Ontario Insurance Commission

Commission des assurances de l’Ontario

Neutral Citation: 1997 ONICDRG 175

Appeal P96-000008

OFFICE OF THE DIRECTOR OF ARBITRATIONS

RONALD A. HENRY

Appellant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Respondent

Before:

Susan Naylor, Director's Delegate

Counsel:

Barry L. Evans (for Ronald Henry)

Ian D. Kirby (for Allstate insurance Company of Canada)

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

The appeal is dismissed and the arbitrator's order dated November 3, 1995 is confirmed.
No appeal expenses are payable.

September 26, 1997

Susan Naylor

Director's Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Ronald Henry appeals an arbitration order dated November 3, 1995 regarding his entitlement to ongoing weekly income benefits and their amount. Following his accident on August 31, 1992, he received benefits at the minimum rate of $185.60 a week up to November 17, 1992. Allstate Insurance Company of Canada ("Allstate") then terminated benefits after Mr. Henry failed to attend a medical appointment with a medical practitioner of its choosing. The examination was authorised by subsection 23(2) of the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994, R.R.O. 1990, Reg. 672 ("the Schedule"). Mr. Henry did not challenge the termination straight-away, but asked later on that his benefits be reinstated. He also felt he should receive a higher rate of benefit.

The arbitrator conducted a two-day hearing in which he heard testimony from Mr. Henry and other witnesses. He rejected both aspects of Mr. Henry's claim.

On appeal, Mr. Henry seeks an order that he is entitled to ongoing benefits at the maximum rate of $600 a week. The arbitration record includes a number of medical reports and other documents, but no transcript.

II. DISABILITY

Entitlement to weekly income benefits is governed by section 12 of the Schedule. Under subsection 12(1), benefits are payable where the applicant suffers substantial inability to perform the essential tasks of his or her pre-accident employment or occupation. It has been established in numerous decisions that the onus is on the applicant to establish that he or she meets these requirements for the period claimed.

There is no dispute that Mr. Henry's job as an asphalt roofer involved heavy physical labour.

He operated under the business name "Sonny’s Sealcoating", delivering and applying asphalt sealant. His business included repairing flat-top roofs, waterproofing building foundations and seal-coating driveways and parking lots. The work involved climbing ladders while carrying materials and equipment and getting into awkward positions.

The arbitrator acknowledged the physical requirements of Mr. Henry’s work, but was not persuaded that he was disabled from doing its essential aspects. Mr. Henry’s complaints of back pain and limitation were largely subjective in nature; his case therefore turned to a large extent on credibility. The arbitrator did not find Mr. Henry to be a credible witness and concluded that his assessment of his own condition was not reliable. In reaching his conclusion on disability, the arbitrator did not rely upon any single piece of evidence but on a cumulation of factors. These included the following:

Mr. Henry’s failure to attend the medical examination arranged by Allstate in November 1992. The arbitrator rejected Mr. Henry’s excuse that he was too unwell to attend, and concluded that he chose not to go because he had unilaterally decided that it was too soon to be examined and that it would not help his claim.
Mr. Henry's lack of co-operation and effort during a functional abilities assessment arranged by Allstate in December 1993.
A rehabilitation report in July 1993, recording Mr. Henry as stating that he was "85% better". The arbitrator rejected Mr. Henry’s explanation that he was misinterpreted.
Mr. Henry’s failure to comply with his specialist’s recommendation that he try to exercise and condition himself through physical labour, and the specialist’s view that Mr. Henry was more interested in prolonged disability than in going back to work.
Even allowing for the fact that Mr. Henry had difficulty expressing himself, the fact that his testimony was "vague and often contradicted by other evidence".

Mr. Henry takes issue with the arbitrator's overall conclusion on a number of grounds. While he denies refusing to attend the examination because it was "too soon", he seeks to rely on this finding to support his case that he was not fit to return to work. He argues that even if he failed to attend the medical examination without good reason - which he does not concede - this does not mean that he was able to work. Mr. Henry is correct that his failure to attend an examination does not necessarily equate to an ability to return to work. However, that is not what the arbitrator found. The arbitrator found that the excuse Mr. Henry gave for failing to attend the examination in November 1992 was untrue. He took this into account in assessing the overall validity of Mr. Henry's claim for ongoing benefits. This was, in my view, a legitimate approach and there was evidence to support his finding.

Mr. Henry makes various other arguments in relation to the medical examination. He argues that Allstate is estopped from taking issue with his failure to attend the examination because it arranged another examination at a later date. He also argues that Allstate should have taken steps to re-arrange the examination earlier. Neither of these arguments have much merit. Allstate re-arranged the medical examination at Mr. Henry's request. Prior cases have held that the principles governing statutory accident benefits require insurers to give full and fair consideration to every claim, even after a claim has been denied.¹ This may include re-arranging a medical examination where an applicant has initially refused to attend. An insurer should not be penalised for carrying out these responsibilities. As far as the allegations of delay are concerned, the evidence before me indicates that Mr. Henry only challenged the termination of his benefits and asked for the examination to be re-arranged a year after the first appointment date, and that Allstate responded within a reasonable time afterwards. Allstate could not be expected to anticipate Mr. Henry’s position before he articulated it himself.

Mr. Henry also relied on his doctors' opinions in support of his claim. However, their reports were largely based on his own complaints and his subjective responses on examination. In evaluating the strength of the medical reports, the arbitrator properly considered the reliability of Mr. Henry’s account of his problems. The arbitrator also concluded that the weight to be given to the reports was affected to some extent by other factors: for example, the family doctor had not followed-up on the specialist's recommendations regarding physical conditioning and the specialist’s statement that Mr. Henry was disabled from any work as of August 1994 appeared at odds with his previously expressed views. The specialist did not testify at the hearing so as to clarify any uncertainty arising from his report.

