Neutral Citation: 2001 ONFSCDRS 9

FSCO A99-000306

BETWEEN:

JOE STELLINO

Applicant

and

HALIFAX INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Tanja Wacyk

Heard: June 27 and October 20, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Kelly Campbell for Mr. Stellino

Chris Blom for Halifax Insurance Company

Issues:

The Applicant, Joe Stellino, was injured in a motor vehicle accident on May 28, 1998. He applied for and received statutory accident benefits from Halifax Insurance Company ("Halifax"), payable under the Schedule.¹ Halifax terminated weekly income replacement benefits on November 20, 1998. The parties were unable to resolve their disputes through mediation, and Mr. Stellino applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Mr. Stellino entitled to receive a weekly income replacement benefit, at the rate of $400 per week, from November 21, 1998 until June 3, 1999, pursuant to paragraph 4(3)(i) of the Schedule?
Is Mr. Stellino entitled to receive payment for treatment by Dr. Bloom for the period of January 11, 1999 to May 31, 1999, in the amount of $1,568.20, claimed pursuant to section 14 of the Schedule?
Is Mr. Stellino entitled to payment for a report from Dr. Ruggiero dated January 12, 1999, in the amount of $700; and for a report from Dr. Bloom dated January 11, 1999 in the amount of $250, pursuant to section 24 of the Schedule?
Is Halifax entitled to a repayment of benefits paid to Mr. Stellino, pursuant to section 47 of the Schedule?
Is either party entitled to their expenses in respect of the arbitration proceeding under subsection 282(11) of the Insurance Act.
Is Mr. Stellino entitled to interest on any amounts owing?

At the beginning of the hearing, Halifax indicated that a $700 invoice for physiotherapy from the Spectrum Institute would be paid, and was no longer in dispute between the parties.

Result:

Mr. Stellino is not entitled to receive a weekly income replacement benefit from November 21, 1998 until June 3, 1999.
Mr. Stellino is not entitled to receive payment for treatment by Dr. Bloom for the period of January 11, 1999 to May 31, 1999, in the amount of $1,568.20.
Mr. Stellino is entitled to payment for Dr. Ruggiero's report in the amount of $700 and Dr. Bloom's report in the amount of $250, and accompanying interest.
Halifax is not entitled to a repayment of benefits paid to Mr. Stellino.
The issue of expenses is deferred.

EVIDENCE:

In May 1998, Mr. Stellino was 29 years old. He was single, lived with his parents, and was in the process of winding down his own business. Mr. Stellino testified that he had been in business for about 12 years, and that the business included construction work, renovations, landscaping, and replacing windows. However, business was slow and Mr. Stellino had arranged to begin work with John Marc Landscaping, doing similar work, effective June 1, 1998.

On the evening of May 28, 1998, Mr. Stellino was at the Azzurri bar/social club ("Azzurri") in North York. Mr. Piacente, who was also at the Azzurri, had called for a courtesy limousine from Casino Rama (the "casino") to pick him up. Although Mr. Stellino did not know Mr. Piacente, he arranged to ride up with him. However, Mr. Piacente subsequently decided not to go to the casino.

Mr. Stellino testified that when the limousine arrived, the driver entered the club, and was told by Mr. Piacente that he would not be going. However, when advised that Mr. Stellino wished to go, the driver invited him to ride back to the casino with him - as he had to return in any event.

Mr. Stellino had had three or four beers before leaving for the casino.

The limousine was a white, "superstretch" model. Mr. Stellino testified that in his view, the size of limousine would have made it difficult to execute turns.

Mr. Stellino testified that he was seated in the back of the limousine, facing the same direction as the driver but about eight feet behind him. The limousine then pulled away and proceeded to exit the strip mall in which the Azzurri was located.

However, according to Mr. Stellino, the limousine did not exit through the driveway - which would have required turning the corner. Rather, it proceeded directly east. In doing so, the limousine went over the curb. The driver then braked. Mr. Stellino testified that at that point he "flew" off his seat in a forward motion - banging the top right side of his head on the roof. Mr. Stellino testified that he then landed on the floor, scraping his leg and "banging up" his wrist. However, Mr. Stellino testified there were no visible signs of injury at the time, and that he "didn't feel nothing."

According to Mr. Stellino, the driver then turned around and said "Are you okay?" Mr. Stellino replied that he thought he was, and returned to his seat. Mr. Stellino testified that approximately ten minutes later he fell asleep and there were no further discussions with the driver. The limousine then proceeded to the casino without further incident.

Mr. Stellino testified that he felt fine when he arrived at the casino, which was approximately 1:00 - 1:30 a.m. He testified that approximately two minutes after arriving, he ran into Vicky Brounehan, from host services at the casino. In response to her inquiry regarding how he was doing, Mr. Stellino replied that he was "okay" but that the ride up had been "a little strange" because the driver had gone off the curb.² Mr. Stellino agreed in cross-examination that this had been a "friendly" conversation and he was not concerned about the incident at the time.³

Mr. Stellino testified that he then played cards at the casino until approximately 8 a.m. He then returned to the city by a courtesy bus operated by the casino. He testified that by that time his neck and back had started to "stiffen up," his wrist was sore, he had a slight headache, and he had noticed a small cut on his leg.

After picking up his car at the Azzurri, Mr. Stellino then proceeded to the office of his chiropractor - Dr. Bloom. He could not recall, however, if Dr. Bloom was in - as it was Friday afternoon.

Mr. Stellino had seen Dr. Bloom previously as the result of an earlier accident. He testified that he had had a number of prior accidents although he could not recall the number or their dates. Mr. Stellino testified that he did return to see Dr. Bloom the following Monday. After telling Dr. Bloom about the accident, he was treated with "electrodes"⁴, massage on his neck and back, and manipulation of his wrist.

