Neutral Citation: 1997 ONICDRG 62

OIC A96-001246

ONTARIO INSURANCE COMMISSION

BETWEEN:

PAULO PINTO

Applicant

and

GENERAL ACCIDENT ASSURANCE CO. OF CANADA

Insurer

DECISION

Issues:

The Applicant, Paulo Pinto, was injured in a motor vehicle accident on October 5, 1993. He applied for and received statutory accident benefits from General Accident Assurance Co. of Canada ("General Accident"), payable under Ontario Regulation 672.¹ General Accident terminated weekly income benefits on September 5, 1994. The parties were unable to resolve their disputes through mediation, and Mr. Pinto applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mr. Pinto entitled to weekly income benefits pursuant to section 12 of the Schedule after September 5, 1994?

2. What is the correct amount of weekly benefits after Mr. Pinto returned to work on August 6, 1996?

Mr. Pinto also claims interest on any amounts owing, and his expenses incurred in this arbitration proceeding. The Insurer claims its expenses incurred in the arbitration proceeding.

Result:

1. Mr. Pinto is not entitled to weekly income benefits after September 5, 1994.

2. If Mr. Pinto was entitled to weekly income benefits, the amount after August 6, 1996 would be $200 per week.

3. Mr. Pinto is entitled to his reasonable expenses, except for the cost of Dr. Donskoy's report of February 7, 1997, pursuant to section 282(11) of the Insurance Act.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on February 11 and 12, 1997.

Present at the Hearing:

Applicant:

Paulo Pinto

Mr. Pinto's Representative:

Gerald Sternberg Barrister and Solicitor

General Accident's Representative:

J. Claude Blouin Barrister and Solicitor

Before:

William J. Renahan Arbitrator

Evidence:

On October 5, 1993 Mr. Pinto was involved in a motor vehicle accident. He strained his back, right hip, thigh and shoulder when the brakes on his vehicle failed and he drove into the rear of a stationary vehicle at 20 km/h. He was 26 years old at the time and employed as a journeyman carpenter in industrial and commercial construction. The Insurer paid weekly income benefits for 11 months, until September 5, 1994. Mr. Pinto has not returned to construction work. On August 6, 1996, about three years after the motor vehicle accident, he started work at an autobody repair shop.

Mr. Pinto qualified as a journeyman carpenter in 1989 and since then worked mostly in high-rise commercial and industrial construction. He said that he did not like residential work because he did not like working on house roofs. He worked at the Queen's Park legislative building taking apart and building a new roof. He worked on high-rise buildings, constructing forms for concrete walls. His work at construction sites involved lifting, carrying, cutting, placing and joining large pieces of lumber and aluminum joists. At the time of the accident, Mr. Pinto worked for a firm constructing mausoleum crypts. Mr. Pinto made the concrete forms and braces for foundations and walls and then after the concrete set, moved the forms in assembly line fashion to make new foundations and walls. He had done this work for 20 weeks prior to the motor vehicle accident. He said it was "pretty difficult" to obtain work. He also testified that except for the 1991 recession, "work was regular" up to his motor vehicle accident in 1993. He did not explain the contradiction. He said that the union had not arranged work for him in the year prior to the job at the mausoleum. Mr. Pinto said that between union work he did home renovations, such as trim work and hanging doors. The evidence was not clear, but it appears that six months after the motor vehicle accident he placed his name back on the union list, but no one called him for work.

Mr. Pinto said that his shoulder has healed but that his thigh and hip have not healed and that he cannot do the heavy lifting involved in carpentry work.

Mr. Pinto did not have a family doctor at the time of the accident. Nine days after the accident a friend referred him to Dr. Donskoy, a family physician. Dr. Donskoy diagnosed a strain of the back, thigh and shoulder and referred Mr. Pinto to physiotherapy. Dr. Donskoy did not see Mr. Pinto between December 23, 1993 and April 29, 1996. On February 16, 1994, he reported to Mr. Pinto's then lawyer the results of his assessment of December 23, 1993:

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.

