Financial Services Commission

Commission des services financiers de lander

Neutral Citation: 1998 ONFSCDRS 42

Appeal P96-00063

Appellant

and

Respondent

Before:

Susan Naylor, Director’s Delegate

Representatives:

Joanne Sacco in person (assisted by Dominic Sacco and Jennifer Sacco)

James E. Dunn (for Zurich Insurance Company)

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 June 21, 1996 is confirmed.
Neither party is entitled to their appeal expenses.

September 25, 1998

Susan Naylor

Director’s Delegate

Date

Joanne Sacco appeals an arbitration order dated June 21, 1996 and asks for a re-hearing. She objects to the arbitrator’s finding that she was not substantially unable to perform the essential tasks of her business and so was not entitled to weekly income benefits for the period from November 6, 1992 to November 6, 1995 under s. 12(1) of the Statutory Accident Benefits Schedule - Accidents before January 1, 1994, R.R.O. 1990, Reg. 672, (“the Schedule”). Mrs. Sacco also argues that the arbitrator should have considered her claim under s. 13 of the Schedule because she was primarily an unpaid homemaker. She takes the position that her injuries have substantially interfered with her homemaking responsibilities and she therefore qualifies for benefits. Finally, Mrs. Sacco objects to how the arbitrator dealt with some expenses claimed.

Zurich Insurance Company (“Zurich”) initially cross-appealed the arbitrator’s award of arbitration expenses, but later withdrew its appeal.

The arbitration hearing took place over two days. Mrs. Sacco was represented by a lawyer, as she had been throughout her claim except at the very beginning. The exhibits (31 in total) included a brief of medical reports, financial information and other documentation. Mrs. Sacco and her husband, Dominic Sacco, testified, as did two other witnesses on her behalf, Angie Smith and Sadie Edelstein. Zurich called Carol Dobson, its claims representative, and Paul Larmond, an investigator, to testify.

Mrs. Sacco’s lawyer filed the Notice of Appeal, but then withdrew. Mrs. Sacco did not have a lawyer after this. She was assisted on the appeal by her husband and daughter. The arbitration was recorded by a court reporter, but neither party ordered a transcript.

Mrs. Sacco was sincere in her appeal. Unfortunately, however, she misunderstood the nature of an appeal. Its purpose is not to re-judge the claim weighing the evidence differently. This essentially is what Mrs. Sacco asked me to do in respect of her claim under s. 12. Nor is it to rule on claims that were not the subject of the arbitration, as she asked me to do under s. 13. This, in essence, is why Mrs. Sacco’s appeal is unsuccessful.

1. DISABILITY BENEFITS UNDER PART IV OF THE SCHEDULE

A. Background

Before the accident, Mrs. Sacco was in charge of most of the homemaking activities for her family, which included her husband and their three teenage children. She also helped her husband in a family-run meat business operating under the name DJ Meats. This business comprised a “diner” (which closed shortly before the accident), and a retail and wholesale meat-selling business operated both from home and from several outlets, including a week-end market in St. Catharines. Mrs. Sacco was not paid a wage but the arbitrator accepted her evidence that she and her husband operated the business in partnership with each other. She claimed weekly income benefits of $185.60, based on the deemed minimum income level in the Schedule.

Mrs. Sacco was hurt when she was struck by a turning automobile as she was standing in a neighbour’s driveway. According to the medical reports, she hurt her chest, right wrist, ribs and left thigh. No bones were broken. She received extensive physiotherapy and saw numerous specialists. However, her symptoms, particularly the pain in her leg, have continued. The problem with her leg was ultimately identified as an entrapped lateral femoral cutaneous nerve. Mrs. Sacco underwent surgery to decompress the nerve at the end of March, 1996.

