Ontario Insurance Commission

Commission des assurances de l’Ontario

Neutral Citation: 1996 ONICDRG 209

Appeal P-009824

OFFICE OF THE DIRECTOR OF ARBITRATIONS

KATHLEEN LYONS

Appellant

and

METROPOLITAN INSURANCE

Respondent

Before:

Susan Naylor Director's Delegate

Counsel:

Samuel M. Mossman (for Ms. Lyons)

Claude Blouin (for Metropolitan)

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The arbitration order dated March 7, 1995 is rescinded. The matter is remitted to another arbitrator for a new hearing.

2. Metropolitan Insurance shall pay Ms. Lyons' appeal expenses.

December 16, 1996

Susan Naylor

Director's Delegate

Date

REASONS FOR DECISION

I. NATURE OF APPEAL

Kathleen Lyons was injured in a motor vehicle accident on March 23, 1991. She received weekly income benefits from Metropolitan Insurance ("Metropolitan") for three years until May 6, 1994, at which time her benefits were terminated. The arbitrator agreed with Metropolitan that Ms. Lyons no longer qualified for benefits after this time. Ms. Lyons appeals this order.

Entitlement to weekly income benefits is governed by section 12 of the Statutory Accident Benefits Schedule - Accidents before January 1, 1994, R.R.O. 672 ("Schedule"), which is mandated in every motor vehicle liability policy. The relevant parts of section 12 state:

Section 12(1):

The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident a weekly income benefit during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment....

Section 12(5)(b):

The insurer is not required to pay a weekly benefit under subsection (1),

(a) ......

(b) for any period in excess of 156 weeks unless it has been established that the injury continuously prevents the insured from engaging in any occupation or employment for which he or she is reasonably suited by education, training or experience.

Both parties made oral and written submissions. After the appeal was heard, at my request I was provided with a transcript of Ms. Lyons' testimony, and that of two other witnesses. The production of these transcripts was the subject of further representations and directions. The parties then had an opportunity to make additional submissions on the merits of the appeal.

Ms. Lyons sought to introduce several new medical reports which were not before the arbitrator. In view of the results of this appeal, it is not necessary to rule on this issue.

II. THE ARBITRATOR'S FINDINGS

Following her accident on March 23, 1991, Ms. Lyons developed low back pain, running down into her left leg. She continued to work for about a month and a half, but then stopped because of pain. She has not returned to work since then.

In the Fall of 1992, Ms. Lyons underwent a L5-S1 discectomy and left L1 nerve root decompression, after medical tests revealed a large central and lateral disc herniation and nerve damage in the left leg. The surgery corrected the disc herniation, but Ms. Lyons was left with left low back, hip pain and leg pain, clinically referred to as chronic left sciatica. Subsequent tests showed residual scarring at the left S1 nerve root.

Ms. Lyons claims that pain prevents her from working as a medical dicta typist - her occupation before the accident - or from doing other work that might be suitable. However, the arbitrator concluded that Ms. Lyons was less limited by pain than she described and that she exaggerated her complaints. Although Ms. Lyons testified that she could sit, stand and walk for only 20 minutes at a time, the arbitrator found, based on his review of videotape evidence, that she was able to walk for a much longer period, and observed that she could sit through a two-day hearing without apparent discomfort. The arbitrator also relied on medical reports showing that Ms. Lyons was able to sit for more than an hour during interviews and that she performed well at assessments. He accepted that psychogenic factors contributed to Ms. Lyons' persistent physical complaints but concluded that she was able, from both a physical and psychological perspective, to work in a clerical or general office setting. In his view, the fact that Ms. Lyons had tried to find such work in the year before the hearing supported this conclusion. He was, however, sympathetic to her situation and recommended that Metropolitan help her in her search for employment.

Ms. Lyons submits that the arbitrator made several mistakes in his decision, and asks that his order be overturned. Prior appeal decisions make it clear that it is not my role to second-guess the arbitrator's assessment of the evidence or to substitute my own view of the weight to be attributed to it. The crux of the inquiry on a factual appeal is whether the arbitrator ignored material evidence, paid attention to irrelevant considerations, or otherwise arrived at conclusions that were not supported by the evidence. The issue here is whether the arbitrator considered key evidence in Ms. Lyons' favour and fully addressed the issues before him. I have carefully reviewed the arbitration record, including the transcripts provided, and find for a number of reasons that a new hearing is necessary.

