Neutral Citation: 1996 ONICDRG 85
ONTARIO INSURANCE COMMISSION
BETWEEN:
Guido Iapaolo
Applicant
and
Guardian Insurance Company of Canada
and
Maplex General Insurance Company
Insurers
DECISION
Issues:
The Applicant, Guido Iapaolo, was involved in five motor vehicle accidents between February 13, 1992 and January 26, 1994. As a result of injuries suffered in the motor vehicle accident of February 13, 1992, Mr. Iapaolo applied for and received statutory accident benefits from Guardian Insurance Company of Canada (Guardian), payable under Ontario Regulation 672.1 Weekly income benefits were terminated by Guardian on July 15, 1993. On July 22, 1993, Mr. Iapaolo was involved in the third motor vehicle accident. As a result of injuries suffered in that accident, Mr. Iapaolo applied for statutory accident benefits from Maplex General Insurance Company (Maplex). Maplex refused to pay weekly income benefits. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration against both Insurers under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is the Applicant entitled to weekly income benefits pursuant to section 12 of the Schedule from Guardian after July 15, 1993?
Was the Applicant employed within the meaning of section 12 of the Schedule on July 22, 1993, and if so, is the Applicant entitled to weekly income benefits pursuant to section 12 from Maplex after July 22, 1993?
If the Applicant was not employed on July 22, 1993, is the Applicant entitled to weekly benefits pursuant to section 13 of the Schedule from Maplex after July 22, 1993?
The Applicant also claims interest on any amounts owing, and his expenses incurred in the hearing.
Result:
The Applicant is not entitled to weekly income benefits pursuant to section 12 of the Schedule from Guardian after July 15, 1993.
The Applicant was employed on July 22, 1993. The Applicant is not entitled to weekly income benefits pursuant to section 12 or section 13 of the Schedule from Maplex.
The Applicant is entitled to his expenses of the hearing.
Hearing :
The hearing was held in North York, Ontario, on April 10, 11 and 12, 1996. Written submissions were completed on April 26, 1996.
Present at the Hearing:
Applicant:
Guido Iapaolo
Applicant's Representative:
Michael J. Gillen Barrister and Solicitor
Guardian's Representative:
Cameron C.R. Godden Barrister and Solicitor
Maplex's Representative:
Brian Bangay Barrister and Solicitor
Interpreter:
Olivera Bankovitch
Omnicom
Court Reporters:
Michelle Pahl and Dawn Binkowski
Rosenberger & Weir
Before:
William J. Renahan
Arbitrator
Ruling on Interpretation:
Mr. Iapaolo testified on the first day of the hearing with the assistance of an Italian interpreter. At the opening of the second day of the hearing counsel for Mr. Iapaolo said that the interpreter was summarizing Mr. Iapaolo's answers and failing to provide a full translation. Counsel asked for a new interpreter. After some discussion, counsel withdrew his request for a new interpreter. I reconsidered the matter of interpretation and ruled that I was satisfied with the interpretation.
Mr. Iapaolo immigrated to Canada from Italy in 1953. On the first day of the hearing he testified partly in English and partly in Italian. At times he answered before the question was finished in English and at other times he answered before the question was interpreted into Italian. He spoke mostly in English. He spoke rapidly, softly and with an accent. He often gave more information than was asked for and often gave information that was not asked for. During pauses between questions, Mr. Iapaolo often talked in English in a conversational manner, about his claim and his complaints and about matters not relevant to the issues.
At times the reporter indicated that she had difficulty understanding Mr. Iapaolo's testimony in English. In my view, the difficulty arose because many parts of Mr. Iapaolo's answers were not responsive to the question and were not relevant to the issues. This, combined with Mr. Iapaolo's accent and speed of speaking lead to some of his testimony being unclear. It appeared to me that testifying through the interpreter did not help. At times the interpreter indicated that Mr. Iapaolo's answer did not make sense.
I was satisfied that Mr. Iapaolo's ability to communicate in English was such that the most effective way for him to participate in the hearing was testifying in English and using the interpreter when he did not understand the question, or when he felt he could better express himself in Italian.
On the second day of the hearing I allowed counsel to re-examine Mr. Iapaolo on relevant areas where he felt that the interpretation of testimony on the first day was not complete.
