Neutral Citation: 1998 ONFSCDRS 88

FSCO A96-001743

BETWEEN:

VITO GIACONA

Applicant

and

LIBERTY MUTUAL INSURANCE COMPANY

Insurer

DECISION

The Applicant, Vito Giacona, was injured in a motor vehicle accident on September 16, 1991. He applied for and received statutory accident benefits from Liberty Mutual Insurance Company ("Liberty Mutual"), payable under Ontario Regulation 672.¹ Mr. Giacona claims weekly income benefits, interest, care benefits, a special award, and his expenses in respect of the arbitration. The parties were unable to resolve their disputes through mediation and Mr. Giacona applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Mr. Giacona entitled to weekly income benefits between September 22, 1994 and December 7, 1994, and after December 26, 1995 under section 12(5)(b) of the Schedule?
Is Mr. Giacona entitled to be paid care benefits under section 7(1)(b) of the Schedule?
Is Mr. Giacona entitled to a special award under section 282(10) of the Insurance Act?

Mr. Giacona also claims interest on any amounts owing and his expenses incurred in respect of the hearing.

Mr. Giacona is entitled to weekly income benefits between September 22, 1994 and December 7, 1994 and after December 26, 1995 under section 12(5)(b) of the Schedule.
Mr. Giacona is entitled to be paid care benefits under section 7(1)(b) of the Schedule .
Mr. Giacona is not entitled to a special award under section 282(10) of the Insurance Act.
Mr. Giacona is entitled to interest on overdue benefits pursuant to section 24 of the Schedule.

Background

On September 16, 1991, Vito Giacona was driving his car through an intersection travelling eastbound when he collided with a vehicle which was travelling northbound. Mr. Giacona's car was written off following the accident.

Following the accident, Mr. Giacona was taken to Etobicoke General Hospital by ambulance. The examining physician described Mr. Giacona as having "significant trauma to the left side of his torso." According to the hospital records, x-rays were taken of Mr. Giacona's cervical spine, chest, left ribs and skull, as well as a CT scan of his abdomen, and an electrocardiogram. All were reported to be normal. The laceration to Mr. Giacona's forehead was apparently sutured with 26 stitches, and he was discharged with a head injury routine.

The following day, he saw his family doctor of several years, Dr. Yong-Set. Dr. Yong-Set noted that Mr. Giacona sustained a four inch flap laceration to his forehead, significant bruising around his eye and lower lip, a contusion to his rib costal cartilage, soft tissue injuries to his chest wall, and an abrasion to his left knee. He later also diagnosed chronic low back pain, post-concussion syndrome and patellar osteochondritis.

At the time of the accident, Mr. Giacona was 52 and on a temporary layoff from his employment as a bricklayer. He had engaged in this trade for over 43 years. By all accounts he was a highly skilled and competent bricklayer, and did bricklaying at residential, commercial and industrial sites. He also competed in province-wide bricklaying competitions, where he won awards and trophies for his work.

Mr. Giacona was recalled to work one week following the accident, but was unable to return because of his injuries. Liberty paid Mr. Giacona weekly income benefits between September 23, 1991 and September 22, 1994, and then from December 7, 1994 until December 1995. In this arbitration, Mr. Giacona claims entitlement to weekly income benefits, care benefits, interest and a special award. Liberty disputes all of Mr. Giacona's claims.

Entitlement to Weekly Income Benefits after 156 Weeks

Mr. Giacona claims weekly income benefits from September 22, 1994 to December 7, 1994 and from December 27, 1995 on an ongoing basis.² Since both periods occurred during the "post 156 week period," under section 12(5)(b) of the Schedule, Mr. Giacona must establish that the injuries he received in the accident continuously prevent him from engaging in any occupation or employment for which he is reasonably suited by education, training or experience.

The Applicant's position is that he meets this test and is therefore entitled to receive weekly income benefits. Liberty's position is that Mr. Giacona is able to perform a number of suitable occupations and is not entitled to further weekly income benefits.

Education, training and experience

Mr. Giacona was born on February 1, 1939. He was 52 at the time of the accident, and 55 years of age when the "post 156 week test" commenced. He obtained five years of formal education in Italy. In the documents filed at the hearing, Mr. Giacona's education is sometimes reported as Grade 3, 4, or 5 in Italy, and at times is reported as equivalent to a Grade 8 education in Ontario.

At the age of 9, Mr. Giacona was apprenticed to a bricklayer. He was a full fledged bricklayer by the time he was 15. Since that time he has always engaged in bricklaying, whether he lived in Italy, Argentina, or in Canada. He climbed pre-assembled scaffolds, lifted bricks, pre-cut stone and concrete, and applied them to walls with mortar. He would construct and repair both veneer and solid walls and foundations. His tools included a trowel, level and hammer. Major work demands included upright weight bearing, sustained forward bending, kneeling, squatting, lifting up to 40 pounds, and reaching. Minor work demands involved walking over uneven ground. According to the Canadian Classification & Dictionary of Occupations, Mr. Giacona's work was medium in nature.

At the time of the accident, Mr. Giacona was paid at the rate of $23.12 an hour. His remuneration also included a benefit package with medical, drug, dental and life insurance and other benefits.

Liberty submitted that Mr. Giacona's pre-accident employment could be equated to part-time work. Liberty submitted that based on a summary provided by his union, Mr. Giacona's average hours of work, calculated on a monthly basis would have been closer to 28 hours per week in contrast to 40 hours per week claimed by Mr. Giacona. Counsel for the Applicant submitted that Liberty paid Mr. Giacona for several years on the basis of a 40 hour work week and was now estopped from raising this as an issue.

Mr. Giacona's union prepared a monthly summary of the hours Mr. Giacona worked in 1990 and 1991. Mr. Giacona's employer also provided summary information with respect to the periods of Mr. Giacona's employment in 1990 and 1991 in two letters. The second of those letters amended the date on which Mr. Giacona returned to work from February 1991 as set out in the earlier letter, to April 1991. No witness was called from either the employer or the union to reconcile the apparent discrepancies in the documentation or to explain how both the employer and the union initially wrote that Mr. Giacona returned to work in February 1991 rather than April 1991.

I prefer to rely on the business and computer records of the employer who paid the wages to Mr. Giacona. I find that these records are more likely to be accurate and reliable than a summary prepared after the fact by either the employer or the union. They also contain more discrete information and permit a calculation of the actual number of hours worked during a weekly pay period. On this basis I find that in 1991, prior to the accident, Mr. Giacona worked an average of 41.2 hours a week at Denham Masonry. The Applicant's son, Maurizio Giacona, testified that his father also did bricklaying work on a freelance basis, during weekends and evenings, on jobs such as walls, fireplaces, and houses.

While I accept that Mr. Giacona's employment was subject to the vagaries of lay-offs due to weather, strikes, readiness of the job site and the availability of work. I find that his pre-accident employment was full-time and should not be equated with part-time work.

Language skills

The parties disagreed about the extent of Mr. Giacona's skills in English. Mr. Giacona testified that he spoke no English; in cross-examination he acknowledged that he spoke some English, that he could communicate with his family doctor who did not speak Italian, and that on the day of the accident he had been able to communicate with the ambulance attendants in English.

