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February 14, 2000

Insurer ignores medical evidence, hit with $30,000 'special award'

By Eric Atkins for Law Times

Toronto - An injured woman whose disability insurer cut off her weekly benefits has been awarded what amounts to punitive damages under a rarely used Ontario Insurance Act Provision.

An arbitrator awarded 37-year-old travel agent Domenica Fimiani $30,000 from Liberty Mutual Insurance, on top of $140,000 in back benefits owing after the insurer stopped paying her $394 weekly benefits. She was unable to work after serious facial injuries suffered in a 1994 car crash.

Toronto lawyer Richard Bogoroch told Law Times it was one of the larger "special awards" made under Insurance Act s. 282(10), which permits an arbitrator to award a lump sum when an insurer "unreasonably withholds or delays benefits." Special awards are over and above the weekly income replacement, interest and home-care expenses.

Bogoroch called his case "important" and a "wake-up call" for insurance companies which treat claimants unfairly.

The Financial Services Commission of Ontario arbitrator David Muir found Liberty Mutual ignored medical evidence stating the woman couldn't work. Bogoroch, along with co-counsel Linda Wolanski, won the award after a seven-day hearing.

The insurance company relied largely on assessments from Bruce Makos, a chiropractor at a disability assessment centre (DAC) Fimiani had gone to. He concluded the woman was not significantly disabled and her injuries were "soft tissue ones which would eventually resolve." His findings were disproved once and for all when Fimiani underwent surgery later.

Muir noted that Makos was neither a dentist nor specialist in facial- and jaw-injury disorders and his opinion was contrary to the view of "many other medical practitioners," most of whom found Fimiani disabled.

Reports from a disability assessment centre "are not the be-all and end-all," said Bogoroch. It's a mistake to simply rely on what the insurer's assessment says when there are conflicting reports from different health professionals, he added.

Muir wrote that once Liberty Mutual "received an opinion supporting a termination of benefits, it chose to remain indifferent to whatever further evidence it received."

Liberty Mutual counsel Michael Muclack told Law Times there's been no decision on an appeal. The appeal deadline is mid-February and its status was not known by press time.

Fimiani's car was rear-ended in her four-year-old Volkswagen in August of 1994. The mother of two was thrown into the dashboard and her face struck the steering wheel.

Fimiani did not see a doctor until the next day, when she awoke with swelling in the right side of her face and neck. She began suffering headaches, neck and back pain and three fingers went numb. But her jaw and face were the worst of her ills and within two weeks she could not close her mouth.

Fimiani was examined by a neurologist and an oral surgeon. Both agreed she had "post-concussion" syndrome" and temporomandibular joint dysfunction (TMJ), a painful condition in the joint that connects the jawbone and muscles to the skull.

She was unable to chew food and here diet was restricted to soups, pasta and soft food.

Before six months had passed, she had seen four doctors and a chiropractor. She was on strong painkillers and complained of depression, mood swings and forgetfulness. On top of that, the pain in her jaw, back, head and shoulder persisted. Still out of work, she began a physiotherapy and "work-hardening program" in April of 1995.

On September 28, 1995, her cheques stopped coming. Fimiani tried mediation with the insurer but that failed, so she applied for arbitration at the Financial Services Commission of Ontario, a remedy available under the Insurance Act.

Liberty Mutual spokesperson Arlene Healy said any comment while the file is being "reviewed" would be "premature."

At the hearing, Liberty Mutual didn't produce a company representative for cross-examination.

"Treating their claimants badly or with indifference may very well expose insurance companies to significant special awards," predicts Bogoroch.