He continued to see Dr. Bloom three times per week for a period of time, and then two times per week until October 1998. He testified he was still sore at that time, but the treatments were stopped because Halifax refused to approve them, and he could not pay for them himself. He did continue with some home exercises which had been recommended by Dr. Bloom. Mr. Stellino testified that although he was feeling better by that time, he was still not "normal" and was experiencing symptoms, which included headaches and a stiff neck.

Mr. Stellino testified that he also went to see Dr. Ruggiero, his family physician, as soon as possible after the accident. Dr. Ruggiero sent Mr. Stellino for x-rays and prescribed Tylenol 3s and anti-inflammatory medication. Mr. Stellino testified that although he could not recall the exact number of times he saw Dr. Ruggiero, he believed it was at least once per week - also until about October 1998. Mr. Stellino testified that he still takes pain medication prescribed by Dr. Ruggiero.

Mr. Stellino was also referred by Dr. Bloom to Spectrum Institute for Health and Rehabilitation ("Spectrum") for strengthening exercises - and he continued in a program there for "at least two months."

Mr. Stellino testified that he had been receiving income replacement benefits of $400 per week, and that his benefits were terminated in October 1998 as a result of an insurer's medical examination performed by Dr. Zarnett, from Worklab Inc. Dr. Zarnett reported that he did not feel that Mr. Stellino had suffered an impairment which was causing a substantial inability to perform the essential tasks of his employment, and that he was capable of all of his normal life activities.

Mr. Stellino indicated that he disagreed with this assessment as he was still sore at the time and was continuing to take painkillers. He testified that the treatments he had received from Dr. Bloom had been helpful, as they relieved the pain, and that he felt worse once the treatments were discontinued. Consequently, he did not return to work at that time.

Mr. Stellino was involved in another accident on December 23, 1998. On that occasion, he was returning from Casino Rama in a friend's Volvo at approximately 4 a.m., when they were clipped by a tractor trailer. The Volvo hit a median, resulting in approximately $10,000 damage to the vehicle. Mr. Stellino injured his back, neck, shoulder, knee and banged his head on a window. He testified that by the time he returned to Toronto, he was sore "all over" and went home to lay down and rest.

Mr. Stellino testified that he then went to see Dr. Ruggiero either the same or the next day. He initially testified that he believed he also went to see Dr. Bloom the same day, but changed his evidence when shown an OHIP summary that indicated his first visit to Dr. Bloom after September 1998 was January 11, 1999. He then recalled that Dr. Bloom had been on vacation until then.

Mr. Stellino testified that as a result of the December 23, 1998 accident, his back was "all tightened up." Consequently, while he was still on painkillers as a result of the May 28, 1998 accident, he was prescribed medication to deal with spasms which resulted from the subsequent December 23, 1998 accident.

Dr. Bloom also administered a series of treatments, including electrotherapy, adjustments, and neck stretches.

Mr. Stellino testified that he was feeling "a little better" by March 31, 1999, the date of his next accident, but still not well enough to return to work.

On March 31, 1999, Mr. Stellino was driving his own GMC pick-up truck when it was struck by a car that had run a red light. He testified that he hit his head on the windshield, which cracked as a result. The doors of the truck had to be pried open and he was taken to Scarborough General Hospital. The truck was "a write-off."

Mr. Stellino testified that he was in a lot of pain following that accident. His head was pounding, and his back, neck and shoulders were sore again.

Mr. Stellino returned to Drs. Ruggiero and Bloom for treatment.

Following the termination of the benefits at issue in this arbitration, Mr. Stellino applied for benefits following the two subsequent accidents. However, no benefits have been paid subsequent to November 20, 1998.

Mr. Stellino testified that he returned to work in early June 1999. At that time, he was hired to install mirrors in the entrance way of a banquet hall. Now he is working fairly steadily and has his own business. However, it was not contested that Mr. Stellino had originally claimed for benefits extending to June 12, 1999 until he was advised of a surveillance video which showed him working on June 3, 1999.

In cross-examination, Mr. Stellino testified he recalled an earlier accident which had taken place on St. Clair Avenue, in Toronto, on January 12, 1996, but that he could not recall his specific injuries. When prompted, he indicated his lower back had been a problem. He also could not recall if he had claimed accident benefits as a result. However, when shown copies of a full and final release he had signed, he conceded he had received a settlement payment in that instance.

He also agreed that he had had a subsequent accident on October 8, 1996, but could not recall if he had been injured or received accident benefits. Once again, when shown a release, he conceded benefits had been claimed and he had received a cash settlement.

Mr. Stellino also agreed that he had had more prior accidents than the two referred to above. He testified that he could not recall the number, and would not indicate whether he had also made accident benefit claims in those. He answered simply that he "may have or may not have."

With regard to the May 28, 1998 accident, Mr. Stellino testified that he could not recall if the limousine driver wore a uniform, but described him as having a "free spirit" attitude.

Mr. Stellino agreed that he was unaware of any damage to the limousine at the time of the accident.

He also agreed that he was not "knocked out" as a result of the accident. However, he conceded that the notes taken at Spectrum⁵ state there was a "loss of consciousness." While Mr. Stellino initially conceded this meant that Spectrum may have been operating on the basis of a misunderstanding, he subsequently suggested that he may have "passed out" - but not immediately.

Mr. Stellino was at the casino from 1 a.m. to 8 a.m., and testified in cross-examination that he spent that time playing "a little of everything," including roulette. His activities involved both standing and sitting. He testified that he sought no treatment at the casino because he was unaware of his injuries until after he left. He subsequently testified that although his wrist felt the pain "right away," his neck and back began to hurt as the night went on - followed by the onset of dizziness. He also conceded that the abrasion on his leg was only a scrape or a small cut. He agreed it could have resulted from something other than the accident, and volunteered that it may have been caused by his own "scratching too hard."