B. Weekly Income Benefits under S. 12 of the Schedule

There is no doubt that Mrs. Sacco was injured in the accident and continues to experience pain and some difficulty as a result. The arbitrator clearly recognised this. In her decision, she said, for example:

On her own evidence, Mrs. Sacco has been “slowed down” by the effects of the accident of October 31, 1992, but she has carried on. She has been disrupted in her ability to contribute the same amount of work, without great effort, to the family business and to her household. (p. 10)

In the submissions made on Mrs. Sacco’s behalf, it was suggested that the fact she was injured and continues to feel the effect of her injuries is sufficient to qualify her for benefits. It was also suggested that the test for entitlement should be less onerous because she claimed only the minimum benefit payable of $185.60. However, to be entitled to benefits under s. 12(1), Mrs. Sacco must suffer substantial inability to perform the essential tasks of her employment or occupation. In this case, there was ample evidence that Mrs. Sacco was not so disabled and was able to continue her essential tasks in the business. Indeed, as the arbitrator found, there was no evidence that Mrs. Sacco missed any time from the business, apart from the occasional medical or therapy appointment.

According to the reports of her doctors and the rehabilitation professionals, Mrs. Sacco’s complaints centred on difficulty going up and down stairs and, sometimes, standing or walking for long periods of time. However, there was little in the medical evidence to suggest that these limitations substantially interfered with the performance of her work in the business. None of the doctors or therapists expressed the opinion that she was disabled from work. The reports focus on Mrs. Sacco’s complaints about the effect of the accident on her household tasks. They support the arbitrator’s impression that while Mrs. Sacco needed help with some tasks, she generally managed to cope although she experienced pain and discomfort.

Ultimately, Mrs. Sacco’s claim turned on her testimony, and that of her witnesses. The arbitrator found Mrs. Sacco’s description at the hearing of what she could do was not a reliable indicator of her limitations, in part because it differed from what she had previously relayed to her health professionals.

The arbitrator also felt that she could not count on Mr. Sacco’s testimony. She described his evidence, particularly as it related to financial matters, as “evasive and vague” and self-serving. The arbitrator characterised the testimony of Ms. Angie Smith, who worked at the St. Catharines’ market, as “totally unreliable” because it was inconsistent with information Ms. Smith had previously supplied.

In contrast, the arbitrator accepted the evidence of Ms. Carol Dobson, Zurich’s claims representative, as to how the claim unfolded.

Mrs. Sacco objected to these findings, especially to the arbitrator’s uncritical reporting of Ms. Dobson’s evidence.

Arbitrators must deal with issues of credibility and the weight that should be given to the evidence. They may accept all, part or none of a person’s evidence. Where witnesses disagree, the arbitrator must decide which version, if any, to accept. Assessing the reliability of evidence is a central aspect of the arbitrator’s job. That is not necessarily a judgement on the witness’ honesty, but includes consideration of such factors as powers of observation, judgement and memory, and interest in the outcome, which may, unconsciously, shade his or her testimony.¹

The arbitrator had the advantage of hearing from Mrs. Sacco and her witnesses directly and assessing the reliability of their testimony first-hand. I do not even have a transcript of what they said. Because the arbitrator has this advantage, the general rule is that an appeals adjudicator should not interfere with the arbitrator’s assessment of the evidence, and particularly credibility findings, unless satisfied that the arbitrator has made a serious mistake. Such a mistake might include, for example, ignoring key evidence, reaching conclusions that are unsupported by the evidence or following an unfair procedure. I do not find that to be the case here. The evidence before me clearly supports the conclusion that Mrs. Sacco was not substantially unable to perform her essential tasks in the business.

C. Weekly Benefits under S. 13 of the Schedule

Mrs. Sacco also argues that she qualifies for benefits under s. 13 as a caregiver who was working from her home. The test for disability under s. 13 is different and her benefit would be higher than under s. 12. To qualify, Mrs. Sacco would need to show, not that she was disabled from work, but that she was substantially unable to perform the essential tasks in which she would normally engage. In her submissions, she described the change in the following way: “The previous appeal focused on work but this appeal will be for a housewife”.

The problem is that throughout the Commission’s process, Mrs. Sacco’s claim has been framed exclusively as a claim under s. 12. Both parties approached the case on this basis. This is confirmed in the Report of Mediator dated December 8, 1994, the Application for Arbitration dated February 24, 1995 and the pre-hearing letter dated May 29, 1995. The arbitrator determined the claim on the basis that Mrs. Sacco Aasked to be treated as an employed person under s. 12” and could be viewed as such (p. 4). Evidence with respect to Mrs. Sacco’s homemaking tasks appears to have been adduced largely to reinforce her claim to be disabled from work, not in support of an alternative position under s. 13.

