Paulo Pinto v. General Accident Assurance Co. of Canada, 1997 ONICDRG 202

Office of the Director of Arbitrations

Neutral Citation: 1997 ONICDRG 202 Appeal: P97-00031

Paulo Pinto Appellant/Respondent

and

General Accident Assurance Co. of Canada Respondent/Appellant

Before: David R. Draper, Director's Delegate

Counsel: Gerald Sternberg (for Paulo Pinto) J. Claude Blouin (for General Accident)

APPEAL ORDER

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

1. The appeals are dismissed and the arbitration decision order dated April 10, 1997, is confirmed.
2. Mr. Pinto is entitled to appeal expenses fixed at $250.00, payable by General Accident Assurance Co. of Canada.

November 26, 1997

David R. Draper Director's Delegate

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Both parties appeal from the arbitration order dated April 10, 1997. Paulo Pinto submits that the arbitrator erred in denying his claim for weekly income benefits after September 5, 1994. General Accident Assurance Co. of Canada ("General Accident") objects to the order requiring it to pay Mr. Pinto's arbitration expenses. More specifically, it contends that the arbitrator erred in not applying the November 1996 amendments to the Insurance Act, R.S.O. 1990, c. I.8.

II. BACKGROUND

Mr. Pinto was involved in an automobile accident on October 5, 1993. The arbitrator found that he drove into the rear of a stationary vehicle when his brakes failed, resulting in strains to his back, right hip, thigh and shoulder.

At the time of the accident, Mr. Pinto was 26 years old. He was a qualified journeyman carpenter, working in industrial and commercial construction. In the 20 weeks before the accident, he worked for a company building mausoleum crypts. This was a physically demanding job, involving heavy lifting.

Mr. Pinto applied for weekly income benefits, claiming that his injuries prevented him from returning to work. General Accident paid him $600 per week for approximately eleven months. Effective September 5, 1994, however, it stopped paying on the basis that Mr. Pinto was capable of performing the essential tasks of his pre-accident work.

Mr. Pinto did nothing to challenge General Accident's decision for 20 months. In April 1996, he retained his current lawyer and returned to see Dr. Alex Donskoy, the general practitioner who treated him for the three months following the accident. He then applied for mediation, claiming weekly income benefits from September 5, 1994, onwards. When the dispute was not resolved through mediation, Mr. Pinto applied for arbitration.

In August 1996, before the arbitration hearing took place, Mr. Pinto started working at his brother's auto body repair shop. He claimed, however, that he remained entitled to weekly income benefits at a reduced rate because he was still unable to perform the heavier duties of his pre-accident work.

The arbitration hearing was held over two days in February 1997. Mr. Pinto was the only witness. Nine exhibits were filed, including a medical brief. The hearing was recorded by a court reporter, but neither party obtained a transcript for the appeal.

In his decision, the arbitrator reviewed the evidence and made factual findings. He found Mr. Pinto's testimony "vague and not persuasive." In addition, he preferred the opinion of Dr. Ernest J. White, an orthopaedic surgeon retained by General Accident, to that of Dr. Donskoy. As a result, he concluded that Mr. Pinto was not entitled to weekly income benefits after September 5, 1994.

The arbitrator then dealt with the question of arbitration expenses. Mr. Pinto claimed his expenses according to the general practice developed in previous decisions. General Accident argued that amendments to the Insurance Act had changed the rules. As of November 1, 1996, section 282(11) of the Act was replaced with a new version, allowing the arbitrator to award expenses to the insured person or the insurance company, not just to the insured person, as had been the case previously. Relying on this amendment, General Accident asked the arbitrator to order Mr. Pinto to pay its arbitration expenses.

The arbitrator rejected General Accident's claim for expenses, holding that the new section should not be applied to arbitration proceedings already under way on November 1, 1996. In his opinion, applying the new expense provision to ongoing proceedings would retroactively affect the insured person's right to recover expenses. Therefore, the arbitrator applied the law in effect in July 1996, when Mr. Pinto applied for arbitration. He ordered General Accident to pay Mr. Pinto's reasonable arbitration expenses, except the cost of a medical report that was filed late.

