Financial Services Commission

Commission des services financiers de l’Ontario

Neutral Citation: 2000 ONFSCDRS 154

Appeal P99-00028

OFFICE OF THE DIRECTOR OF ARBITRATIONS

AMERICO ALVES Appellant

and

COMMERCIAL UNION ASSURANCE COMPANY Respondent

Before: Susan Naylor, Director's Delegate

Counsel: Antonio Azevedo (for Americo Alves) Brian Atherton (for Commercial Union)

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Subject to paragraph 2 below, the appeal is dismissed. The arbitrator's order dated May 13, 1999, denying Americo Alves' claim for further income replacement benefits and expenses for chiropractic treatment, is confirmed.

2. The issue of Mr. Alves' entitlement to other rehabilitation expenses as described in the reasons appended to this order is remitted to the arbitrator to determine.

3. No appeal expenses are ordered.

August 25, 2000

Susan Naylor Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF APPEAL

Americo Alves appeals an arbitration order dated May 13, 1999, rejecting his claim for further income replacement benefits beyond May 5, 1995, and for payment of expenses for chiropractic treatment. He also argues the arbitrator failed to deal with other outstanding rehabilitation expenses.

Mr. Alves' claims, which relate to accidents occurring on December 30, 1994 and April 5, 1995, are governed by the Statutory Accident Benefits Schedule - Accidents after December 31, 1993 and before November 1, 1996, O. Reg. 776/93, as amended, ("SABS-1994") The applicable legal principles are not in issue. To qualify for an income replacement benefit under s. 7(1) 1, it must be established, on a balance of probabilities, that Mr. Alves sustained an impairment as a result of the accident and, further, that as a result of the accident, he suffered a substantial inability to perform the essential tasks of his pre-accident employment for the period claimed.

Under section 283(1) of the Insurance Act, R.S.O. 1990. c. I-8, as amended, appeals are limited to questions of law. The weight to be attributed to the evidence, including expert evidence, is a matter for the arbitrator hearing the case. There must, however, be a sufficient evidentiary basis for the arbitrator's findings.

II. INCOME REPLACEMENT BENEFITS

At the time of the December accident, Mr. Alves was 57 years old. He is a carpenter by trade and has worked in the trade all his life. For many years, he was in business for himself, working as a subcontractor in residential construction and doing home renovations. The work was physically demanding, requiring heavy lifting, bending and working in an overhead position. By all accounts, Mr. Alves is an industrious, highly motivated individual, who would work if he could. Unfortunately, as the arbitrator sets out in his decision, Mr. Alves suffers from a number of medical problems and cannot work as a carpenter any more. He is receiving a CPP disability pension. The main question to be determined at the hearing was whether the accident played a role in rendering Mr. Alves substantially unable to perform his regular occupation.

According to the facts set out in the decision, Mr. Alves hurt his back on the job in March 1993. He has continued to suffer from chronic mechanical low back pain. While he was off work some weeks later, he suffered a fall and injured his left shoulder. He developed chronic tendonitis in the rotator cuff and has arthritis in the acromiocalvicular joint in the shoulder. In July 1996, he underwent surgery on his shoulder (an acromioplasty and resection of the lateral end of his clavicle).

Mr. Alves was involved in two successive motor vehicle accidents, in December 1994 and April 1995. Most of the evidence and argument relate to the December accident, that being apparently the more serious. Since then, Mr. Alves has complained of neck pain and headaches as well as continuing low back pain and shoulder problems. He has become depressed and has received treatment for chronic pain. Mr. Alves' doctors attribute his neck pain, and related headaches, to soft tissue injuries sustained in the December accident. Tests showed significant subluxation of the cervical spine, secondary to a ligamentous injury. There is evidence of arthritis in the same area of the spine.

The parties' positions were crisply defined at the outset of the arbitration.¹ There was no element of surprise. It was Mr. Alves' position that he was back doing his regular work on a full-time basis, and without any disability-related interruptions, from around mid-1993 right up to the December 1994 accident. Mr. Alves claimed that he re-injured or aggravated his shoulder condition in the accident as well as injuring his cervical spine, and that his cumulative problems resulted in his being disabled from his essential occupational tasks from then onwards. In support of his position, Mr. Alves relied on a body of medical evidence, particularly the evidence of his family doctor, Dr. Martins, and his treating orthopaedic surgeon, Dr. Vincent. Commercial Union took the position that if Mr. Alves was disabled, any such disability was attributable to his pre-existing back and shoulder problems, which were degenerative in nature, and that he was not doing his regular work in the period before the accident due to these problems.

