Ontario Insurance Commission
Commission des assurances de l’Ontario
Neutral Citation: 1997 ONICDRG 67
Appeal P-001933
OFFICE OF THE DIRECTOR OF ARBITRATIONS
YOUASH BREEMO Appellant
and
THE DOMINION OF CANADA GENERAL INSURANCE COMPANY Respondent
Before: Susan Naylor, Director's Delegate
Counsel: Elizabeth A. Moulden (for Mr. Breemo) James R. Adams (for Dominion)
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 October 25, 1993 is confirmed.
No expenses are ordered to be paid.
April 18, 1997
Susan Naylor Director's Delegate
Date
REASONS FOR DECISION
I. NATURE OF THE APPEAL
Youash Breemo appeals an arbitrator's order denying him continued weekly income benefits. Mr. Breemo was involved in an automobile accident on July 19, 1990 and received benefits for some months from the Dominion of Canada General Insurance Company, ("Dominion"). He unsuccessfully sought an arbitration order compelling Dominion to reinstate his benefits from July 25, 1991 onwards.
II. BACKGROUND
The principal issue at arbitration was whether Mr. Breemo met the eligibility test for receipt of weekly income benefits. This required a finding that Mr. Breemo suffered a substantial inability to perform the essential tasks of his pre-accident employment during the period in dispute.1 In Mr. Breemo's case, the question was complicated because he had been injured in two previous accidents on April 4, 1987 and May 27, 1987, apparently involving similar injuries to his back and neck. He had, however, returned to work by the time of the most recent accident. The no-fault benefits regime set out in the Schedule, under which Mr. Breemo claimed benefits, only applied to the July 1990 accident.
III. ANALYSIS AND CONCLUSION
The arbitrator thoroughly reviewed the key elements of Mr. Breemo's medical history and condition in a 23 page decision. His findings of credibility go to the core of his decision, and it is these findings that Mr. Breemo is challenging.
On appeal, Mr. Breemo teased out each of the arbitrator's factual findings, criticizing specific items and finding fault with the arbitrator's emphasis on certain aspects. However, a reading of the decision indicates that the arbitrator's view of the strength of Mr. Breemo's case was not based on any one particular finding but on an accumulation of factors. These factors included the following:
Mr. Breemo consistently provided his doctors with incomplete or inaccurate information about his pre-accident history. He did not tell the doctors he saw in connection with the July 1990 accident about his two prior accidents. Nor did he tell the doctors who were treating him in connection with these previous accidents about each other, even though he was seeing them over concurrent periods.
Mr. Breemo did not tell the orthopaedic specialist, who examined him in connection with legal proceedings related to his prior accidents, about the July 1990 accident even though the examination took place only two months afterwards and involved a discussion about his symptoms "over the past three months". The arbitrator characterised this omission as deliberate misleading on Mr. Breemo's part.
Mr. Breemo's description of his limitations was found to be at variance with his actions recorded on surveillance videotape.
Mr. Breemo was able to continue full-time work for seven months following the July 1990 accident, stopping only around the time an indefinite lay-off was announced.
Although Mr. Breemo listed a large number of objections to the arbitrator's decision, his main complaint was that the arbitrator did not pay sufficient attention to the reports of his family doctors or of his specialist, Dr. Finestone. There were few objective medical findings to support his claim. To a large extent, the doctors' opinions rested on the information he provided to them. Their opinions about the effect of his injuries were primarily based on his representation of his symptoms and history, and his subjective responses on examination. In evaluating the strength of the medical reports, the arbitrator properly considered the reliability of the information on which they rested. The arbitrator found that the information Mr. Breemo had provided to the doctors was flawed and unreliable, and that the reports themselves were therefore compromised.
Mr. Breemo argued that the gaps in his medical history were not critical because his doctors, (notably, the specialist, Dr. Finestone) gave evidence that the information would not have altered their opinions. He also argued that the arbitrator ignored the fact that he had been diagnosed as suffering from chronic pain (Dr. Finestone) or possible fibromyalgia (Dr. Goldenberg).