III. WEEKLY INCOME BENEFITS

A. Adjournment

Mr. Pinto submits that the arbitrator erred in refusing his request that Dr. White be made available for cross-examination. For the following reasons, I agree with General Accident that the request came too late.

A pre-hearing discussion took place in October 1996, with both parties represented by counsel. General Accident was required to give Mr. Pinto a list of its medical evidence and copies of any material not already provided to him. As a result, Mr. Pinto was aware that General Accident would be relying on Dr. White's reports. The pre-hearing letter also makes it clear that he knew General Accident did not plan to call any witnesses.

Despite this, Mr. Pinto took no steps in the four months before the hearing to request or arrange for Dr. White's presence at the hearing. His attendance was raised for the first time after the hearing started. Dr. White was not available on such short notice and the arbitrator was not prepared to adjourn the hearing to arrange for his attendance. In my opinion, this was a reasonable exercise of the arbitrator's authority to control the process.

The pre-hearing is designed to ensure that arbitration hearings proceed on the dates assigned. In this case, the process worked as it should. Mr. Pinto was not surprised by any unexpected witnesses or new reports. In fact, Dr. White's last involvement was in July 1994, more than two years before the hearing. Further, none of the other medical experts were called as witnesses, and Mr. Pinto was allowed to rely on a report from Dr. Donskoy, written just four days before the hearing, commenting on Dr. White's opinion.

B. Entitlement

Mr. Pinto's main submission is that the evidence does not support the arbitrator's conclusion that he is not entitled to weekly income benefits after September 5, 1994. As an alternative argument, he submits that even if the arbitrator could rely on Dr. White's opinion for the time when his benefits were terminated, there was no medical evidence to contradict the opinions of Dr. Donskoy and Dr. Veronica Kekosz, a physiatrist, for the later period. Therefore, he claims that he should be paid weekly income benefits of $600 from April 6, 1996 to August 6, 1996, when he returned to work, and $200 from August 6, 1996 until he has received benefits for a total of 156 weeks.

I am unable to accept Mr. Pinto's arguments. Where the insured person's disability cannot be objectively measured, his or her testimony is critical. As I said in Pisani and Simcoe & Erie General Insurance Company and Canadian General Insurance Company, (December 11, 1995, OIC P-003929 and P-005693), the arbitrator must consider all the evidence and is not bound by medical opinion, particularly where the opinion is based on incomplete or incorrect information. Unfortunately for Mr. Pinto, the arbitrator found his testimony vague and unconvincing. The decision includes reasons for this assessment that demonstrate a proper consideration of the evidence. Therefore, I find no basis for disturbing the decision.

Mr. Pinto specifically objects to the arbitrator's reliance on the fact that no CT scan was done. At page 9 of his decision, the arbitrator states:

Lastly, I find it significant that Mr. Pinto failed to undergo a CT scan of the lumbar spine as recommended by an orthopaedic specialist. Dr. White thought that this was necessary, but no one followed through. Mr. Pinto told Dr. Kekosz that he might have a disc problem yet neither Mr. Pinto, Dr. Donskoy, or any of Mr. Pinto's three legal representatives thought his problem serious enough to arrange for the CT scan. Although I found that Mr. Pinto has a high tolerance to pain, in these circumstances where Mr. Pinto is claiming that he is disabled, I conclude that Mr. Pinto's unexplained failure to undergo a CT scan of the lumbar spine tends to show that his physical problems with his hip and thigh are not disabling.

In Mr. Pinto's submission, he was under no obligation to follow Dr. White's advice because he was not a treating doctor. However, the arbitrator did not decide against Mr. Pinto simply because he did not have a CT scan done. It was one factor he considered in evaluating Mr. Pinto's testimony about his disability. In my view, it was an appropriate consideration, particularly when the sequence of events is considered.

At the time of his accident, Mr. Pinto did not have a family doctor, but was given Dr. Donskoy's name by a friend. He saw Dr. Donskoy on October 14, 15 and 28, 1993. General Accident accepted Dr. Donskoy's opinion that Mr. Pinto's return to work was "indefinite" and began paying weekly income benefits. However, it arranged for him to be assessed by Dr. John Halpenny at Riverfront Medical Evaluation Limited on December 8, 1993. Dr. Halpenny felt that Mr. Pinto should continue with active physiotherapy for another three or four weeks and then return to work, even if he still had some residual pain and weakness.

