Financial Services Commission

Commission des services financiers de l’Ontario

Neutral Citation: 1998 ONFSCDRS 10

Appeal P97-00058

OFFICE OF THE DIRECTOR OF ARBITRATIONS

ZENAIDE PINHEIRO

Appellant

and

GAN CANADA INSURANCE COMPANY

Respondent

Before:

David R. Draper, Director’s Delegate

Counsel:

Joseph A. Raimondo (for Zenaide Pinheiro)

Robert A. Robinson (for GAN Canada)

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 that arbitration order dated September 26, 1997 is confirmed.
No appeal expenses are payable.

July 23, 1998

David R. Draper

Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

This is an appeal by Zenaide Pinheiro from an arbitration decision dated September 26, 1997, denying her claims for weekly income benefits after June 1, 1994 and a special award. She contends that the arbitrator erred in concluding she no longer met the post-156 week test in subsection 12(5)(b) of the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994, O. Reg. 672, as amended (“the Schedule”).

II. BACKGROUND

Mrs. Pinheiro was injured in a serious automobile accident on December 22, 1990. She suffered a badly displaced fracture of the right clavicle and a neck injury. The fracture did not heal properly with conservative treatment, requiring surgery approximately one year later. Although the surgeon felt the operation was successful, Mrs. Pinheiro continued to complain of ongoing headaches, neck and back pain, leg numbness, right hand and arm problems, interrupted sleep, memory loss and difficulty concentrating. She claims that these problems all result from the accident and have prevented her from returning to work.

At the time of the accident, Mrs. Pinheiro was 31 years old and had three children. She had not worked outside the home for approximately two years, when she worked as a cleaning supervisor. Shortly before the accident, however, Mrs. Pinheiro’s former manager offered her a job as a cleaner in his new company, earning $8.00 per hour. She was due to start on January 2, 1991, eleven days after the accident, but could not due to her injuries.

GAN Canada Insurance Company (“GAN”) accepted that Mrs. Pinheiro was unable to work as a cleaner and paid her weekly income benefits under subsection 12(1) of the Schedule. The amount was based on the income she would have earned under the job offer, as provided in paragraph 12(7)2ii of the Schedule.

Mrs. Pinheiro continued to receive weekly income benefits for just over three years, until January 11, 1994. At that point, GAN took the position that she did not meet the stricter post-156 week test in section 12(5)(b) of the Schedule, which provides as follows:

- (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.

The arbitration hearing took place over four days in April 1997. There were two main issues. First, was Mrs. Pinheiro entitled to ongoing weekly income benefits from January 12, 1994? Second, should GAN be ordered to pay a special award under subsection 282(10) of the Insurance Act because it unreasonably withheld benefits?

Four witnesses were called: Mrs. Pinheiro, her daughter (Ms. Andrea Pinheiro), her family doctor (Dr. Bevin Hamlet) and her employer (Mr. Joe Pontes). In addition, there was extensive documentary evidence. The parties filed thirteen exhibits, including a three-volume brief of documents containing material from 12 physicians, two psychologists, four physiotherapists or physiotherapy clinics, a rehabilitation centre and two rehabilitation companies. The hearing was recorded, with a partial transcript being provided to the arbitrator before he issued his decision.

The arbitrator released his decision on September 26, 1997, concluding that Mrs. Pinheiro was not entitled to ongoing weekly income benefits. He found, however, that she needed a period of adjustment to re-enter the work force and that GAN’s notice of termination did not give her sufficient time to meet this goal. As a result, he ordered GAN to pay benefits for an additional twenty weeks, until June 1, 1994 - four months from the rehabilitation worker’s confirmation that GAN was willing to fund psychological counselling - but not beyond that date.

The arbitrator then dealt with the question of a special award. He was not persuaded that GAN acted unreasonably when it stopped paying weekly income benefits in January 1994 and, therefore, found no basis for a special award.