Background:
Mr. Iapaolo is now 62 years old. He has spent his entire adult life in the tailoring business, teaching, consulting, selling and making clothes. At the time of the first motor vehicle accident of February 13, 1992 he was making custom suits in the basement of his house. He said that he had about 100 regular customers, mostly professional men, and that he made about two suits a week. Making the jacket requires more skill than making the trousers. Mr. Iapaolo made the jacket himself and contracted with other tailors to make the trousers. He said that he charged between $800 and $2,000 for a suit. He said that he made about $60,000 per year from this business.
The accidents:
Mr. Iapaolo was involved in five motor vehicle accidents in a two year period.
He claims that he suffered soft tissue injuries which have caused chronic pain which prevents him from performing the essential tasks of his employment. He claims that he was unable to work as result of the injuries sustained in the first accident of February 13, 1992 and that the injuries sustained in the third accident of July 22, 1993 significantly contributed to his disability.
On February 13, 1992 Mr. Iapaolo was driving his vehicle when it was struck a number of times on the passenger side by another vehicle travelling in the same direction. Two months later, on April 18, 1992 he was travelling on the Don Valley Parkway in Toronto when he heard a noise which caused him to swerve to the left and onto a concrete barrier. On July 22, 1993 he was a passenger in a vehicle leaving a parking lot. His vehicle struck another vehicle broadside. On December 3, 1993 Mr. Iapaolo was stopped at a traffic light when his vehicle was struck by another vehicle from the rear. In January 1994 Mr. Iapaolo's vehicle was again struck from the rear while stopped at a traffic light.
At the time of the February 13, 1992 accident Mr. Iapaolo was insured under a standard automobile policy issued by Guardian. At the time of the July 22, 1993 accident Mr. Iapaolo was insured by Maplex. Mr. Iapaolo seeks accident benefits from both Insurers.
The Law:
Under section 12 of the Schedule an insurer is liable to pay weekly income benefits to an insured who suffers injury as a result of an accident "during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment . . ."
Essential tasks of employment on February 13, 1992:
In 1985 Mr. Iapaolo closed his tailoring shop and moved his business into the basement of his house. He imported his cloth from England. He either measured the client or worked from measurements in his order book.
He made a pattern, cut the cloth with 14 inch scissors and basted the pieces together with temporary stitching. He pressed the pieces a number of times with a steam iron which weighed 20 pounds. The client was fitted and the cloth was recut and rebasted if necessary. Mr. Iapaolo also worked with tape, canvas and facing. Most stitching was done by hand. Mr. Iapaolo demonstrated that he sewed sitting down with his leg crossed and with the garment resting on his crossed knee. He held the cloth tightly together with his left hand and stitched with his right hand. Forty per cent of the work involved standing. On Saturdays he delivered the clothes to his customers. He said he worked 11 to 14 hours a day. He said that he made about two suits a week.
Essential tasks of employment on July 22, 1993:
I heard evidence that in the two months before the third accident of July 22, 1993, Mr. Iapaolo took orders for five suits. I also heard evidence that customers called him 'all the time." Luca Curalli is a tailor and friend of Mr. Iapaolo. He testified that he did not work for others but that he did some work for free to help Mr. Iapaolo out. I heard no evidence to explain Mr. Curalli's invoice dated September 8, 1992 in the amount of $1,455 for work done for Mr. Iapaolo. Mrs. Iapaolo testified that "a couple" of tailors did work for Mr. Iapaolo. She thought Luca Curalli was one of them.
Mr. Iapaolo sent a note to Revenue Canada along with his 1993 income tax return. He wrote that he was unable to work because of the 1992 car accident but that he was maintaining his work area and referring his clients to others without pay in the hope that he would resume his business in the future.
Mr. Iapaolo said that he can still make suits, but not at a pace which would make his work productive. He said that he just finished a suit for himself which took five to six months working in his spare time on Sundays to complete. I heard little evidence of what he did the rest of the week.
Mr. Iapaolo was doing some work at the time of the third accident of July 22, 1993, but it is not clear how much work he was doing and who was making the suits.
Medical treatment and examinations:
Mr. Iapaolo was in good health prior to the motor vehicle accident of February 13, 1992.