Mr. Giacona immigrated to Canada in his late twenties. Shortly after his arrival, he enrolled in an English as a second language program through Canada Manpower. He quit after one week because of his difficulty in making progress. He testified that he worked with bricklayers and labourers who communicate with each other in Italian, and is able to conduct most of his affairs in Italian. Dr. Vigna, a psychologist, corroborated Mr. Giacona's testimony. He testified that due to the size of the Italian community in Toronto, it is indeed possible to conduct one's affairs entirely in Italian, without the necessity of learning English.

Mr. Giacona gave his testimony with the assistance of three interpreters. During his testimony Mr. Giacona corrected one interpreter when she translated "right side", stating "left side." On a few occasions he responded in Italian to his lawyer's questions, which were posed in English, before the interpreter translated the question into Italian.

Some of the doctors who examined Mr. Giacona reported varying degrees of difficulty in communicating with him when he attended their offices unaccompanied by a family member or other interpreter. Dr. Yong-Set, Mr. Giacona's family physician testified that he has no problem communicating with Mr. Giacona for the most part. Mr. Giacona is able to make himself understood when he attends without his wife. However, Dr. Yong-Set stated that his wife would perhaps explain the symptom a bit better. She did not translate for Mr. Giacona. Dr. Yong-Set felt that he might not always get the same picture of the symptoms when Mr. Giacona came alone, and the appointment might take a bit longer than when his wife was present. Things always seemed to go a bit more smoothly when his wife accompanied him.

Dr. Weber, a neurologist, testified that on one occasion when Mr. Giacona alone came into his office, he just could not get at the information or the data that he needed until Mr. Giacona's friend who was sitting in the waiting room came in and acted as a translator. Dr. Halpenny, an orthopaedic surgeon, reported that when he assessed Mr. Giacona on the second occasion, he did not have any family members with him for interpretation. He reported that Mr. Giacona had difficulty describing his symptoms because of his difficulty with English language on that occasion. Dr. Little, a neurologist, reported that Mr. Giacona's daughter acted as the primary informant when he assessed Mr. Giacona.

Ms. Deneau, who was employed by Medex as a clinical consultant, reported that when she assessed Mr. Giacona in June 1992, he was accompanied by his son, who assisted with translation. She stated that Mr. Giacona spoke and understood English quite well. In 1992, Vocational Pathways conducted a functional abilities assessment of Mr. Giacona at Liberty's request. The occupational therapist reported that Mr. Giacona "spoke/understood minimal English." Medex also reported to Liberty that "interpretation services were required for a portion of the testing due to the claimant's poor verbal comprehension skills." When Medex, on Liberty's behalf referred Mr. Giacona to a work hardening program, they instructed the rehabilitation counsellor at Costi Rehabilitation Services to look at occupations which did not require reliance on English skills.

In 1992, an occupational therapist at Vocational Pathways recommended a neuropsychological evaluation of Mr. Giacona. She was sufficiently concerned about the impact of Mr. Giacona's English language skills on the test results to recommend that an Italian speaking psychologist conduct the evaluation, or that it be carried out through an interpreter. Liberty retained Dr. Bruto to conduct this assessment. Dr. Bruto assessed Mr. Giacona in Italian. She recommended that Mr. Giacona obtain psychotherapy in Italian. Dr. Vigna testified that he provided psychotherapy to Mr. Giacona in Italian to facilitate communication. Dr. McAndrews, a psychologist who conducted a neuropsychological assessment, noted that the interview and psychometric testing of Mr. Giacona were done with the assistance of a professional interpreter, because of Mr. Giacona's limited proficiency in English.

On balance, I find that while Mr. Giacona has acquired some ability to communicate in English, he is unable to communicate fluently to a significant degree.

Pre-accident condition

Dr. Yong-Set testified that he has been Mr. Giacona's family physician since March 1987. Prior to the accident Mr. Giacona was generally fit, in very good shape and enjoyed good health. He had ongoing problems with cholesterol which Dr. Yong-Set monitored for about a year, and for which he prescribed medication in 1991. Dr. Yong-Set testified that prior to the accident, Mr. Giacona had no neurological, psychological, psychiatric or significant physical problems. Dr. Yong-Set testified that he had treated Mr. Giacona in relation to two work related injuries prior to the accident. In November 1990, scaffolding on which Mr. Giacona was standing broke and he fell, injuring his lumbar muscles. His muscles were tender but there was no spasm. Mr. Giacona's x-rays were normal, Dr. Yong-Set prescribed anti-inflammatory medication, and Mr. Giacona remained off work for approximately ten days. In December 1990, Mr. Giacona sprained his right thumb. Dr. Yong-Set's clinical notes and records support his testimony that these injuries were short lived. I accept his opinion that neither of these events contribute to Mr. Giacona's ongoing symptoms from the September 1991 accident.

In the course of his testimony Dr. Weber noted that strokes or elevated cholesterol levels were conceivable explanations for Mr. Giacona's symptoms. However, he discounted both in terms of the coincidence of the symptoms with the blow to Mr. Giacona's head in the motor vehicle accident. In addition, he noted that Mr. Giacona's post-accident headaches are not one of the features of stroke. Dr. Weber gave the only evidence on these points and I accept his testimony.

Post-accident condition

Dr. Yong-Set describes Mr. Giacona as having ongoing problems "from top to bottom" as a result of his injuries. Mr. Giacona alleges that he sustained soft tissue injuries to his ribcage and neck muscles, has damaged the discs and facet joints of his lumbar spine, and developed patellar osteochondritis of his left knee. In addition, he sustained a laceration to his forehead which has healed with a scar and remains sensitive. He also claims that he sustained a mild brain injury which has left him with cognitive deficits, dizziness, headaches, and behavioural changes. I will deal with his musculoskeletal injuries, the question of his mild brain injury, and then his psychological complaints, although there is some overlap.

Musculoskeletal injuries

Neck, chest, upper back

Dr. Yong-Set testified that Mr. Giacona complained of persistent stiffness and tenderness over his cervical spine, neck and trapezius muscles, and of a very sore rib cage which hurt when he breathed. He diagnosed soft tissue injuries to Mr. Giacona's neck muscles and rib costal cartilage. In April 1992, Dr. Yong-Set referred Mr. Giacona for occipital nerve blocks because of the spasm in his posterior occipital muscles. Mr. Giacona and Dr. Yong-Set are both of the opinion that those nerve blocks were not helpful. Dr. Yong-Set testified at the hearing that Mr. Giacona's rib cage pain is now almost resolved.

In January 1992, Dr. Halpenny examined Mr. Giacona at Liberty's request. On examination, he found a full range of motion of Mr. Giacona's cervical spine, and a contusion to his left chest and rib cage. On reassessment in September 1993, Dr. Halpenny found no tenderness over Mr. Giacona's cervical spine, and again found no difficulty with the range of motion.

In July 1994, Dr. Bayley, a physiatrist, assessed Mr. Giacona at Liberty's request. He found a right sided [sic] chest wall contusion, limitations in his cervical range of motion to the left and right and diagnosed cervical myofascial strain.