Mr. Stellino agreed that although he was experiencing symptoms before he left, he did not report the incident to anyone at the casino, at that time or since.

Mr. Stellino also agreed that, as a result of treatment from both Dr. Bloom and Spectrum, his injuries resulting from the May 28, 1998 accident had improved. He testified that the soreness had been reduced, he was sleeping better, and that while he was still experiencing some dizziness, he was feeling "better all around."

Mr. Stellino was then shown the OHIP summary for the period at issue,⁶ which indicated that his treatments with Dr. Bloom began on June 2, 1998 and continued until September 23, 1998. Mr. Stellino again testified that the treatments ceased because Halifax discontinued payment.

However, Mr. Stellino then agreed that Halifax had approved the initial treatment plan submitted by Dr. Bloom, dated June 10, 1998, which recommended treatment for 8 weeks, and that no subsequent treatment plan had been submitted until after the December 23, 1998 accident.

Mr. Stellino disagreed, however, that the treatment had stopped because he had improved, and further treatment was not required.

On the other hand, Mr. Stellino agreed that his physiotherapy sessions at Spectrum had ended on October 30, 1998, as he had improved and been discharged, with the recommendation that he follow a home exercise program.

Mr. Stellino testified that he didn't return to work at that time, as he felt "nowhere near his previous working condition," and that this had been confirmed by Dr. Ruggiero. Mr. Stellino testified that he was still sore, on medication, and taking anti-inflammatories.

It was Mr. Stellino's evidence that when he did return to work he was "pretty much healed," and although he was still "sore all over," he was prepared to work through the pain.

He now operates his own business, the "Window Home Centre Inc," which Mr. Stellino testified was incorporated in June 1999.⁷ He testified that he did not conduct any business prior to incorporation, either as a sole proprietorship or in any other form.

Mr. Stellino conceded that following the two more serious accidents in December 23, 1998 and March 31, 1999 he returned to work after only two months. However, he pointed out that in the two other accidents he had been wearing his seat belt, and "saw the accidents coming." However, in the limousine he was not wearing a seat belt and was completely relaxed.

When shown a copy of the notice of the termination of his benefits, Mr. Stellino also conceded that they had been terminated effective November 20, 1998, not in October as he had earlier testified.

Mr. Stellino was assessed at the West Park Hospital on July 19, 1999, following his March 31, 1999 accident. He agreed that, as recorded in the assessment report,⁸ he experienced headaches every day, dizziness one to two times per week, neck pain and constant stiffness, as well as a constant dull aching pain in the low back, with a few episodes of sharp pain, and some discomfort and pain during prolonged sitting, standing and walking. He also agreed that he could work while experiencing these symptoms. He testified, almost as an afterthought, that his constant pain was a result of his return to work.

When questioned about his relationship with Dr. Ruggiero, Mr. Stellino testified that he would see him every two weeks or so after the accident, and tell him how he was feeling.

In his report of January 12, 1999, Dr. Ruggiero states the following:⁹

Mr. Stellino attended my office on November 26, 1998, December 3, 1998 and finally on December 17, 1998¹⁰ with regards to his motor vehicle accident of May 28, 1998 when he lasted presented in my office he was still complaining of some discomfort over the neck region but he felt that it had gradually continued to improve and was able to move his head and neck in the various directions. He was still having some minor discomfort which was intermittent in nature over the lumbar and sacral spinal region aggravated by prolonged standing, prolonged sitting, repetitive bending, lifting, carrying, pushing and pulling and by cold and damp weather.

The patient was still complaining of some muscle contraction-headaches occurring 3 to 4 times per week and some problems with some non specific dizziness which up to the present tie we have not been able to find the cause of this dizziness.

On physical examination of the head and neck revealed good range of motion of the cervical spine in all planes.

Examination of the lumbar and sacral spine revealed relatively good range of motion in all planes.

Examination of the lower extremities was normal and equal bilaterally.

Examination of the cranial nerves were normal. Neurological examination of the rest of the physical examination was normal. No evidence of nystagmus, no evidence of other cerebellar abnormalities. (sic)

Mr. Stellino testified that the reference to "minor" discomfort over the lumbar and sacral spinal region should have been "major." Otherwise, he agreed the assessment was correct.

Mr. Stellino testified that prior to the May 28, 1998 accident, he was in "excellent" health.

At page 7 of his report, Dr. Ruggiero states:

The patient also suffered soft tissue injuries to the cervical spine which in my opinion have resolved to the pre-accident state. The patient had also suffered some lumbar and sacral spinal region myofascial ligamental strain which had returned to the preaccident state. The patient also suffered soft tissue injuries to the left wrist which has resolved. The patient also suffered a small laceration to the anterior aspect of the right tibia which has resolved.

While Mr. Stellino agreed the injuries to his left wrist and the laceration on his leg had resolved, he disagreed this was the case with the other injuries.

Mr. Stellino's OHIP summary¹¹ indicated that he had attended at Dr. Ruggiero's office on seven occasions between October 17, 1998 and December 17, 1998, prior to the above report having been written. However, while some handwritten notes from Dr. Ruggiero had been produced for visits outside that period,¹² notes for those visits were missing - which Mr. Stellino could not explain.

Nor could Mr. Stellino explain why there was no reference to his December 23, 1998 accident in Dr. Ruggiero's January 12, 1999 report, as he had advised Dr. Ruggiero of it.

The account for Dr. Bloom at issue in this arbitration indicated that the "initial visit" had been on January 11, 1999.¹³ Mr. Stellino agreed this was because he returned to Dr. Bloom for treatment following the injuries resulting from the December 1998 accident.

