Ontario Insurance Commission
Commission des assurances de l’Ontario
Neutral Citation: 1997 ONICDRG 95
Appeal P-002690
OFFICE OF THE DIRECTOR OF ARBITRATIONS
MARIANNA PRODANOVIC
Appellant
and
PERSONAL INSURANCE COMPANY OF CANADA
Respondent
Before:
Susan Naylor, Director’s Delegate
Counsel:
Marianna Prodanovic (in person)
Robert Robinson (for Personal Insurance)
APPEAL ORDER
Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The arbitrator’s order dated June 9, 1995 is confirmed and the appeal is dismissed.
Marianna Prodanovic is not entitled to her appeal expenses.
June 10, 1997
Susan Naylor
Director’s Delegate
Date
REASONS FOR DECISION
I. NATURE OF THE APPEAL
Marianna Prodanovic appeals an arbitrator’s order dated June 9, 1995 in which she was denied ongoing weekly benefits. Following her automobile accident on July 19, 1991, Personal Insurance Company of Canada (“Personal Insurance”) paid Ms. Prodanovic weekly benefits for close to a year, until June 4, 1992, when they were terminated. She claimed continued benefits under subsections 13(1) and 13(8)(b) of the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994, R.R.O. 1990, O. Reg. 672 (“the Schedule”). Under these provisions, entitlement depends on whether the person suffers a substantial inability to perform the essential tasks in which they would normally engage. Under subsection 13(8)(b) the test becomes stricter after 156 weeks.
Ms. Prodanovic was represented by a lawyer throughout the three-day arbitration hearing. Correspondence in the file indicates that she had the help of a lawyer in drafting her Notice of Appeal, but did not retain counsel to act for her on the appeal.
II. ANALYSIS
Mr. Prodanovic suffered a ligament strain along her left knee and soft tissue injuries to her lower back in the accident. Although her physical injuries seemed to have healed, she argued that ongoing psychological problems, memory loss, hearing difficulties and chronic pain entitled her to benefits. The arbitrator found there was no medical evidence to support her claim that the accident resulted in any long-term psychological injury, impairment in hearing or memory loss. The arbitrator also held that, although Ms. Prodanovic may have continued to experience pain, the pain did not substantially disable her from performing her normal and essential tasks. The arbitrator rejected Ms. Prodanovic’s testimony to the contrary, basing her decision to a large extent on her unfavourable assessment of Ms. Prodanovic’s credibility. The arbitrator found that her testimony was often contradicted by the documentary evidence and the testimony of other witnesses.
In her Notice of Appeal, Ms. Prodanovic lists a number of reasons for appealing the arbitrator’s findings. These include:
the arbitrator erred in fact and law
the arbitrator made erroneous and unjustified inferences of fact in reaching her decision
the arbitrator based her decision on irrelevant considerations and evidence
the arbitrator misunderstood or misinterpreted the medical evidence
the arbitrator based her decision on perceived discrepancies in the appellant’s testimony where in fact there were none
the arbitrator failed to properly take into account the fact that the appellant gave her evidence through an interpreter and had experienced memory problems since the accident
Ms. Prodanovic asked for an oral re-hearing on the basis that “there are issues of credibility requiring the hearing of oral testimony”. Unfortunately, she did not expand upon these points in written submissions, or explain her objections to the arbitrator’s decision. This leaves me somewhat in the dark about the reasons for her appeal.
Having reviewed the arbitration record, which includes a transcript of the testimony given at the hearing, I am unable to find anything that supports Ms. Prodanovic’s objections. Prior appeal decisions have made it clear that my role on appeal is limited. The arbitrator had the benefit of hearing the witnesses and of observing their demeanour while testifying. This is particularly important in a case like this one, that turns on the arbitrator’s assessment of credibility. Because of this advantage, arbitrators must be allowed considerable latitude. My role on appeal is not to second-guess the arbitrator’s credibility findings and substitute my own view of the weight to be given to the evidence, but to determine if the arbitrator adopted the wrong approach in law or made some significant error in reaching his or her conclusions. Ms. Prodanovic did not provide me with any reason why I should intervene in the arbitrator’s decision and the arbitration record does not disclose any. Therefore, there is no basis to set aside the arbitrator’s order.
III. EXPENSES
Ms. Prodanovic was awarded her arbitration expenses. However, somewhat different considerations govern an award of expenses in an unsuccessful appeal. Previous cases have denied expenses where the appellant’s main objection is to the arbitrator’s evaluation of the evidence, and particularly his or her assessment of credibility. In my view, that is what this appeal was about. Therefore, I an not prepared to grant Ms. Prodanovic her appeal expenses, which are modest in any event.
June 10, 1997
Susan Naylor
Director’s Delegate
Date