In 1996 and 1997, Dr. Ogilvie-Harris, an orthopaedic surgeon, examined Mr. Giacona at the request of his counsel. He found paracervical pain going into his supraspinatus area and into his shoulder blades and is of the opinion that Mr. Giacona sustained soft tissue contusions to the cervical spine, left ribs and to the costovertebral joint on the left where the ribs join the spine. Dr. Ogilvie-Harris testified that 85 percent of people who sustain soft tissue injuries get better and heal completely, 15 percent develop long-term pain. In his opinion there was no question that Mr. Giacona falls in the latter category. Dr. Ogilvie-Harris testified that no soft tissue injury healing takes place after 3 years.

Knee

Mr. Giacona complained of a bruise to his left knee at the time of the accident. He has continued to complain of recurring pain in that knee on walking, going up and down stairs and squatting.

Dr. Yong-Set diagnosed patellar osteochondritis of his left knee, secondary to direct trauma in the motor vehicle accident. In his assessment in 1994, Dr. Bayley found a positive patellar grind sign. Dr. Ogilvie-Harris noted that Mr. Giacona had patellofemoral crepitus, or a grinding under the kneecap indicating damage to the articulating surface underneath the knee. He found that Mr. Giacona had lost 50 percent of the power or strength in his left knee. In his opinion this was significant because the knee is a weight-bearing joint. He also has chondromalacia of the patella.

Dr. Ogilvie-Harris opined that because of his injuries, Mr. Giacona would encounter difficulty kneeling, squatting, going up and down stairs and ladders, stooping, lifting up, and walking over uneven ground. These were all requirements of Mr. Giacona's job as a bricklayer. Dr. Ogilvie-Harris opined that based on the knee injury alone, Mr. Giacona was unlikely to be able to return to his work as a bricklayer.

Low back

Mr. Giacona did not initially complain of low back pain. Following the accident, he developed chronic pain to his low back, going down into the sacroiliac joints which he gets on a daily basis. He has stiffness and difficulty bending, sitting for more than one hour and also with repetitive bending. Dr. Yong-Set diagnosed chronic low back pain.

In January 1992, Dr. Halpenny found mild tenderness from Mr. Giacona's L4 spine to his sacrum, with no muscle spasm. Dr. Halpenny described Mr. Giacona as a well motivated individual who wanted to return to work as soon as possible. He was optimistic that Mr. Giacona's back symptoms would improve and after four to six weeks of physiotherapy, he might be able to start work again, from an orthopaedic standpoint. On reassessment in 1993, Dr. Halpenny noted some exaggerated responses during his examination of Mr. Giacona. While Mr. Giacona continued to have symptoms in his low back and knee, Dr. Halpenny opined that his function had improved; however bending and lifting would put undue stress on Mr. Giacona's lumbar spine. In his opinion, Mr. Giacona had lost his optimism to work, and psychologically was not in a good frame of mind.

In July 1994, Dr. Bayley found a 50 percent impaired lumbosacral rhythm, and that Mr. Giacona's back extension was limited by 20 percent. He diagnosed lumbosacral myofascial strain. In 1996 and in 1997, Dr. Ogilvie-Harris assessed Mr. Giacona. He found restriction of lumbar flexion, rotation, lateral flexion and extension and tenderness and spasm over the lumbar musculature in 1996. In his opinion, there was a protective spasm in Mr. Giacona's low back, indicating inflammation of the discs or of facet joints located at the back of the spine, causing pain and loss of function. This makes it difficult for Mr. Giacona to bend, walk or stand for a normal working day. In 1997 Dr. Ogilvie-Harris also noted an abnormal spinal rhythm. He testified that this was very significant objective evidence of pathology in Mr. Giacona's low back, indicative of damage to the discs at the front of the spine. In his opinion, Mr. Giacona's musculoskeletal injuries are consistent with the mechanism of injury and have left him with permanent and serious impairments.

Liberty obtained videotape surveillance of Mr. Giacona. On those videotapes Mr. Giacona is shown standing, sleeping on a porch, cutting a small lawn, sawing and sanding in his garage, going up stairs, riding a bike, driving, and repeatedly hacking at a weed or a seedling on the lawn with an axe for about a minute.

Mr. Giacona testified that he was following the advice and encouragement he received from his family doctor and psychologist to be as active as possible and perform as many of his normal activities as he was capable. Both Dr. Yong-Set and Dr. Vigna agreed that they had given Mr. Giacona such advice.

Dr. Ogilvie-Harris was cross-examined with respect to Mr. Giacona's activities. He testified that what he saw on the videotape was consistent with the activities which Mr. Giacona had described to him. He expressed surprise that Mr. Giacona would be so unwise as to saw wood on a workbench or table which was below his waist and use poor mechanics which did not protect his back. He noted however that Mr. Giacona did not carry out this activity for a long period of time. Dr. Ogilvie-Harris was able to demonstrate that Mr. Giacona was otherwise splinting and protecting his back, and favouring his knee while engaging in the activities on which he was asked to comment. In his opinion the surveillance demonstrates that Mr. Giacona is physically capable of performing light industrial or sedentary work. Even if he could do something heavier for half an hour, this did not equate with an ability to work 8 hours a day. In his opinion, there was nothing on the videotape which suggested that Mr. Giacona was capable of working fulltime as bricklayer on a daily basis.

Dr. Roussev, a neurologist who assessed Mr. Giacona at Liberty's request, expressed surprise that someone who complained of dizziness would engage in the activities portrayed on the videotape. According to the time display on the videotapes, none of the activities about which Dr. Ogilvie-Harris was questioned exceeded 10 minutes and are thus within the limitations Mr. Giacona states he has.

Dr. Yong-Set has seen Mr. Giacona roughly every two to three weeks over the past six years. He has tried various medications, occipital nerve blocks, massage and physiotherapy to reduce Mr. Giacona's symptoms with little success. In Dr. Yong-Set's opinion, Mr. Giacona cannot physically return to his previous job as a bricklayer. It would be unsafe for him to climb ladders or scaffolding because of his dizziness and repetitive bending is hard on his back and knees. I find that Mr. Giacona continues to have residual problems from his musculoskeletal injuries. I accept the evidence that his knee and low back problems prevent him from meeting the demands of his employment as a bricklayer.

Dizziness, cognitive difficulties and headaches

Chronic dizziness, headaches, and cognitive dysfunction are the post-accident complaints which Mr. Giacona finds most limiting. He experiences chronic light headedness on changing posture, turning his head and with physical activity exceeding 10 minutes. His symptoms are most pronounced on rising and improve slightly later in the day. His son testified that Mr. Giacona's symptoms have improved somewhat, and with encouragement from the treating professionals to live as normal a life as is possible, he now performs some of his former household chores.

Mr. Giacona has difficulty maintaining concentration, experiences memory lapses and disorientation. He gets easily confused and frustrated. He has experienced difficulty paying bills due to his lack of concentration and inability to focus his attention. Pre-accident he was the breadwinner of the family, and was able to pay his bills with the assistance of a teller. Now his younger daughter writes the cheques in order to pay the bills.

