Ontario Insurance Commission
Commission des assurances de l’Ontario
Neutral Citation: 1997 ONICDRG 32
Appeal P96-000027
OFFICE OF THE DIRECTOR OF ARBITRATIONS
GRAZYNA A. PYRZ
Appellant
and
CONTINENTAL INSURANCE COMPANY
Respondent
Before:
Susan Naylor, Director’s Delegate
Representatives:
Zbigniew Pyrz (for Appellant)
Mark Sones (for Continental)
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 January 24, 1996, is confirmed.
No appeal expenses are payable.
February 12, 1997
Susan Naylor
Director’s Delegate
Date
REASONS FOR DECISION
I. NATURE OF THE APPEAL
Grazyna Pyrz appeals an arbitration order denying her additional weekly income benefits under the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994, R.R.O. 1990, Reg. 672 (“Schedule”).
Ms. Pyrz received accident benefits from Continental Insurance Company (“Continental”) for about fifteen months following an automobile accident on May 18, 1992. Ms. Pyrz claims continued benefits from August 28, 1993, the date Continental stopped payment.
The arbitrator was not persuaded that Ms. Pyrz was substantially unable to perform the essential tasks of her employment as required by section 12(1) of the Schedule. Therefore, she did not qualify for further weekly income benefits.
Ms. Pyrz was represented by a lawyer at the arbitration and by her husband on the appeal. The appeal was conducted on the record, including written appeal submissions filed by both parties.
II. ANALYSIS
In her Notice of Appeal, Ms. Pyrz listed her reason for appealing as follows:
I disagree with arbitrator’s decision. Arbitrator Mr. Asfaw Seife, did not respect Dr. Remus’ report, dated January 27, 1994 and Dr. Teasell’s report, dated March 2, 1995. Both reports clearly indicated that I am unable to work.
Ms. Pyrz asked for “another investigation of her case” because she felt the decision was unfair.
Prior appeal decisions have established that the role of an adjudicator on appeal is a limited one. The adjudicator’s role is not to revisit the case and simply substitute his or her own view of the evidence. Because the arbitrator who heard the case was in a better position to assess the evidence as a whole, the general rule is that an arbitrator’s decision should not be set aside unless his or her findings were not based on the evidence or some serious error was made. The weight to be attributed to different parts of the evidence, and to the evidence as a whole, is left for the arbitrator to decide, provided that his findings can be supported.
Here, the arbitrator conducted a two-day hearing into Ms. Pyrz’ claim for benefits. He heard from Ms. Pyrz and her husband, as well as from Dr. Teasell, her specialist. He also reviewed a number of medical reports from other doctors and health professionals involved in Ms. Pyrz’ care. He was able to evaluate the medical information in light of what he heard from the witnesses and come to a conclusion based on all the evidence.
The arbitrator based his conclusion that Ms. Pyrz was not substantially unable to perform her essential tasks on a number of factors:
Ms. Pyrz’ long-standing family doctor was not supportive of her claim and felt she could return to work without any restrictions as early as July 1992;
the results of a Functional Capacities Assessment were found to be “well within” the demands of her pre-accident employment;
Dr. Burrell, an orthopaedic specialist appointed by Continental, agreed that Ms. Pyrz could return to work within the restrictions set by the Functional Capacities Assessment;
Dr. Teasell, a specialist in physical medicine and rehabilitation, also agreed that Ms. Pyrz could return to work if she could perform to the level reported in the Functional Capacities Assessment;
There were few objective findings supporting disability;
The arbitrator believed that Ms. Pyrz could do more than she said she could. He did not find her testimony about this credible. In particular, he compared her attendance at an educational program with her stated limitations and he also found that she had misinformed her family doctor about being unable to do part-time work.
The arbitrator acknowledged that Ms. Pyrz continued to experience pain from her injuries and was not fully restored to her pre-accident level of health. However, the test for benefits is disability. To award benefits, the arbitrator had to be satisfied that Ms. Pyrz was substantially unable to perform her pre-accident employment duties. In this case, the evidence did not convince him of this.
Having reviewed the arbitrator’s reasons and the documents, I find no reason to interfere with his conclusion. Ms. Pyrz raised a number of specific concerns about the decision, which I deal with in the following paragraphs.
III. THE EVIDENCE OF DR. REMUS AND DR. TEASELL
Ms. Pyrz’ main ground of appeal is that the arbitrator did not pay sufficient attention to the views of her doctors, particularly Dr. Remus and Dr. Teasell.
Two reports from Dr. Remus, an orthopaedic specialist, were filed at the arbitration. One was a standard Form 4 medical report, dated January 20, 1994 and the other was a fuller consultation report, dated January 27, 1994, a week later. The Form 4 asked the doctor to indicate the duration of disability. Dr. Remus wrote “1-2 months”. Ms. Pyrz argues that the arbitrator should have accepted this as proof of her claim. In his fuller report, Dr. Remus did not make any recommendation regarding a return to work.
