Konstantinos Bertsouklis v. Liberty Mutual Fire Insurance Company, 1996 ONICDRG 87

Ontario Insurance Commission

Commission des assurances de l’Ontario

Neutral Citation: 1996 ONICDRG 87

Appeal P-006499

OFFICE OF THE DIRECTOR OF ARBITRATIONS

KONSTANTINOS BERTSOUKLIS

Appellant

and

LIBERTY MUTUAL FIRE INSURANCE COMPANY

Respondent

Before:

David R. Draper, Director's Delegate

Counsel:

Peter Carlisi (for Konstantinos Bertsouklis)

George Frank (for Liberty Mutual)

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 June 28, 1995, is confirmed.

2. Mr. Bertsouklis is entitled to his reasonable appeal expenses.

May 28, 1996

David R. Draper

Director's Delegate

REASONS FOR DECISION

I. NATURE OF THE APPEAL

This is an appeal by Konstantinos Bertsouklis from an arbitration order, dated June 28, 1995, that he is not entitled to weekly income benefits after July 31, 1993 and must repay the benefits he received pursuant to the arbitrator's interim order.

Mr. Bertsouklis was injured in an automobile accident on October 24, 1991. He applied to Liberty Mutual Fire Insurance Company ("Liberty Mutual") for accident benefits under Ontario Regulation 672, Statutory Accident Benefits Schedule - Accidents Before January 1, 1994 ("the Schedule"), claiming he was unable to return to work as a self-employed house painter. He received weekly income benefits for close to two years. Effective July 31, 1993, Liberty Mutual cancelled his benefits on the basis that his accident-related injuries no longer prevented him from performing the essential tasks of his occupation. Mr. Bertsouklis disagreed with this decision.

During mediation, Liberty Mutual agreed to pay for Mr. Bertsouklis to attend a work hardening program. Mr. Bertsouklis maintained that Liberty Mutual also agreed to pay him weekly income benefits while he attended this program. He applied for arbitration, claiming ongoing weekly income benefits from July 31, 1993.

The arbitration hearing was adjourned to allow Mr. Bertsouklis to review some additional reports produced by Liberty Mutual. As a condition of the adjournment, Liberty Mutual was required to reinstate Mr. Bertsouklis' weekly income benefits during the adjournment period, subject to repayment if he were ultimately found ineligible.

Following a five-day hearing, the arbitrator concluded that Mr. Bertsouklis was not entitled to any additional weekly income benefits, including the period of his involvement in the rehabilitation program. She also ordered him to repay the interim benefits.

II. PRELIMINARY ISSUES

A. Stay

In his Notice of Appeal, Mr. Bertsouklis asked for an order staying the repayment order. By letter dated October 3, 1995, I ordered a stay of the repayment order, but also stayed Liberty Mutual's obligation to pay expenses up to the amount of the repayment. This meant that Liberty Mutual was required to pay Mr. Bertsouklis the amount, if any, by which his arbitration expenses exceeded the amount of the repayment.

B. New Evidence

At the arbitration hearing, Mr. Bertsouklis relied on a report from Dr. Brian McGoey, an orthopaedic specialist. In his report, Dr. McGoey described Mr. Bertsouklis' headaches, neck pain, low back pain and left knee pain. He concluded that Mr. Bertsouklis suffered soft tissue injuries in the accident and had developed a chronic pain syndrome. In Dr. McGoey's opinion, Mr. Bertsouklis was capable of working on level ground, but could not do overhead work or work on ladders.

The arbitrator described Dr. McGoey's report as the "only medical evidence in Mr. Bertsouklis' favour" (Decision, p.12). She was not prepared to accept Dr. McGoey's opinion over the views of the other health professionals because he "did not expand upon the basis for his finding that Mr. Bertsouklis has chronic pain syndrome, or in regards to the degree of disability suggested; there was no detailed psychological work-up" (Decision, p.13).

On appeal, Mr. Bertsouklis provided a new report from Dr. McGoey that responds to the arbitration decision. Liberty Mutual objected to this new evidence. In the alternative, Liberty Mutual submitted that it should have an opportunity to challenge or respond to the new report. I reserved my decision on this issue.

The introduction of new evidence on appeal is a discretionary matter. I accept the following criteria identified in previous decisions as a useful guide:

1. The evidence should generally not be admitted if by due diligence it could have been available for the arbitration hearing;

2. The evidence must be reasonably capable of belief;

3. The evidence must be relevant to a potentially decisive issue; and

4. The evidence must be such that, if believed, it could reasonably be expected to have affected the result.¹

After reviewing Dr. McGoey's report in light of these criteria, I conclude that it should not be included in the appeal. The main reason is that I am not persuaded that it would have affected the result.

