Panos Moschonissios v. York Fire & Casualty Insurance Company, 2001 ONFSCDRS 36

Financial Services Commission / Commission des services financiers de l’Ontario

Neutral Citation: 2001 ONFSCDRS 36

Appeal: P00-00008

OFFICE OF THE DIRECTOR OF ARBITRATIONS

PANOS MOSCHONISSIOS Appellant

and

YORK FIRE & CASUALTY INSURANCE COMPANY Respondent

Before: Susan Naylor, Director's Delegate

Counsel: Michael Henry (for Mr. Moschonissios) Stanley C. Tessis (for York Fire)

APPEAL ORDER

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

1. Paragraph 1 of the arbitration order dated December 23, 1999 is varied to include the following:

Mr. Moschonissios is entitled to mileage expenses at the rate of 22 cents per kilometre.

2. The balance of the appeal is denied.

3. No appeal expenses are ordered.

March 12, 2001

Susan Naylor Director's Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Panos Moschonissios appeals an arbitration decision dated December 23, 1999, dealing with the consequences of an accident occurring on September 18, 1995.¹ At issue is Mr. Moschonissios' entitlement to income replacement benefits (IRBs) from March 10, 1997, and thereby, his access to loss of earning capacity benefits. The arbitrator also dealt with miscellaneous other benefits, some appealed and others not.

The main question is causation. At the time of the accident, Mr. Moschonissios had been on disability leave from his job for about 17 months, and was in receipt of long-term disability (LTD) and Canada Pension Plan (CPP) benefits. It was Mr. Moschonissios' position that, while he was still not able to return to work, things were looking up particularly in the three to four month window immediately preceding the accident. The accident complicated the situation, setting back his recovery and contributing significantly to his ongoing disability.

The arbitrator did not accept this as a realistic picture of the situation. She concluded that the accident played no more than a minimal role in Mr. Moschonissios' ongoing disability after March 10, 1997. She found, accordingly, that although Mr. Moschonissios was substantially unable to perform his pre-accident employment tasks, it was not as a result of the accident. He, therefore, did not qualify for further income replacement benefits under s.7 of the Statutory Accident Benefits Schedule — Accidents after December 31, 1993 and before November 1, 1996, O. Reg. 776/93 as amended.

II. BACKGROUND AND ANALYSIS

The arbitrator reviewed the evidence at length in her 28-page decision. I will not repeat it at any length here. On April 7, 1994, Mr. Moschonissios collapsed at work, with chest pains and other symptoms. He was suffering from severe depression brought on by cumulative stress from a long-standing work dispute. The depression was so immobilizing as to precipitate a deep vein thrombosis and pulmonary embolism.

While the severity of Mr. Moschonissios' depression was the main concern in the next year and a half, he was also troubled by an osteoarthritic knee and low back pain. He was awarded LTD and CPP benefits on the strength of both his psychological condition and his physical problems with his knee.

Mr. Moschonissios sustained soft tissue injuries in the September 18, 1995 accident. He continued to be afflicted by depression. He complained about neck pain, back pain, knee pain and pain in other areas. He has been diagnosed with fibromyalgia and chronic pain syndrome.

The arbitrator made the following findings:

• The evidence clearly showed that Mr. Moschonissios' depression relating to the events at work continued unabated to the time of the accident (decision, p. 7).
• Physically, in addition to ongoing problems and concerns relating to the pulmonary embolism and renal colic, Mr. Moschonissios complained about pain in his low back and left knee (decision, p. 7).
• Mr. Moschonissios' knee problem was evidently quite serious in 1994 when he applied for CPP (decision, p. 8).
• Mr. Moschonissios' depression was also independently disabling at this time (decision, p. 8).
• Mr. Moschonissios' problems continued through early 1995 (decision, p. 9).
• The arbitrator did not believe that Mr. Moschonissios forgot his numerous complaints and medical investigations in 1994 and 1995. His testimony about his condition in the summer of 1995 was heavily influenced by his sincere conviction that York Fire had treated him unjustly. His wife and daughters' testimony was coloured by the same conviction and was not compelling (decision, p. 10). His daughter was not an impartial observer, and her loyalty to her father prevented the arbitrator from relying on her evidence (decision, p. 11).
• At best by the summer of 1995, Mr. Moschonissios' family could persuade him to embark on occasional family outings and a long weekend road trip. It falls far short of establishing that he could contemplate a return to work in the foreseeable future (decision, p. 12).
• The arbitrator did not accept that any psychological improvement during the family vacation in September 1995 was significant or long-lasting (decision, p. 12).
• The evidence overwhelmingly indicated that Mr. Moschonissios remained physically and psychologically disabled as a result of pre-existing problems at the time of the accident (decision, p. 12).
• As a result of the accident, Mr. Moschonissios sustained moderate soft-tissue injuries of the neck and back without orthopaedic or neurological complications (decision, p. 19).

Mr. Moschonissios does not take issue with the arbitrator's summary of the applicable legal principles. He argues, rather, that her findings of fact lack an evidentiary foundation and that she did not apply the law to the facts properly. The arbitrator summarised the law this way:

• The fact that Mr. Moschionissios was disabled as a result of pre-existing symptoms at the time of the accident, does not dispose of the matter if the accident contributed significantly or materially to his ongoing disability beyond the termination of benefits.

The arbitrator, however, cautioned that the nature, severity and duration of Mr. Moschonissios' pre-accident condition presents a serious barrier to his proving that the car accident had more than minimal effect (decision, p.13).

• The accident need not be the sole cause of disability but must make a "significant" or "material" contribution. The significant contributing factor test incorporates the "thin skull" rule - the recognition that an insured person is not precluded from receiving benefits because a pre-existing condition rendered him vulnerable to more severe and more prolonged disability than someone else might have suffered following the same injury. However, where the insured person's pre-accident condition was so serious that the accident could only have had a minimal effect on his disability, he is not entitled to benefits (decision, p. 18).

The arbitrator concluded:

• The neck injury was a new injury. By March 1997 it was not a significant concern and was not independently disabling (decision, p. 19).
• The accident aggravated Mr. Moschonissios' pre-existing low back symptoms for some time, but he had serious and chronic low back pain radiating to his left leg before the accident. The medical reports do not support any sustained significant worsening in Mr. Moschonissios' ongoing low back symptoms after the accident (decision, p. 19).
• Mr. Moschonissios had pre-existing symptomatic osteoarthritis in his knee, probably as a result of a medial meniscectomy in the late 1960s. There was no traumatic injury to the knee in the accident or complaints about knee pain immediately following it. No causal connection was accepted (decision, p.19).
• There was absolutely no medical evidence to connect Mr. Moschonissios' complaints of right shoulder, wrist and hand problems with the 1995 accident (decision, p. 20).
• The evidence overwhelmingly indicates that Mr. Moschonissios' ongoing disability results from the interaction of his very serious pre-accident health problems and the moderate soft tissue injury to his neck and back sustained in the accident. Setting aside the pre-existing factors, the accident did not play a significant role in the development of chronic pain and/or fibromyalgia (decision, p. 20).
• The key factor was the nature, severity and duration of Mr. Moschionissios' disability before the accident. There was almost no possibility that he would ever return to work (decision, p. 20).
• The accident contributed to Mr. Moschionissios' disability for a short time, but did not significantly materially prolong the disability after March 1997 (decision, p. 20).

III. ANALYSIS - INCOME REPLACEMENT BENEFITS

Under s.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. Although Mr. Moschonissios has framed his appeal in terms of legal errors, his appeal ultimately comes down to his disagreement with the arbitrator's assessment of the evidence and her factual findings. The arbitrator had scope to arrive at the findings she did on the evidence before her. In my view, her decision must be respected.