Pre-accident, Mr. Giacona was a busy, active "go-getter." He was an outgoing person who attended family get-togethers, weddings and baptisms, played bocce, and competed in bricklaying competitions. Post-accident, Mr. Giacona has curtailed his social activities, partly because of his irritability and an aversion to noise and crowds, partly because of a sense of shame. The sense of shame is partly attributable to his own perception of what he has become – a cretin.³ Mr. Giacona is also aware that he has at times been perceived as a crazy or drunk by his neighbours. At times when Mr. Giacona becomes dizzy, he develops a blank stare and walks as if he were drunk. Mr. Giacona alleges that these difficulties are the result of a mild brain injury, or post-concussion syndrome, which was caused by the motor vehicle accident.

Neuropsychological evaluations

Mr. Giacona has complained of cognitive problems following the accident including difficulties in maintaining his train of thought, recent memory, word finding and reasoning. Liberty arranged for a functional capacities assessment of Mr. Giacona at Vocational Pathways in December 1992. During that assessment, Mr. Giacona had difficulty focussing his eyes effectively for any significant period of time, functioned sporadically and unpredictably and had a relatively low level of energy.

The psychometrist found significant deficits in Mr. Giacona's short term memory, spatial aptitude, form perception, motor co-ordination and some variability in accuracy. These deficits would be completely inconsistent with Mr. Giacona's previous ability to work as a bricklayer for 43 years and his trophies and awards in bricklaying competitions. Mr. Giacona received one such award for laying 735 bricks in an hour. Vocational Pathways recommended a neuropsychological evaluation.

A psychologist conducting a neuropsychological examination examines brain behaviour relationships to determine what functions are impaired, the level of impairment and why the dysfunction is happening. The assessment is conducted using tests which have been validated, and shown to have acceptable levels of sensitivity and specificity. The psychologist interprets the scores from individual tests and the overall profile, having regard to the person's intellectual level, language and educational background, affective states, effort and motivation.

The norms or benchmarks for scoring the test results are heavily influenced by language and culture. They are based on gender, persons with at least a Grade 8 education, who speak English and who were raised in North America. Two, and perhaps three of these norms do not apply to Mr. Giacona who has five years of formal education in Italy, primarily speaks Italian, and was raised in Italy. A psychologist examining Mr. Giacona is therefore faced with particular challenges in determining both his pre-accident and post-accident abilities.

Dr. Bruto testified that she is the only psychologist conducting neuropsychological assessments in Italian. She conducted the clinical interview with Mr. Giacona in Italian and also obtained some information from his daughter, who accompanied him. Dr. Bruto noted that Mr. Giacona was aware of some of his cognitive deficits, but his daughter was able to inform her of additional difficulties, such as abstract reasoning. Dr. Bruto testified that she conducts her interviews in Italian so she can obtain the raw data that she interprets and assesses with her expertise and clinical judgment. She testified that it is particularly important to deal directly with the raw data where executive functions are being assessed. The use of a translator introduces a filter between the data and the clinician. Since the translator is not a trained clinician, subtle differences or shades of meaning can be unknowingly filtered out by the translator and lost to the clinician.

Instead of delegating psychometric testing to a psychometrist, Dr. Bruto conducts this testing herself. She testified that she does this so she can directly observe and interpret how the person she is assessing approaches the questions, his or her level of alertness or fatigue, and the quality of responses, in conjunction with performance on test scores. For example, there may be a number of possible ways of completing a test incorrectly, but it is significant to find out how the person did it wrong.

Dr. Bruto examined Mr. Giacona on three occasions. In 1993, Dr. Bruto assessed Mr. Giacona at Liberty's request, and in 1996 and 1997 at Mr. Giacona's request. In 1993, Dr. Bruto conducted her evaluation over three days to minimize the chances that what she observed or tested was due to Mr. Giacona having a bad day, or to his levels of fatigue. She assessed his intellectual functioning, mood, and level of cooperation. In her opinion, Mr. Giacona was clearly giving his best effort during testing. Despite his "excellent effort" he had a limited ability "to maintain the attention/alertness/motivation required to complete a comprehensive evaluation."

In Dr. Bruto's opinion, Mr. Giacona had at least average intellectual functioning pre-accident; post-accident, his overall scores on nonverbal tests of intellectual functioning fell within the mentally retarded range for an individual of Mr. Giacona's age.

In terms of his intellectual functioning, Mr. Giacona had significant deficits "in sustaining attention, in paying attention to detail, in maintaining mental set, in visuomotor planning, in the ability to learn verbal/nonverbal information, in the delayed recall of nonverbal material, in abstract reasoning and in problem solving by generating/dismissing series of hypotheses to account for changing contingencies. Perseverative and confabulatory tendencies were noted on various tasks." There were persistent findings of visual agnosia, or a lack of true attention to detail, in his right visual field.

In Dr. Bruto's opinion, when "Taken together, Mr. Giacona's self reports, the quantitative and qualitative results of the present cognitive evaluation are consistent with the effects of traumatic head injury." Mr. Giacona's pattern of cognitive and behavioural deficits suggested disturbances in the functional integrity of mesial temporal or frontal-temporal brain regions due to injury and was consistent with Mr. Giacona's EEG data suggesting a bilateral anterior abnormality of the brain. This pattern of deficits could also be due to Mr. Giacona's levels of psychological distress.

Dr. Bruto was of the opinion that both factors were causing Mr. Giacona's cognitive difficulties — the residual effects of a mild brain injury and a large psychological overlay from depression and anxiety. His psychological distress was consistent with the criteria for post-traumatic stress disorder and generalized anxiety disorder, secondary to trauma. She recommended treatment to address his depression and anxiety and a reassessment of his neuropsychological status and re-employment options once the clinical issues were resolved.

While she recognized that his cognitive difficulties would likely make it difficult for Mr. Giacona to effectively engage in psychotherapy, Dr. Bruto recommended that he receive psychological treatment from an Italian speaking psychologist. Unfortunately, neither psychotherapy nor medication to control Mr. Giacona's anxiety were of much benefit. Dr. Bruto reassessed Mr. Giacona in 1996 and 1997. She again found the same patterns of deficits.

In Dr. Bruto's opinion at the time of her assessment in 1993, the combination of Mr. Giacona's psychological and neuropsychological problems made it doubtful that Mr. Giacona would be able to perform at a level suitable to any employer. If Mr. Giacona had any physical deficits his situation would be even worse. In her opinion, he is competitively unemployable.⁴

Dr. McAndrews examined Mr. Giacona at Liberty's request in August 1996. She conducted her clinical interview with the assistance of an interpreter. Dr. McAndrews reported that she did not assess Mr. Giacona's mood or his personality due to time and language constraints.

Dr. McAndrews assessed Mr. Giacona's level of effort or motivation by using two tests, as is her standard practice. On one, Mr. Giacona completed 4 out of 15 items, on the second he completed 90 percent of the items. Dr. McAndrews attributed this difference in performance to poor or inconsistent effort or motivation.

Dr. McAndrews concluded that Mr. Giacona likely sustained a very mild concussion, but not one likely to give rise to any significant residual neurological or cognitive dysfunction. In her opinion, the data she obtained from the test results showed Mr. Giacona performing at borderline intellectual functioning. In her opinion, those scores and the scores which Dr. Bruto obtained were consistent with Mr. Giacona's educational, cultural and vocational history coupled with poor or inconsistent effort. She opined that from a cognitive standpoint, Mr. Giacona was capable of returning to any occupation for which he is suited by training and ability. She reported that since bricklaying had been ruled out due to Mr. Giacona's low back pain and dizziness, in her opinion given Mr. Giacona's age, limited proficiency in English, his level of intellectual functioning and pain focus, retraining for another occupation was also likely to represent a formidable challenge. She had no suggestions to offer in this regard.

