Financial Services Commission
Commission des services financiers de lander
Neutral Citation: 1999 ONFSCDRS 169
Appeal P97-00055
OFFICE OF THE DIRECTOR OF ARBITRATIONS
PETER PAVLJUK
Appellant
and
CANADIAN GENERAL INSURANCE COMPANY
Respondent
Before:
Susan Naylor, Director’s Delegate
Counsel:
Orest H.T. Rudzik (for Peter Pavljuk)
Wayne Edwards (for Canadian General)
APPEAL ORDER
Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, it is ordered that:
The appeal is dismissed and the arbitrator’s order dated September 12, 1997 is confirmed.
Mr. Pavljuk is entitled to his reasonable appeal expenses.
September 7, 1999
Susan Naylor
Director’s Delegate
Date
REASONS FOR DECISION
I. NATURE OF THE APPEAL
Peter Pavljuk appeals the arbitrator’s order upholding Canadian General Insurance Company’s (“Canadian General”) termination of his weekly income benefits at the 156-week mark. He also seeks a special award, which the arbitrator refused.
Canadian General initially launched a cross-appeal with respect to the deductibility of Mr. Pavljuk’s Canada Pension Plan benefits. It later withdrew its appeal following the decision of the Court of Appeal in Cugliari v. White (1998), 1998 CanLII 5505 (ON CA), 38 O.R. (3d) 641, aff’ing (1996), 1996 CanLII 11778 (ON CTGD), 31 O.R. (3d) 42.
II. ANALYSIS AND CONCLUSION
The arbitrator sets out the evidence in some detail in his decision. In summary, Mr. Pavljuk was 51 years old when he was involved in a collision on September 20, 1990. He hurt his chest and right shoulder, and suffered soft tissue injuries to his low back and neck. His chief complaint is severe, chronic low back pain, with secondary complaints of neck and shoulder pain. He also suffers from headaches and dizziness. Mr. Pavljuk has not worked since the accident. He leads a sedentary life and gave evidence that his activities are severely restricted.
Mr. Pavljuk has a solid work history. A carpenter by trade, he came to Canada in his early 20s, and worked for the same furniture company for almost thirty years, starting as a cabinet maker and working his way to foreman. He had back surgery in 1977, involving a laminectomy and discotomy at L4-5, but had no serious back problems in the years leading up to the accident.
Investigations show degenerative changes at that level and also in his cervical spine. The diagnosis is degenerative disc disease and mechanical back pain. While the degenerative changes pre-existed the accident, the arbitrator accepted that the accident was a causal factor in the development of his back pain. Mr. Pavljuk also suffers from other health problems, including high blood pressure and bilateral carpel tunnel syndrome, which are not related to the accident.
Mr. Pavljuk’s back problems restrict his ability to bend and to lift or carry heavy objects. This rules out a return to his previous occupation as a cabinet maker-foreman. It is accepted that he meets the criteria for entitlement to weekly income benefits for the first three years following the accident under the eligibility rules set out in the Statutory Accident Benefits Schedule - Accidents before January 1, 1994, R.R.O. 1990, Reg. 672, (“the Schedule”). After three years, his ability to perform alternative work comes into play. Under section 12(5)(b), Canadian General does not have to pay benefits past 156 weeks “unless it has been established that the injury continuously prevents the insured from engaging in any occupation or employment for which he or she is reasonably suited by education, training or experience.” The issue on appeal is whether the arbitrator erred in concluding that he does not meet this test.
Whether an insured person meets the disability test in section 12(5)(b) depends on the facts of the case. A number of decisions have considered the standard in section 12(5)(b) or its predecessor in Schedule C. These decisions indicate that while the onus of establishing disability rests on the claimant, the standard must be realistic. The question is not whether the insured can do any work, but whether he is capable of engaging in employment that is reasonably suitable based on his particular circumstances.
It is up to the arbitrator to determine the facts. As has been said in many appeal decisions, my role on appeal is not to second-guess the arbitrator’s evaluation of the evidence. Unless the arbitrator’s findings cannot be sustained on the evidence, they generally will not be disturbed. Intervention is only warranted if the arbitrator has erred in some way that has, or may have, seriously compromised his decision. Mr. Pavljuk submits this is what happened here.