III. ANALYSIS

The parties acknowledge that my role on appeal is limited. As stated in many previous decisions, my function is not to second-guess the arbitrator’s assessment of the evidence. The question is whether he erred in some manner sufficiently serious that the decision cannot stand. Mrs. Pinheiro must show, for example, that the arbitrator misinterpreted the legislation, made findings unsupported by the evidence, or reached conclusions that do not follow from the factual findings.

Despite the detailed submissions made on behalf of Mrs. Pinheiro, I agree with GAN that this appeal falls squarely within the area where an appeals adjudicator should not intervene. The arbitrator’s decision is clear and comprehensive. He correctly identifies the issues in dispute and the law to be applied. He accurately summarizes the evidence, including the conflicting opinions of the medical professionals, and then makes clear findings of fact, setting out the evidence upon which those findings are based and why he chose to rely on some witnesses and exhibits over others. The arbitrator’s conclusions follow from his factual findings and, if anything, he is generous in awarding Mrs. Pinheiro a further period of benefits.

Mrs. Pinheiro’s appeal focuses on her need for rehabilitation. She claims the arbitrator correctly found that she needed further assistance, particularly psychological counselling, before she could return to work. However, he erred in holding her responsible for failing to pursue it. In Mrs. Pinheiro’s submission, she consistently relied on the rehabilitation workers retained by GAN to recommend and arrange for appropriate rehabilitation services. Therefore, she argues, GAN was responsible for arranging psychological counselling and she should not be penalized for its failure to do so.

In my view, the arbitrator’s discussion of rehabilitation is not as central to his decision as Mrs. Pinheiro suggests. The issue in dispute was her entitlement to weekly income benefits. There was no claim for rehabilitation benefits. As the arbitrator states at page 22, Mrs. Pinheiro’s failure to follow-up on recommended treatment was merely “a further indication that her injuries were not as disabling as she claimed.” His principal findings appear on the preceding pages, where he considers whether the medical evidence supports Mrs. Pinheiro’s claim that the “constellation of her problems” prevented her from working in a full-time physically demanding cleaning position - the only job that she says was reasonably available to her given her limited education, training and experience.

The arbitrator’s findings are clear and forceful. After reviewing the neurological evidence, he finds “little evidence of any organic basis for Mrs. Pinheiro’s complaints or her alleged disability.” He then considers the conflicting orthopaedic evidence. For reasons set out on pages 17 to 19, he prefers the evidence of Dr. Roscoe and Dr. Welsh over that of Dr. Ogilvie-Harris. This is important because not only did these experts fail to support Mrs. Pinheiro’s claim, Dr. Welsh concluded that she was wilfully misrepresenting her condition. With respect to the psychiatric evidence, the arbitrator finds no evidence that Mrs. Pinheiro suffered from any ongoing psychological or psychiatric disability that would prevent her from attempting to return to work. Finally, he considers the opinion of Mrs. Pinheiro’s family doctor, Dr. Hamlet. On page 20, the arbitrator sets out seven reasons for giving it little weight. The first, and perhaps most significant reason, is that Dr. Hamlet never specifically assessed Mrs. Pinheiro with regard to disability.

Based on his assessment of the medical evidence, the arbitrator was not convinced that Mrs. Pinheiro’s accident-related injuries prevented her from returning to work. There is ample evidence to support his findings and, therefore, I have no basis for interfering.

Mrs. Pinheiro also relies on reports from the Canadian Back Institute (“the CBI”). In its initial assessment dated June 7, 1993, the CBI diagnosed Mrs. Pinheiro as experiencing “chronic pain syndrome with symptom magnification.” Although they recommended that she participate in a six-week Comprehensive Rehabilitation Program, they were not optimistic that she would return to work, stating that “[s]tatistics show that when a person is off work for greater than two years, there is little chance of returning to work.”

