Ontario Insurance Commission

Commission des assurances de l’Ontario

Neutral Citation: 1996 ONICDRG 31

Appeal P-001177

OFFICE OF THE DIRECTOR OF ARBITRATIONS

Norma Shehadeh Appellant

and

The General Accident Assurance Company of Canada Respondent

Before: Elisabeth Sachs

Representatives: Ms. S. Doobie (for the Appellant) William S. Zener (for the Respondent)

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 May 21, 1993 is confirmed.
Ms. Shehadeh is not entitled to her appeal expenses.

February 21, 1996

Elisabeth Sachs Director

Date

REASONS FOR DECISION

I. BACKGROUND

The appellant, Norma Shehadeh, was injured in a motor vehicle accident on November 23, 1990. She received weekly income and child care benefits, and payments for household expenses from the respondent insurer, General Accident Assurance Company (“General Accident”) until July 7, 1991, under O. Reg. 672, Statutory Accidents Benefits Schedule - Accidents Before January 1, 1994 (the Schedule), when they were terminated.

Ms. Shehadeh claimed continuing entitlement to benefits, and as mediation did not resolve the dispute with General Accident, she applied for arbitration. A hearing was held over seven days, from November, 1992 until February, 1993. Four doctors testified at the hearing and numerous medical reports were filed.

The arbitrator found Ms. Shehadeh suffered neck and left-side injuries in the accident, and that these eventually resolved. The arbitrator also found Ms. Shehadeh experienced problems with her right hand and arm after the accident. Although these did not seem significant or “troublesome” at first, they worsened over time. A right ulnar neuropathy was diagnosed about two years post-accident, and Ms. Shehadeh underwent surgery to correct it. The main issue at the arbitration was whether this neuropathy arose as a result of the accident.

Based on the evidence at the hearing, the arbitrator was not satisfied, on a balance of probabilities, that the neuropathy resulted from the accident and confirmed the termination of benefits.

Ms. Shehadeh continues to attribute her right arm and hand problems to the motor vehicle accident, claiming it disables her from performing her essential tasks as a homemaker and mother. In her Notice of Appeal, Ms. Shehadeh, who was represented by a friend before me (and by counsel at the arbitration), outlined her objections to the arbitrator’s decision as follows:

“I greatly disagree with the arbitrators (sic) decision that (the symptoms are) not the result of the car accident...I am 100% sure that this pain is a direct result of this accident since I never experienced such severe pain...prior to the date of this accident. I feel that my pain and consequences due to the accident have been minimized by not granting me my rightful benefits.”

And in her written submissions:

“I am not the same person I was prior to the accident and feel that I need to be compensated for this.”

II. ISSUES AND ANALYSIS

A. New Evidence on Appeal

Four documents, sent at various times, were tendered by Ms. Shehadeh for consideration on appeal, which she stated were not available to the arbitrator.

The Director has a broad discretion to admit new evidence on appeal. In the case Shelley L.P. and Royal Insurance Company of Canada, (OIC File P-002235, June 23, 1995), I considered this discretion, stating:

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 adduced at trial, be expected to have affected the result.”

It is important to note these are but guidelines, and each case must be looked at in its own context, including the nature of all the evidence before the arbitrator and any findings relative to the weight and credibility of that evidence.

The first document is a report on the letterhead of The Rehabilitation Centre, dated October 27, 1992 addressed “To Whom it May Concern” signed by Shirley Leung, a physiotherapist. It summarizes Ms. Shehadeh’s complaints and treatment from September 15, 1992. Quite apart from its availability before the start of the hearing in November, 1992, the main issue before the arbitrator is not referenced, nor would this report have affected the result given the extensive medical evidence at the hearing which touched on both causation and treatment. The report does not meet the criteria for admission on appeal.

The second document is a report of Dr. S. Teitelbaum, Ms. Shehadeh’s family doctor, dated November 4, 1992, addressed to her counsel at the arbitration. It highlights and encloses extracts from his clinical notes. These notes formed part of Exhibit 4 before the arbitrator and Dr. Teitelbaum testified at the hearing. This evidence, in slightly different forms, was clearly considered by the arbitrator and is not new.