The weight to be attributed to Dr. Remus’ evidence was a matter within the arbitrator’s judgement. The basis for Dr. Remus’ opinion that Ms. Pyrz was disabled was not explained in his report and he was not called to testify. The arbitrator must decide whether Ms. Pyrz qualifies for benefits based on his assessment of the evidence as a whole, including the medical and rehabilitation reports and the testimony of the witnesses. There is no reason to interfere with his assessment in this case.
Ms. Pyrz complained that Continental offered to settle her case at an arbitration pre-hearing once it had received Dr. Remus’ report. In her view, this meant Continental must have thought the evidence was important. However, a number of factors influence a settlement offer, including the party’s assessment of the risk of proceeding to a hearing and the time and expense of doing so. Unless it is accepted, a settlement offer made to try to resolve a case before a hearing is “without prejudice” and does not compromise the party’s position if the case goes ahead. Because it is considered confidential, an arbitrator generally must not allow any evidence about a prior settlement offer. It cannot affect his or her decision or view of the evidence.
Ms. Pyrz also relied on the evidence of Dr. Teasell, who testified on her behalf at the hearing. Ms. Pyrz argues that Dr. Teasell’s evidence supports her claim and that it should be accepted because he is a specialist.
According to the record, Dr. Teasell’s testimony was consistent with the arbitrator’s overall determination and did not unequivocally support Ms. Pyrz’ claim. Dr. Teasell’s report dated March 2, 1995, states only that Ms. Pyrz could not go back to the type of work she was doing before if it involved physical activities exceeding his restrictions. However, in his testimony, he agreed that his restrictions were consistent with the results of the FCA, and that if Ms. Pyrz could perform to that level, she could return to work. That is in fact what the arbitrator found.
IV. MODIFIED WORK
Ms. Pyrz complained that the arbitrator found that she was not disabled even though the doctors only recommended modified work. Ms. Pyrz disputed whether modified work was available.
There were two kinds of restrictions involved in Ms. Pyrz’ return to work: restrictions on lifting or carrying heavy loads and restrictions on sitting and standing for long periods of time. The Functional Capacities Assessment (FCA) determined Ms. Pyrz’ lifting and carrying capability, but not her work tolerance for prolonged sitting and standing. The specialists who saw her agreed with the restrictions set out in the FCA. In addition, Dr. Burrell recommended that Ms. Pyrz be allowed to change positions occasionally. Dr. Teasell thought that standing and sitting in one position for long periods would be difficult.
The arbitrator found as a fact that Ms. Pyrz’ pre-accident job was within her capabilities, as determined by the FCA. He also did not accept Ms. Pyrz’ testimony about the length of time she could sit or stand at one time, and concluded that her abilities in this regard were compatible with her former job. Ms. Pyrz disputed this finding, arguing that the arbitrator had misunderstood her situation.
I am not in a position to second-guess the arbitrator’s findings. He had the advantage of hearing from witnesses, including Ms. Pyrz, and he reached his conclusion based, in large measure, on his assessment of credibility. It was not suggested that the arbitrator misstated any of the testimony given, and no transcript was provided to indicate any error. That being the case, the arbitrator’s findings must stand.
V. MS. PYRZ’ TREATMENT
Ms. Pyrz also complained about her rehabilitation treatment. Although it is not entirely clear, her position seems to be that her rehabilitation treatment set her recovery back. In her view, this should have affected the weight the arbitrator gave to her family doctor’s opinion and to the rehabilitation reports.
The arbitrator found that there was no medical evidence to suggest a deterioration in Ms. Pyrz’ medical condition, and that her problems during this period were probably due to financial difficulties.
Ms. Pyrz’ main objection appears to be that a six-week, work-hardening program she completed in mid-1993 was not initiated by any of her doctors. However, it is clear from the exhibits that her family doctor was consulted beforehand and she was medically cleared to take part. The course was recommended after an rehabilitation assessment by Margaret Cernigoj of Vocational Directions, vocational consultants retained by Continental. In her undated report discussing the proposed program, Ms. Cernigoj wrote:
Physician Contact
[Dr. Cecil Dodick, General practitioner] had no objection to Mrs. Pyrz’s involvement in a work-hardening program, but questioned how beneficial it would be. He favoured a return to work without any additional intervention.
There was no evidence before the arbitrator or before me that either the FCA or the work-hardening program was harmful to Ms. Pyrz or resulted in a deterioration in her condition. The arbitrator did not accept Ms. Pyrz’ unsupported testimony to this effect and he was entitled to reach that conclusion.
VI. CONCLUSION
Having reviewed the arbitration record, I find no reason to interfere with the arbitrator’s decision, which is supported on the evidence. Therefore, Ms. Pyrz’ appeal is dismissed.
Prior appeal decisions have held that appeal expenses will not generally be awarded to an unsuccessful insured appellant, if the appeal is based on an objection to the weight the arbitrator gave to the evidence. In my view, this was such a case and an award of expenses is not justified.
However, while the appeal may have been based on a misunderstanding of the nature of an appeal, I do not accept Continental’s characterisation of it as frivolous, vexatious or an abuse of process. In my view, this is not an appropriate case for an award in favour of the insurer under section 282(11.2) of the Insurance Act.
February 12, 1997
Susan Naylor
Director’s Delegate
Date