Neutral Citation: 1997 ONICDRG 101

OIC A95-000351

ONTARIO INSURANCE COMMISSION

BETWEEN:

ANTONIETTA CRISTOFOLI

Applicant

and

ZURICH INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Antonietta Cristofoli, was struck by a motor vehicle accident while riding a bicycle on July 8, 1991. She was injured and applied for statutory accident benefits from Zurich Insurance Company ("Zurich"), payable under Ontario Regulation 672.¹ Zurich paid Mrs. Cristofoli weekly income benefits from one week after the accident until July 18, 1994.²

Mrs. Cristofoli claims ongoing weekly income benefits after July 18, 1994 under section 12(5)(b) of the Schedule. The issue is whether she is eligible for ongoing weekly income benefits. The dispute was not resolved through mediation, and Mrs. Cristofoli applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

I heard the matter in Windsor, Ontario on August 13, 1996. Mr. Marc Katzman, Barrister and Solicitor, represented Mrs. Cristofoli. Zurich was represented by Mr. Ian Boundy, Barrister and Solicitor. Mrs. Cristofoli was the sole witness at the hearing, and she was assisted with Italian/English translation by Ms. Elena Childs of Omnicom. The parties filed six exhibits.

Result:

Mrs. Cristofoli is not eligible for weekly income benefits after July 18, 1994.

Evidence and Findings:

Eligibility for Weekly income Benefits

Under section 12(5)(b) of the Schedule, Mrs. Cristofoli must establish on a balance of probabilities that her accident injuries continuously prevent her from engaging in any occupation or employment that is reasonably suited to her education, training or experience.

Medical Condition

Mrs. Cristofoli fractured her right elbow in the July 1991 accident. Dr. John Pepin, an orthopaedic surgeon, surgically affixed the fractured bone, and operated on it again when complications developed shortly thereafter. Mrs. Cristofoli's elbow healed and is now stable.

Mrs. Cristofoli received physiotherapy treatment to increase mobility and strength in the elbow. However, she has a permanent 25 degree loss of extension and 35 degree loss of flexion. Dr. Pepin and Dr. Robert A. Gibb, Mrs. Cristofoli's family doctor generally agree that she may occasionally lift moderately heavy objects, but that she should refrain from repetitive lifting, reaching or overhead lifting. Based upon the evidence of Dr. Gibb and Dr. Pepin, I accept that Mrs. Cristofoli suffers a permanent moderate restriction in the movement of her right elbow as a result of the accident.

Mrs. Cristofoli further testified that she developed headaches, back, hip and knee pain as a result of the accident. A radiology report compared Mrs. Cristofoli's x-rays in 1992 and 1996 and found that she suffered degenerative changes in her lower back, hip and pelvis. Mrs. Cristofoli admits that the first investigation of her low back complaints occurred in February 1993, one and a half years after the accident. She began receiving physiotherapy treatment for her upper back and shoulder in November 1994.

No medical evidence or opinion was submitted to support the contention that Mrs. Cristofoli's back, hip or knee complaints result from the accident. Without this evidence, I am not prepared to accept Mrs. Cristofoli's allegation that her back, hip and knee complaints result from the accident.

Mrs. Cristofoli also claims that she suffers headaches, neck and shoulder pain. She testified that these problems first appeared about 10 days after the accident. Although it is logical to assume that Mrs. Cristofoli sustained some degree of trauma to these areas from the fall off the bicycle onto hard pavement, no expert evidence connects the claimed injuries to the accident or comments on the resultant disability. Mrs. Cristofoli's testimony is insufficient to prove that her headaches, neck and shoulder pain were caused by the accident or result in a disability that prevents her from working.

Evidence suggests that other factors may account for Mrs. Cristofoli's headaches, neck, shoulder and back pain. Dr. Gibb apparently investigated Mrs. Cristofoli's thyroid and mentions "fibro myalgia" in his clinical notes. Nerve studies in 1996 also indicate that Mrs. Cristofoli has sensory delays in her left wrist and elbow. The experts speculate that Mrs. Cristofoli may have a pinched nerve in her neck too. However, the medical experts fail to set out a diagnosis based upon these investigations or Mrs. Cristofoli's functional disability. Without this evidence, I am unable to draw any conclusions.