Mr. Stellino also conceded that prior to the December 23, 1998 accident, he had stopped taking anti-inflammatories, and that Dr. Ruggiero had prescribed them again only after that accident. However, it was also his evidence that although the swelling had gone down following the May 1998 accident, the pain had continued.

I also heard the evidence of Joe Ursino. While Mr. Ursino testified before Mr. Stellino, I set his evidence out now, as Mr. Stellino's evidence creates a context in which to better understand Mr. Ursino's evidence.

Mr. Ursino is 32 years old. He has been a friend of Mr. Stellino for 14-15 years. Mr. Ursino now works with "Vitrex Glazing"- as a glazer. At the time of the hearing, he had been doing this for four months.

Prior to his current employment as a glazer, Mr. Ursino worked in construction. At times he would perform labour work for Mr. Stellino. The last time he had done so was for a couple of days, approximately 4-5 months ago.

Mr. Ursino testified that he had been doing work for Mr. Stellino on an occasional basis from the time Mr. Stellino had started his business - but only if Mr. Ursino was not working elsewhere.

While Mr. Ursino testified that Mr. Stellino did not subcontract the work out to him, he also testified that he was not paid as an employee. Rather, he agreed that he was paid "as a subcontractor" - by cheque.

Mr. Ursino testified that on the evening of May 28, 1998 he too was at the Azzurri. Although he did not go to the bar with Mr. Stellino, he saw him there.

Mr. Ursino testified that he saw the limousine driver enter the bar looking for another customer, and heard him indicate he would take Mr. Stellino back to the casino, even though the other customer had changed his mind. While he recalled that the limousine driver was a male, Mr. Ursino could not recall if he was wearing a crest or a uniform of any sort.

It was Mr. Ursino's evidence that he left the bar immediately after Mr. Stellino and the limousine driver had left. As he walked toward his car, he was looking at the limousine, and saw Mr. Stellino get into the back seat. He testified that he saw the limousine drive off toward the exit and go "off the curb." He testified that the driver appeared to hesitate once the front wheels went off, and then proceeded on. Mr. Ursino believed the speed of the limousine was about 15 - 20 kilometres per hour. He could not say if the back wheels went over the curb at a lower speed. Mr. Ursino also testified, in cross-examination, that he did not hear any noise when the limousine went over the curb. He also agreed that he did not think that someone had been injured or that the vehicle was damaged.

Mr. Ursino testified that the lighting at the time was "pretty bright."

According to Mr. Ursino, approximately two to three weeks later, Mr. Stellino mentioned that he had been "hurt." When Mr. Ursino asked how, Mr. Stellino replied that the limousine driver had gone over the curb when leaving the Azzurri. Mr. Ursino responded that he had seen the incident.

It was Mr. Ursino's evidence that they did not discuss the matter again. However, he also testified that he had been advised by Mr. Stellino "a long time ago" that he may be required to testify with regard to what he saw – and was asked by him to do so about one week prior to the hearing.

Mr. Ursino also agreed with counsel for Halifax that Mr. Stellino was a fairly strong man and in good shape at the time of the accident. Paul Arnold, the limousine driver, testified on behalf of Halifax.

Mr. Arnold was employed as a limousine driver at Casino Rama from July 1996 until October 1999 - at which time he lost his driving license.¹⁴ He has continued to work at Casino Rama, although not as a driver. Most recently, he completed a contract working in the restaurant.

Mr. Arnold testified that the night he picked up Mr. Stellino, he was driving a white, 120" inch – eight-seat limousine. According to Mr. Arnold, this is the largest limousine allowed in Ontario.

He had been dispatched to the Azzurri to pick up Mr. Piacente Fedele - who he now understood had changed his mind about going to the Casino.

It was Mr. Arnold's evidence that when he arrived, he did not enter the Azzurri. Rather, Mr. Stellino came out. Mr. Arnold testified that he did not realize that Mr. Stellino was not the person he was originally dispatched to pick up, as nothing was said at the time. However, he identified Mr. Stellino as the passenger he had transported that night. He also testified that while Mr. Stellino appeared to have been drinking, he did not appear drunk.

Mr. Arnold testified that once he picked up Mr. Stellino, he simply proceeded out the driveway on the east side of the building. He denied going over the curb, or the occurrence of any incident such as described by Mr. Stellino and Mr. Ursino.

Rather, it was Mr. Arnold's evidence that the limousine simply proceeded to make its way up to Casino Rama, stopping for coffee at a drive-through Tim Horton's.

Mr. Arnold testified that had Mr. Stellino fallen off his seat at any time, then Mr. Arnold would have immediately called "Dispatch" from the vehicle and notified them. Dispatch would then have called the supervisor in the V.I.P. Services Department, and if there was perceived to be a problem, then Security would also have been notified. The limousine would have been met on arrival by at least one member of either V.I.P. Services or Security, and possibly a host. In addition, Mr. Arnold would have completed an incident report. However, he testified that at no time did Mr. Stellino suggest he had somehow been injured in the limousine.

Mr. Arnold testified that he would have reported the incident even if Mr. Stellino had indicated he was all right, as the company policy requiring him to do so is very strict - and he would have been derelict in his duty if he had not done so.

However, Mr. Arnold then testified that on the way to the casino, he noticed that Mr. Stellino had brought a beer into the limousine, and was drinking it. Mr. Arnold testified that the limousine did not stock beer, and that it was "not allowed" in the vehicle. However, he also testified that he didn't do anything about it - as he felt there was little he could do. He did not report it.

Mr. Arnold also testified that he subsequently smelt Mr. Stellino smoking marijuana. Shortly, after, Mr. Stellino fell asleep and remained asleep until they arrived at the casino. Mr. Arnold indicated he had to shake Mr. Stellino awake, after which Mr. Stellino simply left the vehicle.

