Neutral Citation: 1999 ONFSCDRS 126

FSCO A97-001443

BETWEEN:

VINCENZO OPPEDISANO

Applicant

and

ZURICH INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Judith Killoran

Heard:

May 10, 11, 12, and 13, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Brian Donnelly for Mr. Oppedisano

Pamela M. Stevens for Zurich Insurance Company

The Applicant, Vincenzo Oppedisano, was injured in a motor vehicle accident on January 6, 1994. He applied for and received statutory accident benefits from Zurich Insurance Company ("Zurich"), payable under the Schedule.¹ Zurich terminated weekly income replacement benefits on December 9, 1996. The parties were unable to resolve their disputes through mediation, and Mr. Oppedisano applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended (the "Act").

The issues in this hearing are:

Is Mr. Oppedisano entitled to weekly income replacement benefits after December 9, 1996 to date and ongoing under section 7 of the Schedule due to a substantial inability to perform the essential tasks of his employment?
If Mr. Oppedisano is entitled to a weekly income replacement benefit after December 9, 1996, what is the amount of the benefit under section 10 of the Schedule?
Is Mr. Oppedisano entitled to interest on any amounts owing under section 68 of theSchedule?
Is Mr. Oppedisano entitled to a special award under subsection 282(10) of the Act because Zurich unreasonably withheld or delayed payments?
Is either party entitled to its arbitration expenses under subsection 282(11) of the Act?

Mr. Oppedisano is entitled to weekly income replacement benefits after December 9, 1996 to date and ongoing, pending Zurich's delivery of a loss of earning capacity benefits offer and compliance with the procedure outlined in sections 21 to 23 of the Schedule.
The amount of the weekly income replacement benefit is $214.19 plus indexation according to section 79 of the Schedule.
Mr. Oppedisano is entitled to interest on overdue amounts.
Mr. Oppedisano is not entitled to a special award.
The issue of expenses may now be addressed.

Background:

Vincenzo Oppedisano was born in Italy on November 11, 1941. He was in Grade 5 when he left school at age 12 or 13. Before coming to Canada in 1966 at the age of 25, Mr. Oppedisano worked in Milan as a sheet metal worker. Mr. Oppedisano has been married to his wife, Maria, for 26 years. Mr. and Mrs. Oppedisano have three children who live with them at their home in Woodbridge. The children are: Rocco, Giuseppe or Joe, and Teresa. They are 25, 23 and 19 years old, respectively.

Mr. Oppedisano worked at a variety of jobs when he arrived in Canada. He was a construction labourer, a chromer, a dump truck driver and a general labourer. From 1976 to 1994, Mr. Oppedisano operated his own business known as "Vince's Catering". His 1993 Ford truck was modified into a coffee truck. He drove to construction sites in the Newmarket area and sold coffee, sandwiches, pop and other food to workers. His wife, Maria, has worked at a restaurant for the past nine years.

On January 6, 1994, Mr. Oppedisano was driving his coffee truck westbound on Rutherford Road during a blizzard. A Jeep travelling in the opposite direction lost control and swerved into the westbound lane. Mr. Oppedisano could not stop in time to avoid striking this vehicle. He was wearing a lap and shoulder belt but was thrown backwards and reported feeling "dazed" and "shaken up" . Mr. Oppedisano did not feel any immediate pain, but pain started within one to two hours in his neck and left shoulder. He was taken to York Central Hospital later that evening by his wife. He saw his family doctor, Dr. Moro, two days later.

From March 1994 to August 1995, Mr. Oppedisano's oldest son, Rocco, operated the coffee truck. Initially, Mr. Oppedisano accompanied Rocco to show him how to do the work, but he was unable to continue due to the severe pain in his left shoulder. Rocco returned to school in September 1995 and the coffee truck was off the road from the end of August 1995 until May or June of 1997. At that point, Mr. Oppedisano's younger son, Joe, began operating the coffee truck and continues to do so.

