Ontario Insurance Commission
Neutral Citation: 1994 ONICDRG 18 File No. A-004068, A-004069
Between: Le Van Thai, Applicant and Royal Insurance Company of Canada, Insurer
And Between: Le Ngoc Hong, Applicant and Royal Insurance Company of Canada, Insurer
Decision
Issues:
The Applicants, Le Van Thai and Le Ngoc Hong, who are brothers, were injured in a motor vehicle accident on April 9, 1992. They applied for and received accident benefits from the Insurer payable under Ontario Regulation 6721, enacted under the Insurance Act, R.S.O. 1990, c. I.8. Weekly disability benefits were paid until the summer of 1992, when they were terminated. Mediation was unsuccessful in resolving the dispute between the Applicants and the Insurer, and the Applicants applied for arbitration under the Insurance Act.
The issues in this hearing are:
To what amount of weekly income benefit is each Applicant entitled?
For how long is each Applicant entitled to weekly income benefit?
Is any repayment owing to the Insurer by either Applicant?
Is either Applicant entitled to a special award under the provisions of section 282(10) of the Insurance Act?
The Applicants also claim interest on any outstanding amounts owing and their expenses incurred in the hearing.
Result:
Le Van Thai is entitled to a weekly income benefit of $454.27. Le Ngoc Hong is entitled to a weekly income benefit of $419.33. To the extent that Hong Le's 1992 employment income of $4,200 as a babysitter was earned after the accident, the Insurer is entitled to a credit of 80 per cent of the amount earned under section 15 of the Statutory Accident Benefits Schedule.
Le Van Thai is entitled to weekly income benefits from April 16, 1992 until December 30, 1992. Le Ngoc Hong is entitled to weekly income benefits from April 16, 1992 until April 22, 1993.
I can make no finding as to the Insurer's entitlement to a repayment nor as to the Applicants' entitlement to a special award, due to a lack of evidence.
The Applicants are entitled to their expenses incurred in respect to the arbitration.
Hearing:
The hearing was held in North York on October 5 and 6, and December 13, 1993, before me, K. Julaine Palmer, arbitrator.
Present at the Hearing:
Applicants: Le Van Thai and Le Ngoc Hong
Applicants' Representative: Michael Gillen Barrister and Solicitor
Insurer's Representative: Wayne Edwards Barrister and Solicitor
Witnesses: Van Quy (Chris) Nguyen, Le Van Thai, Dr. Reuel Talangbayan, Le Ngoc Hong
Evidence and Findings:
The Le brothers were involved in a motor vehicle accident on April 9, 1992. At the time of the accident, Thai Le was driving his 1989 Honda Prelude on St. Clair Avenue in Toronto and Hong Le was seated in the backseat directly behind the driver. There were three other passengers in the car. In the accident, the car was sideswiped along the driver's side and pushed onto the sidewalk.
Exactly where Hong Le was seated became an important issue at the hearing, because of alleged injuries in the accident to his left elbow. The reports of Dr. John G. Evans, the orthopaedic specialist who examined the Le's on behalf of the Insurer, revealed that he understood Hong Le was seated in the backseat between two women passengers. Accordingly, he found some difficulty in understanding the severity of the elbow injury. However, Dr. Evans admitted communication difficulties occurred during his interview with Hong Le, even though an interpreter was present. I am satisfied from the oral evidence of Thai Le and Hong Le at the hearing, and by the contents of other medical reports also filed, that Hong Le was seated against the door, as he stated.
Amount of weekly benefit
Both Applicants alleged they were employed at the time of the accident by Quy (Chris) Nguyen, who testified at the hearing. Thai Le was employed in Mr. Nguyen's International Auto Collision body shop, while Hong Le was employed across the street at Mr. Nguyen's business called Low Cost Car Care Inc.
Although the Insurer had some doubt about whether the Applicants were truly employed by Mr. Nguyen, I am satisfied on the evidence I heard from the Le brothers and Mr. Nguyen and by the documents filed (copies of their T-4's, income tax returns, and pay stubs of Hong Le) that they were employed by him at the date of the accident.