Mr. Arnold gave the following statement in what he believes was in the late fall, 1998, when he became aware of Mr. Stellino's claim:¹⁵

On Wednesday May 29^th, 1998 I was dispatched to attend at the Azzure Sport Club at Islington and Steeles Avenues, arriving on Thursday May 30^th at 12:15 a.m. My pick-up was for one Piacente Fedele and convey him to Casino Rama.

I picked up a gentleman who I believed to be Piacente Fedele and we were underway. We proceeded to drive to Casino Rama and stopped at the Tim Horton's Service Centre on Highway 400. We got coffee and headed up the 400. He then fell asleep quite promptly, within 15 minutes. Arriving at the Casino, I had to shake Mr. Fedele to wake him, he left the Limo and walked into the Casino.

At no time did I drive over a curb, nor was I involved in an accident.(«c)

In cross-examination, Mr. Arnold testified that while drinking beer in the limousine is prohibited, it "does occasionally happen." He testified that if it had been a bottle of rye, he would have stopped and disposed of it. However, since it was only a portion of a bottle of beer, and Mr. Stellino had finished it by the time they got to the Tim Horton's, he said nothing.

Mr. Arnold denied having had anything to drink himself that night.

Mr. Arnold also testified that there were rules against smoking marijuana in the limousine, and that it was "definitely" against the law. Initially, he testified that he did not believe he said anything to Mr. Stellino regarding his marijuana use in the limousine. He then indicated that he "may have" mentioned it to Dispatch - but could not recall.

Mr. Arnold conceded that his statement contained no reference regarding the consumption of beer or marijuana. However, he denied that he failed to report any of these incidents, including Mr. Stellino's fall from the seat, because he believed they were minor. Rather, he maintained that the fall from the seat did not happen.

When asked what would have happened in the event Mr. Stellino had, in fact, fallen off his seat because he had driven over the curb, Mr. Arnold replied that he believed he would have been reprimanded.

In re-examination, Mr. Arnold at first indicated that he could not say why he had not referred to the beer or marijuana in his statement. He then suggested that it might have been because he was focussing on the issue of whether he had driven over the curb.

Shelagh Brown, adjuster, also testified on behalf of Halifax.

Ms. Brown testified with regard to the medical and rehabilitation expenses which Halifax had paid out on Mr. Stellino's claim - which totalled $7,102.86.¹⁶

Ms. Brown further indicated that Mr. Stellino had been paid income replacement benefits of $400 per week commencing the first week after the accident and continuing until November 20, 1998.

Ms. Brown also described the steps taken to investigate Mr. Stellino's claim for accident benefits, which focussed primarily on getting a statement from Mr. Arnold. As a result of Mr. Arnold's account of events, Halifax concluded the accident had not happened and that Mr. Stellino was not entitled to the benefits he had received.

Consequently, Mr. Stellino was sent a letter, dated February 16, 1999¹⁷, indicating that Halifax was seeking a repayment from Mr. Stellino of $18,618.27, plus interest.¹⁸

ANALYSIS:

Repayment of Benefits:

I will begin with the issue of whether Halifax is entitled to repayment of the benefits it has paid to Mr. Stellino - as Halifax's success on this issue would determine the others.

The subsection of the Schedule at issue is the following:

47.(1) A person shall repay to the insurer, (a) any benefit under this Regulation that is paid to the person as a result of an error on the part of the insurer, the insured person or any other person, or as a result of wilful misrepresentation or fraud;

Halifax took the position that the accident of May 28, 1998 had not occurred, or in the alternative, that Mr. Stellino was not injured in the accident.

In light of his failure to report Mr. Stellino's beer and marijuana consumption, the Insurer acknowledged the difficulties posed by Mr. Arnold's testimony that he would have reported any fall by Mr. Stellino, regardless of how minor. However, Halifax argued that the issues are distinct, in that Mr. Arnold's failure to report such an incident would result in "some difficulty" for him, in the event the matter was subsequently reported by Mr. Stellino. On the other hand, there was virtually no likelihood Mr. Stellino would report his beer and marijuana use to the casino.

Halifax urged me to accept Mr. Arnold's evidence over that of Mr. Stellino. However, in the alternative, Halifax argued that I could find that the limousine did go over the curb, but that Mr. Stellino was not injured - which would be consistent with Mr. Ursino's evidence.

Halifax pointed out that Mr. Ursino testified that he heard no noise or metal scraping when he observed the vehicle go over the curb; that he did not think the vehicle had been damaged, or someone injured; and that the vehicle then proceeded normally.

The Insurer argued that it was essentially Mr. Ursino's evidence that the incident did not appear to be much of anything.

In making this argument, Halifax also relied on Mr. Stellino's testimony that he "didn't feel nothing" when thrown from the seat; and that when the driver asked if he was "okay," he responded that he thought he was. The Insurer also pointed out that Mr. Stellino did not report the incident to casino management, even though he spent about seven hours at the casino, and testified he felt worse over time. Furthermore, he has never reported it, although he remains a regular customer.

Consequently, Halifax argued that it was open to me to find that there was an incident which involved the limousine going over the curb, but that it was insufficient to have caused any injury to Mr. Stellino.

Halifax implies the Applicant has engaged in wilful misrepresentation or fraud, and bears the onus of establishing this is the case. Since both wilful misrepresentation and fraud involve moral blameworthiness, Halifax must provide clear and cogent evidence in support of its position.

I am troubled by Mr. Arnold's evidence. He struck me as a reluctant, and somewhat defensive witness. As anticipated by Halifax, I have difficulty accepting his testimony that he would have reported any fall off the seat - given his failure to report what, on first blush, appeared to be the more serious concerns of the prohibited and illegal activities of drinking and smoking marijuana. While Mr. Arnold did testify with regard to the beer and marijuana consumption, this struck me as an attempt to discredit Mr. Stellino - as there was no other reason for raising it at this time.

