had sworn]. If the Applicant told the truth under oath in this proceeding, then the contents of the affidavit are false. I am left with the impression that the Applicant makes statements that will best suit his purposes, given the circumstances.

As to the medical evidence, the arbitrator preferred the evidence of Dr. Garson Conn, the orthopaedic specialist who testified at the hearing, to the various written reports of Dr. Lorne Sokol, a family doctor Mr. Costantino first visited after the accident. She also discounted the possible psychological sequelae from the accident as having any significant impact on Mr. Costantino's ability to perform his essential tasks. Until March 1992, when he was referred to the Canadian Back Institute, Mr. Costantino's participation in rehabilitation programs was sporadic, and his treatment primarily passive. Dr. Conn found no objective basis on which it could be said Mr. Costantino was as disabled as he claimed, although there was some indication of muscle spasm and tenderness. Mr. Costantino submitted Dr. Conn examined him only twice and that alone makes his evidence less valuable than that of Dr. Sokol, who saw him at least 53 times after the accident.

The arbitrator also preferred the conclusions of the Canadian Back Institute (C.B.I.) in its 1992 reports (after a six-week program) to those set out in the February/March 1993 Job Match Analysis by F.I.T. for Work Centres, arranged by his counsel. The C.B.I. report dated May 5, 1992 contained the following:

[Mr. Costantino] appears to maintain at present a level of function which is compatible with the physical and critical demands associated with his current form of employment as provided to our facility from the referral source. ...

Based upon this data it would appear a full return to work potential is possible.

This was outlined to Mr. Costantino on his final treatment attendance and throughout the last few weeks of his program. He continued to maintain the job description parameters provided to our facility were not accurate and that he presently lacked the functional capabilities to perform his work duties. These parameters, however, have been confirmed by the referral source.

The job description relied on by C.B.I. was the one supplied by Prima. It accords in all material respects with the essential tasks of Mr. Costantino's employment as found by the arbitrator.

One year later, F.I.T.'s report notes Mr. Costantino's own view that low back and neck pain limit his ability to manage the material handling aspects of his work despite its demands being described as "light" in accordance with the Canadian Classification and Dictionary of Occupations.

I reviewed the reports above, as well as those reports and notes of Drs. Blau (chiropractor), Gershon (medical consultant), Maser (internal medicine), Merigis (psychologist) and Rittenberg (F.I.T.). Taken only at face value, acceptance of some of these reports may have resulted in the decision not being so clear cut. However, the arbitrator was called upon to make a judgment based on all the material before her, including the oral evidence at the hearing. Conflicting opinions from several health professionals were given. She gave reasons why she accepted some of this evidence, and not all of it. She heard Mr. Costantino on the physical aspects of his situation, and weighed it for credibility. She accepted Mr. Costantino had residual pain, but concluded this alone does not equate to disability. At page 12, the arbitrator wrote:

While I accept the Applicant's evidence that he suffers pain as a result of the accident, I do not find this pain is of such a debilitating nature that it prevents him from performing the essential tasks of a band-saw operator.

Although the arbitrator then found Mr. Costantino was functionally able to resume employment following his last visit to C.B.I., she allowed benefits for a further 6 weeks until the date of Dr. Conn's examination on May 29, 1992.

On balance, I cannot say the arbitrator so misdirected herself in her findings of fact or weighing of the quality and persuasiveness of the totality of the evidence that the resulting order must be overturned. Accordingly, the appeal is dismissed.

III. EXPENSES

An award of expenses is not based strictly on outcome, but where an unsuccessful appeal is essentially about a party's dissatisfaction with the result, without more, no award is generally made. Mr. Costantino is not entitled to appeal expenses.