Mrs. Sacco cannot, on appeal, change the parameters of her claim. She put forward a claim under s. 12. That is the issue the arbitrator dealt with, and the only issue I can deal with.

Mrs. Sacco blames her lawyers’ inexperience for the way her claim was handled. However, even assuming this is a relevant consideration, there is no evidence before me by which to conclude that Mrs. Sacco’s representation was inadequate. Based on the evidence, the prospects of a successful claim under s. 13 are far from clear.

D. Specific Objections

Mrs. Sacco made a number of specific complaints in her submissions. I address the main points below.

i. Mistakes/Other Errors:

Mrs. Sacco stated that some mistakes were made which should have affected the weight given to that evidence.

Ms. Dobson wrongly reported that Mrs. Sacco was still going to the Elmvale market once a week (p. 8), whereas she had never attended Elmvale market before or after the accident.
Mrs. Sacco’s application for benefits was incomplete, undated and unsigned (p 5), but this was Ms. Dobson’s fault as she did not return it to Mrs. Sacco to complete, demonstrating she did not pursue Mrs. Sacco’s interests diligently.
The arbitrator wrongly described Ms. Smith as a fellow vendor at the St. Catharines’ market (p. 12), whereas she was the market’s manager.
The arbitrator stated that before the accident Mrs. Sacco “mowed the lawn and enjoyed gardening”, (p. 10) whereas she had never mowed the lawn.

Even assuming Mrs. Sacco’s version is correct (which I cannot evaluate), in my view, none of these points is significant. There is no indication that Ms. Dobson’s comment about Mrs. Sacco’s attendance at Elmvale market was of any importance to the decision, and Mrs. Sacco herself acknowledged that she continued to work at a market in St. Catharines. Likewise, the fact that Mrs. Sacco’s application was incomplete played no role in the arbitrator’s decision about her entitlement to benefits. The weight to be attributed to Ms. Dobson’s evidence, which was tested through cross-examination, was for the arbitrator to decide.

In the absence of a transcript, I do not know how Ms. Smith described herself to the arbitrator, but in any event, her evidence was rejected because the arbitrator found it was inconsistent with what she previously told Zurich’s investigator. Again, the weight to be attributed to their respective evidence was up to the arbitrator. I am unconvinced that a mistake as to Ms. Smith’s position would have materially affected the arbitrator’s view.

Even if the arbitrator was wrong in her finding that Mrs. Sacco mowed the lawn before the accident, she did not find that Mrs. Sacco did the mowing afterwards. She concluded, however, that Mrs. Sacco engaged in other gardening activities, a conclusion drawn from a number of reports. The fact that gardening may comprise a variety of activities is not material to the appeal.

ii. Settlement Offers

Mrs. Sacco stated that Zurich had offered to settle the arbitration beforehand, demonstrating the validity of her claim. Offers of settlement, which are not accepted, are made “without prejudice” to the parties’ rights. They are irrelevant, and, by law, cannot be considered in subsequent adjudication of the merits of the case.

iii. The Role of the Lawyers

Mrs. Sacco complains that the arbitrator accepted Zurich’s lawyer’s submissions in their entirety, abrogating her responsibility to decide the case. Mrs. Sacco also complained about the quality of her own representation. This was the basis, for example, of Mr. Sacco’s attempt to explain his wife’s admission on cross-examination that she had exaggerated her evidence. Mr. Sacco states that he was required to leave the hearing room while his wife was testifying, leaving her interests inadequately protected.

I was not present at the hearing during Mrs. Sacco’s testimony, nor was Mr. Sacco. There is no transcript and no evidence to suggest anything inappropriate occurred. Witnesses are usually excluded from the hearing room before they have testified, so that their evidence is not coloured, consciously or unconsciously, by what they have heard. I find nothing wrong in the arbitrator’s reliance on Mrs. Sacco’s admission.

The fact the arbitrator accepts the arguments of one party over the other is not a valid ground for appeal. Both parties are permitted to raise procedural and evidentiary objections and, at the end of the evidence, are provided with an opportunity to try to persuade the arbitrator as to the merits of their case. It is the arbitrator’s job to listen to the submissions of the parties and to determine whether to accept them, and to what extent. The arbitrator reviewed the evidence in some detail and set out the basis of her reasoning She has a statutory mandate to make the determination. There is nothing to suggest she neglected her duty in any way.

iv. Ignoring Evidence

Mrs. Sacco complains that the arbitrator did not mention some of the evidence that helped her case. She points to select passages in the medical reports.