I found Mr. Arnold's demeanor and evidence less than convincing, and I do not find his evidence to be clear and compelling proof that the limousine did not go over the curb. Rather, I prefer the evidence of Mr. Stellino and Mr. Ursino with regard to whether the accident occurred.

As indicated further in this decision, I did not find Mr. Stellino's evidence to be without its difficulties. However, it was supported in this respect by that of Mr. Ursino - with whose evidence Halifax took no strong issue.¹⁹

I also find it unlikely that an individual intent on fabricating an event upon which to base a claim for benefits would involve a third party against which liability could be claimed.

Consequently, I find that on a balance of probabilities the limousine did go over the curb, and Mr. Arnold was of the view that the event was insignificant and not worth reporting - particularly in light of Mr. Stellino's indication that he thought he was all right.

Furthermore, having subsequently lost his license and responsibilities as a driver, it would not be surprising if Mr. Arnold felt he was already on precarious ground with regard to his employment. If that were the case, he may not wish to further jeopardize it by admitting in the hearing to either going over the curb - which he indicated would probably warrant a reprimand, or failing to report the incident as required by policy. It may be that he finds himself in the very "difficult situation" described by counsel for Halifax. Now confronted with Mr. Stellino's evidence, Mr. Arnold's failure to report the incident becomes apparent if Mr. Stellino is believed.

Nor is the other evidence relied upon by the Insurer sufficient for me to find Mr. Stellino was not injured as a result of the accident. The fact the incident looked minor to Mr. Ursino is not of much assistance to the Insurer, as he viewed the incident at night, from outside the vehicle and while some distance away. What he saw from that vantage point is not indicative of what was taking place inside the vehicle. Rather, the injuries complained of by Mr. Stellino are, in my view, consistent with his account of the accident, i.e. bumping his head and falling on his wrist.

Finally, it is not unusual for symptoms to be delayed following an accident. Mr. Stellino attended at his chiropractor's office on June 2, 1998 and reported the accident to him.²⁰ He received regular treatments consistent with the injuries he complained of until September 14, 1998. As a result, I do not find that the late onset of pain and dizziness, nor the failure to report the injuries to the casino to be determinative.

In light of the above, I find that Halifax has not succeeded in proving, with clear and cogent evidence, that Mr. Stellino engaged in wilful misrepresentation or fraud. Consequently, I find that Halifax is not entitled to a repayment of benefits paid to Mr. Stellino, pursuant to section 47 of the Schedule.

Income Replacement Benefits:

Mr. Stellino claims weekly income replacement benefits at the rate of $400 per week, from November 21, 1998, until June 3, 1999.

Mr. Stellino bears the onus in proving that his benefits should have continued following their termination on November 20, 1998.

Counsel for Mr. Stellino argued that even after his benefits were terminated in November 1998, the Applicant did not return to work until June 1999, and continued with regular visits to Dr. Ruggiero until April to May of 1999. Counsel did concede, however, the issue was complicated by the two subsequent accidents which occurred December 23, 1998, and March 31, 1999.

His counsel also pointed out that Mr. Stellino continued with his treatments with Dr. Bloom until June 1999, even though they were not paid for - suggesting that his need for treatment continued. However, the OHIP summary makes it clear that Mr. Stellino did not attend for treatments between September 23, 1998 and January 11, 1999.²¹ Furthermore, as discussed below, the series of treatments initiated on January 11, 1999, resulted from the December 23, 1998 accident.

Mr. Stellino's benefits were terminated as a result of Dr. Zarnett's examination on October 1, 1998.²² However, Mr. Stellino submitted that Dr. Zarnett is an orthopaedic surgeon, and not someone who deals with soft tissue - which is the nature of his injuries. Mr. Stellino noted that in any event, Dr. Zarnett's examinations still found some limitations.

Specifically, at page 4, Dr. Zarnett notes as follows:

He had a full range of motion, but did complain of pain with extension and rotation to the left. There was some tenderness in the tight trapezial area.

Examination of his lumbar spine revealed some tenderness at the lumbosacral junction.

The test for continuing to qualify for benefits is set out in subsection 5(1) of the Schedule, and requires that Mr. Stellino demonstrate that, as of November 21, 1998, he continued to suffer a substantial inability to perform the essential tasks of his employment.

Dealing with an earlier Schedule but the same language, Arbitrator Palmer elaborated on this test in Alrawdah and Zurich Insurance Company at page 4:²³

The test that the No-Fault Benefits Schedule sets out ... is not an easy one. It requires that the applicant suffer more than some inability to perform his or her job; it requires a considerable or significant inability to perform the necessary or key requirements.

It is the responsibility of the Applicant in this case to persuade the Arbitrator by providing the best evidence he can that he suffered a substantial inability to perform the essential tasks of his occupation or employment...

The following medical evidence is available regarding Mr. Stellino's condition and recovery following the May 28, 1998 accident:

Dr. Bloom's report regarding Mr. Stellino's progress, dated January 11, 1999,²⁴stated:

Mr. Stellino was diagnosed to have suffered cervical, right cervicothoracic, lumbar and left wrist strain injuries. He was treated with electrotherapy, soft tissue therapy and spinal adjustments initially, at three times per week.

At his last visit, September 14, 1998 he was continuing to complain of headaches, and was still disabled from performing the physical demands of his occupation.

While Dr. Bloom states that Mr. Stellino was still disabled from performing the physical demands of his occupation at his last visit in September 14, 1998, he does not elaborate on this opinion or indicate what it is based on. Nor was a further treatment plan submitted as a result of the May 28, 1998 accident. In any event, Mr. Stellino's benefits continued until November 20, 1998. The only medical evidence proffered on behalf of Mr. Stellino for the period of time following the termination of his benefits is the report of Dr. Ruggiero, Mr. Stellino’s family physician, dated January 12, 1999.