Mr. Pinto saw Dr. Donskoy again on December 17 and 23, 1993, but did not return for any further visits until much later. He also discontinued his physiotherapy in January 1994. According to the discharge letter, he stopped attending the treatment centre without any explanation. Despite this, Dr. Donskoy did not feel that Mr. Pinto had recovered. In a letter to Mr. Pinto's lawyers, dated February 16, 1994, he disagreed with Dr. Halpenny's opinion:

I feel that the patient have [sic] significant soft tissue injuries in his right hip and right low back. Given the patient's findings and the patient's occupation which involve [sic] bending, heavy lifting, standing, carrying materials and squatting, I feel that the patient is not fit to return to his pre accident activities until at least summer 1994.

General Accident arranged for another assessment at Riverfront Medical Evaluation Limited on March 14, 1994, when Mr. Pinto saw Dr. White, an orthopaedic specialist. Dr. White felt that he "might very well have had a L4-5 disc protrusion on the right side with L5 nerve root compression," leaving him with a "minimal disability." In Dr. White's opinion, this would not interfere with his ability to return to sedentary or moderate work. Given the heavy demands of Mr. Pinto's pre-accident work, however, he recommended a CT scan to determine if there was a disc lesion. If not, Mr. Pinto could be reassured about returning to work. If the CT scan showed a disc lesion, Dr. White suggested that Mr. Pinto be referred to an orthopaedic surgeon or neurologist for further consultation, although he thought that conservative management would allow Mr. Pinto to return to work in the long term.

At Dr. White's suggestion, General Accident sent a copy of his report to Mr. Pinto's lawyers to be forwarded to Dr. Donskoy. However, Mr. Pinto was no longer seeing Dr. Donskoy and nothing was done. I agree with the arbitrator that Mr. Pinto's lack of response is significant. Not only did he not have a CT scan done, he did not consult with any doctor or therapist. In addition, there was evidence that he put his name back on the union hiring list during this period, casting further doubt on his claim that he was unable to work.

General Accident did not stop paying weekly income benefits after Dr. White's first report. It continued to pay benefits until the summer of 1994, when Dr. Donskoy said Mr. Pinto might be able to return to work. In July 1994, General Accident arranged for a follow-up visit with Dr. White, who found that Mr. Pinto had "made an essentially full recovery" and could return to his pre-accident work. Based on this report and surveillance evidence, General Accident stopped paying benefits on September 5, 1994. There is no basis for criticizing this decision, as there was no medical evidence supporting Mr. Pinto's ongoing entitlement.

As stated above, Mr. Pinto did nothing to challenge the decision for 20 months. The gap in his medical treatment was even longer. He did not see Dr. Donskoy from December 1993 to April 1996, a period of 28 months. The arbitrator, quite fairly in my view, was not prepared to infer from this gap in the medical treatment that Mr. Pinto had recovered. However, Mr. Pinto still had to prove his claim.

Mr. Pinto relies on the later reports from Dr. Donskoy and Dr. Kekosz, claiming they are uncontradicted by any medical evidence from General Accident. However, these reports are far from conclusive. They do not suggest that Mr. Pinto developed a new problem or had a relapse. Rather, they are based on his complaints of ongoing hip and back pain. These are essentially the same complaints that he made much earlier that no one, including Dr. Donskoy, felt would prevent him from working in the long term.

As noted by the arbitrator, Dr. Kekosz does not express any opinion about Mr. Pinto's ability to work. Dr. Donskoy says that he can do "modified work" with specific restrictions, but provides little explanation why the problems have persisted or why the restrictions are necessary. The arbitrator was obliged to evaluate the new reports along with all the other evidence, particularly Mr. Pinto's own testimony. I am satisfied that he did so, and reached conclusions supported by the evidence.

IV. ARBITRATION EXPENSES

Prior to November 1, 1996, section 282(11) of the Insurance Act allowed the arbitrator to award expenses to the insured person, but not the insurance company. That was the law when Mr. Pinto decided to apply for arbitration rather than go to court. However, the November 1996 amendments included a new version of section 282(11), allowing the arbitrator to award expenses to the insured person or the insurance company:

282. • (11) The arbitrator may award, according to criteria prescribed by the regulations, to the insured person or the insurer, all or part of such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations, to the maximum set out in the regulations.

