Ontario Insurance Commission / Commission des assurances de l’Ontario
Neutral Citation: 1996 ONICDRG 185
Appeal: P-001478
OFFICE OF THE DIRECTOR OF ARBITRATIONS
M. P. Appellant
and
THE DOMINION OF CANADA GENERAL INSURANCE COMPANY Respondent
Before: Elisabeth Sachs
Counsel: Robert W. MacQuarrie (for M. P.) James W. Touhey and Brian A. Ward (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 appeal and cross-appeal are dismissed and the arbitration order dated May 21, 1993 is confirmed.
Mr. P. is not entitled to his appeal expenses.
October 29, 1996
Elisabeth Sachs Director of Arbitrations
Date
REASONS FOR DECISION
I. BACKGROUND
Mr. M. P. claims he was psychologically or mentally injured in a motor vehicle accident on August 18, 1990. He received weekly income benefits from The Dominion of Canada General Insurance Company ("Dominion") under section 12 of O. Reg. 672, the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994, (the Schedule) in the amount of $632.19 until mid February, 1992. Thereafter, based on new information it received, Dominion reduced the weekly income benefit to $279.70, finally terminating all payments shortly thereafter.
Mr. P. claimed continued entitlement to weekly income benefits. The arbitration hearing took six days with testimony from Mr. P., his former spouse, two psychiatrists, the police officer who investigated the accident, and an insurer's representative. Among the 32 exhibits filed were voluminous medical and health care facility reports.
The arbitrator found Mr. P suffered from a pre-existing psychological condition which was not exacerbated by the accident. She also found the accident did not cause any other psychological or mental injury to Mr. P.. The arbitrator spent 28 pages of her 38 page decision detailing Mr. P's past medical history, the accident and its aftermath, the medical evidence and his credibility. Although she was sympathetic to Mr. P.'s situation and did not question he had a severe anxiety disorder, the arbitrator found he did not show on a balance of probabilities that the accident was a "material cause" of his incapacities or that it "triggered a recurrence of his panic disorder or aggravated an underlying anxiety state."( Decision p. 28)
The arbitrator determined the amount of weekly income benefits Mr. P. would have been entitled to had she not dismissed his claim outright. However, no argument was made by Dominion on repayment of benefits, and the arbitrator retained her jurisdiction to deal with that issue.
II. THE APPEAL
The relief sought in the Notice of Appeal is for the Director to refer "questions relating to the disability [of Mr. P.] and the proximate cause thereof" to the Medical and Rehabilitation Advisory Panel (M.R.A.P.) pursuant to subsection 283(7) of the Insurance Act, R.S.O. 1990, c. I-8, (the Act), so that a review be held by "medical advisors specialized in the field and qualified objectively and impartially to identify and confirm the proximate cause of [his] disabling anxiety condition...". The submission assumes the referral will result in a definitive answer on appeal.
In the alternative, Mr. P. submits that if no referral is made to the M.R.A.P., a new hearing is required as he alleges the arbitrator misdirected herself on the evidence, made errors in weighing the evidence and assessing credibility, particularly in relation to the testimony and reports of Dr. Selwyn Smith. Mr. P. also seeks to introduce fresh documentary evidence in the appeal, to support his request for a new hearing. Further written requests were made after the filing of the Notice of Appeal to introduce other documents said to bear on the credibility of Dr. Smith.
III. THE CROSS-APPEAL
Dominion filed a cross-appeal, raising three issues:
The Notice of Appeal was filed 3 days beyond the thirty day limit provided in subsection 283(2) of the Act;
The arbitrator's method of determining the amount of weekly benefits is incorrect and constitutes an error of law;
If the arbitration decision is upheld and Mr. P. is not entitled to benefits, repayment of all amounts paid to Mr. P. should be ordered.
Two issues were dealt with by order before oral submissions. Firstly, the time for filing the Notice of Appeal was extended to the date of filing. Secondly, I determined the repayment of benefits issue was not properly before me. The arbitrator stated at page 37 of her decision:
I heard no evidence or submissions with respect to the discrete issue of repayment. Repayment is sought of almost three years' benefits. It is fair to assume that the Applicant relied on his no-fault benefits as his primary source of income during this period, while he was not working. I am troubled by the absence of submissions from either party in the circumstances.
Accordingly, I make no order with respect to repayment. I remain seized of this matter and will entertain further submissions from the parties at their request.
(Emphasis added)
Subsection 283(1) of the Act provides that a party may appeal an arbitrator's order. It was argued that in making no order, the arbitrator improperly declined to exercise her jurisdiction and in stating as she did, she made an appealable order. Thus it is argued I should determine repayment by hearing the parties. The arbitrator made it plain she had no foundation on which to decide the issue, and reserved her disposition of it. Even if her determination constitutes an "order", there was no material before me to lead me to substitute my own assessment. There is a mechanism in place to deal with the repayment issue if the parties were unable to resolve it.