In his report, Dr. Ruggiero made the following observations for the period of November 26 to December 17, 1998:²⁵

– Mr. Stellino still had some complaints of neck discomfort, but felt it had gradually improved, and he demonstrated a good range of cervical motion on all planes;

– Mr. Stellino was still complaining of muscle contraction-headaches occurring 3 to 4 times per week and some problems with non specific dizziness.

– Mr. Stellino was still experiencing minor discomfort of an intermittent nature over the low back, and he demonstrated a good range of motion of the lumbar spine on all planes.

And on page 7:

The patient also suffered soft tissue injuries to the cervical spine which in my opinion have resolved to the pre-accident state. The patient had also suffered some lumbar and sacral spinal region myofascial ligamental strain which had returned to the pre-accident state. The patient also suffered soft tissue injuries to the left wrist which has resolved. The patient also suffered a small laceration to the anterior aspect of the right tibia which has resolved.

However, Dr. Ruggiero also states:

As a result of this accident, Mr. Stellino is physically disabled to perform his employment activities. His work requires heavy lifting, repetitive bending, pushing and pulling and carrying.

While Dr. Ruggiero did conclude that Mr. Stellino was physically disabled from performing his employment activities, this conclusion is not consistent with his observations with regard to Mr. Stellino's condition for the period of November 26 to December 17, 1998. Rather, his report indicates that most of Mr. Stellino's injuries had resolved during that period, although he continued to experience some "minor" intermittent discomfort and headaches.

How to explain Dr. Ruggiero’s conclusion then? Dr. Ruggiero’s report was written following the December 23, 1998 accident. It is not disputed that this was a much more significant accident. Without any distinction made between the difficulties caused by that accident and any residual ones remaining from the May 28, 1998 accident, I can only conclude that Dr. Ruggiero's opinion that Mr. Stellino was disabled from performing his employment activities was significantly affected by Mr. Stellino's more recent accident. In light of his failure to distinguish between the injuries caused by or contributed to by the distinct accidents, I find Dr. Ruggiero's report of little assistance in determining whether Mr. Stellino remained disabled as a result of his May 28, 1998 accident.

Consequently, I prefer the assessment of Dr. Zarnett, which was conducted prior to the December 23, 1998 accident. This is particularly the case given that the notes of the seven visits which preceded Dr. Ruggiero's report were requested but not produced.

In the course of his assessment, conducted October 1, 1998,²⁶ Dr. B. Zarnett made the following findings:

– Mr. Stellino's cervical spine demonstrated no spasm and a full range of motion;

– his shoulders demonstrated a full range of motion with no evidence of tenderness, impingement or instability, although he noted that Mr. Stellino complained of pain with extension and rotation to the left, and there was some tenderness in the right trapezial area.

– Mr. Stellino did complain of pain in the neck with cervical distraction, but none with cervical compression.

– the left wrist revealed no swelling, some tenderness, a full range of motion, no crepitus and no tenderness on testing the ligaments;

– the lumbar spine demonstrated a full range of motion with some tenderness, and no neurological involvement on SLR.

Dr. Zarnett also makes the following comments on pages 4 to 5:

Given the minor nature of the accident on May 28, 1998, it is unlikely that Mr. Stellino suffered more than a mild myofascial strain to his neck, shoulder, back and wrist.

I do not feel that there is any indication for any further investigations or intervention. His therapy should be discontinued immediately. He should be encouraged to carry on with an independent program of active exercises. He should also be encouraged to resume all of his pre-accident activities without delay to prevent secondary changes with disuse.

On the basis of the objective clinical features and the findings of the F.A.E. he does not have a substantial impairment at this time. He does not have a substantial muscular impairment that prevents him from returning to his pre-accident activities nor his pre-accident employment as a landscaper.

He should be reassured that ongoing symptomology does not equate with structural harm and as such there is no need to impose any restrictions on his activities. His apparent pain-focussed behaviour may indicate a potential non-organic barrier to his recovery.

In answer to your specific issues and questions, I do not feel he suffered an impairment which is causing a substantial inability to perform the essential tasks of his employment. There is no objective evidence of currently active organic pathology or impairment which is clearly caused by the accident. He is capable of all of his normal life activities.

As argued by Halifax, I find Dr. Zarnett’s opinion is consistent with the history of improvement in Mr. Stellino's symptoms, as set out below, and is consistent with the nature of the accident. This was not, as pointed out by Halifax, a high velocity rear-end impact where one would expect significant forces on the cervical and lumbar spine.

The lack of objective findings, in and of themselves, do not preclude entitlement to benefits. However, as stated by Arbitrator Draper, in Breemo and The Dominion of Canada General Insurance Company,²⁷ it makes the credibility of the Applicant of central importance.

Mr. Stellino testified that he was unable to return to work until June 3, 1999 because of the injuries sustained in the accident of May 28, 1998. However, I view Mr. Stellino’s evidence with some caution - as I found his evidence, particularly with regard to dates, to be unreliable.

Some of the shortcomings could perhaps be attributed, at least in part, to poor memory. For example, it makes no sense for him to testify that his benefits were cut off in October 1998, when the Insurer’s records would show that the correct date was November 20, 1998. In any event, while not intentionally misleading, such errors suggest that Mr. Stellino's evidence is not reliable unless corroborated by some other source. This is particularly the case when one considers other, more troubling inconsistencies - or, for example, that his initial claim for benefits continued to June 12, 1999, and was only changed to June 3, 1999 when he was advised Halifax had surveillance which showed him working on June 3, 1999.

Consequently, in light of the findings of Dr. Ruggiero and Dr. Zarnett that many of his complaints had significantly improved or resolved, or were "minor" in nature, I have difficulty accepting Mr. Stellino's evidence that he was unable to return to work until June 3, 1999 because of the injuries resulting from his May 28, 1998 accident.

