Financial Services Commission

Commission des services financiers de l’Ontario

Neutral Citation: 1998 ONICDRG 58, 1998 ONFSCDRS 58

Appeal P97-00039

OFFICE OF THE DIRECTOR OF ARBITRATIONS

ORESTE CAPUTO

Appellant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Respondent

Before:

Frederika Rotter, Director's Delegate

Counsel:

Paul Ledroit (for Oreste Caputo)

Grant Dow (for Allstate Insurance Company Of 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 the arbitration order dated June 18, 1997 is confirmed.
No appeal expenses are payable.

October 23, 1998

Frederika Rotter Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

This is an appeal by Oreste Caputo from an arbitration decision dated June 18, 1997. The arbitrator found that Mr. Caputo was entitled to benefits under subsection 12(1) of the Statutory Accident Benefits Schedule - Accidents before January 1, 1994, R.R.O. 1990, Reg. 672 ("the Schedule") for the full initial benefit period of 156 weeks. He also allowed Mr. Caputo weekly income benefits for an additional eight weeks under subsection 12(5)(b). Mr. Caputo appeals claiming he is entitled to ongoing benefits under subsection 12(5)(b), as his injuries from the accident continuously prevent him from engaging in any occupation or employment for which he is reasonably suited by education, training or experience.

II. BACKGROUND

Mr. Caputo was injured in an accident on January 9, 1992. He initially suffered pain in the groin, left arm, and left side of his head, and subsequently developed low back pain, which became his most significant physical complaint. The question whether the low back pain was causally linked to the accident was raised at the arbitration hearing, and the arbitrator found, on balance, that it was.

Mr. Caputo was born in Italy in 1946. He completed five years of education in Italy before starting to work at various physically demanding occupations. He continued doing physical labour after emigrating to Canada, including welding, construction and road-paving. He also operated a pizza business with his brother for three years. In 1981 he became self-employed in his own ceramic tile-laying business, after having worked in this business as a subcontractor for his brother-in-law for several years.

After the accident, Mr. Caputo attempted to resume his work laying tiles. He tried to return to work in March 1992, and a private investigator saw him laying tiles on several occasions in 1992, as Allstate Insurance Company of Canada ("Allstate") had ordered surveillance in his case.

However, he was not able to work productively, and ultimately closed his business in 1992. The arbitrator found, and it is not disputed, that Mr. Caputo's injuries continuously prevent him from resuming his former occupation of laying tiles. Tile laying is physically demanding work which requires repetitive bending, twisting, kneeling and squatting, and the ability to lift and carry weights of greater than twenty pounds. The arbitrator reviewed the medical documentation (including a functional capacities assessment) which indicated that Mr. Caputo had reached maximal medical recovery from his injuries and had been left with various physical restrictions, precluding his employment laying tiles.

Mr. Caputo continues to complain of chronic low back pain. The arbitrator found that Mr. Caputo's physical limitations restrict him to light or sedentary work, where he would be able to change positions (from seated to standing) as frequently as necessary to accommodate his discomfort. The issue to be determined was whether, in light of Mr. Caputo's physical restrictions, he was able to engage in a suitable occupation or employment given his previous education, training and experience. The arbitrator in his reasons carefully considered the evidence regarding Mr. Caputo's educational background and experience. He reviewed Mr. Caputo's work history, the various functional assessments which described Mr. Caputo's physical abilities and limitations and test results outlining Mr. Caputo's educational and academic attainments. Mr. Caputo scored below grade 3 in spelling and arithmetic and at grade 4 in reading.

Mr. Caputo argued that the combination of his low academic skills and his physical limitations rendered him incapable of performing any reasonably suitable employment. He claimed he could not do work requiring any reading or writing in English, thus excluding most sedentary occupations.

Allstate had engaged Crawford Disability Management ("Crawford") to assist Mr. Caputo with his rehabilitation and proposed return to work. Scott Patriquin, the employment consultant at Crawford assigned to Mr. Caputo's case, recognized his physical limitations. He also recognized that because of Mr. Caputo's limited literacy skills, employment requiring extensive reading and writing was inappropriate. Mr. Patriquin eventually sought to enroll Mr. Caputo in a work conditioning program at Goodwill Industries, where he would obtain training as a cashier and customer service representative. Mr. Patriquin's evidence was that after completing such a program, Mr. Caputo would have been in a good position to obtain permanent employment in this capacity with Goodwill, and that Goodwill had positions opening up. However, Mr. Caputo never enrolled in the program because shortly before it was due to commence, he was involved in a second motor vehicle accident .