Mr. Pavljuk’s main complaint is in relation to the weight the arbitrator gave to the evidence of Dr. P. Parker, a specialist in physical medicine and rehabilitation. Mr. Pavljuk saw Dr. Parker approximately twelve times over the course of three years, following a referral by his orthopaedic surgeon. During this time, Mr. Pavljuk’s rehabilitation was coordinated by rehabilitation consultants retained by Canadian General. Mr. Pavljuk’s careworkers consulted regularly with Dr. Parker in their rehabilitation planning, and met with him on several occasions.
Dr. Parker concluded that hypomobility (stiffness of the spine) and a general lack of conditioning were the main problems inhibiting restoration of function in Mr. Pavljuk’s case. He consistently encouraged Mr. Pavljuk to increase his level of activity and exercise, advising him that while this would be initially painful, there was no risk of re-injury. However, as the arbitrator found, Mr. Pavljuk did not follow his doctor’s recommendations. He was afraid of re-injuring himself and limited his activities because of pain. Dr. Parker concluded that Mr. Pavljuk was physically capable of working at a light or sedentary occupation, although the prognosis was poor because of the length of time he had been off work and his firm belief that he was almost totally disabled.
Mr. Pavljuk argues that Dr. Parker’s evidence should have been discounted. He submits that Dr. Parker put himself in a conflict of interest by communicating opinions to Canadian General and its rehabilitation consultants that were unhelpful to his claim, and by appearing at the arbitration as a witness called by Canadian General. Mr. Pavljuk cited a number of cases concerning professional obligations in the context of conflicts of interest and access to confidential information.
In my view, Mr. Pavljuk’s argument is untenable and the cases he cites are largely inapplicable. In the first place, there is no issue respecting a breach of doctor-patient confidentiality. In Frenette v. Metropolitan Life Insurance Co. (1992), 1992 CanLII 85 (SCC), 89 D.L.R. (4th) 653 (S.C.C), the Supreme Court of Canada confirmed that a patient’s right to confidentiality is a relative right which a patient may waive without restriction. Mr. Pavljuk did not dispute that he signed a release authorising Dr. Parker to provide information to Canadian General and the rehabilitation consultants. Further, he did not dispute that the scope of the authorisation covered the disclosure, and that he thereby consented to the disclosure.
I also reject the submission that by imparting information that did not support Mr. Pavljuk’s claim for accident benefits, Dr. Parker assumed a role as Canadian General’s agent and placed himself in a conflict of interest. Dr. Parker was Mr. Pavljuk’s treating physiatrist. He was not retained by Canadian General nor was he Canadian General’s agent. He simply provided his opinion in response to legitimate requests for information supported by a duly-signed authorisation. The opinions were squarely within his expertise, dealing with Mr. Pavljuk’s capacities, treatment needs and prognosis.
It is possible that a caseworker might overstep the mark in communicating with an insured person’s doctor. For example, he or she might ask inappropriate questions or inaccurately report the doctor’s responses. However, that was not Mr. Pavljuk’s argument, and I find no indication that occurred here.
In any event, the arbitrator relied on Dr. Parker’s viva voce testimony at the hearing. With respect to such testimony, the law is clear. There is no property in a witness, including an expert witness.1 While an adjudicator has an obligation to ensure that privileged information is not divulged in the course of such testimony, that is not the case here.
While Mr. Pavljuk attempts to cast Dr. Parker’s actions in a negative light, the evidence does not support his interpretation of events. For example, he complains that when he asked Dr. Parker for a medico-legal report after his benefits were terminated, Dr. Parker provided it under cover of a letter stating “as I know we are not in agreement as to your capability to work, I will leave it up to you whether you wish to use the report and release it to the Ontario Insurance Commission.” Mr. Pavljuk suggests this reflects Dr. Parker’s implicit acknowledgement that he was in a conflict of interest. In my view, if anything, the letter confirms Dr. Parker’s sensitivity to Mr. Pavljuk’s situation and his responsibility to his patient. I also note, contrary to Mr. Pavljuk’s arguments, that Dr. Parker was sensitive to the difficulties Mr. Pavljuk might experience complying with a structured active program and suggested alternative, less demanding approaches to address Mr. Pavljuk’s particular needs. However, Mr. Pavljuk did not accept his doctor’s recommendations.