In his recent report, Dr. McGoey responds to the arbitrator's concerns about the lack of a detailed psychological work-up. He asserts that although he is not an expert in the psychological aspects of pain, he can recognize pain behaviour. In my view, however, the arbitration decision did not depend on whether Mr. Bertsouklis was suffering from chronic pain syndrome. The arbitrator accepted that Mr. Bertsouklis had ongoing pain, but quite properly focussed on whether his condition, "however it is labelled," prevented him from performing the essential tasks of his occupation.

Dr. McGoey also deals with the extent of Mr. Bertsouklis' limitations. He accepts that pain does not equate with disability, but feels Mr. Bertsouklis' situation is complicated by vertigo:

In the case of Mr. Bertsouklis, however, he also has vertigo (a feeling of dizziness).

Vertigo makes work on ladders above 5' hazardous. Mr. Bertsouklis has undergone two physiotherapy programs without improvement in his condition. I find it difficult to understand how working on level ground somehow "conditions" him to working overhead and on ladders.

I would question the arbitrator as to whether applicants must prove that their pain and other symptoms render them unable to perform all or some of their essential tasks. Mr. Bertsouklis can definitely perform some of his essential tasks. It is difficult, however, to get a job where you paint only part of a house or paint a room and not the ceiling.

I have some concern that there was no mention of vertigo or dizziness in Dr. McGoey's previous report. More importantly, however, it is not clear that his opinion would have helped the arbitrator to any significant extent. Dr. McGoey did not meet Mr. Bertsouklis until long after the accident, and had to rely on his description of his work, the accident, and his resulting problems. The arbitrator had at least as much information as Dr. McGoey to assess Mr. Bertsouklis' ability to perform the essential tasks of his occupation. She heard from Mr. Bertsouklis, his wife and three health professionals. She also received eight exhibits, including two medical briefs. In the particular circumstances of this case, I conclude that the goal of finality outweighs the value of the new evidence.

III. THE APPEAL

A. Weekly Income Benefits

At the arbitration hearing, Mr. Bertsouklis claimed that he was still entitled to weekly income benefits because he continued to suffer from headaches, dizziness, left shoulder pain, neck pain, low back pain, mood swings, depression and confusion. The arbitrator accepted that he suffered soft tissue injuries in the accident, but without any neurological or orthopaedic complications. She also accepted that he continued to suffer from ongoing muscular skeletal pain "attributable, at least in part, to a lack of conditioning and inactivity." The issue was whether his injuries left him substantially unable to perform the essential tasks of his pre-accident work as a self-employed house painter.

The arbitrator properly reviewed Mr. Bertsouklis' essential tasks. She found that his pre-accident work was physically demanding, requiring a sustained work effort to meet tight schedules. On appeal, Mr. Bertsouklis objected to the following comments by the arbitrator:

However, Mr. Bertsouklis worked for himself and was not subject to direct supervision by anyone else; to this extent, he had some flexibility in his work. Some of the tasks that Mr. Bertsouklis performed before the accident could have been given to his brother-in-law to complete under his direction, if Mr. Bertsouklis were unable to complete them himself. For example, if he had difficulty carrying the full five-gallon cans of paint, he could arrange for his brother-in-law to pick them up in the morning. As a self-employed contractor, he could be expected to make certain reasonable accommodation. (Decision, p.5)

I am not persuaded that the arbitrator misdirected herself in considering Mr. Bertsouklis' ability to adjust his work to accommodate his residual limitations. Rehabilitation is a major goal of the accident benefits approach. According to the Schedule, Liberty Mutual has an obligation to fund medical and rehabilitation services needed to allow Mr. Bertsouklis to return to his pre-accident situation. He is expected, however, to return to work when he is reasonably able to do so. His entitlement to weekly income benefits does not continue until he can perform his pre-accident work exactly as he did before the accident, but only for the period that he is substantially unable to perform the essential tasks of his occupation.

In my opinion, job flexibility is an appropriate consideration in assessing an insured person's entitlement to weekly income benefits. If he can do his job tasks with minimal assistance, or can accomplish them in a different way, he may not be eligible. This analysis, however, must be realistic and reasonable. For example, I would not suggest that Mr. Bertsouklis or any other self-employed person is ineligible for weekly income benefits simply because they could reassign all of their tasks to someone else.