While an arbitrator must give reasons for his or her decision, he or she need not detail or summarise all the evidence. That would not be sensible or in keeping with the adjudicator’s mandate to deal with disputes expeditiously. There is no reason to conclude that the arbitrator ignored evidence before her simply because she did not specifically mention it. In my view, based on the material before me, the arbitrator fairly summarised the overall evidence and set out a coherent explanation of how she reached her decision.

The evidence to which Mrs. Sacco referred was not determinative or even necessarily helpful to her when read in its full context. For example, she objects that the arbitrator did not refer to a clinical note dated December 4, 1992, listing her reported injuries. She suggested that such evidence could only give rise to the conclusion that she was disabled. However, the same note also reported of Mrs. Sacco that: Aeverything she does or needs to do she can do but she has to

The Notice of Appeal also lists as an appeal ground that the arbitrator erred in her application of the law to the facts. I heard nothing further with respect to this argument, and conclude that it is without basis.

In summary, I confirm the arbitrator’s ruling that Mrs. Sacco’s claim was to be considered unders. 12 of the Schedule and that she did not meet the disability test set out therein.

2. CHAUFFEUR/ COMPANION EXPENSES UNDER S. 6 OR S. 7

Mrs. Sacco appeals the arbitrator’s ruling relating to reimbursement of her expenses in attending certain medical appointments. The arbitrator agreed that some compensation was due for the time Mr. Sacco spent driving his wife to out-of-town appointments with specialists. She allowed Mrs. Sacco credit for most, but not all, the hours claimed, but at the provincial adult minimum wage rate rather than the $15.00 an hour claimed to represent Mr. Sacco’s “lost wages”.

The hours in issue related to Mrs. Sacco’s attendance in Toronto for her surgery, which apparently involved an overnight stay in hospital following the procedure. Mrs. Sacco asked for payment for 34 hours’ attendance for the two-day trip. The arbitrator agreed to 16 hours, the equivalent of two average trips to Toronto claimed on other occasions.

The arbitrator had little information to go on, as do I. No one testified about the trip or explained the basis of the claim at the hearing. On appeal, Mr. Sacco stated that he should be compensated for the entire time spent in Toronto, as his wife needed him throughout her stay at the hospital. I am not prepared to accept Mr. Sacco’s unsworn, and untested, assertion to this

Mrs. Sacco also felt her husband’s services should be compensated at $15.00 an hour, not minimum wage as the arbitrator ordered.

Mrs. Sacco’s claim for her husband’s services was advanced under, alternatively, s. 6 or s. 7 of the Schedule. Both sections import a requirement of reasonableness. Section 7 allows for recovery of gross income reasonably lost by a person in caring for the injured person. Section 6 permits recovery of reasonable expenses related to the injured person’s treatment and rehabilitation.

The problem was a lack of proof. There was no information about how much gross income Mr. Sacco lost accompanying his wife to appointments. The financial evidence indicates that the rate claimed for his services was substantially higher than his earnings from the business. Mr. Sacco asserted that the ‘going rate’ to pay someone to replace him would be a good deal more than minimum wage; however there is no evidence of this or whether Mr. Sacco actually hired someone to replace him. With the little evidence there was, limiting payment to the minimum wage rate was justified.

Mr. Sacco pointed out that Zurich had previously allowed a claim based on $15 an hour “lost wages”. This involved three trips to see specialists in Toronto and Newmarket in late 1993 and early 1994. However, it is unclear that Zurich was in possession of Mr. Sacco’s financial documentation at that time. Therefore, I do not accept that Mr. Sacco can rely on these payments to establish the reasonableness of his claim.

III. APPEAL EXPENSES

Appeal expenses are in the discretion of the appeals adjudicator. They are not generally awarded where the appeal essentially involves a disagreement about the weight the arbitrator attributed to the evidence. This is such a case. Although I do not question the sincerity of Mrs. Sacco’s position, I am not persuaded that expenses should be ordered here.