The arbitrator gave little weight to this report. At page 21 of the decision, he states: “I find the evidence (or lack of evidence) from the time period in dispute more persuasive than earlier opinions based on statistical probability.” I find no error in this assessment. The arbitrator was entitled to prefer other, later evidence. Further, I agree that this kind of statistical prediction is of little assistance. The issue before the arbitrator was whether Mrs. Pinheiro’s injuries prevented her from engaging in any suitable employment or occupation. This requires an assessment of her capabilities, not a statistical analysis of general return to work patterns. If the CBI statistic were accepted at face value, there would be little point in contesting any claim for weekly income benefits where the insured person has been off work for more than two years. This approach would be inconsistent with the Schedule, particularly paragraph 12(5)(b), and I do not accept it.

Unfortunately, Mrs. Pinheiro’s treatment was compromised by her belief that she was disabled. In its discharge report dated August 23, 1993, the CBI states that her attendance was irregular. She missed seven days of treatment due to pain despite being advised many times that she needed to be physically active and would not harm herself by exercising. The report concludes that “[t]here are no restrictions to Mrs. Pinheiro returning to her pre-accident activity at this point.” However, the assessors felt that it was unlikely she would do so because of her self-perceived disability, symptom magnification and the extent to which she continued to limit her activities.

In my view, this report supports the arbitrator’s conclusion that Mrs. Pinheiro was not as disabled as she claimed. Apart from her own view of her limitations, the CBI found nothing to prevent her from resuming her pre-accident activities. As I have held in previous decisions, the insured person’s personal belief that he or she is disabled by pain is not determinative, no matter how sincerely it is held. In Bertsouklis and Liberty Mutual Fire Insurance Company, (May 28, 1996, OIC P-006499), I wrote as follows:

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 Mr. Bertsouklis was likely to return to work, but whether his injuries rendered him unable to perform the essential tasks of his or her occupation. His own views about his limitations, no matter how sincerely held, are not determinative. As the arbitrator expressed it:

To succeed in a weekly income benefit claim based on chronic pain, applicants must prove that their pain and other symptoms render them unable to perform their essential tasks. As has been stated in many arbitration decisions, pain does not equate to disability.

The problem in this case is that there was a persistent gap between what the health professionals felt Mr. Bertsouklis could and should have been doing, and what he did.

In this case, the arbitrator not only found the medical evidence lacking, but also found inconsistencies in Mrs. Pinheiro’s testimony that caused him concern. For example, her claim that she experienced pain whenever she used her right arm was contradicted by the fact that she used it voluntarily without any visible reaction. Also, her reported reliance on pain medication was inconsistent with Dr. Hamlet’s evidence about how much he prescribed. The arbitrator’s doubts about Mrs. Pinheiro’s evidence is underscored by his acceptance of the opinion of Dr. Welsh, who concluded that Mrs. Pinheiro was wilfully misrepresenting her condition. The arbitrator does not consider Mrs. Pinheiro’s rehabilitation efforts until after he has already assessed the medical evidence and her general credibility. As stated above, his finding that she failed to follow-up on recommended treatment is simply another factor he considered in evaluating the extent of her limitations. In my view, therefore, this finding is not critical to the decision. Even if it were, however, I am not persuaded it is wrong.

I agree with the many decisions that have discussed the need for cooperation in the rehabilitation process. The parties’ obligations will vary from case to case, but an insurer or insured person who does not act reasonably runs the risk of negative consequences. One persistent source of confusion seems to be in identifying who is responsible for directing the insured person’s rehabilitation. The insurer cannot simply take over and would be subject to criticism if it attempted to do so. In some cases, however, the insured person and his or her doctors are content to rely on the services arranged by the insurer. Therefore, an insurance company that retains a rehabilitation company should ensure that its role is clear to the insured person and the other medical professionals.

In this case, the arbitrator specifically considered GAN’s actions, concluding that it acted reasonably. I find no reason to second-guess this assessment. While Mrs. Pinheiro suggests that GAN changed rehabilitation companies and consultants when it did not like the opinions they provided and only followed the recommendations it liked, the evidence equally supports less sinister explanations. This is not a case where the insurer refused to fund rehabilitation programs requested by the insured person. In fact, it appears that the initiative for most of the rehabilitation programs came through GAN, not Mrs. Pinheiro, her family doctor, or her lawyers.