Mr. Bertsouklis submitted that the arbitrator had no evidence that he could modify his work. This is difficult to evaluate without a transcript. The decision suggests, however, that the arbitrator relied on Mr. Bertsouklis' own testimony in finding that he could shift some heavier tasks to his brother-in-law, if necessary. In my view, the arbitrator was entitled to make this finding, and I find no reason to interfere.

The central question in the arbitration was the extent to which Mr. Bertsouklis was limited by his injuries. This is a factual question that the arbitrator had to decide based on the evidence presented to her. My role on appeal is not to rehear the case, or to second-guess the arbitrator's assessment of the evidence.² The arbitrator had the advantage of hearing and observing the witnesses in person. This gave her an opportunity to assess their credibility, and to consider the exhibits in light of the testimony. This is particularly important in cases, such as this one, where the claim is based on subjective complaints, making the evaluation of the applicant's evidence crucial to the decision.

My ability to review the arbitrator's findings is also limited by the lack of a transcript. As the Director observed in Singh and Simcoe Erie Group, (February 2, 1994, OIC P-000532), the lack of a transcript means that the arbitrator's findings are "difficult for the parties to refute unless the exhibits show that a fact found and relied upon by the arbitrator could not have been so found in all of the circumstances, or documentary evidence was ignored or fundamentally misconstrued."

On appeal, Mr. Bertsouklis focussed on the arbitrator's refusal to accept that he suffered from chronic pain syndrome. He submitted that the evidence clearly established the diagnosis, and that the existence of chronic pain syndrome explained why he was unable to overcome his physical limitations. Further, Mr. Bertsouklis submitted that if the arbitrator had any doubts, or felt that additional psychological testing was needed, she should have arranged a referral to the Medical and Rehabilitation Advisory Panel.

I agree with the arbitrator that there is no particular magic to the diagnosis of chronic pain syndrome for the determination of entitlement to weekly income benefits. The diagnosis may have some predictive value, but the question for the arbitrator was not whether Mr. Bertsouklis was likely to return to work, but whether his injuries rendered him unable to perform the essential tasks of his or her occupation. His own views about his limitations, no matter how sincerely held, are not determinative. As the arbitrator expressed it:

To succeed in a weekly income benefit claim based on chronic pain, applicants must prove that their pain and other symptoms render them unable to perform their essential tasks. As has been stated in many arbitration decisions, pain does not equate to disability.

The problem in this case is that there was a persistent gap between what the health professionals felt Mr. Bertsouklis could and should have been doing, and what he did. Even Dr. McGoey felt that he was capable of working on a level surface. Mr. Bertsouklis cooperated in a number of rehabilitation programs, but made little effort to return to painting, as suggested by nearly all of the health professionals.

The arbitrator was left with the difficult task of evaluating the functional ability of a man who was not doing very much. She concluded that by July 31, 1993, Mr. Bertsouklis was substantially able to perform the essential tasks of his occupation as a self-employed house painter, although he might have some difficulty with the most demanding tasks, at least initially. After reviewing the record, I am convinced that there was ample evidence to support this conclusion.

I have some sympathy for Mr. Bertsouklis' submission that no one suggested the need for a "detailed psychological work-up." He argues that if the arbitrator felt that this type of evaluation was needed, she should have exercised her discretion under section 282(5) of the Insurance Act to arrange a referral to the Medical and Rehabilitation Advisory Panel. In my opinion, however, the arbitrator's point was that in the face of substantial medical evidence that Mr. Bertsouklis was capable of returning to work, he had to present alternative evidence to show why he could not. The Medical and Rehabilitation Advisory Panel is intended to help the arbitrator deal with specific questions about the medical evidence, not as a substitute for the parties' obligation to bring forward the evidence needed to prove their case.³ In this case, I am not persuaded that the arbitrator needed the assistance of the Medical and Rehabilitation Advisory Panel. The problem was a lack of evidence, rather than complex or conflicting medical evidence.

Finally, it was suggested that I make a referral to the Medical and Rehabilitation Advisory Board. For the reasons set out above, however, I am not persuaded that this case involves the kind of difficult or conflicting medical evidence on which the Medical and Rehabilitation Advisory Board might be helpful. It involves the common, but difficult, problem of evaluating the disabling nature of pain and other subjective symptoms. The arbitrator was in the best position to determine this issue. Her decision was supported by the evidence and, therefore, there is no reason to interfere with it.

B. Weekly Income Benefits During Rehabilitation

At the arbitration, Mr. Bertsouklis claimed that Liberty Mutual agreed to pay weekly income benefits while he attended a work hardening program. Liberty Mutual maintained that there was no agreement to pay any additional weekly income benefits.