Late Medical Evidence

Mrs. Cristofoli attempted to file Dr. Gibb's medical report months after the close of evidence. Zurich objected to the introduction of this evidence as untimely. On March 5, 1997, I heard submissions from both parties as to whether I should consider the report. I have not reviewed its contents.

Section 36(4) of the Dispute Resolution Practice Code provides:

If a party intends to introduce documents that have not been filed, the party must file the document and the information required by these Rules and serve a copy on the other parties as soon as possible, but not less than 10 days before the first day of the hearing, or on such terms as the adjudicator deems appropriate.

This section provides discretion to admit evidence outside of the 10 day rule. In one recent case, Arbitrator Bayefsky refused to accept post-hearing medical evidence based upon his finding that it could have been obtained in time for the hearing.³ I agree with my colleague that the evidence gathering process must have some finality.

In this case, Mrs. Cristofoli obtained Dr. Gibb's clinical notes and records in time to introduce them at the hearing, but not his report. Mrs. Cristofoli provided no reason why the report was not available for the hearing. Allowing Dr. Gibb's report to be filed would result in reopening the hearing because Zurich would need to cross-examine Dr. Gibb on his report. Although Mrs. Cristofoli consents to reopening the hearing and agrees to pay costs for this purpose, she presented no satisfactory reason why Dr. Gibb or his report was unavailable at the hearing. Six months after a hearing is far too long a delay to present new evidence. Mrs. Cristofoli has no excuse for this lengthy delay, and I am unwilling to reopen the case at this stage in the process. In accordance with Dispute Resolution Practice Code, I find Dr. Gibb's report is inadmissible.

Return to Employment

Mrs. Cristofoli suffers moderate restrictions and weakness of her right elbow and occasional aches and pains as a result of the accident. Neither party contends that she could return to factory work or waitressing.

Mrs. Cristofoli was 58 years old at the time of the hearing. Her main experience is in unskilled jobs in food service. She has worked as a waitress, dishwasher, and a cleanup-person. Mrs. Cristofoli also worked one year as a store clerk in the early 1960s.

At the time of the accident, Mrs. Cristofoli was enrolled in high school. She graduated in January 1996. As part of her education, Mrs. Cristofoli took a four month course in computer keyboarding. She failed computer studies twice. She has never held an office job, and does not feel confident of her office skills. I find that Mrs. Cristofoli does not have suitable education, training or experience for office work.

However, Mrs. Cristofoli contends that her lack of education and English language skills compromise her return to unskilled labour. Her education records in 1992 state that she scored 70 and 73 percent in two English courses. By February 1994, Mrs. Cristofoli had also successfully completed courses in math, geography, science and history. She scored in the 89th percentile in basic math. In her English courses, Mrs. Cristofoli studied short stories, novels, plays and was encouraged to read on her own. Though Mrs. Cristofoli maintains that she lacks the necessary education and language skills to be employable, I am persuaded by her education records that by February 1994 she was able to effectively communicate with the public, read, write and perform the basic mathematical skills necessary for most unskilled jobs.

Associative Rehabilitation Inc. ("ARI") unsuccessfully attempted to place Mrs. Cristofoli in retail sales positions in 1992. Dr. Pepin's opinion is that Mrs. Cristofoli can work as a sales clerk where she is not required to do heavy lifting. ARI's records reveal that Mrs. Cristofoli applied for over twenty jobs as a sales clerk. However, most of the companies were not hiring. ARI noted that some of the positions were inappropriate, though reasons are not listed. Mrs. Cristofoli's evidence is that she would have tried a retail sales job if offered the opportunity to work.

Mrs. Cristofoli provided no expert evidence to refute Dr. Pepin's opinion that she can perform a sales job as long as it did not require heavy lifting. Mrs. Cristofoli's upgraded skills through her adult education persuade me that she has the necessary math and language skills to work as a retail clerk. Mrs. Cristofoli admits that she can operate a cash register. Her work experience dealing with customers in restaurants, and her willingness to seek sales work persuades me that she is both motivated and able to work with the public. I find that Mrs. Cristofoli is able to work as a retail sales clerk with the restriction of no heavy lifting.

