P.S. v. Toronto Transit Commission (Markel Insurance), 1997 ONICDRG 161

Ontario Insurance Commission

Commission des assurances de l’Ontario

Neutral Citation: 1997 ONICDRG 161

Appeal P-001116

OFFICE OF THE DIRECTOR OF ARBITRATIONS

P.S.

Appellant

and

TORONTO TRANSIT COMMISSION (MARKEL INSURANCE)

Respondent

Before:

Elisabeth Sachs

Counsel:

David S. Wilson (for P.S.)

Robert Zigler and Paul Ballantyne (for T.T.C. - Markel 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 May 4, 1994 is confirmed.

2. No appeal expenses are payable.

August 28, 1997

Elisabeth Sachs Director of Arbitrations

Date

REASONS FOR DECISION

I. NATURE OF APPEAL

P.S. (“Ms. S.”), appeals from an arbitration decision dated May 4, 1994 denying her claims for continued weekly benefits from December 6, 1991 and certain medical and rehabilitation expenses under sections 6 and 13 of O. Reg. 672, Statutory Accident Benefits ScheduleBAccidents Before January 1, 1994 (the Schedule). The Toronto Transit Commission (Markel Insurance), (“TTC”) paid benefits for a period of approximately five months following an incident involving Ms. S. on a bus on June 14, 1991. The arbitrator found Ms. S. was not entitled to benefits on the basis that her various physical, psychological or mental problems were not causally related to the accident.

TTC claims the arbitrator should have required Ms. S. to repay all benefits she received once no entitlement to them was found, or at least have ordered the arbitration expenses awarded to be set-off against the overpayment. However, TTC took the position it would not pursue the overpayment or appeal the expense award if the appeal by Ms. S. proved unsuccessful.

A number of factual issues are raised in this appeal but transcripts were not filed. Although the documentary record is voluminous, I do not have the benefit of being able to review the testimony given at the hearing, which took place over ten days (from February 11, 1993 through to May 12, 1993). At the hearing, Ms. S., her son, five doctors, and two other witnesses testified. This arbitration was not summary nor were the issues raised simple, as reflected in the arbitrator’s comprehensive 41-page decision which included an appendix of four written evidentiary rulings. Oral appeal submissions were heard over two days. They were marked by an aggressive and adversarial approach to the issues, which appears to also have been the case at the hearing.

II. BACKGROUND

Ms. S. claimed she was injured on a TTC bus on June 14, 1991, when it came to a sudden stop as the brakes were applied. Ms S. testified she was standing at the rear of the bus and when the braking action occurred, she twisted, striking her head, back and right shoulder on the pole she was holding with her right arm.

This was Ms. S.’s third accident involving a TTC bus. She was previously injured in 1987 and the fall of 1989, in both cases sustaining soft tissue injuries which eventually developed into a chronic pain syndrome and various psychological problems. By June, 1991, Ms. S. was no longer working. She was being treated for depression, headaches and other serious medical and psychological conditions.

The arbitrator found:

The weight of the evidence at this hearing suggests, at best, that the June 1991 accident may have been one factor, among many possible factors, which contributed to the Applicant's psychological condition. However, it does not indicate, on the balance of probabilities, that the June 1991 accident materially aggravated her existing physical or mental condition or precipitated her subsequent psychological problems. As with her admission in 1990, ultimately, the reason why her condition deteriorated and she required further hospitalisation, is unknown.

I find that the Applicant's physical, psychological or mental problems do not result from the June 1991 accident. She is therefore not entitled to weekly statutory accident benefits from December 6, 1991 onwards, as claimed. (Decision, p. 38)

Ms. S. submits the arbitrator made numerous errors in the interpretation of the evidence and argued that she therefore failed to draw proper inferences from the evidence. At the start of the oral appeal submissions, Ms. S. also alleged the arbitrator failed to deal adequately with the issues in dispute by not analysing whether Ms. S. was actually injured, whether she suffered a substantial inability to perform essential tasks which arose or existed after the accident, and whether the accident materially contributed to such an inability. This position was vigorously opposed by TTC. I allowed both parties to present argument on it, notwithstanding TTC’s claim it was being “ambushed” by these allegations.

TTC’s response is that issues relating to what Ms. S.’s essential tasks were and whether she could perform them did not require examination once the arbitrator found Ms S.’s physical, mental or psychological presentation after June 14, 1991 was not related to the accident. It argued the case is over once the question of whether an injury was sustained as a result of an accident is answered in the negative. TTC submitted inquiries about essential tasks and if can they be done then become irrelevant.

III. ISSUES AND ANALYSIS

In her decision, the arbitrator addressed the question whether Ms. S. was entitled to continued weekly benefits under section 13 of the Schedule. The arbitrator found that Ms. S. did not prove on a balance of probabilities the critical fact that she suffered physical or psychological or mental injury, such that her physical or mental state was affected by, or her psychological problems connected to, the events on the bus.