1. Is Mr. Oppedisano entitled to weekly income replacement benefits after December 9, 1996 to date and ongoing?

Test for Entitlement:

Under section 7 of the Schedule, Mr. Oppedisano is entitled to a weekly income replacement benefit during the period that he suffers a substantial inability to perform the essential tasks of his employment. He must establish on a balance of probabilities that this is due to an impairment² as a result of an accident. Arbitration decisions have ruled that what must be shown is more than some inability but not total disability. It must be a sizeable, considerable³ or significant⁴ inability to perform the essential or key tasks of the job.

Essential Tasks of Mr. Oppedisano's Employment:

Mr. Oppedisano testified for several hours about the intricacies of running his coffee truck and photographs of the truck were filed as exhibits. Mr. Oppedisano offered compelling testimony about the nature of his work — the long hours, bumpy roads to construction sites, the repetition, stretching and heavy lifting, and the dirt and dust from the sites. He demonstrated how he needed to use both hands to lift the door or hatch of his truck. According to Mr. Oppedisano, Zurich agreed to buy an automatic door for $3,000 but never did.

Mr. and Mrs. Oppedisano testified in great detail about the heavy work involved for Mr. Oppedisano to clean the coffee truck at home in the evenings and on weekends. The coffee urns must be cleaned thoroughly and the truck must be restocked. This requires a good deal of bending, lifting, reaching and balancing. Mr. Oppedisano would put weight on his left arm and hand and clean with his right hand. He loaded stock into the truck, such as cases of pop and water, which were extremely heavy. The propane tanks needed to be filled periodically and that required heavy lifting and removing. Ice was made in buckets every night and needed to be carried and then broken up every morning.

I find that Mr. Oppedisano's essential tasks of employment involved driving short distances on rough, unfinished roads to construction sites, frequently opening and closing the door or hatch to his truck, serving many customers during the day and stocking, cleaning and maintaining his truck.

The physical demands of Mr. Oppedisano's work required working long hours, including work in the evenings and on the weekends; with periodic, often heavy, bilateral lifting, loading and carrying, sometimes up and down stairs; constant grasping and handling; repetitive stretching, frequent bending and reaching, continual overhead arm extension, which required leg and arm strength for balancing; and shaking and vibration from driving over rough terrain at construction sites.

Testimony of Mr. and Mrs. Oppedisano about Pre- and Post-Accident Activities:

Mr. and Mrs. Oppedisano testified that before the accident, Mr. Oppedisano vacuumed inside the house, brought laundry downstairs, sometimes washed dishes, did some of the cooking, washed windows and floors and occasionally moved furniture. Formerly, Mr. Oppedisano did all the work outside the house from cutting firewood for the wood burning stove, gardening, including cutting grass, and taking out the garbage. Often the entire family would go on weekend trips and Mr. Oppedisano would drive.

Now Mr. Oppedisano does not do either inside or outside household chores and is unable even to help lift heavy items while shopping. His left shoulder is a little lower than his right shoulder and he holds his left arm or hand across his stomach or in his jacket pocket.

Mr. Oppedisano testified that he went to Woodbridge Physiotherapy Clinic after the accident and took Tylenol 2 and 3 for pain. He continues to apply ice and do exercises every day for his left arm and shoulder. Mr. Oppedisano had three operations on his shoulder: in January 1995, May 1995 and August 1996, which he did not believe were successful. Mr. Oppedisano and his wife testified about his mood changes after the accident so that, as he explained, there is still affection in his family, but he gets angry easily. Also, he feels stabbing pain in his left shoulder when he tries to drive any distance, so there are few family trips.

Medical Evidence:

Dr. L.F. Moro has been Mr. Oppedisano's family doctor for almost 20 years. He carries on a general practice in Woodbridge. In a report dated April 24, 1997,⁵ Dr. Moro documents Mr. Oppedisano's medical history post-accident.

Dr. Moro reports that he conducted an initial examination of Mr. Oppedisano on January 8, 1994. He found Mr. Oppedisano to be in distress in respect to his left upper extremity. There was diffuse tenderness in the back of the neck, in the ridge of the left trapezius muscle and in the left shoulder-arm. The range of motion of the left shoulder and the left elbow was painful and restricted in all planes. The range of motion of the neck was painful and restricted in extension.