Dr. Bruto acknowledged that overall there were few significant differences between her test data and that obtained by Dr. McAndrews, yet they reached different conclusions. Dr. Bruto testified that in her opinion, one of the significant reasons for the differences in their conclusions lay in their different assumptions about Mr. Giacona's pre-accident levels of intelligence. Dr. McAndrews assumed a low baseline, because of Mr. Giacona's limited education and his trade as a bricklayer. Given this assumption, mild or moderate deficits would be undetectable, and only profound deficits would be picked up on an assessment.

Dr. Bruto testified that Dr. McAndrews' underlying assumption is based on North American culture where there is a correlation between a low level of education and a low level of intelligence. Dr. Bruto testified that a similar assumption is not made in Europe, where a person can be extremely intelligent because he has access to money and opportunities, yet has a low level of formal education. In Mr. Giacona's case socio-political events, namely war and poverty in rural Italy, influenced his level of education, rather than a low level of intelligence or scholastic potential.

Dr. Bruto testified that in Europe a person who is a tradesman is considered to engage in a respected occupation. He has determination, stamina, the ability to go out and earn a living and support a family. This is a big part of the ethic. Family is everything. In Italy bricklaying is a well respected trade, which intelligent people pursue. It is not a trade which is associated with a low level of skill or intelligence.

Dr. Bruto noted that on the Ravens test of intelligence, a test designed to measure intelligence free of cultural influence, Mr. Giacona scores reflect at least an average level of intelligence. Dr. Bruto also noted that it would have been hard for Mr. Giacona to have been steadily employed for over 43 years as a bricklayer, a job which required visuospatial skills, if he had this deficit pre-accident. She testified that with those deficits Mr. Giacona would have been a very poor bricklayer, because he would not have been able to get the whole picture of what the structure was supposed to look like. His customers would not have been happy with the results. She certainly wouldn't hire him as a bricklayer.

Dr. Bruto observed that there was no suggestion Mr. Giacona had changed jobs frequently over the course of 43 years. In addition, there was the evidence that he competed and won awards and trophies for his bricklaying. Dr. Bruto noted that most bricklayers have a significant history of work related accidents. In her opinion, with a largely accident free history, one could infer that Mr. Giacona had some degree of intelligence to plan his work at the job site and remain largely injury free. In her opinion, even if Mr. Giacona had been of low intelligence, this would not explain Mr. Giacona's visual agnosia problems which have continued to surface in each of her subsequent assessments.

I find that both Dr. Bruto and Dr. McAndrews were aware that they faced significant challenges in assessing Mr. Giacona. Both strived to use appropriate tests that could be easily translated into Italian or ones that would not be compromised by linguistic or cultural factors and which took Mr. Giacona's limited formal education into account.

I prefer Dr. Bruto's opinion. I find that she set a more realistic baseline for Mr. Giacona's pre-accident capacity, was more aware of the relevant cultural assumptions, and interpreted his test results in a manner which took those assumptions into account. Dr. Bruto had an opportunity to assess Mr. Giacona's mood, and was able to consider the interrelationship between his depression and anxiety, both of which stem from the accident, on Mr. Giacona's performance. I accept Dr. Bruto's opinion that Mr. Giacona gave his best efforts during testing. That opinion is based on her direct observations of Mr. Giacona during the tests, made over several days and repeated over a period of approximately four years. I accept Dr. Bruto's opinion that Mr. Giacona's variable performance was attributable to fatigue and possibly to the influence of his headaches.

I accept Dr. Bruto's opinion that the effect of Mr. Giacona's neuropsychological and psychological impairments, all of which stem from the accident, effectively render Mr. Giacona competitively unemployable.

Post-concussion syndrome and neurological evaluations

Dr. Yong-Set diagnosed Mr. Giacona with post-concussion syndrome based on the history Mr. Giacona gave of the accident, his symptoms, the persistency and consistency of his complaints of headaches, dizziness, episodes of blurred vision and falls, fatigue, poor quality of sleep, cognitive problems, irritability and the absence of any similar difficulties pre-accident. Mr. Giacona reported striking his head against the rear view mirror. Given the bruising around his eyes, lower lips and the four inch laceration on his head, I find it reasonable to conclude that Mr. Giacona hit his head in the accident. Mr. Giacona has reported falling on four occasions when he became dizzy. While Dr. Yong-Set has not personally seen Mr. Giacona fall, he has seen the resultant bruises and examined him following these falls. Dr. Yong-Set agrees that Mr. Giacona has no gross neurological deficits.

Dr. Bayley examined Mr. Giacona in July 1994 at Liberty's request. He also diagnosed Mr. Giacona as suffering from mild post-concussion syndrome. In his opinion, there was acceptable evidence that Mr. Giacona sustained a concussion, that his post-traumatic amnesia lasted a few seconds to a minute, that Mr. Giacona's symptoms are typical of post-concussion syndrome, and that there was neuropsychological and EEG evidence of a head injury. Given the time which had elapsed since Mr. Giacona's injury, Dr. Bayley opined that Mr. Giacona's dizziness and headaches were likely long-term if not permanent problems.

Dr. Halpenny was also of the opinion that Mr. Giacona sustained a concussion in the accident. In his opinion, Mr. Giacona's dizziness would likely make it hazardous for him to work on scaffolding and ladders.

Neurological

Several neurologists have examined Mr. Giacona. Dr. Zaitlin saw Mr. Giacona shortly after the accident on a referral from his family doctor with respect to post-concussive headaches and dizziness. Dr. Weber saw Mr. Giacona at the request of his counsel, and assessed him in 1992, 1994, 1996, and again in 1997. In Dr. Weber's opinion, the history given by Mr. Giacona in relation to his physical symptoms, cognitive deficits and behavioural changes is compelling evidence of mild brain injury or post-concussion syndrome.

In addition to the factors considered by Dr. Yong-Set, Dr. Weber noted that while Mr. Giacona was not rendered unconscious he was disoriented and "stunned" following the accident, evidenced by his stunning lack of detail for events immediately after the accident. Dr. Weber testified that in his opinion, based on the most current neurological knowledge concerning mild brain injuries, any alteration in mental state at the time of the accident (e.g. feeling dazed, disoriented, or confused) is sufficient to support a finding of a mild brain injury.

Dr. Weber diagnosed Mr. Giacona's headaches as post traumatic vascular migraine headaches. These headaches are of a pounding nature, associated with nausea, photophobia and sonophobia, and are present on a daily basis. In Dr. Weber's experience such headaches commonly continue for 5 years, and based on the literature, perhaps for up to 16 years. Dr. Weber was of the opinion that Mr. Giacona's depression was related to his headaches and associated with the presence of biochemicals. In his opinion no one has advanced a better explanation for the appearance of this group of Mr. Giacona's symptoms post-accident than that of post-concussion syndrome or a mild head injury.