Other arbitration decisions have pointed out that a diagnosis of chronic pain syndrome or fibromyalgia does not necessarily lead to the payment of benefits. The key question is the extent to which the applicant's injuries restrict his or her level of functioning. In Bertsouklis and Liberty Mutual Fire Insurance Company, (May 28, 1996, OIC P-006499), the Director's Delegate stated:
I agree with the arbitrator that there is no particular magic to the diagnosis of chronic pain syndrome for the determination of entitlement to weekly income benefits. The diagnosis may have some predictive value, but the question for the arbitrator was not whether [the applicant] was likely to return to work, but whether his injuries rendered him unable to perform the essential tasks of his occupation. His own views about his limitations, no matter how sincerely held, are not determinative.
I agree with these remarks. The arbitration properly focused on the extent to which Mr. Breemo was limited by his injuries. The arbitrator was entitled to regard inaccuracies in the information Mr. Breemo provided to his doctors, and the adequacy of his explanation, as factors in evaluating the weight to be given to the medical reports and the overall reliability of his account of his own limitations. Correspondingly, while the arbitrator acknowledged that the surveillance evidence was far from a complete representation of Mr. Breemo's level of functioning, he took into account the discrepancy between Mr. Breemo's description of his limitations and what he was recorded as in fact doing. This was a factor the arbitrator was entitled to consider in evaluating Mr. Breemo's claim.
Mr. Breemo's appeal comes down to his disagreement with the weight the arbitrator gave to his evidence and, particularly, his doctors' reports. This is essentially a matter for the arbitrator's judgment, to be exercised having regard to the totality of evidence before him. Prior appeal decisions2 have established that it is not my role on appeal to re-evaluate the evidence before the arbitrator and substitute my own view of the weight to be attributed to it. The arbitrator has the benefit of observing and hearing the witnesses in person, assessing the credibility of their testimony, and viewing the medical reports in the context of the evidence as a whole. Because of this advantage, the arbitrator's findings of fact and assessment of the evidence should not be interfered with unless he or she has ignored material evidence or arrived at unsupported conclusions. The arbitrator's vantage point is particularly important in a case like this, where the claim is based largely on the applicant's subjective complaints and credibility is a key concern.
The arbitrator clearly set out the basis for his conclusions about Mr. Breemo's credibility. He found that the medical evidence was compromised because it rested on Mr. Breemo's own unreliable account. On my review of the arbitration record, there was ample evidence for the arbitrator's findings.
Mr. Breemo argued that his successful application for a Canada Pension Plan disability pension is further proof of disability. The arbitrator did not ignore Mr. Breemo's CPP entitlement but found that the material supporting his application was incomplete. Moreover, it is unclear what criteria were applied, and procedure followed, by CPP in evaluating Mr. Breemo's disability claim. In view of the above, the arbitrator did not err in failing to attach much weight to the fact of the award.
Mr. Breemo also suggested that some weight should be given to the fact that Dominion paid benefits for a number of months, in determining whether he was disabled for a subsequent period. I disagree with this proposition. Dominion acted responsibly in paying benefits quickly based on the information it then possessed. It terminated benefits based on the report of the consultant appointed to examine Mr. Breemo and the results of surveillance videotape. Later on, Dominion learned of Mr. Breemo's previous accidents. Even assuming that a history of payment could affect an insurer's future obligations in some circumstances, I am satisfied that the fact of payment does not do so in this case.
Having carefully reviewed the arbitration record, I find no basis on which to interfere with the arbitrator's findings and conclusion. Therefore, the appeal is dismissed.
Mr. Breemo requested his 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.3 While Mr. Breemo provided extensive written and oral submissions that were helpful, his objection was primarily to the arbitrator's evaluation of the evidence and particularly to his credibility findings. In my view, the appeal did not raise sufficient grounds to warrant an order requiring Dominion to pay for Mr. Breemo's appeal expenses.
April 18, 1997
Susan Naylor Director's Delegate
Date
Footnotes
- Section 12, Statutory Accident Benefits Schedule - Accidents Before January 1, 1994, R.R.O. 1990, Reg. 672. ("Schedule").
- These principles were first set out in Calogero and the Co-operators General Insurance Company, (February 13, 1992, OIC P-000251), and have been applied consistently since then.
- Calogero and The Co-Operators General Insurance Company, (note 2); Singh and Royal Insurance Company of Canada, (December 3, 1996, OIC P-000004).