Mrs. Cristofoli agrees with Zurich that she has the experience to work as a restaurant hostess. In 1992 Associative Rehabilitation Inc. tried to find Mrs. Cristofoli a hostess job, but nothing was available at that time.

Mrs. Cristofoli testified that she thought the hostess job was appropriate to her physical abilities. In December 1992, Dr. Gibb met with Mrs. Cristofoli's rehabilitation consultant and recommended that she return to a job where she was not required to lift more than 20 to 25 pounds. The physical demands for the hostess job indicate that Mrs. Cristofoli might occasionally lift items as heavy as a high chair. I find the physical tolerances for the hostess job are within the guidelines set by Mrs. Cristofoli's family doctor. Consequently, I find that Mrs. Cristofoli can perform the physical duties of a hostess.

Mrs. Cristofoli submits that she does not have suitable training to be a hostess. However, Mrs. Cristofoli provided no evidence about the type of training she requires or the necessity for this. Admittedly, Mrs. Cristofoli can operate a cash register. She has long experience with waitress and cleanup duties at restaurants and can communicate with staff and patrons. Mrs. Cristofoli's reading, writing and mathematical skills are demonstrated by her completion of high school courses. On a balance of probabilities, I am not persuaded that Mrs. Cristofoli requires formal training as a hostess. Therefore, I find that Mrs. Cristofoli is suited by her education, training and experience to work as a restaurant hostess.

As a result of my findings that Mrs. Cristofoli can work as a restaurant hostess and retail clerk, she is not entitled to weekly income benefits under section 12(5)(b) of the Schedule.

Special Award

Mrs. Cristofoli claims that she is entitled to a special award under section 282(10)⁴ of the Insurance Act because Zurich failed to obtain a variance of Arbitrator Draper's May 4, 1994 Order. A special award is reserved for situations where an insurer has unreasonably withheld or delayed payments.

In the 1994 Order, Mrs. Cristofoli was granted continuing weekly income benefits under section 12(1) of the Schedule⁵. Zurich ceased paying weekly income benefits on July 18, 1994, when the stricter eligibility test of section 12(5)(b) took effect.

Essentially, Mrs. Cristofoli argues that the 1994 Order creates a continuing entitlement past July 18, 1994. The Order reads:

Mrs. Cristofoli is entitled to weekly income benefits for the period after June 17, 1993, plus interest calculated according to section 24 of the Schedule. Her ongoing entitlement to weekly income benefits under section 12(5)(b) has not been determined.

Arbitrator Draper's Order speaks for itself. The words specifically exclude Mrs. Cristofoli's entitlement under section 12(5)(b). He did not draw conclusions on Mrs. Cristofoli's eligibility under section 12(5)(b) because the stricter test was not in effect, and the health care professionals did not provide him with an opinion on that issue. Thus, the May 4, 1994 Order does not create any entitlement to weekly income benefits beyond July 18, 1994. I find that Zurich was not obligated to seek a variance of the May 4, 1994 Order before terminating Mrs. Cristofoli's weekly income benefits on July 18, 1994. Consequently, Mrs. Cristofoli is not entitled to a special award.

Expenses

Although Mrs. Cristofoli was unsuccessful, her claim had some merit. I exercise my discretion to grant her the expenses of the arbitration process.

Order:

1. Mrs. Cristofoli is entitled to her expenses incurred in respect of the arbitration.

June 17, 1997

Fred Sampliner Arbitrator

Date

If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the statutory accident benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule — Accidents On or Between June 22, 1990 and December 31, 1993. In this decision, the term "Schedule" will be used to refer to Regulation 672.
2. 2Zurich paid Mrs. Cristofoli weekly income benefits from June 17, 1993 until the termination date pursuant to the Order of Arbitrator Draper in Cristofoli and Zurich Insurance Company (May 4, 1994), A-005675.
3. 3Norton and Colonial Penn Insurance Company (June 3, 1996), A-014428
4. 4282 (10) Special Award
5. 5Supra, see footnote # 2