Following the provisions of section 12(4) and (7) of the Schedule, I find that Thai Le earned $2,271.36 ($567.84 x 4 weeks) in gross weekly income for the four weeks preceding the accident. His weekly income benefit, thus, amounts to $454.27 (80% x $567.84). I find that Hong Le earned $2,096.64 ($524.16 x 4 weeks) and his weekly benefit is $419.33.
In the certified copy of the income tax return of Hong Le, I note that he reported he earned $4,200 as a "baby sister" [babysitter?] in 1992. I heard no evidence of this occupation whatsoever. To the extent that this employment occurred after the accident, the Insurer is entitled to a credit of 80 per cent of the amount earned under section 15 of the Schedule.
The Jobs: Bodyshop Helper and Cleaner
To determine the Applicants' entitlement to weekly income benefits, I must decide two things: (1) what comprises the essential tasks of their occupations, and (2) whether, or how long, they suffered substantial inability to perform those essential tasks as a result of injuries received in the accident of April 9, 1992.
I accept the evidence of Chris Nguyen and Le Van Thai about Thai Le's employment. I find that Thai Le's essential tasks included helping to prepare automobiles for painting, including sanding the car body, applying filler, taping or masking areas not to be painted, and removing the tape after painting. In order to perform these tasks, Thai Le was required to use hand tools, such as screwdrivers, and to use a power sander, grinder and other compressed air tools. Thai Le estimated the weight of the sander to be between 3 and 7 kilograms.
I accept the evidence of Chris Nguyen and Hong Le that Hong Le's essential tasks as a cleaner included hand washing and polishing approximately two cars per day, including vacuuming car interiors and shampooing upholstery and carpet. He also was required to clean the shop, to sweep and tidy the premises, and remove garbage. In order to accomplish these tasks, Hong Le was often required to move heavy pieces of disassembled cars.
Evidence of Disability
Le Van Thai
Thai Le, now aged 31, stated at the hearing that he still felt unable to perform his job tasks. He complained of pain in his left knee, chest, head, low back and a sensation of heat along his spine. At his last visit before the hearing to Dr. Talangbayan on September 21, 1993, Dr. Talangbayan testified Thai Le complained of headaches, dizziness, poor sleep and some tenderness of his cervical and lumbar spine.
Thai Le stated that he performed exercises every morning and that he increased this daily. He stated he now shares in the chores at the apartment where he lives with his brother and a friend. He testified that he could cook a simple meal and was capable of carrying two to three kilograms in his right hand. He claimed he could walk for a maximum of 10 minutes.
After the accident, Thai Le, received treatment from Dr. Roy Raghunan, psychologist, in weekly therapy sessions from May 13, 1992 to December 22, 1992. Dr. Raghunan treated Thai Le for post-traumatic stress disorder with anxiety and depression. The progress of the therapy and the improvement in Thai Le's symptoms are reflected in Dr. Raghunan's extensive clinical notes, which were filed as exhibits at the hearing.
Dr. Reuel ("Sonny") Talangbayan saw Thai Le regularly over 1992-93. One narrative and two form reports of Dr. Talangbayan were filed as were the doctor's clinical notes. Dr. Talangbayan also gave oral evidence at the hearing. In his testimony, Dr. Talangbayan deferred to Dr. Raghunan's conclusion that Thai Le could return to work about December 31, 1992. He stated he felt Thai Le's most serious injuries in this accident were psychological rather than physical. Dr. Talangbayan remarked that he had no record of discussing a return to work date with Thai Le, although he had stated in his report of October 30, 1992 that he believed Thai Le should gradually increase his activities.
The report of Dr. Roland C. Wong, dated March 16, 1993, was filed at the hearing. Dr. Talangbayan testified that Dr. Wong is a rehabilitation specialist. Dr. Wong saw Thai Le at Dr. Talangbayan's request on March 16 and May 18, 1993. In March 1993, Dr. Wong found Thai Le's grip strength to be weak; he also found tender trigger points in his upper back. Dr. Wong's opinion was that there were "reasons to suspect" that Thai Le would not be able to do the physical work of a bodyshop man; he recommended exercise to improve Thai Le's conditioning and modality treatment at times to deal with muscle spasm.