Following his first visit to Dr. Moro on January 8, 1994, Mr. Oppedisano visited Dr. Moro's office every two to four weeks. The examinations revealed diffuse tenderness in the left shoulder-left shoulder wing area with a much restricted and painful range of motion in all planes. The treatment was analgesic, anti-inflammatory medications and extensive physiotherapy.

Dr. Moro referred Mr. Oppedisano to Drs. A. M. Wiley and E. L. Boynton, orthopaedic surgeons with a special interest in shoulder problems. On their advice, Mr. Oppedisano underwent a corticosteroid injection in the left shoulder, an MRI which revealed a tear of the rotator cuff, an arthroscopic examination of the shoulder, a second arthroscopy with acromioplasty excision of the distal clavicle and decompression of the rotator cup, and on August 13, 1996, a third arthroscopy with release of a posterior capsular contracture.

Dr. Moro concluded that Mr. Oppedisano's condition has remained the same despite repeated surgical procedures. His opinion is that Mr. Oppedisano sustained a rather serious injury to the left shoulder and he has now developed capsulitis in that shoulder. Dr. Moro diagnosed Mr. Oppedisano as being very symptomatic while demonstrating a steady deterioration in the function of the left shoulder. In his words: "He not only has marked difficulty in performing the tasks which would be required by his pre-accident occupation as catering truck operator, but now even the normal activities of his daily life seem to be affected."⁶ In a report dated April 30, 1999,⁷ Dr. Moro confirmed that Mr. Oppedisano is incapable of returning to his pre-accident occupation and is incapable of any other gainful employment.

The first report of Dr. Boynton dated July 27, 1995⁸ was optimistic on its face and says Mr. Oppedisano can return to graduated modified employment in 12-16 weeks following surgery. However, the last sentence is significant: "He will have a permanent restriction in his physical activity with no overhead work, no heavy lifting or repetitive motion." In her subsequent report dated March 10, 1998,⁹ Dr. Boynton concluded that Mr. Oppedisano would not benefit from further surgical intervention. She noted that his restrictions include no overhead activity, no repetitive movement and no lifting greater than five pounds.

In his report dated February 13, 1997,¹⁰ Dr. Wiley recorded that Mr. Oppedisano injured both the base of his neck and his left shoulder in the motor vehicle accident. He described Mr. Oppedisano's disability as one which prevents him from lifting his left arm freely above a right angle in the forward and sideways direction. This, he noted, would affect his ability to put objects on a shelf and to work above shoulder level. Dr. Wiley suggested in his report dated May 29, 1997¹¹ that Mr. Oppedisano cannot drive into construction sites because the uneven movement of the vehicle would cause impingement of his shoulder. He recommended that Mr. Oppedisano should work at a bench level or at a supervisory/custodian type of job. He suggested a fourth operation on his shoulder which Mr. Oppedisano did not want to risk because of the earlier, unsuccessful surgeries. Dr. Moro, his family doctor, did not support the idea of another operation. In his report of May 29, 1998,¹² Dr. Wiley expressed his belief that Mr. Oppedisano cannot work as the driver/operator of a catering truck.

At Zurich's request, Dr. C.G. Pecora, a chiropractor at Orthofit Sports Injury & Rehabilitation Centre, conducted a Disability Assessment Centre ("DAC") assessment of Mr. Oppedisano on May 30, 1996. Dr. Pecora stated in his report dated June 26, 1996¹³ that Mr. Oppedisano is not totally disabled, should pace himself, and gradually return to essential pre-accident activities.

Zurich relied on this report when it decided to stop paying any further income replacement benefits to Mr. Oppedisano. However, Dr. Pecora noted that Mr. Oppedisano would be seeing Dr. Wiley on June 7, 1996 for possible surgical intervention and he suggested that, dependant on Dr. Wiley's findings, Mr. Oppedisano's return to work could be modified accordingly. Although Dr. Wiley decided further surgery was required, Zurich had already stopped paying Mr. Oppedisano's income replacement benefits.

