Ontario Insurance Commission

Commission des assurances de l’Ontario

Neutral Citation: 1996 ONICDRG 73

Appeal P-004059

OFFICE OF THE DIRECTOR OF ARBITRATIONS

DOMENICO PAGLIARO Appellant

and

HARTFORD INSURANCE COMPANY OF CANADA Respondent

Before: Elisabeth Sachs

Counsel: John Silvester (for Mr. Pagliaro) Zenon Fedorowycz (for Hartford Insurance)

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 order dated October 29, 1993 is confirmed.

2. The appellant, Domenico Pagliaro, is not entitled to appeal expenses.

May 6, 1996

Elisabeth Sachs Director of Arbitrations

Date

REASONS FOR DECISION

I. BACKGROUND

The appellant, Domenico Pagliaro, was injured in a motor vehicle accident on November 19, 1992. He received weekly income benefits from the respondent, Hartford Insurance Company of Canada ("Hartford") under section 12 of O. Reg. 672, Statutory Accident Benefits Schedule - Accidents before January 1, 1994 (the Schedule) at the maximum level of $600 until February 7, 1993. Hartford stopped paying benefits shortly before receiving a medical report indicating Mr. Pagliaro could perform the essential tasks of his pre accident employment as a machinist.

Mr. Pagliaro disputed the termination of his benefits. A day long arbitration hearing took place at which Mr. Pagliaro, Hartford's claims supervisor and a private investigator testified. Sixteen exhibits, including nine medical and physiotherapy reports and a surveillance video (approximately thirty minutes taken over three days) were filed. On this evidence, the arbitrator found that while Mr. Pagliaro suffered from accident related pain, this did not render him substantially unable to perform the essential tasks of his employment as required by the Schedule.

In his Notice of Appeal, Mr. Pagliaro claimed he continued to be unable to do his essential tasks, and asked for a rehearing on the basis that he was unrepresented by counsel at the arbitration. Mr. Pagliaro also sought to introduce a soon-to-be-released neurologist's report as fresh evidence although he had yet to be examined by that doctor. Mr Pagliaro later abandoned this claim. The appeal therefore proceeded on the record of the arbitration and the written and oral submissions made to me. No transcript of the arbitration is available.

II. ISSUE AND ANALYSIS

Mr. Pagliaro states the arbitrator made two fundamental errors. First, he misapprehended the medical evidence, giving too much weight to Dr. Hall's report prepared for Hartford while minimizing the reports of Dr.Tountas and Dr.Teow, his family physician. Mr. Pagliaro also states the arbitrator erred in attaching any significance to the video surveillance tape.

Secondly, it was argued the arbitrator misapplied the test in section 12 of the Schedule.

Although the arbitrator acknowledged Mr. Pagliaro continued to suffer pain, he did not conclude this affected Mr. Pagliaro's ability to be employed as, and do the essential tasks of, a machinist.

A. The Evidence

No objection is taken to the arbitrator's characterization of Mr. Pagliaro's essential tasks as a machinist with Canian Precision Shop Ltd., taken directly from the employer's job description and Mr. Pagliaro's own evidence. Against this background, the arbitrator evaluated the medical, physiotherapy and surveillance evidence.

Eight reports or letters from various doctors, including Mr. Pagliaro's family physician were available to the arbitrator, along with a report from Malton Physiotherapy Centre. They detail Mr. Pagliaro's complaints of neck, shoulder and back pain. Some months after the accident, problems affecting grip strength were also noted by the physiotherapist.

Mr. Pagliaro testified about his job duties, and outlined the difficulties he had in returning to work and remaining effective in his job. Documents supplied by Canian Precision set out steps which had been taken to enable Mr. Pagliaro to work as he had before the accident.

The duty of the Director on appeal, contrasted with that of the arbitrator in a hearing of first instance, has been canvassed in many decisions.¹ As stated in Shehadeh and General Accident, (February 21, 1996, OIC File P-001177) at p. 5;

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.

Those comments are applicable here.

Several reports were summarized in the decision. The arbitrator quotes from those written by the family doctor, Dr. Teow, and the ones prepared by Drs. Hall, Langer and Tountas. My review of the decision and those reports shows the arbitrator accurately reflected their content, and evaluated them in the context of other evidence tendered. Although residual difficulties with movement and pain were expressed, the reports of all but Dr. Teow candidly indicated Mr. Pagliaro should have been able to undertake full employment within relatively brief periods. Mr. Pagliaro did go back to work from time to time and was working at the time of the arbitration hearing, but claimed he was unable to continue working efficiently due to pain. From the evidence, the arbitrator distilled an opinion that the professionals consulted "consistently concluded that Mr. Pagliaro is not as disabled as he believes." (Decision, p. 13). That opinion is, in my view, justified by the medical evidence. I find the arbitrator did not misapprehend the evidence, nor did he misdirect himself in assigning the weight he did to it while having regard to Mr. Pagliaro's essential tasks.