In addition, Mr. Stellino's own testimony suggests otherwise. He admitted that he had improved as a result of the treatments he had received from Dr. Bloom and Spectrum Institute, and was feeling "better all around."

Indeed, he agreed that treatment with Spectrum ended on October 30, 1998 because his symptoms had improved. Also, as indicated above, Dr. Bloom did not submit a subsequent treatment plan following the completion of the initial series of treatments which ended in September 1998. This suggests that further treatment was not required.

Furthermore, Mr. Stellino also testified that he had stopped using anti-inflammatory medication at some time prior to the December 23, 1998 accident.

Finally, Mr. Stellino was assessed at West Park Hospital on July 19, 1999 regarding the injuries sustained in the accident of March 31, 1999.²⁸ During the assessment he reported symptoms of daily headaches, dizziness, neck pain and constant stiffness and low back pain. However, by this time he had returned to the operation of his business.

In light of his ability to work with these symptoms, I find that he would have been able to return to work with the less significant symptoms recorded by Dr. Ruggiero during the period of November 26 to December 17, 1998.

Indeed, he testified that when he did return to work, he was "pretty much healed," and although still experiencing soreness "all over," he was prepared to work through the pain.

Consequently, I find that Mr. Stellino has not satisfied me that as of November 21, 1998, he continued to suffer a substantial inability to perform the essential tasks of his employment so as to entitle him to a reinstatement of his weekly income replacement benefits.

Dr. Bloom's Account:

Mr. Stellino claims the amount of $1,568.20 for the treatment account of Dr. Bloom.

The account involves treatment commencing on January 11, 1999. Mr. Stellino agreed that the treatment received on that date was referred to in the account as the "initial visit" because he had returned for further treatment following his December 23, 1998 accident.²⁹ Furthermore, the treatment plan submitted by Dr. Bloom, dated January 18, 1999, relates to the need for treatment as a result of the accident of December 23, 1998.³⁰

Furthermore, Dr. Bloom's report, also dated January 11, 1999³¹ indicates that Mr. Stellino's last treatment following the accident of May 28, 1998 was September 23, 1998.

Consequently, I find that the account for which payment is claimed relates to the injuries Mr. Stellino experienced in his accident of December 23, 1998, and cannot be claimed as benefits that he is entitled to as a result of his accident of May 28, 1998.

The Reports of Dr. Bloom and Dr. Ruggiero:

Mr. Stellino claimed entitlement to the payment for a report from Dr. Ruggiero, dated January 12, 1999, in the amount of $700; and for a report from Dr. Bloom, dated January 11, 1999, in the amount of $250, pursuant to section 24 of the Schedule.

Section 24 provides in part:

(1) The insurer shall pay for all reasonable expenses incurred by or on behalf of an insured person for the purpose of this Regulation in obtaining and attending an examination or assessment or in obtaining a certificate, report or treatment plan, including:

(a) fees charged by a person who conducts an examination or assessment or provides a certificate, report or treatment plan,

(b) fees charged by a designated assessment centre; and

(c) transportation expenses incurred in transporting the insured person to and from an examination or assessment, including transportation expenses for an aid or attendant.

Halifax argued that Dr. Ruggiero's and Dr. Bloom's charges are disbursements under the Dispute Resolution Practice Code (Third edition, April 15, 1997).

However, Arbitrator Joachim established a useful distinction between assessments which fall within section 24, and disbursements, when she wrote:

There is a difference between arbitration expenses and medical benefits. Medical assessments and reports commissioned and prepared after the commencement of the arbitration, for the primary purpose of proving the claims in dispute in the arbitration, are generally payable as arbitration disbursements. Assessments, treatments, and reports directed at ameliorating the effects of the injuries sustained in the accident are generally payable only as medical benefits... Claims for medical benefits ... must be made directly to [the Insurer] and, if disputed, must be processed in accordance with the dispute resolution process.³²

Dr. Ruggiero's report, dated January 12, 1999 states: "Please find enclosed the following detailed Medical Legal report that was requested by yourself in a letter dated to me on November 13, 1998 with regards to Mr. Stellino."

Dr. Bloom's report, dated January 11, 1999³³, just says "further to your request." However, it appears reasonable to conclude that it was also requested at about the same time, as this was shortly after Mr. Stellino was advised of the termination of his benefits.

The mediation between the parties was conducted from December 3, 1998 to January 12, 1999, and the Application for Arbitration, dated February 10, 1999, was received on March 19, 1999.

As both reports appear to have been requested in November 1998, prior to Mr. Stellino determining that he would proceed to arbitration, it appears they were sought primarily to determine Mr. Stellino's physical condition and entitlement to further benefits - and undoubtedly to assist in making his case to the Insurer.

Mr. Stellino is entitled to his own reasonable assessments. The fact that they were requested with a view to furthering a claim, or in the course of or in anticipation of a dispute with regard to entitlement, does not take them outside of section 24. The critical issues are whether the expenses are reasonable, and whether the examinations or assessments were undertaken "for the purpose of this Regulation" as required by section 24.

In this instance, the "reasonableness" of the expenses was not challenged.

The purpose of an examination or assessment can be found in the report itself.³⁴An examination of Dr. Bloom's and Dr. Ruggiero's reports shows that they dealt with matters addressed in the Regulation, such as the injuries experienced by Mr. Stellino as a result of the accident, the progress of his recovery, and the degree of residual disability.

Consequently, I find that the expenses are reasonable and the reports were undertaken for the purpose of the Regulation, as required by section 24, and must be paid by Halifax pursuant to that section.

EXPENSES:

If the parties are unable to resolve the issue of expenses, I may be spoken to.

January 26, 2001

Tanja Wacyk Arbitrator

Date