At the request of Mr. Oppedisano, Dr. C.M. Vigna, a psychologist, conducted a psycho vocational assessment of him on November 23, 1998.¹⁴ He concluded that Mr. Oppedisano's vocational options are rather limited due to his age, persisting physical problems, lack of English language mastery and lack of schooling. Dr. Vigna recommended retirement as the best option for Mr. Oppedisano.

The vocational rehabilitation assessment conducted on September 8, 1998¹⁵ by Ms. Debra Stoch, rehabilitation counsellor at Rehabilitation Management Inc., at Mr. Oppedisano's request, concluded that he was unable to return to his pre-accident work as owner and operator of Vince's Catering due to his significant physical limitations. The report read: "His difficulty with English, poor level of education and age are all barriers to retraining. Even if Mr. Oppedisano were physically capable of returning to the workforce in another capacity, it would likely take him 7-8 years to upgrade to a competitive level of education, he would be almost at the age of retirement at that time."

Dr. Paul H. Grant's Report and Qualifications:

At Zurich's request, on October 19, 1995, a work capacity evaluation was conducted at AssessMed Inc. by Dr. Paul H. Grant, with the assistance of an Italian interpreter.¹⁶ I attach very little weight to Dr. Grant's report for the reasons outlined in the following paragraphs:

Although Dr. Grant has a resume which describes him as a specialist in sports and orthopaedic medicine, Mr. Oppedisano's counsel challenged Dr. Grant's credentials at the hearing. As a consequence, Zurich's counsel telephoned Dr. Grant during a recess. Dr. Grant confirmed that he is not an orthopaedic specialist and has no specialist certification. A certificate of status of registration from the College of Physicians and Surgeons lists Dr. Grant as having no specialty qualifications. In the context of individual medical assessment, this can be misleading. Dr. Grant would have self described himself more properly as a general practitioner with an interest and experience in sports medicine.

Dr. Grant's report lacked objectivity with little correlation between the test results and his conclusions. The report acknowledges that Mr. Oppedisano has difficulty turning the wheel of his truck with his left arm, but the report does not present the full picture of the rough terrain, the bumps and jolting shoulder pain resulting from the driving, nor does Dr. Grant comment on Mr. Oppedisano's restriction in his work activities as a result of not being able to use his left hand.

There were discrepancies between Dr. Grant's report and Dr. Pecora's report dated June 26, 1996.¹⁷ In Dr. Pecora's report, consistent with his testimony, Mr. Oppedisano responded that he did not benefit significantly from the surgeries on his left shoulder, whereas Dr. Grant reports that Mr. Oppedisano said the surgeries helped. A review of Dr. Moro's notes reveal a plethora of painful shoulder complaints¹⁸ confirming the surgeries were unsuccessful.

According to Mr. Oppedisano, during the work capacity evaluation by AssessMed, which took about four hours, he was only asked to pick up small objects of little weight. Although Mr. Oppedisano was asked questions about his job, he did not explain the whole series of events that take place.

Dr. Grant suggested that Mr. Oppedisano was not giving his maximum voluntary effort during testing, but Dr. Pecora stated that he was polite and cooperative. Dr. Grant's report concluded that Mr. Oppedisano's overall performance rating was consistent with competitive employment, but Mr. Oppedisano's complaints of stabbing pain were ignored. Dr. Grant described what he claimed were Mr. Oppedisano's exaggerated perceptions of disability. However, I find that the reports of Dr. Moro, Dr. Wiley, Dr. Boynton, Dr. Vigna and Ms. Stoch support Mr. Oppedisano's claims of disability.

Surveillance:

The surveillance video¹⁹ records 17 minutes of Mr. and Mrs. Oppedisano's activities on Saturday, October 11, 1997, when they went shopping together at Heavy Duty Truck Parts Inc., Costco, Longo's Fruit Market and Price Check Foods. Mr. and Mrs. Oppedisano are seen pushing their shopping cart and loading purchases into the trunk of their car. Mr. Oppedisano testified that this was a good day, and that earlier he had exercised his arm and iced it.