After the accident, Mr. Iapaolo's son drove him home. Mr. Iapaolo went to bed that night and awoke in pain. The next day he went to a hospital where he was advised to go to a walk-in clinic. Mr. Iapaolo attended the clinic over the weekend and saw his family doctor, Dr. Krystolovich, on the Monday after the accident.
Mr. Iapaolo testified that initially he had pain all over, mostly on the left side of his neck and back.
He testified that he could not move his head, neck or left hand, that he had a swollen, painful and stiff shoulder, neck and low back. He complained of headaches and sleeping and vision problems. He had problems with his left hand and fingers including weakness, numbness and a sensation of pins and needles. He had problems with balance and walking, dizziness and fainting spells. He talked about feeling like a corpse, being stoned, waking in the night screaming in pain, and having a shoulder swollen like a balloon.
X-rays of the spine taken in 1994 showed no significant bony abnormality and electro myogram studies were reported as being normal.
Mr. Iapaolo took analgesics, muscle relaxants and anti-depressant medications. He underwent physiotherapy, TENS treatments, massage, chiropractic treatments, counselling, ultrasound, heat treatments and acupuncture.
Mr. Iapaolo saw his family doctor, Dr. Krystolovich, two or three times a month in the months following the first accident. On May 25, 1992 Dr. Krystolovich reported that Mr. Iapaolo "continues to be extremely tense and this has compounded the symptoms of the myofascial neck strain by creating extreme muscle tightness, such that he is literally unable to move his head in either direction. Lately with some physio there has been some improvement in this however, an incident in his car in the latter part of April, and his concern that he is losing customers since he is unable to work, have caused a worsening of his symptoms." Dr. Krystolovich was hopeful that Mr. Iapaolo would be able to return to work the next month. However, by August 27, 1992 Dr. Krystolovich reported that it was hard to predict when Mr. Iapaolo would "himself feel well enough to return to gainful employment." He found that Mr. Iapaolo "held his neck very rigid with little or no range of movement at all, and reacted aberrantly with the slightest of palpation of his cervical musculature." On November 13, 1992 Dr. Krystolovich reported that Mr. Iapaolo "over-reacts to palpation of muscles of left side of neck, plus left trapezius, resists any rotation of the neck to the left."
In December 1992, Dr. Krystolovich referred Mr. Iapaolo to Dr. Goldstein, a neurologist. Dr. Goldstein's motor examination revealed no evidence of weakness, atrophy or alteration of muscle tone. However, he did find severe spasm and tenderness in the whole of the left trapezius muscle, extending up to the lower neck musculature. Dr. Goldstein felt the shoulder pain was due to muscular spasm and possibly a frozen shoulder. Dr. Goldstein reported that muscular pain problems persisting for this length of time [ten months] are generally associated with poor outcome.
Dr. Krystolovich also referred Mr. Iapaolo to Dr. Kirsh. Dr. Kirsh is a family doctor who has restricted his practice to chronic pain. In 1994 Dr. Kirsh reduced his practice so that he could pursue a residency in psychiatry at the University of Toronto.
Dr. Kirsh saw Mr. Iapaolo on November 16, 1992. He said that he took Mr. Iapaolo at his word. He diagnosed chronic pain and treated Mr. Iapaolo with acupuncture and counselling. In January 1993, Dr. Kirsh thought Mr. Iapaolo could return to work in one to two years. In April 1993 he thought Mr. Iapaolo could return to work in two years and in August 1993, he though Mr. Iapaolo could return to work in two to three years. Dr. Kirsh testified that in his experience, very few people with chronic pain are able to return to work. He referred Mr. Iapaolo to Dr. Robella, an anaesthetist, Dr. Khoury and Dr. Wong physiatrists and Dr. Shapero at a clinic specializing in whiplash and headache.
Dr. Robella recommended steroid blocks into the head, neck and shoulder areas. Mr. Iapaolo declined this treatment because he was worried about needles.
Dr. Khoury found examining Mr. Iapaolo very difficult because of his exaggerated reactions to palpation and significant muscle guarding. She prescribed physiotherapy for four months starting in September 1993. She did not arrange for follow-up appointments because Mr. Iapaolo's range of movement plateaued after four months.
