Ontario Insurance Commission / Commission des assurances de l’Ontario
Neutral Citation: 1996 ONICDRG 184 Appeal: P-000370 Office of the Director of Arbitrations
Jimmie Joe Hunt, Appellant and Royal Insurance Company of Canada, Respondent
Before: Elisabeth Sachs
Counsel: Jimmie Joe Hunt (in person) Nestor E. Kostyniuk (for Royal 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 October 15, 1992 is confirmed.
Mr. Hunt is entitled to his appeal expenses, limited to the appeal filing fee of $100.00.
October 28, 1996
Elisabeth Sachs Director of Arbitrations
Date
REASONS FOR DECISION
I. BACKGROUND
Jimmie Joe Hunt was injured while travelling as a passenger on a Toronto Transit Commission bus on October 3, 1990. He applied for statutory accident benefits from Royal Insurance Company of Canada ("Royal") under O. Reg. 672, the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994, (the Schedule). Royal paid Mr. Hunt weekly benefits under section 13 of the Schedule until they were finally terminated on June 4, 1991.
Mr. Hunt claimed continued entitlement to benefits until March 15, 1992. Royal took the position that no "accident" had occurred as defined in the Schedule, and in any event, claimed Mr. Hunt had not been injured and had deliberately misled Royal.
An arbitration hearing took place over two days at which Mr. Hunt, his wife and daughter, the driver of the bus Mr. Hunt was riding in, and a psychiatrist testified. Twenty seven exhibits were filed. The arbitrator found an "accident" occurred on October 3, 1990, and that Mr. Hunt was injured as a result. However, she concluded that Mr. Hunt, who was retired, did not suffer a substantial inability to perform the tasks he would normally engage in after benefits were terminated. She also found Royal had not been misled by Mr. Hunt.
Mr. Hunt had counsel throughout the arbitration process but represented himself in the appeal. He filed a Notice of Appeal two days after the expiration of the time for appeal set out in subsection 283(3) of the Insurance Act, R.S.O. 1990, c.I-8 (the Act). Royal objected to the late filing. Both parties made written submissions on the issue. I ordered the time extended to the date of filing.
II. ISSUE AND ANALYSIS
Mr. Hunt's principal objection to the arbitrator's decision is that in coming to the conclusion that he was not substantially disabled after June 5, 1991, she failed to accord the appropriate weight to medical and physiotherapy reports filed on his behalf. He says the arbitrator applied the "letter of the law", ignoring its "spirit and intent". He submits that accident benefits are meant to recognize those activities he used to undertake, or planned to do, which were compromised as a result of his injuries. Mr. Hunt says there cannot be a finding that he is able to perform his essential tasks when he no longer has the energy to do them. He supports this approach by referring to the reports of Dr. A. Kachooie, Dr. Wong, and the physiotherapy clinic. Mr. Hunt also claims the arbitrator incorrectly interpreted the evidence of his psychiatrist, Dr. Michael Brennagh, who testified at the hearing.
Royal points out that the arbitrator was careful to evaluate the evidence relating to the injuries Mr. Hunt sustained in the October, 1990 accident, and in a subsequent accident in almost identical circumstances on September 29, 1991. It submits Dr. Kachooie's report, on which Mr. Hunt relies, co-mingled the after-effects of the two accidents and had to be approached cautiously. Royal notes the March 22, 1991 report of Dr. J. Halpenny, not referred to by the arbitrator in her decision but was filed, states Mr. Hunt's injuries were "mild to moderate in degree" and that as of that date he was "able to function well on a day-to-day basis". As this report is part of the record, Royal says I am entitled to consider it when assessing whether the arbitrator misapprehended the evidence, or came to conclusions not supported by the evidence. Royal agrees that Mr. Hunt continued to have some residual neck and shoulder pain at the time Dr. Halpenny conducted his examination, but even then it claims Mr. Hunt could carry on with his essentially sedentary lifestyle. The arbitrator also considered the effect of Mr. Hunt's pre-accident psychiatric disorder, particularly as it related to his perceptions about his abilities, in determining what tasks he was capable of doing.
Previous decisions have commented on the standard of review of an arbitrator's decision on appeal.1 As the trier of fact, the arbitrator is in a unique position to evaluate the oral testimony of the parties and their witnesses. The arbitrator has a duty to make findings of fact, after listening to the witnesses, reviewing and evaluating the medical, financial and other documents filed as exhibits, and listening to the parties' submissions. The arbitrator then weighs the evidence and accepts it wholly, partially or not at all. The Director is not in the same position.
The Director's function is one of appeal, not of first instance. Where a party alleges the arbitrator has misconstrued the facts, or is simply wrong given the evidence adduced, the Director must review the record (and any fresh evidence that is allowed) to determine whether the arbitrator's conclusions have sufficient evidence to support them. The Director should only interfere with the arbitrator's assessment, and substitute another finding, if it can be shown the findings are unsupportable, or clearly wrong.
In her decision, the arbitrator set out at length the testimony of the witnesses. She summarized Mr. Hunt's essential tasks, finding that his own definition of "accommodat(ing) myself to the desires of the time" was too wide. She looked at when Mr. Hunt was "substantially able" to resume his daily routine, including activities not part of his essential tasks. She wrote at page 16 of the decision:
In the case of this Applicant, the evidence shows that from June 1991 he was no longer inhibited in a great many of the daily activities that he carried out prior to the accident of October 3, 1990....Only minor residual disability remained. He was not able to row or renovate, but these were not "necessary and key tasks that were normally performed before the accident".
The Applicant testified he had many ambitions once he retired... He has not been able to do these things since the accident of October 1990. He attributes his failure to pursue these ideas to the accident. I have accepted the evidence ....that the optimistic ambitions of the Applicant are symptomatic of his depressive illness which predates the accident and is in no way causally related to it.
The arbitrator had ample evidence before her to make these findings. My review supports her conclusions that by the early summer of 1991, Mr. Hunt still had some pain and restrictions, but could do almost all he had before. Although Mr. Hunt was doing some tasks more slowly, he was able to do them. There is no error in the arbitrator's evaluation of the documentary evidence. As there is no transcript filed in the appeal, how she viewed the testimony is seen in the decision. No argument was advanced that her summary is inaccurate.
Once the factual findings were made, the arbitrator had to apply the provisions of section 13 of the Schedule to them. Mr. Hunt may see this as applying the "letter of the law" but that is what the arbitrator must do. In my view, there was no other conclusion she could have come to. Mr. Hunt may wish that the Schedule included a consideration of future possibilities, but it is clear to me the provisions speak to an ability to perform pre-accident essential tasks, not plans. No error of law was committed. The appeal is unsuccessful.
III. EXPENSES
Although Mr. Hunt has not succeeded in this appeal, he raised issues which went to the heart of the arbitrator's decision. Mr. Hunt represented himself and I was not advised of any expense, other than the filing fee paid, incurred. Accordingly, I am awarding Mr. Hunt his appeal expenses, limited to the filing fee of $100.
October 28, 1996
Elisabeth Sachs Director of Arbitrations
Date