In the video, Mr. Oppedisano's wife does all the heavy lifting and loading, including boxes full of motor oil cans and Gatorade. Mrs. Oppedisano tends to push the cart while Mr. Oppedisano leans on the cart. Although one box lifted by Mr. Oppedisano looked large, it weighed very little as it was a box of Doritos potato chips. Mr. Oppedisano is shown helping his wife, but only with light articles and, in the main, he did not use his left hand to lift or load.

Causation:

Zurich raised the issue of a supervening cause for Mr. Oppedisano's disability. In Dr. Moro's clinical notes, on October 30, 1997, the presence of a ganglion cyst on Mr. Oppedisano's right elbow is mentioned. This cyst was removed from the elbow of Mr. Oppedisano's right arm by Dr. H. Weinberg on February 19, 1998. Dr. Moro reported a complete resolution following the surgery. I find that there is no supervening cause for Mr. Oppedisano's disability as the ganglion cyst on Mr. Oppedisano's right elbow and its removal has no relevance to his impairment as a result of injuries to his left arm and shoulder.

Findings regarding Entitlement:

My findings about Mr. Oppedisano's disability are based on the testimony of Mr. and Mrs. Oppedisano, the surveillance video and a review of all the medical reports and clinical notes and records filed.

I find that Mr. Oppedisano remains substantially unable to perform the essential tasks of his employment from December 9, 1996 and ongoing due to an impairment from a motor vehicle accident on January 6, 1994. The surveillance video illustrates graphically his inability to carry out his essential tasks as a coffee truck operator. Regrettably, a proper work site assessment was never done. Those who examined Mr. Oppedisano had a general sense of the nature of Mr. Oppedisano's employment, but an inadequate understanding of the essential tasks of his employment.

2. What is the quantum of income replacement benefits?

Mrs. Maria Oppedisano works at a restaurant and grosses approximately $420 per week. She testified that in the past she worked in order to get out of the house and gain some independence. Her earnings were used to buy extras for herself and her children. That has changed since her husband's accident. Now her earnings are required to support the family. Mrs. Oppedisano itemized various expenses in the past, such as the purchase of their home, cars, furniture and home renovations, which were paid by her husband.

Mrs. Oppedisano explained that she has neither seen nor discussed her husband's income tax returns. She emphasized that his business is a cash business. Mr. Oppedisano reviewed his income tax returns for 1991 to 1997 which were filed as exhibits. In 1993, his gross income was declared to be $57,480 with a net income of $4,253.57.²⁰ Mr. Oppedisano admitted that he underestimated his gross income on his income tax returns and made more profit on his business than he declared. He estimated that his average net income was $30,000 to $37,000 per year.

Mr. Oppedisano testified that he operated his coffee truck for almost 20 years and earned a minimum of $500 per week and often from $1,000 to $2,000 per week. In 1996, the National Occupational Categories listed food service under number 6641 with average earnings of $25,649 and a delivery driver under number 6642 with average earnings of $39,590.

Mr. Oppedisano testified that, after his benefits stopped, he borrowed $20,000 from the bank to pay for expenses. According to him, he received no money from his sons when they were operating the coffee truck. Mr. Oppedisano's counsel submitted that I should find Mr. Oppedisano earned $700 per week after business expenses and before taxes based on Mr. and Mrs. Oppedisano's testimony, the information from the National Occupational Categories and the Oppedisano family lifestyle.

Zurich relied on the report of Hrycko & Associates Inc., dated April 28, 1999,²¹ which attempted to estimate the amount of weekly income replacement benefit payable to Mr. Oppedisano. The report explained that the accountants did not receive objective evidence of Mr. Oppedisano's post-accident revenues and expenses of self-employment. The report found that Mr. Oppedisano's income from self-employment in the 156 week period prior to the accident was $23,928.29. However, this was based on Mr. Oppedisano's income tax returns which Mr. Oppedisano testified misrepresented his income.

