Neutral Citation: 1996 ONICDRG 4
File No. A-011714
ONTARIO INSURANCE COMMISSION
BETWEEN:
ERMINDO BUFFONE
Applicant
and
FEDERATION INSURANCE COMPANY OF CANADA
Insurer
DECISION
Issues:
The Applicant, Ermindo Buffone, was injured in a motor vehicle accident on April 4, 1991. He applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 6721. Weekly income benefits were terminated by the Insurer on April 30, 1992. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
What is the correct amount of the benefit payable to the Applicant?
Is the Applicant entitled to weekly income benefits from May 1, 1992, onward?
The Applicant also claims interest on any amounts owing, and his expenses incurred in the hearing.
Result:
The correct amount of the weekly income benefit payable to the Applicant is $283.15.
Applicant is entitled to weekly income benefits pursuant to section 12(1) of the Schedule from May 1. 1992, to July 31, 1993.
The Applicant is entitled to interest on the monies owing in accordance with section 24(4) of the Schedule.
The Applicant is entitled to his expenses incurred in the hearing.
Hearing:
The hearing was held in Ottawa, Ontario, on August 28, 29, and 30, 1995, before me, Stewart M. McMahon.
Present at the Hearing:
Applicant:
Ermindo Buffone
Applicant's
Robert W. Baldwin
Representative:
Barrister and Solicitor
Insurer's
Pat Santini
Representative:
Barrister and Solicitor
Insurer's
Colette Lachance
Officer:
Witnesses:
The Applicant, his wife, Mrs. Yolanda Buffone, and son Nino Buffone and Dr. Martin Gillen.
Exhibits:
18 exhibits were filed, they are listed in Schedule 1.
Background:
The Applicant was born in Italy in 1937. He graduated from primary school at the age of 12, and then worked on the family farm. At age 17 he emigrated to Switzerland, where he found work as a bricklayer's helper. A couple of years later he moved to Ottawa, Ontario, where he again found work as a bricklayer's helper, and later as a bricklayer.
In the early '70's Mr. Buffone went into business for himself, as a bricklayer. Most of his work came from small contractors, or individual homeowners, and he usually worked alone, or with one or two helpers. Mr. Buffone has had no other full-time occupation. He cannot read or write English.
Mr. Buffone is married with two grown sons. The youngest, Dino Buffone, who is now 25, began working with his father part-time at the age of 12 or 13. When Dino graduated from college he joined his father on a full-time basis.
Essential tasks:
I heard very little viva voce evidence about the essential tasks of a bricklayer, however, from a review of a video, shot on June 8, 1995, which depicts Mr. Buffone bricking the side of a house, I find that the essential tasks of the trade include the following:
standing for extended periods of time,
kneeling,
climbing up and down scaffolding,
repetitive bending forward at the waist, often accompanied with twisting at the waist to pick up brick or mortar,
repetitive reaching overhead to place bricks or mortar,
loading and unloading cumbersome and awkward pieces of equipment from the bed of a pickup truck,
I am satisfied that the physical aspects of the trade are demanding. In addition to these physical tasks, self-employed