Victor Aguilar v. Allstate Insurance Company of Canada, 1996 ONICDRG 65

Ontario Insurance Commission

Commission des assurances de l’Ontario

Neutral Citation: 1996 ONICDRG 65

Appeal P-000542

OFFICE OF THE DIRECTOR OF ARBITRATIONS

VICTOR AGUILAR

Appellant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Respondent

Before:

David R. Draper, Director's Delegate

Counsel:

Victor Aguilar, in person, assisted by Lilliana Aguilar

Joanna M. Chadwick (for Allstate)

APPEAL ORDER

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

1. The appeal is dismissed, and the arbitration decision, dated April 20, 1995, is confirmed.

2. No expenses are payable with respect to the appeal.

April 30, 1996

David R. Draper

Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Victor Aguilar was injured in an automobile accident on December 14, 1990. As a result, he received accident benefits from Allstate Insurance Company of Canada (Allstate) under the Schedule¹. Allstate cancelled his weekly income benefits, effective June 8, 1991, on the basis that he was no longer substantially unable to perform the essential tasks of his pre-accident occupation.

Mr. Aguilar applied for mediation, claiming that he was entitled to ongoing weekly income benefits. The dispute was not resolved, but he did not apply for arbitration or to court at that time.

Approximately 19 months later, in May 1993, Mr. Aguilar had back surgery. In August 1993, he applied for arbitration, claiming that his back problems resulted from the December 1990 accident, and prevented him from working. He asked for additional weekly income benefits and rehabilitation benefits.

An arbitration hearing was held over three days, with Mr. Aguilar represented by a lawyer. Twenty-one exhibits were filed, including two medical briefs containing many reports and other medical documents. Mr. Aguilar testified and called two additional witnesses - his wife and Dr. Veronica Kekosz, his physiatrist. A private investigator and Dr. Gordon Hunter, an orthopaedic surgeon, testified for Allstate.

The arbitrator concluded that by the time Mr. Aguilar's weekly income benefits were cancelled on June 8, 1991, he was no longer eligible because he was substantially able to perform the essential tasks of his pre-accident occupation. She also found that although the December 1990 accident played some role in Mr. Aguilar's ongoing back problems, other factors were of far more importance. As a result, the arbitrator concluded that his back problems were not "as a result of" the accident.

Mr. Aguilar appeals the following orders of the arbitrator:

1. Mr. Aguilar is not entitled to weekly income benefits under section 12 of the Schedule, from and after June 9, 1991.

2. Mr. Aguilar's continuing lumbar back pain, bilateral leg, and buttock pain is not "as a result of" the motor vehicle accident of December 14, 1990, within the meaning of section 12 of the Schedule.

3. Mr. Aguilar is not entitled to payment of supplementary medical and rehabilitation expenses related to vocational rehabilitation and training in computer technology under section 6 of the Schedule.

II. ANALYSIS

Mr. Aguilar's situation is complicated by the fact that he was involved in five motor vehicle accidents between January 1981 and December 1990. The arbitrator found that by late May 1989, the consensus of medical opinion was that he suffered from chronic pain syndrome, chronic post-traumatic stress syndrome, and a severe depressive disorder. She accepted, however, that by December 1990, Mr. Aguilar was doing "relatively light" tasks at the unlicensed day care that he and his wife opened in their home at the end of 1989.

On appeal, Mr. and Mrs. Aguilar made sincere and emotional submissions. They claim that Mr. Aguilar had finally recovered from his previous injuries and was getting back on his feet when he was injured in the December 1990 accident, and things have never been the same since. In their view, this shows that his ongoing back problems must relate to the accident. To the extent that

Mr. and Mrs. Aguilar alleged that any specific errors in the arbitration decision, I would characterize them as follows:

1. The arbitrator erred in not considering all the evidence, especially the evidence of Dr. Greg D'Angelo and Dr. Kekosz.

2. The arbitrator erred in relying on the evidence of Dr. Hunter, who did not really examine Mr. Aguilar, but relied on the examination of another doctor.

3. The arbitrator erred in failing to consider the fact that they were planning to get a day care licence and continue to develop their business.

My role on appeal is not to rehear the case, or to second-guess the arbitrator's assessment of the evidence.² This is particularly true in cases, such as this one, where there was a full hearing of the issues, with both parties represented by experienced counsel. The arbitrator had the advantage of hearing and observing the witnesses in person. This gave her an opportunity to assess their credibility, and also to consider the medical reports in light of the testimony. Because the arbitrator was in the best position to evaluate all the evidence, her decision should not be disturbed on appeal unless her findings are unsupported by the evidence, or she misapplied the Schedule to the facts of the case.

In considering Mr. Aguilar's appeal, I reviewed the arbitration record, including the exhibits and the transcript of the testimony of Dr. Kekosz and Dr. Hunter. I do not find any error.

The arbitrator could not compensate Mr. Aguilar for his lost business income because that is not a benefit available under the Schedule. The Schedule provides for weekly income benefits, not compensation for future economic loss. Further, there was ample evidence to support the arbitrator's findings of fact and, in my view, she addressed all of the appropriate considerations in assessing Mr. Aguilar's entitlement to additional benefits.

The most difficult issue before the arbitrator was whether Mr. Aguilar's ongoing back problems resulted from degenerative disease, or from the December 1990 accident. The conflicting medical opinions, particularly those of Dr. Kekosz and Dr. Hunter, are recorded in the exhibits and the transcripts of their testimony. I find no indication that the arbitrator failed to consider the evidence of Dr. D'Angelo or Dr. Kekosz, as suggested by Mr. Aguilar. On the contrary, the decision reflects a careful analysis of the medical evidence and provides clear reasons for preferring Dr. Hunter's conclusions. Dr. Hunter is a highly qualified orthopaedic surgeon who examined Mr. Aguilar in order to give his medico-legal opinion. He presented and defended his opinion at the hearing. The arbitrator was entitled to determine the weight that should be given to his evidence, and I find no reason to interfere with her assessment.

The arbitrator accepted that the December 1990 accident "affected Mr. Aguilar's condition to some extent," but many other factors far outweighed it. She concluded that the minimal contribution of the accident was insufficient to establish that Mr. Aguilar's ongoing problems were "as a result of an accident," as required by section 12 of the Schedule. This approach is consistent with my decision in Bruna Pisani and Simcoe & Erie General Insurance Company and Canadian General Insurance Company, December 11, 1995, OIC Appeal Nos. P-003929 and P-005693, where I stated:

Rather, the arbitrator recognized that Ms. Pisani does not have to show that the injury was caused solely by the accident. However, she must establish on a balance of probabilities that she was injured as a result of the accident. This requires more than some contribution.

In conclusion, I find no reason to interfere with the arbitrator's orders.

III. EXPENSES

Mr. Aguilar did not specifically request expenses and because he was not represented by counsel, it is unclear what, if any, expenses he had. However, I accept Allstate's submission that this is not an appropriate case for expenses. The appeal was brought sincerely, but Mr. Aguilar was unable to point to any error in the decision. Mere disagreement with the result, or with the arbitrator's assessment of the evidence, is an insufficient basis for an appeal.

April 30, 1996

David R. Draper

Director’s Delegate

Date

Footnotes

1. 1The term "Schedule" will be used to refer to Ontario Regulation 672, as amended, which as of January 1, 1994, became the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994.
2. 2This principle was first applied by the Director in Vito Luigi Calogero and The Co-Operators General Insurance Company, February 13, 1992, OIC File No. P-000251, and has been consistently applied in subsequent appeal decisions.