Office of the Director of Arbitrations
Neutral Citation: 1997 ONICDRG 210 Appeal: P96-00060
AXA Insurance (Canada) Appellant
and
Giovina Vandevyvere Respondent
Before: David R. Draper, Director's Delegate
Counsel: Paul M. Ledroit and Denise Bolohan (for AXA Insurance) Barbara L. Legate (for Giovina Van Devyvere)
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 arbitration order dated June 7, 1996, is confirmed.
- Giovina Vandevyvere is entitled to her reasonable appeal expenses, payable by AXA Insurance (Canada).
December 18, 1997
David R. Draper Director's Delegate
REASONS FOR DECISION
I. NATURE OF THE APPEAL
This is an appeal by AXA Insurance (Canada) ("AXA") from an arbitration decision dated June 7, 1996. It claims the arbitrator erred in concluding that Giovina Vandevyvere met the post-156 week test of eligibility for weekly income benefits in section 12(5)(b) of Ontario Regulation 672, Statutory Accident Benefits Schedule - Accidents Before January 1, 1994 ("the Schedule"). AXA also appeals the arbitrator's order that it pay the accounts of Rehabilitation Management Inc. and Dr. Michael Harnadek.
II. BACKGROUND
Mrs. Vandevyvere was involved in an automobile accident on June 1, 1991. At the time, she was 53 years old and lived with her husband on a 90-acre farm. He worked the farm, while she was employed as a full-time sales clerk in a bridal salon in London, approximately a one hour commute each way.
AXA paid Mrs. Vandevyvere weekly income benefits of $272 per week. These benefits were paid under section 12(1) of the Schedule on the basis that she was unable to return to her pre-accident job at the bridal salon. After 156 weeks, however, the eligibility test becomes stricter. AXA stopped paying weekly income benefits, effective June 1, 1994, on the basis that Mrs. Vandevyvere did not meet the post-156 week eligibility test in section 12(5)(b) of the Schedule:
12.-- (5) The insurer is not required to pay a weekly benefit under subsection (1),
(b) for any period in excess of 156 weeks unless it has been established that the injury continuously prevents the insured from engaging in any occupation or employment for which he or she is reasonably suited by education, training or experience.
[emphasis added]
Mrs. Vandevyvere disagreed, claiming that her accident-related injuries prevented her from returning to any suitable employment. Following an eight-day hearing, the arbitrator found that Mrs. Vandevyvere was capable of working, but only part-time. She ordered AXA to pay ongoing weekly income benefits from June 1, 1994, the date of termination. Starting August 10, 1995, however, the arbitrator reduced the amount of the benefits based on section 15 of the Schedule, which states:
- The insurer may deduct from any benefit payable under this Part 80 per cent of any income received or available from any occupation or employment subsequent to the accident.
The reduction of Mrs. Vandevyvere's benefits was novel because she did not have any post-accident income or a specific job offer. Based on evidence that there were suitable job openings nearby, the arbitrator found that income was "available," within the meaning of section 15. As a result, AXA was ordered to pay weekly income benefits of $272 from June 1, 1994 to August 9, 1995, and $160 thereafter. The arbitrator also found that the accounts of Rehabilitation Management Inc. and Dr. Michael Harnadek were necessary and reasonable expenses, and ordered AXA to pay them.
AXA claims that the evidence does not support the arbitrator's conclusions. Despite the novelty of the section 15 reduction, neither party appealed that part of the order. AXA suggests, however, that the arbitrator used section 15 to avoid making the hard decision that Mrs. Vandevyvere was not entitled to any further benefits.
III. PRELIMINARY ISSUES
In its Notice of Appeal, AXA asked that the arbitrator's order be stayed pending resolution of the appeal. Not surprisingly, it was concerned about recovering benefits if the appeal was allowed. The general rule, however, is that an appeal does not stay the arbitrator's order. After reviewing the appeal record, I was not persuaded that AXA's appeal or its concerns about repayment were sufficiently strong that a stay should be ordered.