On March 14, 1994, the Insurer referred Mr. Pinto to Dr. White, an orthopaedic surgeon, for an assessment. Dr. White reported:

There is subtle but definite very mild weakness of resisted dorsiflexion of the right great toe extensor and right foot, which is not sufficient to effect [sic] his gait, at least for short distances.

I suspect that he might very well have had a L4-5 disc protrusion on the right side with L5 nerve root compression. This would explain his severe right leg pain that lasted several days and cleared up, leaving him with some weakness of dorsiflexion of the foot which has also gradually improved to almost complete restoration of function with very little but definite dorsiflexion weakness persisting and sensory deficit in the L5 nerve root of the right foot.

If this man's employment was sedentary or moderate in nature, I would have no hesitancy in stating that he should now return to his full and unrestricted pre-accident activities and work.

I believe, however, that his condition is genuine although he does have minimal disability at this time.

Prior to his return to full duty construction or carpentry work requiring heavy lifting, it would be my recommendation that he have a CT scan of his lumbar spine done. If this does not show any significant organic disc lesion, he could be further reassured and return to his regular occupation, continuing with his own reconditioning exercises at home and exercises at the YMCA where he has been attending a couple of times per week.

He is physically fit now for activities of daily living.

I believe even though his CT scan might show a disc lesion which would be clinically at L4-5 on the right side, that he will continue to do well with conservative management and will likely be able to resume his full pre-accident activities in the long term.

I am impressed with his straight forwardness and he is well motivated to return to work and deserves the further investigation with a CT scan to rule out a significant disc protrusion. If a disc lesion is demonstrated, it would be appropriate for him to be referred to a treating orthopaedic surgeon or neurosurgeon for further consultation. His CT scan and further consultation could be arranged through his family physician.

All in all, I feel quite optimistic about his long term recovery.

Dr. White asked the Insurer to forward his report to the family doctor. The Insurer forwarded the report to Mr. Pinto's counsel who forwarded it to Dr. Donskoy. At that time, Mr. Pinto had stopped seeing Dr. Donskoy, and Dr. Donskoy was not in a position to comment on Dr. White's report.

On July 18, 1994, the Insurer referred Mr. Pinto to Dr. White again. Dr. White discovered that Mr. Pinto had not undergone a CT scan. He opined that Mr. Pinto was now fit to return to work and the Insurer terminated weekly income benefits on the basis of this opinion.

Mr. Pinto took no steps to challenge the Insurer's decision to terminate benefits until April 1996, 20 months later. He changed lawyers and returned to Dr. Donskoy. Mr. Pinto explained that he returned to Dr. Donskoy because the Insurer had not paid him for a long time, that he had spent his savings and because he thought he would get better on his own.

Dr. Donskoy referred Mr. Pinto to physiotherapy and to Dr. Kekosz, a physiatrist. Dr. Donskoy reported that Mr. Pinto could not return to heavy construction work. Dr. Kekosz reported that Mr. Pinto was still:

suffering from a residual right greater trochanteric bursitis more than likely a result of the car accident. He may have extended his leg when trying to brake at the time of the impact. This may have stretched the tensor fascia lata.

She did not express an opinion on whether Mr. Pinto could return to work.

At the autobody shop where he now works, Mr. Pinto moves vehicles, cleans the shop and deals with customers. He avoids heavy lifting. He is learning how to estimate the cost of repairs.

Analysis:

The first question is whether Mr. Pinto has established that he was disabled from returning to construction work after the Insurer terminated weekly income benefits on September 5, 1994.