Mrs. Pinheiro specifically submits that GAN failed to follow-up on consistent reports that she needed psychological counselling, despite the fact that its rehabilitation worker undertook to make the necessary arrangements. For the following reasons, I do not agree.

In December 1993, Ms. June Nelder, the rehabilitation worker, met with Mrs. Pinheiro, her husband and Dr. Hamlet to discuss the recent recommendations of Dr. W.J. Horsey, a neurosurgeon. Ms. Nelder then wrote to Dr. Hamlet, confirming what was discussed at the meeting. Dr. Hamlet signed the letter on December 28, 1993, indicating his agreement with its contents. The letter states, in part, as follows:

Dr. Horsey’s only medical recommendation for Ms. Pinheiro is a short term course of psychological counselling to address the motivation, anxiety, insomnia, and drug effect that have affected her function and perceived memory loss . . .
Dr. Horsey has recommended that Mrs. Pinheiro take responsibility for herself and begin to be more active. She should be encouraged to gradually return to work over a period of one month . . .

I will ensure that Mrs. Pinheiro receives some short-term psychological counselling as recommended by Dr. Bacal.¹ I will also request that Dr. Bacal’s reports be forwarded to you for your file. Dr. Hamlet, it is my understanding that you agree with Dr. Horsey’s opinion and recommendations for further rehabilitation management.

Later that same month, GAN wrote to Mrs. Pinheiro’s lawyers, stating that based on Dr. Horsey’s report and the meeting with Dr. Hamlet, it felt that Mrs. Pinheiro could gradually return to work over a period of one month and receive short-term psychological counselling. Accordingly, GAN provided one more payment for weekly income benefits, taking Mrs. Pinheiro’s benefits to January 11, 1994, and stated: “we will of course continue to fund any treatment program/counselling sessions undertaken by Mrs. Pinheiro.”

The rehabilitation worker then wrote to Dr. Hamlet, confirming that she was transferring the file to an employment consultant, who was going to help Mrs. Pinheiro prepare a resume. Since she was no longer going to be involved, she asked Dr. Hamlet to follow-up on the psychological counselling recommended by Dr. Bacal and Dr. Horsey and approved by GAN. The arbitrator found that the rehabilitation worker also told Mrs. Pinheiro that funding had been approved for her to see a psychologist, a finding that is not challenged on appeal.

I agree with the arbitrator that the rehabilitation worker fulfilled any undertaking she made by obtaining funding approval for Mrs. Pinheiro to obtain psychological counselling. Further, she clearly and reasonably transferred responsibility for making the necessary arrangements to Mrs. Pinheiro, her family doctor and her lawyers. In the circumstances, I am not persuaded that Mrs. Pinheiro can escape responsibility for not pursing psychological counselling by blaming either GAN or Dr. Hamlet for not arranging it for her.

In my view, the arbitrator’s findings would have supported a conclusion that Mrs. Pinheiro was not entitled to any further weekly income benefits. However, he considered whether GAN provided sufficient notice to allow her to adjust to the fact that her benefits were being terminated. He did not find that she was “prevented” from working, but that given the time she had been off work, she probably needed an adjustment period, perhaps with some assistance, to get back to reasonable remunerative work. I do not accept that the arbitrator’s decision to extend benefits as a matter of fairness undermines his decision that Mrs. Pinheiro was not entitled to ongoing benefits.

Mrs. Pinheiro also appeals the arbitrator’s refusal to order a special award. Based on the analysis above, however, I find no basis for disturbing this decision.

IV. APPEAL EXPENSES

Unsuccessful appellants are generally denied their expenses unless their appeal raises novel issues of importance beyond the particular case. While Mrs. Pinheiro’s appeal was not frivolous, it essentially challenged the arbitrator’s assessment of the evidence. In the circumstances, the parties will bear their own expenses.