AXA also asked for a rehearing due to the absence of a transcript. As stated in a number of appeal decisions, starting with Calogero and Co-operators General Insurance Co., (February 13, 1992, OIC P-000251), rehearings are to be used sparingly. The appellant must show that there are unusual circumstances, making it necessary to go beyond the appeal record.
Not all arbitration hearings are recorded. The Dispute Resolution Practice Code allows hearings to be recorded, but that decision and any related expenses are left to the parties. For practical reasons, insured persons rarely retain a court reporter, while insurers often do. AXA did not arrange for a court reporter in this case and, therefore, no transcript is available. This clearly limits my ability to review the evidentiary basis of the decision, but I do not agree that is a sufficient reason to start over. The record must reveal some reason to question the outcome that is sufficiently compelling to justify the additional time and expense of a rehearing.
Based on the written material, I was not convinced that a rehearing was required. However, the parties were invited to make oral submissions, including submissions about the need for a rehearing due to errors evident from the appeal record.
IV. THE APPEAL
A. Weekly Income Benefits
Mrs. Vandevyvere's claim is based on limitations due to pain. Because pain is not objectively verifiable, her credibility was a critical issue at the arbitration hearing. AXA challenged her credibility, arguing that her claim was a complete fabrication.
The arbitrator found the surveillance evidence "telling" and rejected Mrs. Vandevyvere's contention that she could not work at all, but accepted that her pain was genuine and prevented her from working full-time. AXA contends that the arbitrator failed to provide an adequate explanation of this conclusion. Specifically, it submits that she erred in failing to make any consistent findings about Mrs. Vandevyvere's credibility.
At the appeal hearing, AXA organized its submissions around the following arguments:
- The arbitrator failed to provide a proper analysis of the discrepancies between what Mrs. Vandevyvere told the medical practitioners and others about her limitations and the level of activity seen in the surveillance videotape.
- The arbitrator ignored the effect of the surveillance videotape on the doctors' opinions.
- The arbitrator ignored relevant medical evidence.
- The arbitrator failed to make findings about which medical evidence was accepted and rejected, and to explain why.
- The arbitrator ignored evidence and reached conclusions not supported by the evidence.
- The arbitrator reached illogical conclusions related to part-time versus full-time employment.
- The arbitrator erred in concluding that the accounts of Rehabilitation Management Inc. and Dr. Michael Harnadek were necessary and reasonable.
In support of its position, AXA referred to the appeal decision in Lyons and Metropolitan Insurance, (December 16, 1996, OIC P-009824), a case similar in many ways to this one. Like Mrs. Vandevyvere, Ms. Lyons received weekly income benefits for three years, but was denied further benefits on the basis that she did not qualify under the stricter post-156 week test. Based partly on surveillance evidence, the arbitrator found that Ms. Lyons was not as limited by pain as she claimed. He accepted that psychogenic factors contributed to her persistent physical complaints, but concluded that she was able to work in a clerical or office setting. On appeal, Ms. Lyons argued that the arbitrator made a number of errors. Director's Delegate Naylor discussed her role on appeal, as follows:
Prior appeal decisions make it clear that it is not my role to second-guess the arbitrator's assessment of the evidence or to substitute my own view of the weight to be attributed to it. The crux of the inquiry on a factual appeal is whether the arbitrator ignored material evidence, paid attention to irrelevant considerations, or otherwise arrived at conclusions that were not supported by the evidence. The issue here is whether the arbitrator considered key evidence in Ms. Lyons' favour and fully addressed the issues before him. (Decision, page 3)
I accept this approach. Appeal adjudicators have been slow to interfere with the arbitrator's assessment of the evidence, doing so only where the decision was based on a crucial factual error,1 or where important questions were left unanswered.2
In Lyons, the Director's Delegate found gaps in the decision that, taken together, raised sufficient concerns to require a new hearing before a different arbitrator. One gap was the arbitrator's failure to deal with important medical evidence from an expert retained by the insurer that supported the applicant's claim. Starting at page 3 of her decision, Director's Delegate Naylor states:
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.