Dr. Khoury wrote on July 28, 1993 that Mr. Iapaolo "demonstrated exaggerated reactions towards any attempt to move his neck or left shoulder." On March 10, 1994 Dr. Khoury wrote to Dr. Kirsh that she did not think Mr. Iapaolo would benefit from any more physiotherapy. She also wrote that Mr. Iapaolo "exhibited exaggerated reactions towards palpation and any attempt to move his neck or left shoulder with significant voluntary muscle guarding which makes the examination very difficult."
Dr. Kirsh was asked to comment on Dr. Khoury's observations of exaggeration. Dr. Kirsh agreed that Mr. Iapaolo exaggerated his symptoms. He accepted Mr. Iapaolo's exaggeration by saying that he did not think that Mr. Iapaolo tried to deceive Dr. Khoury. He said that Mr. Iapaolo's manner of presenting his complaints was his "psychological style."
Dr. Shapero in his consultation note to Dr. Kirsh of October 10, 1993 noted that on physical examination of the cervical spine Mr. Iapaolo had a "very exaggerated" response to pain and that examination of the left shoulder also revealed an exaggerated response to pain.
Dr. Wong started treating Mr. Iapaolo with acupuncture and neurostimulation therapy in October 1994. Dr. Wong testified that application of electrical current to parts of the body, increases circulation and relaxes muscles. He continues this treatment at present. Dr. Wong said that Mr. Iapaolo continues to suffer from muscle spasm in the left side of the neck and back. Dr. Wong testified that Mr. Iapaolo should be able to return to tailoring on a part-time basis in six to eight months.
Dr. Wong referred Mr. Iapaolo to MaxAbilitation for an assessment by a chiropractor and a psychologist. Dr. Wong admitted that the assessment was based on self-reporting and that Mr. Iapaolo exaggerated his disabilities at the MaxAbilitation Assessment. He testified that this affected his views on Mr. Iapaolo's abilities to perform the tasks of a tailor although he did not explain how it affected his views.
Doctor Ogilvie-Harris, an orthopaedic surgeon, saw Mr. Iapaolo on October 22, 1993 and on April 20, 1994, at the request of Mr. Iapaolo's lawyer. Dr. Ogilvie-Harris regarded Mr. Iapaolo as being totally disabled because of pain in the neck, shoulder and low back.
The Insurer sent Mr. Iapaolo to two orthopaedic surgeons for examination. On September 30, 1992 Dr. Langer reported that he felt Mr. Iapaolo reacted excessively and consciously exaggerated his difficulties. On May 25, 1993 and October 6, 1995 Dr. Hall reported a large degree of conscious and voluntary inhibition in use of the left arm. He wrote "Whether or not he has a chronic pain syndrome, somatoform disorder, or other psychiatric diagnosis, would need to be determined by a psychiatrist."
Surveillance evidence:
Seventeen photographs taken May 6, 1995 and fourteen photographs taken August 31, 1995 show Mr. Iapaolo working in the front yard of his house.
The photos show Mr. Iapaolo using a shovel to turn the earth in two locations in his front yard. He uses the weight of his body to push the shovel into the ground with his foot. He uses his arms to steady the shovel, lift out the earth and turn it over. The photos also show Mr. Iapaolo on hands and knees pulling out weeds. In one photo the weight of his body is supported on his right knee and left hand. Another photo shows Mr. Iapaolo closing a car door with his right hand while holding a basket of fruit in his right hand and a bag and can of driveway sealer in his left hand. A series of photos show Mr. Iapaolo pumping the driveway sealer canister, applying the sealer spray and bending at the waist either to pick up something or work on the sealer.
The photographs were taken May 6, 1995 and August 31, 1995. Mr. Iapaolo said that these were the only two days that season he worked outside. He explained that what appeared to be pictures of him bending over were in fact pictures of him on the verge of fainting, losing his balance or using the canister for support. He also explained that although he was in pain on these two occasions, he was only trying to carry out his doctors' instructions to be active.
Dr. Wong testified that Mr. Iapaolo could do everything shown in the photographs every day because the activities did not involve movement of the neck. This is in direct contrast to Mr. Iapaolo's testimony that he was in pain while he gardened on these two days and the pain was such that he could only garden on those two days last summer.