In his reasons, the arbitrator acknowledged that Ms. Lyons' own doctors considered her completely unfit to work, but he did not specifically address the report of Dr. Koppert - the orthopaedic specialist retained by Metropolitan - who reached the same conclusion. Dr. Koppert concluded that there was a physical basis for Ms. Lyons' continuing problems. His evaluation in November of 1993 was different from the results of a multi-functional assessment, including an orthopaedic examination by a second consultant, which took place two and a half months later, also at Metropolitan's request. Ms. Lyons is concerned that the arbitrator did not direct his mind to this important evidence.

An arbitrator must give reasons for his or her decision. He or she need not detail or summarise all of the medical evidence, or address every inconsistency - this would not be sensible or in keeping with the adjudicator's mandate to deal with disputes expeditiously. But an arbitrator's reasons should provide a coherent explanation why he or she reached his or her decision. They should acknowledge the most important evidence presented by the parties, and attempt to resolve serious conflicts in such evidence.

The evidence in question is from the insurer's own independent expert and strongly supports Ms. Lyons' case. There is a clear conflict in the insurer's medical evidence on the key issue in appeal. It may well be that the arbitrator addressed this evidence and rejected it. Alternatively, he may have reconciled the differences in the evidence by concluding that, for example, Ms. Lyons had improved in the interim period. Had the arbitrator dealt with this evidence explicitly in his reasons, it is unlikely that his conclusions would be successfully challenged on appeal. The difficulty is that his decision does not set out his thinking and I cannot be sure whether he directed his mind to Dr. Koppert's report. Given the significance of the evidence in issue, any uncertainty on the point should be resolved in Ms. Lyons' favour.

There is another problem. The arbitrator does not fully address the period of entitlement to benefits. He had to decide whether Ms. Lyons was entitled to benefits from May 6, 1994, the termination date, approximately nine months before the hearing. The arbitrator found that Ms. Lyons was able to work as of the time of the hearing, and based his decision in part upon evidence of her condition then - his observations of her during the hearing and surveillance evidence taken the month beforehand. He ruled that Ms. Lyons was not entitled to "ongoing benefits" but he did not explicitly rule on her entitlement in the interim. Based on the arbitration record, I cannot assume that Ms. Lyons' condition at the time of the hearing was the same during the nine months before.

The arbitrator's reasons also do not deal sufficiently with the nature of the work Ms. Lyons did before the accident and could do afterwards. The central question before the arbitrator was whether Ms. Lyons' injuries continuously prevented her from engaging in any occupation or employment for which she was reasonably suited by education, training or experience. The arbitrator found that Ms. Lyons worked as a medical dicta typist in a doctor's office for a number of years, and had worked as a receptionist, secretary and clerk/typist previously. He concluded that receptionist duties or clerical or general office work were suitable. However, he did not record whether Ms. Lyons worked in a full-time capacity before the accident, whether he considered part-time work to be suitable for her or whether she could perform more than part-time work after the accident. This is important in view of medical evidence which indicated that, if Ms. Lyons could work, she could only do so on a part-time basis.

In considering whether a person meets the disability test set out in subsection 12(5)(b) of the Schedule, arbitrators have compared the work that the person can do after the accident to his or her experience in the work-force before the accident. I have the benefit of a transcript, which was not available to the arbitrator when he wrote his reasons. This indicates that Ms. Lyons worked at least nine hours a day, sometimes week-ends, and took very few holidays. This information is important in considering both whether Ms. Lyons was capable of the essential tasks of her former job and in identifying what other work was suitable for her, and whether she could do such work. Although the arbitrator may have taken this information into account, it is not possible to determine this from the reasons.

These gaps in the arbitrator's reasons, taken individually, may not be enough to justify ordering a new hearing. However, when taken together, they raise sufficient questions about the completeness of the decision to warrant this step. Ms. Lyons asked me to reverse the arbitrator's order altogether and grant her benefits. I am not prepared to go this far. I do not have a complete transcript of the oral evidence at the hearing and the arbitrator's decision, at least in part, rested on the credibility of Ms. Lyons' testimony. In my view, the more appropriate course is to order a new hearing by another arbitrator.

Ms. Lyons' appeal has been successful. She is entitled to her appeal expenses to be paid by Metropolitan.

December 16, 1996

Susan Naylor

Director's Delegate

Date