The evidence in question is from the insurer's own independent expert and strongly supports Ms. Lyons' case. There is a clear conflict in the insurer's medical evidence on the key issue in appeal. It may well be that the arbitrator addressed this evidence and rejected it. Alternatively, he may have reconciled the differences in the evidence by concluding that, for example, Ms. Lyons had improved in the interim period. Had the arbitrator dealt with this evidence explicitly in his reasons, it is unlikely that his conclusions would be successfully challenged on appeal. The difficulty is that his decision does not set out his thinking and I cannot be sure whether he directed his mind to Dr. Koppert's report. Given the significance of the evidence in issue, any uncertainty on the point should be resolved in Ms. Lyons' favour.
While I accept this analysis, the sufficiency of each arbitration decision will depend on the particular facts of the case. As well, sufficiency must be evaluated within the mandate of the dispute resolution system. Arbitrators are expected to provide a quicker and less expensive alternative to the courts. The question is whether the decision, read as a whole, provides an adequate explanation of the result.
Claims based on pain are difficult. Not only do they raise issues of credibility, but doctors and other health care professionals differ in their acceptance of pain-based disability and their views about the most effective rehabilitation strategies. The involvement of many different health practitioners in different roles - treatment, medical assessment and medical-legal assessment - can complicate the situation, particularly where there are competing views about the person's needs.
In many ways, this case is typical. Mrs. Vandevyvere's family doctor found her complaints genuine and took a supportive, rather passive approach. The rehabilitation company and the assessor retained by the insurance company urged a more aggressive approach. When this was tried, the rehabilitation workers became frustrated by Mrs. Vandevyvere's lack of progress, referring to her inability or unwillingness to distinguish between pain and harm. After Mrs. Vandevyvere retained counsel, the parties agreed on an evaluation by a psychologist. This was a positive and sensible attempt to find some common ground. Unfortunately, it did not resolve the matter. It appears that the level of distrust between the parties then increased, with each becoming entrenched in its position.
The arbitrator was faced with two dramatically different views. Mrs. Vandevyvere claimed that her activities were so limited by pain that she could not return to any work, even part-time. AXA argued that her complaints were fabricated and that by the fall of 1993, she was capable of full-time employment.
The evidence presented was extensive. In this system, an eight-day hearing is long. So is a 40-page decision. The arbitrator presents her conclusion and then reviews the evidence and her findings. This is not a case where contradictions have been ignored. In my view, the decision reflects an effort to make sense of the evidence, including the divergent views of the medical professionals and the surveillance.
The surveillance evidence was clearly an important factor, as it should have been. However, I do not accept AXA's submission that the arbitrator failed to explain how she resisted the conclusion that Mrs. Vandevyvere's complaints were not just exaggerated, but were fabricated. While her credibility findings could have been stated more clearly, the arbitrator discusses factors throughout the decision that support her conclusion. She was entitled to consider Mrs. Vandevyvere's work history, the seriousness of the accident, the fact that she pursued various treatments, including breast reduction surgery, her family doctor's testimony that her complaints were consistent and believable, and the evidence of Dr. Keith Hayes that inconsistent performance does not necessarily mean that the person is malingering. After reviewing the appeal record, I am satisfied that there was sufficient evidence to support the arbitrator's conclusions and that the decision provides an adequate explanation.