Referring briefly to the surveillance evidence at p. 12 of the decision, the arbitrator concurs with Mr. Pagliaro's observation that the actions depicted do not equate to what was required in his job. However, the arbitrator notes the inconsistencies in the actions recorded, including snow shovelling, and Mr. Pagliaro's allegations of disability. The video was, at best, a minor consideration for the arbitrator in concluding as he did. After viewing the video tape, I cannot say the arbitrator misdirected himself in accepting and weighing it as part of the overall picture presented by the evidence, as opposed to finding it irrelevant.

The arbitrator had ample grounds on which he could make the findings of fact he did. Having done so, the next question is whether he correctly applied section 12 of the Schedule to those facts.

B. Section 12 of the Schedule - Entitlement to Benefits

Although he found Mr. Pagliaro had residual pain related to the motor vehicle accident, the arbitrator held that was not sufficient to meet the entitlement test in section 12 of the Schedule. Unless such pain led to Mr. Pagliaro's substantial inability to perform his defined essential tasks, the arbitrator held it was not compensable in this statutory accident benefits scheme.

Mr. Pagliaro urged me to adopt the approach used by the High Court (as it then was) in Foden v. Co-Operators Insurance Association (Guelph) (1978), 1978 CanLII 1622 (ON HCJ), 20 O.R. (2d) 728. In that case the issue was whether the plaintiff was "wholly and continuously disabled" from performing "any and every duty" of her employment, arguably a harder test to meet than "substantial inability" to perform such tasks. At p. 733, the court reviews the case law and notes:

...an impressive underpinning for the proposition that if a person is unable to perform a substantial portion of his work, or an essential or material aspect of it, or, in general, be able to perform his task to the standard of a reasonable employer, that person is totally disabled. (Emphasis added)

Counsel referred to various fact situations described in the court's case review to bolster the argument that Mr. Pagliaro more than met the test in section 12 of the Schedule. Given the evidence of the employer (Exhibits 3, 15 and 16) which the arbitrator accepted, counsel submits on the rationale above, Mr. Pagliaro would have been entitled under the stricter test of "total disability." Canain Precision, the "reasonable employer" here, counsel argued, took the position Mr. Pagliaro was unable to do the essential tasks of a machinist. That being so, the argument is the arbitrator cannot now say Mr. Pagliaro can perform those essential tasks.

Passing similarities to the cases cited in Foden cannot substitute for the arbitrator's ability to assess first hand the evidence presented and the witnesses heard. On factual analysis, the Foden case is not helpful in this respect. As well, the specific policy wording under consideration by the court has been superceded by the Schedule, and the reasoning in the case must be seen in that light.

However, it remains that it is not the employer who decides as a matter of law whether an inability to perform essential tasks exists. As stated by Justice Reid at p. 735 in Foden:

That question (disability or no) is not answered by the employer's acceptance or rejection of an employee. That question is for the Court.

Whether Mr. Pagliaro's employer would have considered him fit for its purposes is not the test. The legal entitlement of Mr. Pagliaro to weekly income benefits was solely within the arbitrator's purview. In coming to the conclusions Mr. Pagliaro was not substantially disabled within the meaning of the Schedule on the facts found, it is my view the arbitrator neither erred nor applied inappropriate principles.

C. The Process

Mr. Pagliaro cited as a ground for relief in the appeal his status as an unrepresented person at the arbitration hearing. Early in the case, at the pre-hearing, Mr. Pagliaro indicated he wished to have professional representation. The Commission accommodated this request by postponing the hearing after the original date was set with Mr. Pagliaro's consent. The arbitrator notes that Hartford had suggested it would provide financial assistance for Mr. Pagliaro's legal fees. As it turned out, Mr. Pagliaro chose to continue on his own. Mr. Pagliaro was given every opportunity to fully present his evidence and documents. Hartford had made full disclosure of its defence in advance. The record of the arbitration proceeding shows it was thorough and followed all prescribed procedures.

I see no flaw in the process as followed by the Commission which might have prejudiced Mr. Pagliaro's presentation of his case or compromised a fair hearing of his claims.

The appeal is therefore dismissed.

III. EXPENSES

This appeal was brought on the basis that the arbitrator was wrong in how he dealt with the evidence in his factual analysis, and by misapplying the Schedule to the facts. I have determined neither was the case. The appeal is unsuccessful, and accordingly, no expenses are awarded.

May 6, 1996

Elisabeth Sachs Director of Arbitrations

Date

Footnotes

1. 1See Calogero and The Co-operators, (February 13, 1992, OIC File P-000251) and the subsequent appeal cases applying the principles first enunciated in that decision.