According to Hrycko & Associates Inc., Mr. Oppedisano's average annual income from self-employment was $7,976.10 with weekly income from self-employment of $153.39. The report calculates his weekly income replacement benefit before adjustments for post-accident income and for post-accident losses from self-employment as: a) $128.66 per week from January 7, 1994 to December 31, 1995; and b) $131.62 per week for the period January 1, 1996 to December 9, 1996.

Findings regarding quantum of benefits:

In section 83 of the Schedule, self-employment earnings are to be determined in the same manner as profit from a business. There is no question that Mr. Oppedisano as a self-employed one-person operation cannot be held to the same standard as a large corporation with respect to record keeping. However, I am not authorized to speculate about unreliable and unsubstantiated profit from a business.

I cannot accept the $700 per week estimate of net income proposed by Mr. Oppedisano's counsel as I received no books or records to substantiate it. In the same fashion, I cannot accept submissions from Zurich's counsel based on speculation that Mr. Oppedisano had post-accident earnings. I received no objective evidence of post-accident earnings. Rather, Mr. Oppedisano testified to the contrary. When Rocco returned to school in 1995, the truck was off the road until May or June of 1997 when Joe began operating it. The evidence is that Joe has kept all earnings from the business and does not pay his father any money for the use of the truck.

The Explanation of Assessment from Zurich dated February 4, 1994²² calculated Mr. Oppedisano's income replacement benefit based on his 1993 gross income of $57,480, minus food and truck expenses of $42,174. Zurich calculated an annual net profit of $15,306 with a weekly net income of $237.00. Mr. Oppedisano was entitled to 90 percent of his net weekly wage which was $214.19 per week.

I find that $214.19 per week plus indexation is the most reasonable and realistic figure for Mr. Oppedisano's income replacement benefit. Zurich is asking for a lower figure of $131.62 plus indexation, and Mr. Oppedisano is asking for a higher figure of 90 percent of $700 per week, which is $630. While I accept Mr. Oppedisano's evidence that he misrepresented both his earnings and expenses on income tax returns, I was not provided with new, objective evidence to document yearly net earnings higher than $15,306, which was Zurich's original estimate. This estimate was based on documents and objective evidence provided by Mr. Oppedisano in 1994.

Mr. Oppedisano is entitled to interest on the outstanding amount of income replacement benefits at the rate of 2 percent per month compounded monthly according to section 68 of the Schedule. Zurich agreed in its submissions that if I find that Mr. Oppedisano remained disabled 104 weeks post-accident, it must deliver an offer of loss of earning capacity benefits under section 21 of the Schedule. I find that Zurich is obliged to pay income replacement benefits at the rate of $214.19 to date and ongoing pending delivery of a loss of earning capacity benefits offer and compliance with the procedure outlined in sections 21 to 23 of the Schedule.²³

Special Award:

Mr. Oppedisano's counsel did not claim a special award until his closing submissions. According to Zurich's counsel, no claim was made earlier, either at mediation, pre-hearing or in his opening statement. However, Mr. Oppedisano's counsel insisted that he faxed a letter to Zurich's counsel and the pre-hearing arbitrator that a claim for a special award might be considered.

Few submissions were presented relating to the issue of a special award. Counsel for Mr. Oppedisano submitted that Mr. Oppedisano had been treated shabbily by Zurich and it was inappropriate that his benefits were terminated shortly after an operation when his arm was in a sling.

A special award is not appropriate in this case. Although Zurich's termination of benefits for Mr. Oppedisano shortly after an operation on his shoulder was hasty and ill-considered, Zurich later reinstated the benefits and paid them for a further sixteen weeks from August 20, 1996 until December 9, 1996.

EXPENSES:

The issue of expenses was not addressed at the hearing. I am prepared to hear submissions on expenses, if the parties are unable to agree.

July 6, 1999

Judith Killoran Arbitrator

Date