Three neurologists examined Mr. Giacona at Liberty's request. Dr. Little examined Mr. Giacona in January 1992, Dr. Moddel in September 1993, and Dr. Roussev in January 1997. All three record Mr. Giacona's complaints of dizziness and falls to a greater or lesser degree, state that there was no concussion as there was no loss of consciousness or memory, report on the results of the neurological examination and conclude that there is no focal neurological deficit, and/or no neurological disability.

The opinions that Mr. Giacona had no focal neurological deficits and that he was suffering from a mild brain injury, or post-concussion syndrome, do not appear to be mutually exclusive. A focal neurological deficit can be but is not necessarily present with a mild brain injury. In a mild brain injury the deficits may be diffuse and involve more than one area of the brain. Dr. Yong-Set, for example, agrees that Mr. Giacona has no gross neurological deficits but diagnosed post-concussion syndrome. Dr. Roussev, who vigorously asserted that Mr. Giacona had no neurological deficit and from a neurological perspective could return to work immediately as a bricklayer, testified in cross-examination that he never disagreed that Mr. Giacona had mild post-concussion syndrome.

To the extent that there may be disagreement between the neurologists, I prefer Dr. Weber's opinion to those of Dr. Little, Dr. Moddel and Dr. Roussev. Dr. Weber saw Mr. Giacona on several occasions over six years. He provided a systematic analysis of the symptoms of which Mr. Giacona complained in the context of the physical symptoms, cognitive deficits and behavioural changes which may accompany a mild brain injury. The opinions of Drs. Little, Moddel and Roussev do not specifically respond to Dr. Weber's analysis or his opinion in a meaningful way. I accept Dr. Weber's opinion that no better explanation has been advanced for Mr. Giacona's post-accident symptoms than that of a mild brain injury or post-concussive syndrome.

Mild brain injury and musculoskeletal injuries

Dr. Ogilvie-Harris testified that if Mr. Giacona suffered a brain injury in the accident, it would affect his ability to cope with a musculoskeletal injury in three ways. Firstly, Mr. Giacona would have difficulty in learning coping patterns to compensate for his injury. Secondly, Mr. Giacona's difficulties with attention span, memory, and concentration would make it more difficult for him to cope and carry on normal life and function on a day to day basis. Thirdly, it would be harder for Mr. Giacona's body to recover from the physical injury because the brain injury affects the feedback mechanism of the body, and consequently makes it harder for him to focus on exercises, develop enthusiasm or make the effort to get better.

Anxiety and Depression

Dr. Vigna was retained by Liberty in 1993 to assess and treat Mr. Giacona in relation to his post-traumatic anxiety and depression which Dr. Bruto identified in her neuropsychological assessment. Dr. Vigna's background includes working with individuals at the Workers' Compensation Downsview Rehabilitation Centre, whose injuries do not resolve quickly, or who are identified as suffering the psychological consequences of injury such as post-traumatic stress disorder, anxiety and depression.

Dr. Vigna testified that Mr. Giacona was distressed, unhappy, down, anxious, and having a rather tough time with his persistent post-accident symptoms, changes in his self-perception, loss of self confidence, feelings of guilt about not fulfilling the roles and expectations of a husband and father and ruminations about the accident and how it disrupted his life. As Mr. Giacona once put it to Dr. Vigna: "I was Vito and now I am no longer." He had some difficulty driving, felt unsure of himself, complained of sporadic functioning, memory problems, and problems with pain and headache. He also complained of not always being able to figure out how to do things.

Dr. Vigna's plan was to provide psychotherapy to reduce Mr. Giacona's emotional distress and anxiety, teach him relaxation exercises to reduce muscle tension and so reduce pain, and conduct in vivo desensitization in relation to Mr. Giacona's driving phobia. He encouraged Mr. Giacona to engage in normal activities so that at the end of the day he would feel that he had accomplished something.

In Dr. Vigna's opinion Mr. Giacona did the best that he could. However, he is a very concrete individual, and was this way even pre-accident. He frequently presented as confused, slow in organizing his thoughts, and had difficulty integrating information provided and materials discussed. He struggles every day and is anxious. Dr. Vigna noted that Mr. Giacona's behaviour is very inconsistent and unproductive as evidenced by his inability to master even the simple challenges presented during his work hardening program at Costi Rehabilitation Services. Such behaviour is not volitional in nature, but is a reflection of his present level of functioning.

Mr. Giacona did make some progress with Dr. Vigna. Although he continues to be anxious in a wide variety of situations, including driving, he is now able to drive within a 5 to 7 minute range of his home. He has increased many of his activities; he is able to mow a small lawn and do some gardening. He sees his friends at a cafe. He plays bocce three times a week, although he is careful with his movements, but doesn't keep score because he forgets. He does not ruminate over the motor vehicle accident as much. His episodes of crying have decreased; however, he continues to be depressed. In Dr. Vigna's opinion, Mr. Giacona's depressed mood is partly due to the fact that he was the breadwinner and now is not working. In addition, it is difficult for him to switch gears from being a bricklayer. He sleeps lightly, generally doesn't feel well, his finances are poor, and he feels dependent.

In Dr. Vigna's opinion, as long as Mr. Giacona continues experiencing cognitive difficulties, and indications are that he has recovered as much as he likely will, he will continue feeling rather anxious. Now more than 6 years post accident, he is not likely to experience significant changes, and emotionally he will continue feeling unhappy. He is easily overwhelmed by the combination of cognitive, physical and anxiety related symptoms.

Dr. Vigna stated that there was no doubt that Mr. Giacona is suffering emotionally from the consequences of the motor vehicle accident. In his opinion, Mr. Giacona is presently suffering from a prolonged adjustment disorder with mixed features of anxiety and depression. Dr. Vigna reported that Mr. Giacona "impresses as an individual who was quite responsible and who took ownership of his behaviour prior to the accident and who has reached a level of helplessness and of impotence in affecting significant changes to his present functioning. Realistically, I do not see him as being capable of employment in the future."

There were additional opinions about the cause of Mr. Giacona's anxiety and depression. Dr. Weber views Mr. Giacona's depression as part of the biochemical disturbance associated with his migraine headaches. He also noted that individuals with frontal lobe injuries tend to be more prone to depression. In Dr. Bruto's opinion, following treatment, Mr. Giacona had a low grade depression, or dysthymia which was nevertheless significant. "He tends to become immersed and overwhelmed by ruminative loops of thinking about his accident, his chronic pain of back, neck and head, his dizziness, the loss of ability to work in a respected trade within his community, etc. These ruminative loops of thinking appear to fuel depression and anxiety, to divert attention away from exploring more adaptive ways of approaching his injuries and to promote his view of himself as disabled and his situation as increasingly hopeless."

Dr. Bayley attributes Mr. Giacona's anxiety to a cycle in which physical symptoms exacerbated by activity, including difficulties with balance and pain, trigger anxiety and avoidance of activities. It may be that there are several factors which cause and fuel Mr. Giacona's anxiety and depression. I am persuaded that Mr. Giacona's ongoing cognitive and psychological problems result from the accident.