As a secondary argument, Mr. Pavljuk suggests that the arbitrator erred in failing to pay due regard to the barriers he faced in the job market, including his rudimentary education, language barriers, exclusive work experience, his mental and emotional state, his age, a congenital condition affecting his right hand, his history of back surgery and his other health problems. He argues that the arbitrator should have preferred the evidence of Dr. V. Hajek, also a specialist in physical medicine and rehabilitation, because she took a broader view of disability than Dr. Parker. Dr. Parker focused on Mr. Pavljuk’s physical capacity and loss of function, while Dr. Hajek considered his overall employability.
Having reviewed the arbitrator’s findings, I am not persuaded that he ignored any relevant factors. He provides clear reasons for preferring Dr. Parker’s evidence. In addition, this was not the only evidence he relied upon. The arbitrator also accepted other evidence consistent with the views of Dr. Parker, including the functional abilities assessment done by Vocational Pathways and the report of Dr. J.D. Imrie, an occupational physician.
I agree with Mr. Pavljuk that the arbitrator wrongly described Dr. Charendoff as having administered chiropractic treatments. Dr. Charendoff is an orthopaedic surgeon. However, I am not convinced that anything turned on the error.
Mr. Pavljuk argues that the arbitrator erred in concluding that Canadian General proposed appropriate work that was available. He criticises the arbitrator’s reliance on the Vocational Pathways report, dated May 26, 1993, detailing the results of a five-day vocational evaluation. It matches Mr. Pavljuk to five possible vocational options, described in the Canadian Classification and Dictionary of Occupations. However, only one of the jobs, a supervisory position as a “non-working cabinetmaker’s foreman,” was comparable to Mr. Pavljuk’s former occupation in status and remuneration. The arbitrator accepted the report as evidence of work that Mr. Pavljuk could reasonably be expected to do, noting that he did not offer any contrary evidence suggesting that this type of work was unsuitable. Instead, he simply argued that he was unable to do such work.
Mr. Pavljuk cites the lack of concrete evidence that light level work as a cabinetmaker’s foreman was available. I agree that such evidence would have been desirable. This is especially true given that the vocational assessment report does not indicate that Mr. Pavljuk had many other vocational options. However, I cannot conclude that Canadian General failed to meet the onus of adducing evidence that suitable work was available.
It was only at the appeal level that Mr. Pavljuk first challenged the availability of work described in the report. The brevity of the arbitrator’s reasoning on this point reflects this. Mr. Pavljuk did not call the Vocational Pathways assessors to testify as to their methodology or conclusions, nor was there other evidence challenging this aspect of their report. His focus to that point was on his capacity to do work of any kind. That is also the reason why there was no follow-up to the report, which was acknowledged to be only a starting point in Mr. Pavljuk’s vocational planning. In the circumstances, I am not persuaded that the arbitrator erred in failing to require more of Canadian General or in relying on this aspect of the vocational assessment report.
I echo Mr. Pavljuk’s doctors in saying that this is a difficult case. Mr. Pavljuk’s circumstances engender a great deal of sympathy. However, he has not shown that there is a basis to interfere with the arbitrator’s findings, which are supported by the evidence. Therefore, Mr. Pavljuk’s appeal must fail. Since he did not provide any reasons why a special award would be warranted, this request is also denied.
III. APPEAL EXPENSES
An award of expenses does not necessarily follow the result of the appeal. While I have rejected Mr. Pavljuk’s argument with respect to Dr. Parker’s evidence, the appeal included significant issues respecting the scope and meaning of s.12(5)(b) of the Schedule. I have awarded appellants their expenses in other cases raising such issues.2 In addition, Canadian General brought a cross-appeal, to which Mr. Pavljuk had to respond. In the circumstances, Mr. Pavljuk is entitled to his reasonable appeal expenses.
September 7, 1999
Susan Naylor
Director’s Delegate
Date