Finally, I advised the parties that the method of calculating Mr. P's income benefits would only be relevant if the appeal succeeded - that is, if I found the arbitrator was wrong in concluding Mr. P's disabilities were not a result of psychological injuries caused in the accident.
IV. ISSUES AND ANALYSIS
A. Referral to the Medical and Rehabilitation Advisory Panel
The arbitrator was given extensive evidence about Mr. P.'s physical and mental condition before and after the accident. Many medical and clinic reports, hospital records and clinical notes were filed. Eighteen reports and certificates from six doctors are included in Exhibit 8 alone. Notes from clinics include ones in Canada and the United States. Reports and notes of a rehabilitation management company to which Mr. P was referred were filed. Two psychiatrists, one of whom had treated Mr. P. for several years, gave oral testimony. The transcripts of their evidence were filed in the appeal.
The arbitrator had a duty to reach a conclusion about the cause of Mr. P.'s disabilities based on the evidence presented. It was not suggested to the arbitrator at the hearing that the evidence was so controversial or incapable of being evaluated that there were outstanding questions for which an M.R.A.P. referral was required. Mr. P. submits since there was a "diversity" of opinion among the medical reports, and disagreements in portions of the oral testimony of Drs. Smith and Hamilton, the arbitrator had a duty to refer to the M.R.A.P. the question of whether the accident triggered a "panic attack", which then disabled Mr. P. so he could not continue in his occupation as a self employed real estate salesman.
The problem in this case was not a lack of medical evidence. It is difficult to see what value yet another medical or psychiatric opinion will have in establishing a connection between Mr. P.'s disability and the accident. After hearing Mr. P. and the psychiatrists, and reviewing the documentary evidence, the arbitrator did not believe there was any need to ask questions of the M.R.A.P.. The arbitrator did not isolate particular reports or records or testimony in her analysis, she considered them as a whole. The arbitrator had to draw a legal conclusion from the evidence - she was entitled to determine the sufficiency of the evidence enabling her to do so.
As I stated in Lee and Unifund, (September 14, 1993, OIC P-000078) at page 5:
It is up to the arbitrator to receive medical and other evaluative reports and decide for him or herself the weight to give them in light of all the circumstances and testimony at the hearing. The arbitrator has the option, if there are unanswered questions remaining, to refer these to the panel. It was not suggested at the hearing the arbitrator do so, nor did she find it necessary after reviewing the evidence. It is not up to the Director to second guess the arbitrator's choice, nor does a review of the evidence indicate any value in a referral to the panel.
After a review of the medical evidence, and the transcripts filed, I see no outstanding questions or issues which would benefit from a referral to the M.R.A.P. This aspect of the appeal is dismissed.
B. New Evidence on Appeal
Mr. P. asks that several documents be considered on the appeal. Dominion consented to the admission of two documents: its own flyer dated July, 1990 entitled "Keeping in Touch", describing Dominion's policy limits and transitional rules in moving from a tort based to a statutory accident benefits scheme; and a medical report of Dr. M. J. Hamilton dated February 18, 1991. The latter is already part of the record, as it is reproduced in Exhibit 8. Dominion's brochure was admitted.
Mr. P. presents other documents going to credibility issues raised during the hearing. It should be noted the arbitrator found, at page 6, that "...I cannot rely on [Mr. P.'s] testimony. I prefer to rely on the evidence in the medical reports and the credible oral testimony of other witnesses, where [Mr. P.'s] testimony contradicts such evidence."
There is a broad discretion to admit new evidence on appeal. At page 4 of my decision in Shelley L.P. and Royal, (June 23, 1995, OIC P-002235), the parameters of the discretion are set out as follows:
The admission of new evidence in an appeal is discretionary. As stated in the Bruno case, referring to the tests applied in criminal and civil appeal cases, at page 3:
"The principles developed in the case law are relevant as a touchstone and the Director should have regard to them, subject always to the overriding concepts of natural justice, fairness to the parties, and relevance."
I also concluded the initial criteria to be applied are:
"1. The evidence should generally not be admitted if by due diligence it could have been adduced at trial;
The evidence must be reasonably capable of belief;
The evidence must relate to a potentially decisive issue and if believed, taken with the other evidence at trial, be expected to have affected the result."
The documents submitted by Mr. P will be assessed having regard to these principles.
The first documents are a "Surface Weather Record" at Ottawa International Airport for the day of the accident, with attached letter from the weather office. The letter and record attest to the weather conditions on August 18, 1990, including that between 2 p.m. and 8 p.m., 22.6 mm. of rain were recorded. This evidence could have been produced at the hearing. It does not relate to a potentially decisive issue. Mr. P. testified it was raining hard at the time of the accident. Two witnesses who saw Mr. P. almost immediately after the accident (his spouse and the police officer) stated he had been drinking and was wet. Mr. P. denied drinking before the accident, but admitted he could not remember events surrounding the accident and its aftermath. Mr. P. says it is significant and must affect the arbitrator's findings of the officer's credibility generally that he had no record in his notes of, nor could he recall, the weather conditions on the day of the accident more than two years later. Dominion points out the officer's recollections are not in the record, nor was a transcript of his testimony filed.