The outcome of the arbitration essentially turned on Mr. Alves' pre-accident level of functioning. He insisted that he was back to his regular, full-time subcontracting work, and also had a home renovation project on the go. The arbitrator found that Mr. Alves was not back to work as normal at the time of the accident, because of continuing back and shoulder problems. He found that Mr. Alves had been forced to abandon his subcontracting work in the Spring of 1994, after two unsuccessful attempts at modified work. The arbitrator accepted Mr. Alves' evidence that he had bought an investment property intending to renovate and re-sell it, and that he may have done some work on the project. However, the arbitrator concluded that the project could not be equated to Mr. Alves' usual work and in any event, he was only able to work on it part-time. The arbitrator found that Mr. Alves "refused to concede the obvious physical limitations that had plagued him since his falls in early 1993."²

The arbitrator sets out the evidentiary basis for his findings in some detail. An assessment performed for the Workers' Compensation Board in mid-1993 concluded that, while Mr. Alves' compensable back problems were in the process of resolving, the intervention of his left shoulder injury, which was not compensable, essentially disabled him from carpentry work at that time. The records of Dr. Martins, Mr. Alves' family doctor, and Dr. Vincent, his treating orthopaedic specialist, showed that he continued to suffer from low back pain and shoulder problems after this, affecting his ability to work. The doctors recommended that Mr. Alves look for modified or alternative work to accommodate his physical restrictions. Their notes reflect continued difficulties. The arbitrator concluded that, although there was a significant gap in the doctors' records, they provided the most reliable picture of Mr. Alves' condition and level of functioning at the time. In his view, they threw considerable doubt on the doctors' subsequently-expressed views that Mr. Alves' back and shoulder problems were resolving in the year before the December accident, and had not materially affected his work. Based on the records, the arbitrator concluded that Mr. Alves' condition was not getting any better and that he was not capable of working on a sustained basis at that time. He further found that Mr. Alves had not returned, nor was he able, or likely to be able any time soon, to return to full-time work as carpenter.

These findings were pivotal. The arbitrator considered Mr. Alves' medical history and the mechanism of injury. He concluded that the December accident likely did not aggravate Mr. Alves' pre-existing shoulder injury, although Mr. Alves experienced referred pain at the shoulder from the injury to the cervical ligaments. The arbitrator accepted that Mr. Alves' neck pain and headaches were accident-related and were a constant source of pain. However, he found that Mr. Alves' inability to resume full-time carpentry work was attributable to his pre-existing, degenerative problems and was not a consequence of the accident. At p. 16, he states:

There is no doubt in my mind that the chronic pain associated with the injury to Mr. Alves' neck and the associated headaches has contributed to Mr. Alves' present condition. The injury to the neck may even have been sufficient to have interfered with his ability to complete the renovations to the home he purchased, but when this injury is seen in the context of the other far more serious problems that Mr. Alves suffers from, I do not believe that it was a significant factor in preventing Mr. Alves from returning to full time employment as a carpenter. I am satisfied that Mr. Alves' pre-existing troubles, and in particular his injury to his back, and then his shoulder, which continued to deteriorate to the point where it had to be operated on, was sufficient in and of themselves to have prevented Mr. Alves from ever returning to his gainful employment as a carpenter.

Mr. Alves argues that the arbitrator misdirected himself as to the test of causation. He points to the arbitrator's statement at p. 15, that he was "not satisfied that the first accident significantly exacerbated the shoulder injury" and to his conclusion that Mr. Alves' referred neck pain in fact contributed to his present condition.

It is well-established that the accident need not be the sole or main cause of an individual's condition. It need be shown only that the accident made a significant or material contribution to the disability.³ Mr. Alves states, correctly, that if his disability results from the cumulative effect of his problems (pre-existing and accident-related) he is entitled to benefits, even if his pre-existing problems are far more significant.

When the arbitrator's remarks are looked at in context, I am satisfied that there was no confusion on his part as to the appropriate principles to apply. At page 16, he sets out the approach in the following terms, stating:

To establish entitlement, Mr. Alves must prove on a balance of probabilities that as a result of one or other of the accidents, he has been left with a substantial inability to perform the essential tasks of his stated pre-accident employment. A long list of arbitration decisions have held that the applicant need not prove that the accident is the sole cause of the disability, but that it is sufficient if the accident makes a material or significant contribution to the disability.

In substance, the arbitrator decided that neither accident contributed in any meaningful way to Mr. Alves' inability to perform the essential tasks of his occupation.