Mr. Henry also points to the results of the functional abilities assessment, which concluded that he was not fit to return to work as a roofer. However, the professionals who conducted the tests rejected their own results as a valid depiction of Mr. Henry’s abilities because of his lack of effort and co-operation.

Mr. Henry’s main objection is that the evidence the arbitrator relies on does not show that he is able to work. However, it is his onus to prove his case. The arbitrator was not persuaded at the end of the day that Mr. Henry had satisfied this onus. Mr. Henry’s objections essentially go to the weight the arbitrator gave to the evidence. He is asking me to substitute my own view of the evidence for that of the arbitrator.

Previous appeal decisions have clearly established that it is not my function to second-guess the arbitrator's evaluation of the evidence. As a general principle, findings of fact should not be disturbed unless there is insufficient evidence to support them. This is especially so in the case of findings of credibility. The arbitrator has the advantage of hearing and observing the witnesses and is in a position to evaluate the evidence as a whole. The role of an appeals adjudicator is limited. It is not to substitute his or her own view of the weight to be given to the evidence but to determine whether there is sufficient evidence to support the arbitrator’s findings.

Having reviewed the arbitration record, I am satisfied that the arbitrator’s findings were properly based on the evidence before him and that there is no basis to intervene in his decision. The appeal on this point therefore fails.

III. THE AMOUNT OF BENEFITS

Mr. Henry also appeals the arbitrator’s ruling that he is only entitled to weekly income benefits at the minimum rate of $185.60.

According to the evidence, Mr. Henry started his sealcoating business in 1985. He stopped work in the business in 1989 or 1990 due to the recession, but re-started again in July 1992, shortly before the accident. He chose to calculate his benefits on the basis of his gross weekly income for the four weeks before the accident, under paragraph 12(7)1.i of the Schedule.

Mr. Henry provided some evidence of his earnings in the four weeks before the accident. He filed copies of three agreements for work during the period, for which he stated he was paid in cash. The arbitrator described these agreements as "a half-page printed form used by Sonny’s Sealcoating with blanks to be filled in".

The value of the contracts totalled approximately $4,800. One contract - with Motor City Trailer, a trailer manufacturing company - accounted for $3,500. Paul Reid, described as the owner of the business, testified and confirmed that the work was done on August 10, 1992 (the date recorded on the agreement) and was paid for in cash.

The arbitrator felt that there were "too many gaps" in the evidence about Mr. Henry’s income for that period. He found that there was inadequate documentation showing his earnings or expenses. He rejected Mr. Henry’s explanations, and did not accept Mr. Reid’s testimony as corroborative of Mr. Henry’s earnings because Mr. Reid’s description of the size of the job involved deviated from Mr. Henry’s account.

On appeal, the argument focused on this one contract. Mr. Henry’s main argument is that Mr. Reid's testimony should have been accepted and that the reasons given by the arbitrator for rejecting that testimony were inadequate.

The arbitrator has a statutory obligation to set out reasons for his or her order, failing which it may be set aside. I discussed this obligation in Lyons and Metropolitan Insurance, (December 6, 1996, OIC P-009824), a case in which a re-hearing was granted:

An arbitrator must give reasons for his or her decision. He or she need not detail or summarise all of the medical evidence, or address every inconsistency - this would not be sensible or in keeping with the adjudicator’s mandate to deal with disputes expeditiously. But an arbitrator's reasons should provide a coherent explanation why he or she reached his or her decision. They should acknowledge the most important evidence presented by the parties, and attempt to resolve serious conflicts in such evidence. (Decision, page 3)

While the arbitrator’s reasons here were condensed, in my view, they were adequate. They set out the basis for his order and give sufficient details to allow the decision to be subject to review on appeal. The arbitrator is not obliged to accept the only viva voce evidence offered, provided he sets out in sufficient detail his reasons for rejecting it.

The arbitrator's conclusion that Mr. Henry had failed to provide a coherent account of his affairs was based on a global assessment of the evidence, including poor documentation, incremental disclosure and inconsistencies in testimony. He found that there was insufficient evidence of a reliable nature to allow him to calculate Mr. Henry’s income and expenses for the four weeks in issue.

He directly addressed Mr. Reid’s testimony in his reasons. Although the arbitrator did not make clear-cut credibility findings in respect to this testimony, he explained why he did not consider it to be sufficient proof of Mr. Henry's earnings. He cast doubt on its reliability, given the other problems with the evidence, because Mr. Reid's description of the work done varied in what he considered to be a material respect from Mr. Henry’s account. The arbitrator heard all the evidence including the testimony of both Mr. Reid and Mr. Henry. Both witnesses were subject to cross-examination. I do not have a transcript of the hearing. There is no suggestion that the arbitrator’s finding as to the difference between the testimony of the two witnesses was incorrect, although Mr. Henry would prefer that I accept an alternative explanation for the discrepancy. As the person hearing the testimony first-hand, the arbitrator was in a far better position than I am now to assess the weight to be given to Mr. Reid’s testimony and to the evidence as a whole. I remain unconvinced that there is any basis to interfere with his exercise of judgment in this regard. The appeal is therefore denied.

IV. APPEAL EXPENSES

Although appeal expenses do not strictly follow the result, they are not generally awarded to an unsuccessful appellant unless the appeal raises a significant issue. Mr. Henry’s objections were directed primarily to the weight the arbitrator attributed to the evidence. He did not point to any specific errors in the arbitrator’s review of the evidence. In my view, the appeal does not raise sufficient grounds to warrant an order requiring Allstate to pay Mr. Henry’s appeal expenses.