Nothing turns on the arbitrator's conclusion that Mr. P. was likely drunk at the time of the accident. He was not convicted of the offence and his sobriety was not germane to any exclusion in the Schedule. It is irrelevant evidence: the officer was investigating Mr. P.'s disappearance from an accident scene as a "hit and run" and found him by locating his vehicle parked nearby. In my view, his recollection of the weather conditions does not otherwise affect the reliability of the officer's evidence.
The final set of documents relates to the credibility of Dr. Smith, the psychiatrist retained by Dominion, whose evidence was accepted by the arbitrator. The documents include court records from 1987 to 1990 dealing with Dr. Smith's conviction in a fraud case involving a group of doctors at the Royal Ottawa Hospital and a 1993 hearing (with a subsequent decision in early 1994) before the Discipline Committee of the College of Physicians and Surgeons arising out of the fraud. In response to the submission of these documents, Dominion seeks to introduce a letter from Dr. Smith as to the timing of the arbitral hearing and the institution of proceedings by the College.
As I understand his argument, Mr. P. suggests that because Dr. Smith was convicted of a criminal offence and later disciplined by his professional governing body, his truthfulness in giving evidence about Mr. P.'s mental status is in question. He says these documents go to the heart of Dr. Smith's evidence, as he was shown by the court and College proceedings to be a person disposed to lie. From the transcript of Dr. Smith's testimony, it is clear Mr. P.'s counsel knew about the criminal case. Dr. Smith admitted in cross-examination that he pleaded guilty to the fraud charge. Counsel did not pursue the line of questioning, nor did he relate the activity to Dr. Smith's professional medical opinion.
The court records predate the hearing by two years or more. The College documents post-date the arbitration hearing by a year. They deal only with Dr. Smith's billing practices and how he conducted his financial affairs. They do not reflect on Dr. Smith's ability to diagnose or treat patients. Dr. Smith's expertise was confirmed at the hearing by Mr. P.'s own treating psychiatrist, Dr. Hamilton and by documentation filed to qualify him as an expert at the hearing.
The court documents were available prior to the hearing. The College documents do not refer to Dr. Smith's professional abilities. The arbitrator had the basic information, as it came out in cross-examination, to include in her assessment if she thought it relevant and had a bearing on Dr. Smith's professional medical opinion. I decline to admit these records, and the responding letter of Dr. Smith, in the appeal.
V. NEW HEARING
While the Director may determine an appeal by way of a rehearing, appeal cases have consistently held that such a hearing is not as of right and will only be granted in the rarest of cases.1
The record before me includes all of the exhibits filed in the arbitration and full transcripts of the oral medical testimony. What cannot be evaluated is the manner in which the parties, witnesses and arbitrator interacted. There is no suggestion the hearing process itself was flawed. Given these circumstances, it would be highly unusual, in the absence of permissible new evidence, to rehear the case. An order for another multi-day hearing to cover the same ground must have a cogent basis.
The arbitrator set out why she did not find Mr. P. credible - he misled the insurer about his financial circumstances; disputed his own doctor's records of their discussions; denied statements attributed to him by disinterested third parties; and withheld information about both his pre and post-accident condition from various treatment providers. The arbitrator commented on how she was "cautious" in approaching the evidence of third parties and hearsay statements. She noted the deficiencies in the evidence, including that of the medical experts. She took into account that Mr. P.'s spouse was the one who alerted Dominion to Mr. P.'s financial situation, and there was animosity between them. She knew about Dr. Smith's background as admitted. She noted that the two expert witnesses agreed on the circumstances which might have led to Mr. P's suffering a psychological injury in the accident, and concluded there was no reliable or sufficient evidence that he received an injury or was disabled as a result of the accident.
In effect, Mr. P. is asking that I hear the case again, place the evidence in "its proper context" and come to the opposite conclusion on credibility, weigh the evidence differently and overturn the arbitrator's findings on what was before her. The Director's function on appeal is not to re-try the case as if it was being heard for the first time. My review of the evidence shows no circumstances such that I would be compelled to rehear this matter. There was ample evidence on which the arbitrator could base her findings. I see no misapplication of a legal principle, or any conclusions that are so clearly wrong as to amount to an injustice. The claim for a rehearing is denied.
VI. CONCLUSION
Mr. P.'s appeal fails. As a result, I do not need to determine the issue Dominion raised in its cross-appeal on the quantum of the weekly income benefit he claimed.
VII. EXPENSES
This appeal was based on Mr. P.'s refusal to accept the result of the arbitration hearing. For the most part, his submissions were an attempt to put a different interpretation on the evidence by picking out bits and pieces from the exhibits, discrediting medical testimony through innuendo and challenging the arbitrator's ability to assess what she heard and saw. This is not a case for appeal expenses to be awarded.
October 29, 1996
Elisabeth Sachs Director of Arbitrations
Date