Financial Services Commission of Ontario
Neutral Citation: 1999 ONFSCDRS 31
FSCO A96-000717
Between:
Mauricio Mariona, Applicant
and
Canadian General Insurance Company, Insurer
Reasons for Decision
Before: David Leitch
Heard: November 30, December 1, 2 and 3, 1998, at the Financial Services Commission of Ontario, Toronto
Appearances: Kevin Doan for Mr. Mariona A. Wayne Edwards for Canadian General Insurance Company
Issues:
The Applicant, Mauricio Mariona, was injured in a motor vehicle accident on July 17, 1995. He applied for and received statutory accident benefits from Canadian General Insurance Company ("Canadian General"), payable under the Schedule.1 Canadian General terminated weekly income replacement benefits on March 1, 1996. The parties were unable to resolve their disputes through mediation, and Mr. Mariona applied for arbitration at the Financial Services Commission of Ontario2 under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is Mr. Mariona entitled to weekly income replacement benefits after March 1, 1996?
Is Mr. Mariona entitled to payment for treatment he received from Progressive Treatment Centre?
Is Mr. Mariona entitled to payment for treatment he received from Dr. Judith Pilowsky?
Is Mr. Mariona entitled to a special award?
Is Mr. Mariona entitled to his expenses in relation to this hearing and the hearing in connection with a preliminary issue, interest on overdue payments and a special award and indexation adjustments with respect to weekly benefits?
Result:
The Insurer shall pay Mr. Mariona weekly income replacement benefits after March 1, 1996.
Mr. Mariona is not entitled to payment for treatment he received from Progressive Treatment Centre.
The Insurer shall pay for the treatment Mr. Mariona received from Dr. Judith Pilowsky.
The Insurer shall pay Mr. Mariona a special award in the amount of $1,900.
The Insurer shall pay Mr. Mariona's expenses in relation to this hearing and the hearing in connection with the preliminary issue, interest on overdue payments and the special award and indexation adjustments with respect to weekly benefits.
Background
Mr. Mariona was involved in a motor vehicle accident on July 17, 1995. He was a passenger in an automobile which was struck by a second automobile travelling in the same direction in an adjacent lane of a multiple-lane highway. Mr. Mariona's automobile was struck on the front left side and spun around but it was driven away from the scene and not later repaired. Mr. Mariona testified that he was wearing a seat belt but struck his head, right shoulder and right knee on impact. He did not require medical attention at the scene but started to experience pain in his back and chest when he awoke during the night following the accident. He also developed pain in his neck, headaches, and referred pain down his left leg and foot.
Mr. Mariona testified that his back and chest pain have not improved since the accident. He has been unable to return to his pre-accident job as a machine operator at Ultra-Fit Manufacturing Inc. This job required him to handle steel tubes measuring up to 3 metres long and weighing 30 lbs, feeding them into a shaping or sizing machine, activating the machine with a foot pedal and stacking the finished product. It took between 12 and 40 seconds to shape a pipe. Shifts were nine hours long. The job involved bending and twisting and required walking, standing and use of the arms.
Medical Evidence
Mr. Mariona came first under the care of Dr. Gabriel A. Vadasz who had been his family doctor since 1987. Dr. Vadasz testified that Mr. Mariona had a number of pre-accident health problems including gastro-intestinal problems (diverticulitis and peptic ulcers), chronic obstructive pulmonary disease (COPD) from heavy smoking and a high risk of heart disease. Dr. Vadasz had also treated Mr. Mariona for low back pain associated with bending in August 1994. However, Dr. Vadasz testified