AXA submits that the arbitrator failed to deal with some of the later medical reports, particularly the reports written by Dr. John Clifford after he viewed the surveillance videotape. I do not agree. The arbitrator clearly acknowledged that Dr. Clifford's opinions, presented both through reports and testimony, did not support Mrs. Vandevyvere's claim. She considered his views, but found that they did not "account for Mrs. Vandevyvere's age, endurance, poor coping mechanisms and prolonged absence from the work force."3
One aspect of the decision gives me pause. It is most closely related to AXA's sixth argument, above. The arbitrator found that Mrs. Vandevyvere was capable of working part-time. As a result, she reduced the amount of the weekly income benefits starting August 10, 1995, the point at which the evidence established that suitable work was available. The decision suggests, however, that Mrs. Vandevyvere's ability to do part-time work started earlier. My concern is that, as noted above, the arbitrator includes Mrs. Vandevyvere's absence from the work force is a factor in concluding that is unable to return to work.
Like the arbitrator, I agree with the following comments of Arbitrator McMahon in Whyte and Metropolitan Insurance, (April 30, 1996, OIC A-009277):
. . . both the parties and society in general benefit if the insured is encouraged to return to work. The Schedule as a whole reflects this, and specific provisions ought to be read so as to encourage an early return to work.
An insured person who does not attempt to return to work or make a sincere effort at rehabilitation not only runs the risk that his or her condition will not improve, but also that an arbitrator may find that the ongoing problems result from inactivity, not the accident-related injuries. As I read the decision, however, the arbitrator found that the lack of progress in this case was not due simply to Mrs. Vandevyvere's unwillingness to cooperate. There were other factors, including a breakdown in the relationship between the parties.
For these reasons, I am not prepared to interfere with the arbitrator's decision.
B. Account of Rehabilitation Management Inc.
AXA claims that the arbitrator erred in ordering it to pay the account of Rehabilitation Management Inc. ("RMI"), a rehabilitation company retained by Mrs. Vandevyvere's counsel. It submits that RMI simply duplicated the services already provided by International Rehabilitation Associates Inc. ("IRA"), the rehabilitation company it retained. Further, AXA argues that the arbitrator did not find the reports from RMI to be of much assistance.
The need for supplementary medical and rehabilitation services should be evaluated at the time they were obtained, not with the advantage of hindsight. The question, therefore, is whether involving RMI was a reasonable expense when it was incurred. The arbitrator found that it was due to the breakdown in the relationship between Mrs. Vandevyvere and IRA. I find no reason to interfere with this finding.
It clearly would have been preferable for the parties to agree on a mutually acceptable company to coordinate Mrs. Vandevyvere's rehabilitation. There is little value in having the person's care "coordinated" by two rehabilitation companies with different strategies. If AXA had agreed to consider a company other than IRA, Mrs. Vandevyvere's insistence on RMI might have been viewed differently.
C. Account of Dr. Michael Harnadek
Mrs. Vandevyvere's counsel referred her to Dr. Michael Harnadek, a neurosurgeon, for testing to determine whether Mrs. Vandevyvere had suffered a closed head injury. The arbitrator found that this was a reasonable expense and ordered AXA to pay it.
On appeal, AXA makes essentially the same arguments it made at the arbitration hearing. It contends that a negative inference should be drawn from the fact that counsel, not a doctor, made the referral. In addition, AXA submits that if the referral had been made by the family doctor, the Ontario Health Insurance Plan ("OHIP") would have paid for it.
The arbitrator found that there was a legitimate concern that Mrs. Vandevyvere might have suffered a closed head injury. She also was not convinced that OHIP would pay for the examination due to the ongoing litigation. I was not given any reason to second-guess these findings.
Finally, AXA submits that the expense should not be allowed because no medical practitioner provided a certificate stating that the expense was necessary, as required by section 6(4) of the Schedule. An insured person who incurs expenses without discussing it with the insurer runs the risk that the expense will not be approved. I am not convinced, however, that the lack of a certificate is fatal. Although the expense was already incurred, AXA could have asked for a certificate when the claim was made. In my opinion, the arbitrator properly considered the claim on its merits and reached a conclusion within her authority.
V. EXPENSES
Given the outcome, Mrs. Vandevyvere should receive her reasonable appeal expenses. If the parties are unable to agree on the amount, an assessment can be arranged through the Registrar's office.
December 18, 1997
David R. Draper Director's Delegate