After summarizing Ms. S.’s medical and social history and her presentation before and after June, 1991 the arbitrator essentially concluded no “accident” within the meaning of section 2 of the Schedule had occurred. The definition reads in part:

2. In this Schedule,

“accident” means an incident in which the use or operation of an automobile causes, directly or indirectly, physical, psychological or mental injury ...(Emphasis added)

Thus she found it unnecessary to deal in detail with Ms. S.’s essential tasks and her ability to perform them after benefits were terminated in December, 1991. However, the arbitrator does refer to Ms. S.’s abilities both before and after the incident in determining whether she was injured on that day.

The basic conclusion reached by the arbitrator was that this incident was a very minor mishap in the overall landscape of Ms. S.’s life. Ms. S. received weekly benefit payments for almost six months thereafter which, in the arbitrator’s view, she was not entitled to. However, as only the issue of ongoing entitlement after December, 1991 was before her, the arbitrator did not order any weekly benefits be repaid.

The arbitrator recognized Ms. S.’s position that an outwardly minor trauma could aggravate a pre-existing physical and mental condition of a highly vulnerable individual. She accepted that Ms. S.’s “prior physical condition and her fragile mental state made her more vulnerable to injury” (Decision, p.25). She did not, though, accept the incident aggravated Ms. S.’s “physical or mental condition in any material way.” (Decision, p.39).

The standard of review on appeal where an error or a misapprehension of the facts is alleged has been set out in numerous appeal decisions, and can be taken as settled. My duty is not to re-try the issues as if presented for the first time, or to cast the evidence in a different light based on hindsight, particularly in the absence of seeing or hearing the witnesses. I can interfere with an arbitrator’s factual findings or weighing of the evidence only if there is insufficient or no evidence to support those findings or their assessment.

In evaluating the oral testimony of Dr. Cohen and Dr.Tyl, two of Ms. S.’s treating physicians, the arbitrator concluded their contemporaneous clinical notes provided a better, more objective, record of Ms. S.’s physical and psychological status in the months before and after the incident than their recollections at the time of the hearing almost two years later. Where a witness’ testimony and previous observation conflict, this determination is entirely open to an arbitrator. She also relied more extensively on evaluations of Ms. S.’s psychological presentation contained in the reports of Ms. S.’s psychiatrists. This was particularly so with respect to the records of Dr. H. J. Arndt, who had treated Ms. S. regularly since 1989. Dr. Arndt found no difference in Ms. S.’s psychological presentation after June, 1991. Indeed, the arbitrator noted Ms. S. saw Dr. Arndt less than two weeks following the incident, but failed to mention it to him.

The arbitrator also heard testimony from Ms. S., her son and two lay witnesses. She accepted their evidence as credible. However, the arbitrator determined she could place very little reliance on their estimates of when Ms. S.’s health began to deteriorate. Testifying from memory, sometimes with an incomplete comprehension of Ms. S.’s entire psychological history in particular, their evidence as to when Ms. S.’s functional level deteriorated did not accord with the objective, contemporaneous records produced. The arbitrator made no error, in my view, in ascribing more weight to those records than the oral evidence.

Ms. S. complains the arbitrator relied on the note of a charge nurse who came to her assistance immediately following the incident. The nurse did not testify at the hearing. Her note recorded Ms. S. was “weepy but alert and told her she had collapsed after getting dizzy from a headache.” (Decision, p.18). Ms. S. denied making this comment. However, nothing in the arbitrator’s decision leads me to believe that she placed undue weight on the note. My reading of the decision indicates it was merely another element in the overall picture. Certainly the arbitrator was free to consider this evidence. Given the available record of Ms. S.’s testimony about her physical state on arrival at the Avenue Road busstop, it is unclear that she could be entirely sure of what she may have said to those who were helping her then or have a better recall at the hearing.

The above is a brief summary of some of the main concerns raised by Ms. S. about the arbitrator’s findings. There were others dealing with what I consider in the context of this case, to be minor points which do not add up to a finding that errors were made justifying my coming to a different result. My review of the record persuades me the arbitrator was fully justified in reaching the conclusions she did. I see no reasons to overturn them, and the appeal is dismissed.

IV. EXPENSES

This appeal was based primarily on Ms. S.’s view the arbitrator was wrong in coming to the conclusions she did, and that there must be some connection between her presentation after December 6, 1991 and the incident of June 14, 1991 which TTC should compensate her for. Given the findings and the available evidence, this appeal was ill considered but not frivolous. Accordingly, each party will bear their own expenses.

August 28, 1997

Elisabeth Sachs Director of Arbitrations

Date