General Accident submits that because the hearing did not take place until after this amendment came into effect, the arbitrator erred in applying the former expense provisions.

In its appeal submissions, General Accident focussed on the arbitrator's use of judicial notice. At page 14 of the decision, he states:

I take judicial notice of the fact that prior to November 1, 1996, insureds generally chose to refer disputes to arbitration because, among other reasons, they would likely recover expenses at an arbitration at the Ontario Insurance Commission and they would not face the risk of being ordered to pay the insurer's expenses.

General Accident contends that this is not a proper subject of judicial notice and no evidence was led to support it. For the following reasons, however, I agree with the arbitrator's conclusion whether or not he went beyond the scope of official notice allowed under the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended.

Since the arbitrator's decision, other arbitrators have followed his analysis without exception.¹ Also, in Henriques and Motor Vehicle Accident Claims Fund, (August 21, 1997, OIC P97-00002), I held that the November 1996 changes to the appeal provisions did not apply to an arbitration proceeding started before the amendments came into effect.

Legislation is presumed not to operate retroactively, unless the amendment is merely procedural. I was not referred to any decisions holding that expense provisions are merely procedural. The question, therefore, is whether applying the new version of section 282(11) in this case would be giving it a retroactive application.

I agree with the arbitrator that the amendments must be considered within the particular context of the dispute resolution process. Before any dispute about accident benefits can proceed to adjudication, mediation is required. If the dispute is not resolved through mediation, the insured person can then apply for arbitration or go to court. I see little controversy in the arbitrator's suggestion that cost is one of the factors that an insured person would consider in choosing between the two options. It is a factor whether or not insured persons generally chose arbitration over court due to the greater likelihood that they would recover arbitration expenses.

In this case, Mr. Pinto chose arbitration. Based on the law at that time, he could reasonably expect to be awarded his expenses as long as his claim had some merit and he did not act in a manner sufficiently serious to disqualify him. He also did not face any liability for General Accident's expenses beyond the penalty provision in section 282(11.2) of the Insurance Act if his claim was found to be frivolous, vexatious or an abuse of process.

Mr. Pinto made his choice based on the law in effect at the time and incurred expenses based on that law. Arbitration expenses are not limited to hearing expenses. Preparation is also covered. It is clear that Mr. Pinto had legal expenses, including the pre-hearing conference, before the amendments came into effect. As a result, I agree with the arbitrator that the critical date is the application for arbitration, not the date of the hearing.

Finally, even if the new version of section 282(11) applied in this case, expenses remain discretionary. The criteria for awarding expenses are now set out in section 12 of Ontario Regulation 464/96. Paragraph 6 allows the arbitrator to consider "any other matter related to the proceeding that the arbitrator considers relevant to the issue of whether an award of expenses is justified." In my opinion, the fact that the arbitration was under way at the time of the amendments would be an appropriate consideration supporting the arbitrator's order.

V. APPEAL EXPENSES

As stated in many previous decisions, appeal expenses are not awarded on the same basis as arbitration expenses. An unsuccessful appellant may be awarded his or her expenses if the appeal raises an important issue, but it is not a routine order. Expenses have consistently been denied where the appeal involves a mere disagreement with the arbitrator's assessment of the evidence. While I would not suggest that Mr. Pinto's appeal was frivolous or an abuse of process, I am not persuaded that General Accident should be required to fund it.

Apart from his own appeal, Mr. Pinto had to respond to General Accident's appeal. I find no reason that he should not recover his expenses as a respondent. Considering the brief submissions made on this issue, I am fixing his expenses at $250.00.

November 26, 1997

David R. Draper Director's Delegate

Footnotes

1. 1For example, see Worthman and AXA Insurance (Canada), (January 30, 1997, OIC A96-000486); McLennon and Pilot Insurance Company, (August 15, 1997, OIC A96-001499); Molina and Pafco Insurance Company Limited, (August 28, 1997, OIC A96-000804); and Beros and Allstate Insurance Company of Canada, (October 15, 1997, OIC A96-001606).