Dr. Bayley was of the opinion that Mr. Giacona was physically capable of performing light sedentary work and suggested a further trial of work hardening. Dr. Yong-Set was of the opinion that it would be best if Mr. Giacona could be retrained to perform light sedentary work. However he found it hard to believe that Mr. Giacona would be capable of adapting to perform any other occupation. Dr. Bruto and Dr. Vigna consider Mr. Giacona competitively unemployable. Dr. Ogilvie-Harris was of the opinion that Mr. Giacona was physically capable of light sedentary work, assuming he had the correct level of education to do so, or the mental capability of upgrading sufficiently, both of which he believed to be dubious. Dr. McAndrews considers retraining a formidable task and had no suggestions to offer in this regard. Dr. Vigna was of the opinion that upgrading attempts would undoubtedly result in failure.

Based on several months observation of Mr. Giacona's level of functioning, Dr. Vigna is of the opinion that Mr. Giacona would not be capable of managing the challenges of a competitive work environment, or that he would last in a job setting. He suggested the best that could be accomplished for Mr. Giacona would be to find an employer who would allow him to work at home on light assembly. He noted that Mr. Giacona would have to see it as a way to pass the time, not as competitive activity. In Dr. Vigna's experience, such opportunities are rare.

Dr. Bruto noted that Mr. Giacona's pre-accident employment provided him with a sense of mastery, pride and recognition within his community. She cautioned that it is more than likely Mr. Giacona's acceptance of a position with a lower level of functional capacity than his pre-accident work would serve to further focus his thoughts on his losses and fuel further thoughts of despair and feelings of depression.

Mr. Giacona is in his late fifties, has limited education and English language skills, has trained and worked all of his life as a bricklayer. I accept that Mr. Giacona would have significant difficulty learning to perform other work. I find that when all of Mr. Giacona's post-accident musculoskeletal, cognitive and psychological impairments are considered together with his age, limited education and English skills, he is not competitively employable. I also accept that from a rehabilitation perspective some further attempts are warranted to assist Mr. Giacona in finding light sedentary work on a non-competitive basis as suggested by Dr. Vigna. Liberty's rehabilitation obligations under the Schedule continue until 2001.

Liberty's position is that Mr. Giacona is capable of performing a number of occupations which it has identified as suitable for Mr. Giacona. I will therefore address these occupations.

Suitable work

At the post 156 week mark, in order to qualify for weekly income benefits, Mr. Giacona's injuries must continuously prevent him from doing any job for which he is reasonably suited by age, education training and experience.

In the case of Sherre Maas and State Farm Insurance,⁵ a decision upheld on appeal, Arbitrator Seife summarized the principles which had been developed in interpreting "suitable employment." I agree with and adopt these principles.

The question of suitable employment in every case is a question of fact: the work must be suitable for that applicant, viewed fairly and realistically in the context of his or her educational and employment background.
Suitable work is not limited to what the applicant was doing at the time of the accident, provided that it is not unrelated to his or her previous experience. However, work is not necessarily suitable because an applicant has done a stint of it in the past. If the job is substantially different in nature, status, or remuneration it may not be an appropriate alternative.
In deciding suitable employment, one must consider such factors as the nature and status of the work compared with what the applicant did before, the hours of work and level of remuneration, the applicant's employment experience and length of time spent in different jobs, his or her age, and his or her qualifications and technical training and know-how.
The primary focus is on an applicant's functional limitations; however, job-market considerations are relevant in determining suitable employment.

Vocational Pathways conducted a functional abilities assessment of Mr. Giacona at Liberty's request in November and December 1992. The occupational therapist concluded that Mr. Giacona would be able to perform sedentary to light industrial work on a part-time basis once his overall physical capacities improved. However, he would have to avoid work which involved climbing ladders or scaffolds or operating machinery.

In my view, this opinion was subject to her recommendations for a neuropsychological evaluation and further medical investigations, Mr. Giacona's participation in a work hardening program with emphasis on pain management, increasing work tolerances, and improving his coping skills. One neuropsychological examiner, Dr. Bruto, indicated Mr. Giacona was competitively unemployable; the other, Dr. McAndrews, that retraining Mr. Giacona was a formidable task for which she had no suggestions. The vocational assessment, also conducted by Vocational Pathways was less optimistic. That assessor reviewed the report of the occupational therapist, psychometric testing, and observed Mr. Giacona over a period of five days. She concluded it was unlikely that Mr. Giacona could meet competitive employment standards in terms of productivity and perseverance, even on a part-time basis.

In February 1994, Mr. Giacona was referred to Costi Rehabilitation Services for an eight week work hardening program with various physical restrictions. He attended the program on a half day basis, for three days out of the first two weeks. He was given light sedentary work, folding boxes for thermostats and packaging plastic knives, and sorting gloves. His productivity was assessed at 40 percent. This was considered to be unacceptable to any employer. Mr. Giacona was suspended from the program for further medical investigations. While those investigations were pursued, there is no evidence that the reports of Dr. Yong-Set or Dr. Vigna were forwarded to Costi so the work hardening program at Costi might be resumed. There is no evidence that any other work hardening program was commenced or completed.

According to Liberty's experts, as a bricklayer, Mr. Giacona's annual earnings would be in the vicinity of $46,000 to $48,090. The salaries of the identified positions, on a full-time basis range between $18,000 to $35,000 per year. I find that none of the positions which Liberty has identified as a packer, card sorter, ticket taker, picture frame assembler or bag maker, would provide Mr. Giacona with comparable remuneration to his earnings as a bricklayer.

In January 1995, Medex provided Liberty with a transferable skills analysis based on Mr. Giacona's employment as a bricklayer. That assessment purported to take into account Mr. Giacona's transferable skills, physical capabilities, experience, age and language skills. Medex identified nineteen positions which Mr. Giacona could assume with direct entry. The Applicant retained Mr. Martino, a rehabilitation counsellor and director of Rehabilitation Canada Network Inc. to evaluate the jobs identified by Liberty.

Mr. Martino reviewed the 1992 National Occupational Classification with respect to the nineteen direct entry positions identified by Medex as suitable for Mr. Giacona. Mr. Martino noted that fourteen of these occupations usually require some secondary school education. There are no specific education requirements for the remaining five direct entry occupations; however, a working proficiency in English would be necessary, if not mandatory. Thus, Mr. Giacona's limited education and English language skills preclude him from working in these occupations without further upgrading. None of the jobs would provide Mr. Giacona with remuneration which was comparable to his earnings as a bricklayer.

Five jobs would require on the job training of up to six months. None of these would provide Mr. Giacona with comparable remuneration. Six jobs would require Mr. Giacona to upgrade his English language skills as well as his reading and writing skills. I accept Mr. Martino's opinion that the Medex evaluation was neither realistic nor reasonable.

In May, 1997 Sibley and Associates did a computerized transferable skills analysis which generated 197 alternatives, and of these, the best 25 were selected for Mr. Giacona as feasible occupations. None of these jobs provide Mr. Giacona with comparable remuneration. The top two require some retraining on the job. The tamping machine operator position would appear to involve operating machinery. Both Dr. Yong-Set and Vocational Pathways noted that Mr. Giacona should not be involved in operating machinery because of his difficulties with dizziness. The remaining positions require extensive retraining on the job. Training or upgrading his education and language skills would be a formidable undertaking given Mr. Giacona's age, education and cognitive deficits. None of the jobs provide comparable remuneration to bricklaying.

Ms. Gicas, Liberty's representative, acknowledged in her testimony that none of the jobs which had been identified were of comparable remuneration. She also acknowledged that in the real world, no employer would hire Mr. Giacona.