Mr. Bertsouklis was the only witness who testified about the mediation. The arbitrator considered his testimony and the arbitration exhibits, including the Report of Mediator and a subsequent exchange of letters between Mr. Bertsouklis' lawyer and the mediator. She concluded as follows:

Although there may have been a legitimate misunderstanding about what occurred, I am not prepared on the evidence before me, that the Report of Mediator, a document prepared contemporaneously by a neutral third party in the ordinary course of business, inaccurately summarised the outcome of the mediation. At best it shows that the parties were not ad item in regards to any offer being made.

(Decision, p.18)

On appeal, Mr. Bertsouklis submits that the arbitrator should have found in his favour because she accepted his uncontradicted testimony. In my opinion, however, the arbitrator was entitled to consider the documentary evidence and to evaluate its strength in relation to Mr. Bertsouklis' testimony. She reached a factual finding based on the evidence, and I find no reason to interfere.

C. Repayment of Interim Benefit

Mr. Bertsouklis' appeal includes a request that he not be required to repay the benefits that he received pursuant to the arbitrator's interim order. However, the arbitration decision specifically states that the interim benefits "were subject to repayment, in the event that Mr. Bertsouklis was found not to be entitled to benefits for that period." The repayment order simply followed the conclusion that Mr. Bertsouklis was not entitled to any additional weekly income benefits. Since I have upheld that conclusion, there is no basis for interfering with the repayment order.

IV. APPEAL EXPENSES

Mr. Bertsouklis submitted that he should be awarded his appeal expenses whatever the outcome because he raised arguable issues. Liberty Mutual took the position that it should not be required to pay Mr. Bertsouklis' appeal expenses unless he succeeds. I considered similar submissions in Guzman and Dominion of Canada General Insurance Company, (January 18, 1996, OIC P-007209). In that case, I concluded that although insured persons should have reasonable access to both arbitrations and appeals, the considerations are somewhat different at the appeal level. An appellant has had an opportunity to present his or her case to an arbitrator, and has been given a written decision, with reasons. On appeal, the appellant must be able to show some compelling reason that the decision should be disturbed. Mere disagreement with the arbitrator's assessment of the evidence is not enough.

Appeal expenses do not strictly follow the result, but should not be seen as automatic. Unsuccessful appellants have been awarded their expenses where their appeal raised an important or substantive issue, or was reasonable in some other respect⁴. Expenses have been denied, however, where the allegations made in the appeal were unfounded, where the appeal was seen as unreasonable, or where the appellant simply disagreed with the arbitrator's evaluation of the evidence.⁵

In my view, the awarding of expenses in this case is a borderline proposition. I am persuaded, however, that the issues raised about the diagnosis of chronic pain syndrome and its implications were of sufficient merit that Mr. Bertsouklis should receive his reasonable appeal expenses. If the parties are unable to agree on the amount, an assessment may be arranged by filing written submissions with the Registrar.

May 28, 1996

David R. Draper

Director’s Delegate

Footnotes

1. 1The guidelines initially established in Plows and Jevco Insurance Company, (May 22, 1992, OIC P-000175 and P-000588), have been applied in number of appeal decisions, including the Director's decisions in Shelley L.P. and Royal Insurance Company of Canada, (June 23, 1995, OIC P-002235), and Shehadeh and The General Accident Assurance Company of Canada, (February 21, 1996, OIC P-001177).
2. 2This principle was first applied by the Director in Calogero and The Co-Operators General Insurance Company, (February 13, 1992, OIC P-000251), and has been applied consistently in subsequent appeal decisions.
3. 3A similar approach was taken by the Director in Lee and Unifund Assurance Company, (September 14, 1993, OIC P-000078), and followed in Beenan and The Continental Insurance Company of Canada, (September 8, 1994), and Shelley L.P. and Royal Insurance Company of Canada, (June 23, 1995, OIC P-002235).
4. 4For example, Zeppieri and Royal Insurance Company of Canada, (December 2, 1994, OIC P-005237); Ramjeet and State Farm Mutual Automobile Insurance Company,(February 28, 1995, OIC P-004685); Edwards and State Farm Mutual Automobile Insurance Company, (February 26, 1996, OIC P-001707); Bruno and Liberty Mutual Insurance Company, March 8, 1996, OIC P-002249).
5. 5For example, Calogero and The Co-Operators General Insurance Company, (February 13, 1992, OIC P-000251); Epps and Co-operators General Insurance Company, (December 14, 1994, OIC P-002340); Shehadeh and The General Accident Assurance Company of Canada, (February 21, 1996, OIC P-001177); Tagiran and Simcoe & Erie General Insurance Company, (February 26, 1996).