Dr. Langar testified that the photographs show good function of the left arm, normal grip strength, normal left upper limb power and no obvious physical impairment. He also said that a properly functioning left shoulder is needed to maintain a shovel balanced upright while digging.
Other evidence of inability to perform essential tasks of tailoring:
Luca Curalli is a tailor. He testified that he has known Mr. Iapaolo for ten years and that Mr. Iapaolo had a good reputation for honesty and integrity. He said that after the first accident he did some work without pay to help Mr. Iapaolo out. He said that he didn't think Mr. Iapaolo had worked over the last three years.
Mrs. Iapaolo said that she did not know how the work in progress got completed after the first motor vehicle accident. She did not know if her husband could return to tailoring part-time. She said that customers keep calling her husband. She said that Mr. Iapaolo delivered a suit to a customer on the Saturday before the hearing. She could not say how many orders her husband had taken. She said a couple of tailors do work for her husband and she thought Luca Curalli was one of them.
Analysis and Findings:
Although there is credible evidence that Mr. Iapaolo has muscle spasm in his left shoulder and neck, nearly all of the doctors refer to Mr. Iapaolo exaggerating his pain and disability. Dr. Krystolovich, Dr. Kirsh, Dr. Khoury and Dr. Wong, the four doctors who spent the most time treating Mr. Iapaolo, as well as Dr. Shapero, Dr. Langer and Dr. Hall, all comment on Mr. Iapaolo's exaggerated response to pain.
Mr. Iapaolo was categorical in his exaggerations. He was asked if he ever exaggerated to Dr. Khoury, and even though there is ample evidence of exaggeration, he replied "certainly not." Following are other examples of exaggerations in Mr. Iapaolo's testimony. He said that one of his doctor's told him that "the only thing to do was operate," although Dr. Ogilvie-Harris was the only doctor who referred to surgical intervention, but only as a possibility. Mr. Iapaolo said I would not be here today if I had water therapy" even though he underwent extensive treatments which included exercises in the water. He was adamant that he did not undergo blood and urine tests even though the results of those tests are exhibits. He said his business was over because he had no one to look after his clients, even though his wife said that customers keep calling and that he delivered a suit to a customer on the Saturday before the hearing.
Mr. Iapaolo also demonstrated his propensity for exaggeration when he was asked to explain the surveillance evidence.
Mr. Iapaolo's counsel argued that I should place little weight on the surveillance photographs because the Insurer did not call the investigator to put the surveillance evidence into context and explain why available videotape evidence was not used. Had I suspected that there was any truth to Mr. Iapaolo's assertions that the photographs were taken just as he was about to faint, fall or lose his balance, I might have drawn an inference that the investigator was not called to testify because his testimony would not help the Insurers and might help the Applicant. However, I had no such suspicions. In my view, the surveillance evidence in this case can stand on its own. If testimony will discredit or support surveillance evidence, it is open to either party to call witnesses to comment on the evidence, including the person who conducted the surveillance. In this case, neither party called the investigator who conducted the surveillance and I am not persuaded that any inferences should be drawn from that fact. In this case, Mr. Iapaolo and the doctors commented on the pictures and I make findings of credibility based on those comments.
In my opinion, Mr. Iapaolo's explanations that the photographs show him on the verge of fainting, falling over, losing his balance and in pain are contrived. As well, the photographs demonstrate that Mr. Iapaolo has more physical ability than he is willing to admit. I do not accept Mr. Iapaolo's explanation that he was in too much pain to work outside for more than two days last summer. In view of my other findings of exaggeration and lack of credibility and in view of Dr. Wong's testimony that Mr. Iapaolo could perform these gardening tasks every day, it defies common sense that Mr. Iapaolo worked outside on only two occasions last summer and that the investigator was able to record both occasions.
The photographs do not show that Mr. Iapaolo can perform the essential tasks of tailoring for a sustained period of time. However, they impugn his credibility. In my view they show that he has exaggerated the lack of function he claims to have in his left shoulder, neck and hand. As well, his explanations of the photographs show that he is prepared to create fanciful explanations to conceal the truth about the extent of his pain and disability.