On appeal, Mr. Moschonissios insisted, as he had done at arbitration, that his physical problems before the accident were minor, short-term problems that had either resolved or, especially in regards to the knee, had become significantly better in the three to four month window before the accident. He argued that the arbitrator ignored the absence of physical complaints as reflected in the medical reports, during that period. He submits that the accident caused his old problems to resurface as well as initiating a new one, the neck injury. These physical problems worked on his depression, reinforcing it, and eventually leading to an entrenched chronic pain condition.

In my view, Mr. Moschonissios' submissions essentially represent an attempt to reargue his case at arbitration. The arbitrator painstakingly reviewed the evidence. She found that he downplayed his physical problems and that ongoing pain from his back and knee continued to be a factor in his disability at the time of the accident. Mr. Moschonissios saw three specialists in regards to his knee in 1994 and into 1995, and another specialist in regards to his low back in late May 1995. Medical reports record severe knee pain and low back pain into the end of May 1995. Subsequent tests and examinations focus on Mr. Moschonissios' chest pain and depression. However, in his updated report for his LTD insurer dated August 6, 1995 — well within the four month window relied on — Mr. Moschonissios specifically noted low back and knee pain. According to his report, there was no improvement in his condition.² Given the evidence, it cannot be said that the arbitrator's conclusion lacked any foundation in the evidence.

Mr. Moschonissios argues that whether he was, at the time of the accident, or likely would have been in the future, able to return to work is not the right test. The arbitrator's reasons reflect that she did not apply such a test. She specifically said so. However, she correctly recognised that the nature, severity and duration of Mr. Moschonissios' pre-accident condition had a critical bearing on the hearing. Furthermore, the arbitrator's comments need to be seen in the context of the case presented to her. It was essentially Mr. Moschonissios' position that his condition was improving enough in the period leading up to the accident that although there were no plans as such to return to work, he was hopeful of doing so.³ The arbitrator did not find this was a realistic reflection of his condition at that point in time. She did not find that Mr. Moschonissios' physical condition or his psychological condition were substantially improving. There is no basis to interfere with this finding.

Mr. Moschonissios complained that the arbitrator ignored the cumulative effect of his injuries, including the new neck injury, on his condition. I do not think she did. Although she stated that the neck was not "independently" disabling, when her decision is viewed as a whole, I am satisfied that she fully considered the effect of Mr. Moschonissios' soft tissue injuries superimposed on his pre-existing condition. The occurrence of the accident undoubtedly did not help the situation and those injuries became the focus of Mr. Moschonissios' concerns. The arbitrator found, however, that the moderate injuries sustained in the accident did not play a significant role in the development of Mr. Moschonissios' chronic pain condition. That condition developed, rather, from his pre-existing state of depression coupled with his pre-existing physical problems. In my view, there is no basis to interfere with the arbitrator's conclusion on causality.

The difficulty of the task confronting the arbitrator should be acknowledged. Determining the contribution of the factors at play in this case was not easy. It was the subject of a lengthy hearing. There was disagreement among the medical experts. Ultimately, it is a call for the arbitrator to make, as he or she sees the evidence. In Athey v. Leoniati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458 (S.C.C.) it was said that the test of causation is essentially a practical question of fact which can be answered by ordinary common sense. In my view, the arbitrator's judgement must be respected. She did not err in law at arriving at it, nor does it offend common sense.

IV. TENS MACHINE

Mr. Moschonissios also appeals the arbitrator's refusal to award him the purchase price of a portable home TENS machine. The machine was recommended by a chiropractor, Dr. Decima, in the context of a medical/rehabilitation designated assessment centre assessment. Dr. Decima's report is dated October 18, 1996. Mr. Moschonissios claimed the expense, but it was never paid. The reason is not clear. Mr. Moschonissios never purchased the equipment.

The arbitrator did not award Mr. Moschonissios the cost of the machine. She acknowledged that it should have been paid under the pay-pending-dispute provisions in s.39(11)(a) of SABS-1994. However, she felt that, given her finding that the accident ceased to play any role in Mr. Moschonissios' disability by March 10, 1997, there was no basis for ordering the expense more than three years later.