I find that Mr. Giacona has satisfied his burden of establishing, on a balance of probabilities, that the injuries he received in the accident still continuously prevent him from engaging in any occupation or employment for which he is reasonably suited by education, training or experience. I find no evidence of employment which is substantially similar in nature, status, or remuneration for which Mr. Giacona would be reasonably qualified. I find that he would be unable to return to light sedentary physical work with any prospect of maintaining a reasonable degree of productivity. I find light sedentary or factory work to be substantially different in nature from the work he has performed throughout his career. Mr. Giacona is therefore entitled to receive the weekly income benefits which he claims.

Entitlement to Care Benefits

The Applicant claims a total of $70,980 as care benefits for services rendered by his wife, son, and daughter between September 16, 1991 and December 1, 1997. All services are charged at the rate of $10 per hour. Liberty disputes that these services are necessary or required as a result of the accident.

Section 7 (1)(b) of the Schedule provides a monthly maximum of $3,000 for the payment of all reasonable expenses resulting from the accident in caring for the insured person after the accident. Liberty disputed that the services were necessary or required as a result of the accident. There was no issue as to whether the expense has to be incurred. Despite the significant total amounts claimed, there was no evidence as to why $10 per hour was a reasonable rate. In addition, the amounts claimed, at least in the early months, exceed the maximum monthly amount of $3,000 prescribed in the Schedule.

Dr. Yong-Set provided a letter indicating that the services claimed were reasonable. I reject that opinion. I prefer the opinion which he offered in his testimony, that during the acute phase of his injuries, in the two to three months post-accident, Mr. Giacona would have had difficulty dressing himself due to the problems with his neck and back. Dr. Vigna expressed some concern in August 1993, that Mr. Giacona had become dependent on his family for day-to-day functioning, and attempted to "normalize" this by encouraging Mr. Giacona to take on as much of his pre-accident activities as possible.

Dr. Vigna reports that Mr. Giacona is a "doer" who "measures his self-worth through his actions." Since his pain, cognitive functioning, and to some degree his anxiety interfere with what he was accustomed to do, Mr. Giacona concludes that his personal worth is rather low. He has therefore developed low self-esteem post-accident. I accept that Mr. Giacona's wife, and his children Maurizio and Enza, both of whom are in their thirties, spent and continue to spend additional time with Mr. Giacona being supportive to him, encouraging him to be active, attempting to raise his self-esteem and trying to get him motivated again. I also accept that they offered and continue to offer Mr. Giacona support and encouragement when he is disoriented, particularly anxious, depressed or during his crying spells. Psychotherapy and anti-anxiety medication have not significantly relieved Mr. Giacona's anxiety and depression.

In light of Mr. Giacona's significant impairments, I find it reasonable to provide compensation for the additional care and assistance provided to him by his family members in assisting him in dressing, administering medication, and providing him with support and encouragement. While I accept that the provision of these services was reasonable and required as a result of the accident, there was no evidence of the actual number of hours expended. My impression is that the Giacona family is a close one and it is difficult to distinguish this time, which is compensable, from time they would otherwise spend with their husband and father. In these circumstances, I will take a somewhat arbitrary approach.

I find the following reasonable. Twenty four hours of care for day one because of the head injury routine; 3 hours of care per day over the three month period following the accident for assistance in dressing, administering medication, accompanying Mr. Giacona on walks etc.; a total of 4 hours per week for supportive care and encouragement (provided by Pina, Enza and Maurizio Mariona), from one day after the accident forwards. In the absence of evidence of a wage loss, the above claims should be paid at the minimum wage applicable at the time the services were rendered.

I also find it reasonable that Mr. Giacona's family members be compensated for their time, care and assistance to him in relation to his various medical appointments and examinations which result from the motor vehicle accident, whether these were arranged by him, on his behalf, or by Liberty. I find that Mr. Giacona had some disorientation, forgetfulness, anxiety, depression intermittent confusion and driving phobia. I find it was reasonable in light of Mr. Giacona's cognitive and psychological impairments coupled with his language difficulties for his family members to drive and accompany him to his appointments, provide him with support and with translation services. The duration of the appointments and transportation time likely varied. I find $50 per visit a reasonable sum to compensate them for their time and care. Counsel should calculate the amounts to be paid, and if unable to agree, I remain seized of this issue.

A claim was advanced for services rendered by Maurizio and Enza Giacona for snow shovelling and grass cutting following the accident. Prior to the accident, these services were performed by their father, Mr. Giacona. I find that section 7 of the Schedule relates to the provision of care to and for the injured person. I find that section 7 was not intended to compensate for the replacement of work that the injured person performed prior to the accident. I reject the claim for services rendered in snow shovelling and lawn cutting as a care benefit under section 7 of the Schedule. This claim was not presented on an alternative basis.

Interest

Mr. Giacona claims interest on overdue benefits. Mr. Giacona is entitled to interest on overdue weekly income benefits and care benefits calculated under section 24 of the Schedule.

Special Award

Mr. Giacona claims a special award. Under section 282(10) of the Insurance Act, where an arbitrator is of the opinion that an insurer has unreasonably withheld or refused to pay benefits, a special award must be granted. Mr. Giacona alleged that Liberty failed to carry out its responsibilities to provide a comprehensive plan to train and rehabilitate him and submitted that he was therefore entitled to a special award. Liberty denies that a special award is payable in the circumstances of this case.

Mr. Giacona did not claim rehabilitation benefits in this arbitration. There are no rehabilitation benefits outstanding, and I therefore have no basis on which to make a finding that Liberty unreasonably withheld or delayed payments of rehabilitation benefits.

Expenses

For the reasons given in S.M. and Market,⁶ I find that my authority to grant expenses is limited to determining whether the Applicant is entitled to his expenses in respect of the arbitration. Mr. Giacona was largely successful. I exercise my discretion to award Mr. Giacona his expenses in respect of the arbitration.

Order:

Liberty Mutual Insurance Company shall pay Mr. Giacona weekly income benefits at the rate of $600 per week between September 22, 1994 and December 7, 1994 and after December 26, 1995 under section 12(5)(b) of the Schedule.
Liberty Mutual Insurance Company shall pay Mr. Giacona care benefits under section 7(1)(b) of the Schedule in an amount to be calculated and agreed upon by counsel, failing which I remain seized of this issue.
Liberty Mutual Insurance Company shall pay Mr. Giacona interest on overdue benefits pursuant to section 24 of the Schedule.
Liberty Mutual Insurance Company shall pay Mr. Giacona's expenses in respect of the arbitration.

November 26, 1998

Suesan Alves

Arbitrator

Date

Appendix A

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, on December 1, 2, 3, and 4, 1997 and March 23, 24 and 25, 1998, before me, Suesan Alves, Arbitrator.

Pat Capo, Dimo Barda, and Lina Peruzza of Omnicom provided interpreting in English and Italian. John Tomczak, Tracey Davis, and Maria Rossi and of Professional Court Reporters Inc. recorded the proceedings.

Present at the Hearing:

Applicant:

Vito Giacona

Mr. Giacona's Representative:

Frank Burns

Barrister and Solicitor

Liberty Mutual's Representative:

Wayne Edwards