The arbitrator found that had Mr. Caputo completed the conditioning program, he would have been qualified for and able to undertake the proposed employment with Goodwill Industries, and that such employment was suitable. He therefore concluded that Mr. Caputo's injuries did not continuously prevent him from engaging in any occupation or employment for which he is reasonably suited. The arbitrator determined that Mr. Caputo was entitled to eight additional weeks of benefits (to cover the eight week work conditioning and training period), and nothing further.

III. ANALYSIS AND FINDINGS

Mr. Caputo appeals the arbitrator's decision claiming that the arbitrator made various erroneous findings of fact. He maintains that he is entitled to ongoing benefits as his injuries continuously prevent him from engaging in any suitable occupation or employment.

Mr. Caputo clearly would have preferred a different outcome in this case. However, I am satisfied, from my review of the material before me, including transcripts of eight days of hearing, that the arbitrator made no errors palpable and serious enough to warrant my interfering with or reversing his findings.

Mr. Caputo submits that the arbitrator was wrong to conclude that potential employment at Goodwill was "suitable" in light of his physical restrictions and previous education and experience. He submits that the arbitrator confused the Goodwill work conditioning program with a position of employment. He further submits that the arbitrator's findings that Mr. Caputo would have been qualified for a position at Goodwill (and that the position was suitable) is not supported by any evidence.

I do not accept these submissions. I do not propose to restate the evidence at length, since the arbitrator did so in a thorough, accurate and comprehensive manner in the decision. From my review of the arbitrator's reasons, it is clear that he understood the difference between the Goodwill work conditioning program, and the job opportunities that were also available at Goodwill. He specifically found that "Mr. Caputo would have been qualified for a suitable position with Goodwill following the work conditioning program." [emphasis added]¹

In determining that Mr. Caputo was capable of performing the "customer service" position at Goodwill, the arbitrator based his finding on the totality of the evidence before him. He considered the requirements of the proposed position and found it was "suitable" given Mr. Caputo's physical limitations and education, training and experience. He carefully analysed the medical evidence, all of which suggested that Mr. Caputo was capable of performing a job involving light or sedentary duties, which allowed Mr. Caputo to change or vary his posture from sitting to standing, as necessary. He was satisfied on the evidence adduced that the position at Goodwill would have accommodated Mr. Caputo's physical restrictions.

The arbitrator also considered Mr. Caputo's education, background and experience before concluding that he would have been qualified to do a cashier or customer service-type job at Goodwill, (assuming he had completed the on-the job training in the work conditioning program).

Mr. Caputo argued, in effect, that because his reading, writing and math skills were limited, he was disqualified from performing any light work, since any "suitable" light work would require these skills. The arbitrator rejected this argument, in my view, properly. He recognized Mr. Caputo's educational limitations, however he also considered that Mr. Caputo had worked from a very young age and had owned and successfully operated two businesses despite these limitations. The arbitrator concluded that Mr. Caputo's job history and background showed he was capable of performing non-physical tasks associated with running a business, such as dealing with customers, making measurements and performing calculations (e.g. for estimates in his tile business).

The question of whether Mr. Caputo meets the test for ongoing benefits under subsection 12(5)(b) is a question of fact which the arbitrator must determine after considering all the evidence. The arbitrator is in the best position to assess the totality of the evidence and to draw the appropriate conclusions from it. It is not my role to second-guess factual determinations where the arbitrator made no findings which misapprehend, or were otherwise unsupported by, the evidence. In this case, I find no material error, either factual or legal, which would justify interfering with the arbitrator's conclusions.

Accordingly, the appeal is dismissed.

IV. APPEAL EXPENSES

I accept that Mr. Caputo sincerely believes the arbitrator's decision was wrong. However, expenses are generally not awarded to unsuccessful appellants where the issues relate to the arbitrator's assessment of the evidence. This is such a case, and accordingly no appeal expenses are payable.