Arbitrators have rightly emphasised the importance of reinforcing compliance with pay-pending-dispute requirements. Indeed, special awards have often been awarded on this basis. However, at the end of the day, it is for the arbitrator to decide whether the expense qualifies as a reasonable accident-related cost.

Purchase of the TENs machine was recommended some months before the termination date. It was made on the basis that it would afford Mr. Moschonissios pain relief as he increased his level of activity in conjunction with a one year's fitness membership. It pre-supposed the need for usage going well beyond the date by which the accident, as found, had ceased to play a significant role in Mr. Moschonissios' symptoms. Given this, I am not persuaded that the arbitrator's denial of the claim represented an error in law.

V. TRAVEL EXPENSES

There was also a dispute regarding the mileage rate at which Mr. Moschonissios should be reimbursed. The expenses related to appointments between 1995 and 1997. York Fire paid mileage at 13 cents a kilometre, Mr. Moschonissios asked for 30 cents a kilometre. In the alternative, he asks for the mileage rate set under the current version of the regulations, which fixes mileage at 22 cents a kilometre.⁴

Under SABS-1994, there is no fixed mileage rate, but the scope of the expenses that can be recovered is restricted to fuel, oil, maintenance, tires and parking.⁵ (Mr. Moschonissios recovered his parking costs separately). Because the conditions under which insureds may recover mileage expenses differ under all three statutory accident benefits regimes, caution is needed before drawing comparisons or relying on cases under other regimes.

The arbitrator rejected Mr. Moschonissios' claim for a higher rate. He argued then as he does now, that because he was driving a high-end vehicle, a Mercedes, he was entitled to a higher mileage rate. The arbitrator stated that she was not provided with any evidence or authority justifying a higher rate than that paid.

There was no evidence to support Mr. Moschonissios' position, but nor was there any evidence setting out a basis for York Fire's mileage rate. It is not obvious to me why the insurer's unsupported mileage rate should be given more credence than the applicant's.

The rate adopted was far less than the 30 cents the insurer agreed to pay in Turner and Wellington Insurance Company (OIC A-011029, August 10, 1995) but higher than that allowed in Harper and Liberty Mutual Insurance Company, (FSCO A96-001257, December 19, 1997). In Harper, it was paid at 10 cents a kilometre, taking into account the applicant's remote location and size and type of her vehicle.

In my view, there needs to be some balance in the expectations of the parties. Mr. Moschonissios testified that he asked for a explanation and that he tried to ascertain what other companies paid. An insurer needs to be able to put forward some explanation for the rate at which they are paying, if only to show that it is an industry standard. If the insured takes issue with that rate, he or she will be expected to indicate a basis for the objection. In this case, there was minimal evidence on either side.

It is not clear to me whether the arbitrator was presented with an alternative position to those advanced by the parties. Mr. Moschonissios' fall-back position is that he should get the Commission's approved rate of 22 cents a kilometre. I recognise that the Commission's transportation guidelines establishing the rate do not apply to cases involving accidents that occurred before November 1, 1996, as here. Having said that, they provide a reasonable reference point in the absence of other evidence. The arbitrator's decision on this point therefore is varied with an order for the payment of mileage at 22 cents a kilometre.

V. SPECIAL AWARD

Mr. Moschonissios appeals the amount of the special award of $5,000, arguing it was set too low and that other factors should have been taken into account. The arbitrator granted the award on the basis that the income replacement benefits for some periods were unreasonably delayed and that the deduction of certain collateral benefits was unwarranted.

The amount of the award is in the discretion of the arbitrator, subject to a maximum ceiling. I find no basis to interfere with the exercise of her discretion in this case.

VI. EXPENSES

Having regard to the degree of success and other criteria, I leave the parties to bear their own expenses.

March 12, 2001

Susan Naylor Director's Delegate

Date