I do not attach a great deal of significance to the fact that Mr. Pinto did not seek medical treatment from December 23, 1993, when he last saw Dr. Donskoy, until April 29, 1996, when he returned to Dr. Donskoy. Mr. Pinto did not have a family doctor before the motor vehicle accident, and he said he does not have faith in doctors. He has a high tolerance to pain as demonstrated by his attitude to his shoulder dislocations. He said that he dislocated his shoulders in high school while wrestling and that his shoulder dislocates about once a year. He said that the last time it dislocated he called an ambulance, but that the joint "clicked" back into position before the ambulance arrived. Although the shoulder was sore for three days, he did not seek treatment. He said that he initially stopped seeing Dr. Donskoy and taking physiotherapy because the treatment was not helping. In my view, Mr. Pinto's failure to pursue treatment does not indicate that he is not disabled.

Although a lumbar spine x-ray indicated that the vertebrae and intervertebral discs were normal in outline and alignment, I do attach significance to Mr. Pinto's failure to undergo a CT scan of the lumbar spine as recommended by Dr. White. Dr. White found Mr. Pinto's complaints genuine when he first examined him on March 14, 1994, and he asked that his recommendation for a CT scan be brought to the attention of Mr. Pinto's family doctor. Dr. Donskoy's clinical notes and records contain Dr. White's report. As well, the notes indicate that the Insurer asked Dr. Donskoy for the results of the CT scan and that Dr. Donskoy was unable to accommodate the request because Mr. Pinto had stopped treatment. Mr. Pinto was aware of Dr. White's opinion because he told Dr. Kekosz that he was "told that there may be a disc problem."

Dr. White asked Mr. Pinto about the CT scan when he saw him on July 18, 1994. Mr. Pinto answered that he underwent the scan at Central Hospital one month earlier. Dr. White telephoned the hospital and was told that the hospital had no record of Mr. Pinto.

I heard no explanation why Dr. Donskoy failed to follow Dr. White's recommendation and order a CT scan after Mr. Pinto returned to him for treatment in April 1996. I find that Dr. White was more thorough and more familiar with Mr. Pinto's case than was Dr. Donskoy. As well, Dr. White is a specialist. At his initial examination, Dr. White opined that Mr. Pinto had a minimal disability and that he should avoid construction work because it involved heavy lifting. However, he was optimistic that Mr. Pinto would recover. When he saw Mr. Pinto five months later, he opined that Mr. Pinto was fit to return to work. I prefer Dr. White's opinion that Mr. Pinto could return to heavy construction work over Dr. Donskoy's opinion that he could not. Dr. Kekosz did not express an opinion on Mr. Pinto's ability to return to work.

The only remaining evidence that is contrary to Dr. White's opinion is Mr. Pinto's assertion that he could not return to work.

Mr. Pinto's testimony was vague and confusing. He testified that he put his name back on the hiring list and then immediately followed that by saying that his name was not on the list. Later he testified that he put his name on the list six months after the motor vehicle accident when he went back to the union hall to inquire about benefits. He also said that the union has not called him for work but that if it did, he would turn the work down because he is physically unable to work. He did not explain why he put his name on the list if he thought he could not work.

Nor was it clear whether Mr. Pinto's employment in construction was "regular" or "pretty difficult" to obtain.

Mr. Pinto's testimony about his physical problems was not clear and not consistent with what the doctors reported. Mr. Pinto testified that he suffered a consistent sharp pain in his hip, going down the front of his thigh to his foot. He testified that his right foot makes a louder sound when he walks. Dr. Donskoy initially reported on right hip pain and tenderness in the lower back. Dr. White reported some weakness but no significant leg pain and some "flapping" of the right foot when he walked. In his report of July 18, 1994, Dr. White reported that the flapping had improved and that Mr. Pinto had no pain in the right leg. In July 1996, Dr. Donskoy reported that Mr. Pinto had constant pain in the right hip.

Mr. Pinto's testimony that he could not do heavy lifting was not persuasive. I heard no persuasive evidence of how he knows that he cannot do heavy lifting or if he has tried to do any lifting or what happens when he tries to lift something. A surveillance video tape shows Mr. Pinto rolling what appears to be a full four-foot acetylene tank on its edge and lifting it over a bump. I heard no evidence to explain what I find to be an ability to lift a heavy tank on one occasion.