Mr. Iapaolo also exaggerated the income he earned from his tailoring business. He said that at the time of the motor vehicle accident of February 13, 1992 he was making about $60,000 per year. However, the Statement of Income for his year ending August 31, 1992 shows much lower income. Since Mr. Iapaolo stopped working on February 13, 1992, the Statement of Income represents sales for approximately six months of business activity and expenses over twelve months. By extrapolating sales for the full year, and by assuming cost of sales and expenses remain the same, Mr. Iapaolo's income for the year ending August 31, 1992 would have been $26,687 had he not stopped working on February 13, 1992.
A document entitled Statement of Changes in Financial Position indicates that Mr. Iapaolo had net business income of $3,940 for the year ending August 31, 1990 and a net loss of $10,142 for the year ending August 31, 1991.
These documents indicate that it is likely that Mr. Iapaolo exaggerated when he said his annual income from tailoring was $60,000 at the time of the first motor vehicle accident.
As well, the evidence is not clear as to what work Mr. Iapaolo has done since the first accident. Mrs. Iapaolo testified that customers keep calling and that Mr. Iapaolo delivered a suit to a client on the Saturday before the hearing. I also heard evidence that Mr. Iapaolo took five orders for suits in May, June and July 1993. I heard conflicting evidence on how much work Luca Curalli has done for Mr. Iapaolo and whether he did it for free. Mr. Iapaolo said that he stopped trying to do tailoring in 1992 or 1993 and that he put away his tailoring equipment in November 1992. However, he also said that he finished a suit for himself two months before the hearing.
I must decide whether Mr. Iapaolo has established on a balance of probabilities that he could not perform the essential tasks of tailoring after July 15, 1993, the date his weekly benefits were terminated by Guardian, and after July 22, 1993, the date of the third accident for which Maplex is responsible for accident benefits. To make that decision I must, among other things, determine what parts of the evidence I heard is believable.
Dr. Kirsh said that Mr. Iapaolo's exaggerated manner of presenting his symptoms was his "psychological style." I heard no other evidence to explain Mr. Iapaolo's exaggerated complaints. To exaggerate is to make something larger or greater than it really is. To describe Mr. Iapaolo's tendency to exaggerate as his "psychological style" does not help Mr. Iapaolo meet the burden of proof. I find that Mr. Iapaolo's complaints of pain and disability were exaggerated and I do not accept those complaints as credible.
Likewise, I cannot rely on the evidence of Mr. Iapaolo's doctors who based their opinions on Mr. Iapaolo's exaggerated complaints of pain and disability. Dr. Krystolovich seemed to base his opinion on when Mr. Iapaolo could return to work on when Mr. Iapaolo said that he could. Dr. Kirsh admitted that he took Mr. Iapaolo at his word, and presumably relied on what Mr. Iapaolo said in coming to his prognosis. Although he did not say how his opinions had changed, Dr. Wong admitted that his opinions were affected by the exaggerations in the MaxAbilitation report.
The other evidence given by Luca Curalli and Mrs. Iapaolo falls short of satisfying the burden of proof.
Mr. Iapaolo has not satisfied me that he suffered a substantial inability to perform the essential tasks of being a tailor after weekly benefits were terminated on July 15, 1993 or after July 22, 1993.
In view of my finding that Mr. Iapaolo was working at the time of the July 22, 1993 motor vehicle accident, he is not entitled to benefits under section 13 of the Schedule.
Expenses:
Although I have found that Mr. Iapaolo exaggerated his complaints and his inability to work, it is not clear that most of the exaggeration was a deliberate attempt to deceive. This application was not manifestly frivolous or vexatious. Pursuant to section 282(11) of the Insurance Act, I award the Applicant his expenses.
Order:
Mr. Iapaolo is not entitled to weekly income benefits pursuant to section 12 of the Schedule from Guardian after July 15, 1993.
Mr. Iapaolo is not entitled to weekly income benefits pursuant to section 12 of the Schedule from Maplex after July 22, 1993.
Mr. Iapaolo is not entitled to benefits under section 13 of the Schedule from Maplex after July 22, 1993.
Mr. Iapaolo is entitled to his expenses of the arbitration to be shared equally between Guardian and Maplex.
May 27, 1996
William J. Renahan Arbitrator
Date