OFFICE OF THE DIRECTOR OF ARBITRATIONS
Neutral Citation: 1996 ONICDRG 200
Appeal: P96-000018
JOHN BEASON Appellant
and
GUARDIAN INSURANCE COMPANY OF CANADA Respondent
Before: David R. Draper, Director's Delegate
Counsel: Michael Brown (for John Beason) Stephen Macaulay (for Guardian Insurance)
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 December 13, 1995, is confirmed.
No appeal expenses are payable.
December 4, 1996
David R. Draper Director’s Delegate
REASONS FOR DECISION
I. NATURE OF THE APPEAL
This is an appeal by John Beason from an arbitration decision, dated December 13, 1995, denying his claim for weekly income benefits from July 18, 1992 onwards. He submits that the facts, as found by the arbitrator, do not support the decision. In particular, he claims that the arbitrator failed to give proper weight to some of the evidence.
II. BACKGROUND
Mr. Beason was injured in a motor vehicle accident on August 30, 1991. His situation was complicated by the fact that in the 28 months preceding this accident, he was injured in a "slip-and-fall" incident and three other motor vehicle accidents. In addition, his employment status was difficult to evaluate, in part due to the interruptions resulting from his earlier accidents.
Guardian Insurance Company of Canada ("Guardian") paid weekly income benefits at $460 per week from September 7, 1991 until July 18, 1992. At that point, it stopped paying on the basis that Mr. Beason was no longer substantially unable to perform the essential tasks of his pre-accident work as a result of the August 1991 accident. Approximately one year after the termination of his benefits, Mr. Beason applied for mediation, claiming weekly income benefits from July 18, 1992 onwards.
The dispute was not resolved at mediation and, therefore, Mr. Beason applied for arbitration. Although Guardian had paid weekly income benefits under section 12 of Ontario Regulation 672, Statutory Accident Benefits Schedule - Accidents Before January 1, 1994 ("the Schedule"), it took the position that Mr. Beason never established that he was either employed or self-employed at the time of his August 1991 accident. In its submission, his eligibility should have been determined under section 13 of the Schedule, not section 12, and limited to $185 per week.
The arbitrator described the issues as follows:
Was Mr. Beason employed or self-employed at the time of the accident?
If so, is Mr. Beason entitled to weekly income benefits under section 12 of the Schedule from the date benefits were terminated onwards?
On the first issue, the arbitrator found in favour of Mr. Beason, concluding that he was employed by TMI Productions at the time of his August 1991 accident, and that his weekly income benefits were properly calculated under section 12 of the Schedule. On the second issue, however, the arbitrator concluded that he was not entitled to any additional weekly income benefits. Although his claim was unsuccessful, Mr. Beason was awarded his reasonable arbitration expenses.
Mr. Beason appealed the arbitrator's order, claiming that he is entitled to weekly income benefits from July 18, 1992 up to the 156-week mark, but not beyond. Guardian did not appeal the arbitrator's decision that Mr. Beason's weekly benefits were properly determined under section 12 of the Schedule.
III. ANALYSIS
As stated in many previous appeal decisions, my role is quite different from the arbitrator's. She heard testimony over six days from eight witnesses, including Mr. Beason, his spouse, his family doctor, one of the orthopaedic surgeons he consulted, and his psychiatrist. She also received 56 exhibits. The arbitrator was in a far better position to evaluate all the evidence and, therefore, I should not interfere with her conclusion unless she made an error resulting in an injustice, or her findings are unsupported by the evidence.
Mr. Beason's principal objection is that the decision does not deal adequately with a flare-up of his back problems on July 5, 1992, and subsequent findings of disc degeneration at the L4-5 disc.
For the following reasons, I am satisfied that the arbitrator dealt with this evidence and that there was ample evidence to support her decision.
In November 1991, Guardian arranged for an assessment by Dr. John Halpenny, an orthopaedic surgeon. Dr. Halpenny concluded that Mr. Beason sustained soft tissue injuries in the August 1991 accident, exacerbating his pre-existing injuries. Although Mr. Beason was injured, Dr. Halpenny found his reactions to the physical examination somewhat exaggerated, and was concerned that Mr. Beason did not have a very good understanding of his medical situation. Dr. Halpenny recommended that he attempt to return to work after two months of active treatment involving vigorous home exercises.