In Athey v. Leoniati 1996 CanLII 183 (SCC), [1996], 3 S.C.R. 458 (S.C.C.), it was stated that the test of causation "is essentially a practical question of fact which can be answered by ordinary common sense."⁴ The relationship between Mr. Alves' shoulder pathology and the automobile accidents was strongly disputed. The arbitrator weighed the evidence. He arrived at a conclusion that was open to him, although it was not the only conclusion available. In my view, there is no basis to disturb his findings of fact.

Mr. Alves raised other concerns with respect to the treatment of the medical evidence, generally, and his shoulder problems, in particular. These are more clearly objections to the arbitrator's assessment of the evidence. Mr. Alves suggests that the arbitrator wrongly discounted his doctors' opinions on causation. The arbitrator characterised the doctors as having changed their minds, rather than providing an opinion in respect of a quite different time-frames. However, given that there was cross-examination on precisely this point,⁵ I do not find the submission to have merit. Mr. Alves also objected to the arbitrator's overall treatment of the medical evidence, especially his rejection of both the evidence of Mr. Alves' doctors respecting the effect of the December automobile accident and of other doctors, relied on by the insurer, who found that Mr. Alves was not disabled. Mr. Alves also complains the arbitrator did not refer to other medical evidence presented.

None of the doctors referred to appears to have had a complete picture of Mr. Alves' pre-accident condition, a factor that the arbitrator took into account in assessing the value of their evidence. The arbitrator is not required to discuss every piece of evidence. He set out his reasoning in detail and addressed key evidence on both sides. Mr. Alves' objection to the treatment of the medical evidence goes to the weight the arbitrator gave to the evidence. I see no basis to interfere with his assessment.

Mr. Alves complains there was no evidence to support the arbitrator's finding that his shoulder "continued to deteriorate" after the automobile accident. However, given the continuity of his symptoms, the presence of degenerative changes in both shoulders and the ultimate need for surgery, it is not obvious to me that his statement was unfounded. In any event, his core conclusion - that Mr. Alves' shoulder problems were not resolving prior to the accident - was clearly supported on the evidence.

At p. 9, the arbitrator wrongly described Mr. Alves as contending that his right shoulder hit the driver's door in the December accident, whereas it was his left shoulder. The mistake appears to be a typographical error, and was essentially conceded to be such. Mr. Alves suggests that it signals a lack of care on the arbitrator's part in crafting the decision, and raises doubts about the integrity of the result. He also cites other instances of a "lack of care." However, the other examples he gives, on a closer look, do not bear out his argument.⁶

Having determined that Mr. Alves' shoulder pathology was not accident-related, the arbitrator correctly focussed on the link between Mr. Alves' neck problems and his inability to work. While he found that Mr. Alves' neck pain, superimposed on his shoulder problem, was a continuing source of discomfort and added to his problems, he did not find that his neck pain, either by itself or in combination with the other problems, significantly contributed to Mr. Alves being unable to carry on with his regular occupation. Again, this was a finding of fact that was open to him and was supported on the evidence. I find no error in the arbitrator's approach.

The case came down to whether Mr. Alves' level of occupational functioning was significantly different after the December accident than it was before. The arbitrator viewed it as "essential to keep in mind that Mr. Alves defined his pre-accident employment as being that of a carpenter engaged full-time in sub-contracting work supplemented by renovations to private residences," (decision, p. 16) This framed the analysis.

Mr. Alves argues that, since the arbitrator found that he was not doing his regular duties on a full-time basis at the time of the accident, the arbitrator should not have assessed his entitlement by reference to such work. Rather, the arbitrator should have looked at his ability to do modified duties or, at least, to perform his renovation work. He cites examples of decisions in which modified duties have been used as the point of comparison.⁷ Mr. Alves argues that since he was paid an earnings-based benefit of $654.73, without any dispute, it is reasonable to infer that he was doing something gainful.

The problem is that the arbitrator had very little to go on. The scope of the work in which Mr. Alves was engaged before the accident was an essential element of the dispute. Mr. Alves testified, insistently, that in the year before the accident he was employed full-time as a carpenter performing all the regular duties associated with that trade.⁸ He was repeatedly questioned about this, and rejected any suggestion that he was limited in the work he could do. This position framed the questions put to the doctors giving testimony.⁹ The arbitrator found Mr. Alves' doctors' assumptions in regards to what he was doing were incorrect or unhelpful.¹⁰

There was no evidence before the arbitrator with respect to the essential tasks of any modified work. Although there was evidence that, over the course of several weeks in the summer of 1995, Mr. Alves had been involved in doing work on the house that he had purchased, the arbitrator was left with no real ideal of the scope of the project, the time Mr. Alves dedicated to it, and what it involved. The evidence before the arbitrator was extremely sparse. Virtually no specifics were provided as to jobs or work undertaken. No earnings information or job-related records were filed. While the arbitrator found that Mr. Alves' neck problems may have been enough to have interfered with his ability to complete the renovations, because of the paucity of the evidence, he could not determine to what extent the project should be taken into account.