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 summary, Mr. Pinto's testimony that he was disabled from returning to construction work was vague and not persuasive.

On the other hand, Dr. White's opinions of July 18, 1994 and March 14, 1994 appear fair, consistent and reasonable. I prefer Dr. White's opinion of July 18, 1994 that Mr. Pinto could return to work to Mr. Pinto's testimony that he could not.

Accordingly, Mr. Pinto has failed to establish that he was unable to perform the essential tasks of his employment after September 5, 1994.

Amount of benefit:

The parties asked me determine the amount of benefit Mr. Pinto would be entitled to after he returned to work at the autobody shop. Section 15 of the Schedule provides:

15. 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.

Mr. Pinto argued that the deduction should be made from his pre-accident income. Section 15 provides that the deduction is to be taken from the "benefit payable under this Part." Mr. Pinto's weekly income benefit determined in accordance with his pre-accident employment income was the maximum of $600. His gross weekly income from the autobody shop was $500. If he was entitled to a weekly income benefit after he returned to work, his benefit would be $600 less 80 per cent of $500 which amounts to $200.

Expenses:

Counsel for the Insurer made brief submissions concerning the application of the new section 282(11) of the Insurance Act which came into force on November 1, 1996. The former section 282(11) provided:

(11) The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.

Section 282(11) was repealed by the Automobile Insurance Rate Stability Act, 1996, S.O. 1996, c. 21 effective November 1, 1996, and replaced by a new section 282(11) which provides:

(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.

These criteria are set out in section 12 of Ontario Regulation 464/96 which also came into force on November 1, 1996.

12. (2) An arbitrator may award expenses to an insurer or insured person under subsection 282 (11) of the Act if the arbitrator is satisfied that the award is justified, having regard to the following criteria:

13. Each party's degree of success in the outcome of the proceeding.

14. Conduct of the insurer or the insured person that tended to shorten or facilitate the proceeding or that tended to prolong, obstruct or hinder the proceeding, including failure to comply with undertakings or orders.

15. Whether the proceeding or any position taken by the insurer or the insured person during the proceeding was manifestly unfounded, frivolous, vexatious, fraudulent or an abuse of process.

16. The degree of complexity, novelty or significance of the factual or legal issues raised in the proceeding.

17. If the insurer or the insured person requests, any written offers to settle made after the conclusion of mediation and before the conclusion of the arbitration in accordance with the rules of practice and procedure applicable to the proceeding, including the terms of the offers, the timing of the offers and the responses to the offers, having regard to the result of the proceeding.

18. Any other matter related to the proceeding that the arbitrator considers relevant to the issue of whether an award of expenses is justified.

Counsel for the Insurer argued that the new section is procedural in nature and therefore applies to this hearing and that if the Applicant was unsuccessful, I should order that the Applicant pay the Insurer's assessable expenses. Counsel for the Applicant did not respond.

Temporal application of legislation:

Under the former section 282(11), a number of arbitration decisions established the principle that expenses are generally awarded to an unsuccessful applicant so long as the application had some merit and was not tainted by misconduct. This principle was expressed by Director's Delegate Naylor in Allison and Markel Insurance Company of Canada:

Applicants are reasonably assured that they will recover their expenses if they are unsuccessful, unless their case is without merit or their conduct is sufficiently serious to disqualify them.²

When Mr. Pinto commenced this arbitration he, through his counsel, expected that the arbitrator would award him the expenses of the arbitration, even if he was unsuccessful, so long as his application had some merit and his conduct was not such as to disqualify him. He did not expect that expenses might be awarded against him.