Guardian continued to pay weekly income benefits beyond the two-month period estimated by Dr. Halpenny. In June 1992, another assessment was done, this time by Dr. James Kirk Houston, also an orthopaedic surgeon. Dr. Houston agreed that Mr. Beason had whiplash-type strains in his neck and back, but found no organic reason that he should be experiencing any more than a "transitory nuisance." In his opinion, there was no physical reason that Mr. Beason could not carry out the essential tasks of his pre-accident work, or something similar.
Guardian wrote to Mr. Beason's lawyer on July 3, 1992, stating that based on the specialists' reports (presumably Dr. Halpenny and Dr. Houston), it planned to suspend Mr. Beason's weekly income benefits. The effective date of the termination turned out to be July 18, 1992.
There is no evidence before me about when the July 3, 1992 letter was received. However, on July 5, 1992, Mr. Beason went to St. Joseph's Health Centre complaining of low back pain. He was prescribed medication, x-rays were taken, and he was discharged to follow-up with his family doctor. The x-ray report states:
Degenerative narrowing at the L4-5 disc is demonstrated. No other significant osseous or articular abnormality is shown.
A CT scan was subsequently done on September 1, 1992, with the following results:
The appearances suggest that there is bulging of the annulus at L4-5. I do not identify other abnormality.
Mr. Beason submits that the arbitrator failed to give proper consideration to this evidence. In addition, his lawyer contends that Mr. Beason and his spouse testified that the summer of 1992 was a particularly bad time, with a period where Mr. Beason was "flat on his back."
The arbitration hearing was recorded, but only a specific portion of the transcript was filed for the purposes of the appeal. The absence of a transcript of the evidence dealing with Mr. Beason's condition in the summer of 1992 makes any assertion about the testimony difficult to evaluate.
More importantly, however, the arbitrator dealt with the July 1992 flare up and the results of the x-ray and CT scan. She found that although Mr. Beason's family doctor, Dr. Chan, felt that the bulging disc was a significant finding, the orthopaedic specialists did not. The reports of Dr. T.N. Siller, Dr. Errol A. Sue-A-Quan and Dr. Hugh U. Cameron amply support this finding. The arbitrator went on to "prefer the largely uniform opinions of the orthopaedic specialists to that of Dr. Chan, who is a general practitioner." In my view, this was well within her authority to weigh the evidence and, therefore, I find no reason to interfere.
The arbitrator did not just consider Mr. Beason's physical limitations. She also looked at his psychological condition. Many of the doctors found that Mr. Beason exaggerated his symptoms. Although Dr. Cameron concluded that this exaggeration was deliberate and Dr. Sue-A-Quan felt that secondary gain was a factor, the arbitrator accepted that Mr. Beason "suffers from pain magnification or a chronic pain syndrome." She found, however, that the medical evidence did not support the conclusion that his psychological condition prevented him from performing the essential tasks of his pre-accident work. Again, there was ample evidence to support this finding and, therefore, there is no reason to interfere.
Mr. Beason's lawyer submits that it is difficult to understand how Mr. Beason was ineligible for weekly income benefits after his flare-up when he was eligible beforehand. With respect, that misses the point. The arbitrator was not asked to determine Mr. Beason's eligibility prior to July 18, 1992. Indeed, there was medical evidence to support an earlier date for terminating benefits, but Guardian did not make that claim. The fact that he was paid weekly income benefits does not establish that he met the test.
For these reasons, Mr. Beason's appeal is dismissed.
IV. APPEAL EXPENSES
Mr. Beason submits that he had reasonable grounds for his appeal and, therefore, he should be awarded his expenses whatever the outcome. However, it is well established that the criteria for granting appeal expenses are different from for arbitration expenses. Expenses have been routinely denied if the appeal involves a dispute about how the arbitrator weighed the evidence. In my opinion, this appeal falls into that category. I am not persuaded that the issues raised were sufficiently novel or meritorious that Guardian should be required to pay Mr. Beason's expenses despite his lack of success.
December 4, 1996
David R. Draper Director’s Delegate