I have some sympathy for the position Mr. Alves finds himself in. However, it is difficult to view his arguments other that as an attempt to re-frame the case he presented at arbitration. The arbitrator cannot be found to have erred in law in failing to make findings on which there was minimal evidence. Nor, while less than comfortable with the state of the evidence, am I convinced that the outcome represents a miscarriage of justice that must be rectified. There is simply not the evidence to arrive at such a conclusion.

Therefore, Mr. Alves' appeal with respect to ongoing income replacement benefits fails.

III. CHIROPRACTIC EXPENSES

An outstanding chiropractic account was also in issue. Mr. Alves has been receiving chiropractic treatment - initially five times a week, then twice weekly - since his December accident. Commercial Union stopped paying for treatment as of March 1996, after a duly appointed Designated Assessment Committee reported that further treatment was not indicated.

Mr. Alves complains that the arbitrator refused his claim, requiring that he provide compelling evidence, such as a formal evaluation, from his chiropractor as to the efficacy of the treatments in relieving his symptoms. It is submitted that this represents a new, statutorily-unauthorised and unreasonably high standard.

I do not view the arbitrator's reasons as imposing set requirements of proof. Rather, he was assessing the strength of the evidence before him. He acknowledged that an applicant could recover expenses for palliative therapy affording pain relief. However, he was not satisfied in this case, given the amount of treatment Mr. Alves had received and the outcome of the DAC review, that generalised assertions on the part of Mr. Alves and his treating practitioner that the therapy was of benefit were of sufficient weight to justify continued payment. I do not find any basis to interfere in his assessment.

IV. REHABILITATION EXPENSES

Mr. Alves also argued that the arbitrator failed to determine a claim for payment of other rehabilitation expenses in the amount of $11, 400, which were placed in issue. The confusion seems to have arisen because there were two sets of applications for mediation and arbitration, one joined after the arbitration was in process. The rehabilitation expenses, which involved an account for services provided by MultiRehabilitation Services Inc., were claimed in the latter applications. Rehabilitation expenses were listed as in issue in the pre-hearing letter dated January 5, 1998, but no specifics were given. They appear to have been inadvertently overlooked at the hearing by all concerned. Given the circumstances, this claim is remitted to the arbitrator to determine.

V. CONCLUSION

The appeal of the arbitrator's order regarding income replacement benefits and chiropractic expenses, is denied. The claim involving other rehabilitation expenses is remitted to the arbitrator for determination.

Mr. Alves was largely unsuccessful in his appeal. Expenses have been awarded to unsuccessful applicants where the appeal raised a novel or particularly significant issue or was otherwise reasonable. While Mr. Alves' appeal has some merit, there are insufficient reasons to require Commercial Union to pay his appeal expenses.

August 25, 2000

Susan Naylor Director’s Delegate

Date

Footnotes

1. 1Transcript of the arbitration hearing on March 17, 1997, p. 16-17, and 24-25.
2. 2Arbitrator's decision, p. 4.
3. 3See e.g. Cabral and Canada Life Insurance Company, (OIC. A95-000613, October 1, 1996) aff'd (OIC P96-000777, April 8, 1998), and the cases cited therein.
4. 4at p. 20, citing Lord Salmon in Alphacell Ltd v. Woodward, [1992] 2 All E.R. 478.
5. 5See Dr. Martins' testimony, transcript, March 19, 1997, p. 99.
6. 6For example, he complains that the arbitrator stated that Mr. Alves suffered syncopal episodes before and after the December accident during which he "momentarily loses consciousness " Mr. Alves takes issue with reference to loss of consciousness. However, Dr. Martins used the words objected to: see transcript of his testimony of March 19, 1997, p. 45, para 203. See also Black's Medical Dictionary 39th edition.. See transcript of testimony of Georgina Alves, March 18, 1997, p. 105 regarding such episodes after the December accident.
7. 7See e.g. Cabral and Canada Life Casualty Insurance Company, (note 3), Bailey and CAA Insurance Company, (OIC A-001139, October 18, 1994).
8. 8See transcript of testimony given on March 17, 1997, esp. pp. 57, 88-89, 97, 103-107,
9. 9See transcript, March 19, 1997, p. 166-168, 171-172.
10. 10Transcript, March 19, 1997, p. 184-190.