It is presumed that legislation is not intended to have a retroactive application.³ The rationale is explained in Driedger On The Construction of Statutes as follows:

Because a retroactive law applies to past events, its practical effect is to change the law that was applicable to those events at the time they occurred. To change the law governing a matter after it has already passed violates the rule of law. In fact, it makes compliance with the law impossible. the fundamental tenet on which the rule of law is built is that in order to comply with the law, or rely on it in a useful way, the subjects of the law have to know in advance what it is. By definition, a retroactive law is unknowable until it is too late.⁴

The authors of Driedger on the Construction of Statutes distinguish between the application of legislation to facts which have ended before it comes into force, to facts which begin after it comes into force and to facts which start before the legislation comes into force and continue after the legislation is in force.

The application of legislation to ongoing facts is not retroactive because, to use the language of Dickson J. in the Gustavson Drilling case 1975 CanLII 4 (SCC), [1977] 1 S.C.R. 271, there is no attempt to reach into the past and alter the law or the rights of persons as of an earlier date. The application is prospective only to facts in existence at the present time. Such an application may affect existing rights and interests, but it is not retroactive.⁵

To determine whether the new section 282(11) applies to an order of expenses in this case, the question is whether an application for arbitration which was commenced before November 1, 1996 and concluded after that date is an ongoing fact situation or a fact situation which ended before the new section 282(11) came into force.

An insured has a right under section 281(1) of the Insurance Act to have his claim for accident benefits heard in court or in arbitration at the Ontario Insurance Commission. 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. Although the arbitration proceeding is a fact situation which continued beyond November 1, 1996, it is my view that for the purpose of determining whether the new section 282(11) has retroactive application, the critical fact situation is the application for arbitration. It is the law at that date which Mr. Pinto relied on when he chose to refer his dispute to arbitration rather than proceed in court.

The new section 282(11) expands the arbitrator's jurisdiction to award expenses and exposes an insured to liability which did not exist before November 1, 1996. To change the rules upon which Mr. Pinto commenced his application for arbitration would be arbitrary and unfair. In the words of the authors of Driedger on the Construction of Statutes, to apply the new section 282(11) to Mr. Pinto would be an "attempt to reach into the past and alter the law or the rights of persons as of an earlier date." In my view, the new section 282(11) should not be applied to applications for arbitration commenced before November 1, 1996. My jurisdiction to award expenses should be exercised in accordance with the law as it stood prior to November 1, 1996 when Mr. Pinto commenced his application for arbitration.

Although Mr. Pinto was unsuccessful in this proceeding, his application had some merit and his conduct was not such as to disqualify him from expenses. Accordingly, he is entitled to his reasonable expenses of the arbitration proceeding, subject to the following reduction.

In this case, I reduce the Applicant's award of expenses because I find that the Applicant conducted his case in an unreasonable fashion by tendering documents as exhibits without the requisite notice to the Insurer. I allowed in evidence a report of Dr. Donskoy dated February 7, 1997, even though the Applicant served it on the Insurer four days before the commencement of the hearing. The Applicant explained that the document was produced late because he requested it late. I disallow the cost of Dr. Donskoy's report in the Applicant's assessable disbursements because of the Applicant's failure without good reason to comply with the ten day notice provision in s. 36.4 of the Dispute Resolution Practice Code.

Order:

1. The Applicant is not entitled to weekly income benefits pursuant to section 12 of the Schedule after September 5, 1994.

2. The Applicant is entitled to his reasonable expenses, except for the cost of Dr. Donskoy's report dated February 7, 1997, pursuant to section 282(11) of the Insurance Act.

April 10, 1997

William J. Renahan Arbitrator

Date

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule —Accidents On or Between June 22, 1990 and December 31, 1993. In this decision, the term "Schedule" will be used to refer to Regulation 672.
2. 2Isabel Allison and Markel Insurance Company of Canada, August 21, 1996, Appeal P-001231
3. 3R. Sullivan, Driedger on the Construction of Statutes, 3rd ed., Toronto: Butterworths, 1994 at page 508.
4. 4Ibid, R. Sullivan, p. 513
5. 5Ibid, R. Sullivan, p. 517.