The third document is a letter written to Ms. Shehadeh by her counsel and dated June 8, 1993, one day before the arbitral decision was released. Although Ms. Shehadeh is waiving any privilege in respect of it, I find it is a summary of offers to settle the case and irrelevant to the appeal.

The last document is a report dated January 13, 1994, prepared by Dr. A. Kachooie, a physiatrist who treated Ms. Shehadeh, addressed to her family doctor. While obviously coming long after the arbitration hearing, this report is remarkably similar to, and essentially repeats much of, one introduced in evidence as Exhibit 40 at the hearing. There is a short update:

“Comparison over the previous study reveals no indication of deterioration.”

Dr. Kachooie testified at the hearing, and numerous reports prepared by him were accepted into evidence. In her decision, the arbitrator summarized his testimony over three pages, and it is clear his opinions were fully considered. While the report itself was not available at the hearing, it also does not address the issue under appeal, that is, the alleged connection between the neuropathy and the motor vehicle accident. It adds nothing to the doctor’s previous evidence and would not affect the result.

In summary, I decline to accept these documents and the appeal is being determined on the basis of the arbitral record, the Notice of Appeal and Response with attendant written submissions, as well as the oral submissions made to me. No transcript of the hearing is available.

B. Entitlement to Benefits

As set out in her Notice of Appeal, Ms. Shehadeh disagrees with the arbitrator’s finding that the neuropathy and the effects from it she experienced some two years following the accident are not as a result of that accident. Neither party asked for a rehearing.

The duty of the Director on appeal, as opposed to that of an arbitrator at the initial hearing, has been canvassed in several decisions.¹

Shortly put, it is the arbitrator who must hear the witnesses, review the documents presented and consider the submissions of the parties in relation to that evidence. The arbitrator must weigh the evidence, assess its credibility, and then accept or reject it. The arbitrator’s findings are based on the evidence subjected to this scrutiny.

It is not the function of the Director to re-try the issues as if they were being presented for the first time, nor to interfere with the arbitrator’s findings in relation to the evidence unless they have insufficient or no evidence to support them.

In other words, the appellate function does not contemplate substitution of a different conclusion where the arbitrator’s findings are supportable once that evidence is reviewed.

In this case, there is a mixed question of fact and law, the issue of causation being a legal determination once evaluation of the evidence and the assessments of credibility were made. To come to her conclusions, the arbitrator had before her forty-three exhibits, and heard the oral evidence of medical doctors as well as Ms. Shehadeh. In her reasons, the arbitrator took care to outline the weight she ascribed to the medical evidence, particularly that which dealt with the potential of the neuropathy having occurred spontaneously or as a result of a blow to the elbow sustained in the accident. She found the evidence did not point to Ms. Shehadeh’s elbow being struck in the accident and a link from that to the neuropathy, calling such a conclusion speculative. My review of the record persuades me the arbitrator was fully justified in reaching this result. The legal conclusion flows from the factual findings, and there is no reason the overturn it.

While I appreciate Ms. Shehadeh has residual pain, and maintains a personal conviction that it must necessarily be connected to the accident, the Schedule does not compensate persons for pain which may follow after an accident, unless it firstly results from that accident and secondly results in a “sizeable inability or large and important impairment of a person’s ability to perform the previously defined essential tasks”.² The arbitrator undertook an in-depth inquiry into Ms. Shehadeh’s personal and medical circumstances before, at and after the accident. She concluded the evidence did not support a finding of disability caused by the accident in relation to the neuropathy subsequently diagnosed. I see no misdirection or error in the arbitrator’s approach to, or assessment of, the evidence in making this finding.

III. EXPENSES

This appeal was based primarily on Ms. Shehadeh’s view the arbitrator was wrong in coming to the conclusions she did, and that there must be some connection between her condition and the accident which the insurer should compensate her for. She believes she was unfairly treated, in her words, and that her problems were being minimized when they should have been investigated further. That however is not the test on appeal and I decline to award expenses in this case.