Thai Le was examined by Dr. John G. Evans, orthopaedic surgeon, at the Insurer's request on July 16, 1992. Dr. Evans found communication with Mr. Le to be difficult even with an interpreter. He concluded that he would have recommended sending Thai Le to physio and occupational therapy and to a psychologist if his command of English had been better. By the time Dr. Evans examined Thai Le again on April 30, 1993, he concluded that, from an orthopaedic perspective, Thai Le could return to work.
Thai Le testified he had attended a registered massage therapist and a chiropractor (last visit December 22, 1992), but he had taken no physiotherapy. He stated he takes medication for pain approximately twice daily, as needed. He disagreed with Dr. Raghunan's opinion that he could return to work as of December 31, 1992.
At the hearing, Thai Le denied seeing Dr. Talangbayan for anything except minor illnesses prior to the April 9, 1992 accident. He appeared to have entirely forgotten a previous car accident of March 1990 and his prolonged recovery from it, under Dr. Talangbayan's care. His counsel submitted that this lack of recall demonstrated the memory loss his client exhibited after the April 9, 1992 accident. Thai Le had also complained persistently to Dr. Talangbayan about memory loss prior to the April 9, 1992 accident. Accordingly, it is difficult to attribute any memory difficulty to the April 9, 1992 accident.
It is my conclusion that as of December 31, 1992 Thai Le was fit to return to his work as a bodyshop helper. At that time, he would have been able to substantially perform his essential tasks. It may well have been that he would have had some pain on resuming these tasks, but, in my view, the level of discomfort would not have been so acute as to disable him from working. Under the terms of the Schedule, an applicant is entitled to weekly income benefits only while he is substantially incapable of performing his essential job tasks, not until he is completely recovered or entirely pain free.
Le Ngoc Hong
Hong Le, now aged 34, was involved in two motor vehicle accidents prior to the accident of April 9, 1992. Those accidents occurred December 23, 1989 and March 23, 1990. Hong Le injured his left elbow in the prior accidents. He re-injured the elbow in the accident of April 9, 1992. He was also diagnosed to have suffered a cervical and lumbar strain and to have developed post-traumatic stress disorder.
Dr. Talangbayan saw Hong Le on April 9, 1992 prior to the accident. He was still treating him for the effects of the March 23, 1990 accident. Dr. Talangbayan testified he did not know at that time that Hong Le had been working.
Dr. Talangbayan testified that Hong Le complained of his left elbow hurting until July 20, 1993. Dr. Talangbayan last saw Hong Le on September 27, 1993 before the hearing and was of the opinion then that Hong Le could return to modified or light duty work. Dr. Talangbayan could not say from his notes when he first made that determination.
Hong Le testified that since the accident he has no appetite, that he sleeps poorly and feels cold and sore all the time. He stated he asked Dr. Talangbayan to release him from physiotherapy because he felt sore every day after he attended. (From the records of Metro Orthopaedic and Rehabilitation Centre, it would appear Hong Le attended 13 sessions between August 31 and October 5, 1992.) Hong Le stated that he feels tired just from walking, so could not perform a job. However, Hong Le, testified that for more than one month prior to the mid-December 1993 hearing, he had felt he could perform light duty work. Three days before he testified, he stated he had inquired about work with a sink manufacturer. He testified he was not then taking medication, but was continuing with daily exercises for his left arm using light weights, as he had been taught at physiotherapy.
Dr. John G. Evans, orthopaedic surgeon, examined Hong Le for the Insurer on July 16, 1992 and April 22, 1993. Dr. Evans suggested in his earlier report that Hong Le might attempt to return to work in early August 1992. By his April 22, 1993 examination, Dr. Evans still was of the view that Hong Le could perform a cleaning-washing job at a car body shop.
Dr. Roy Raghunan, psychologist, treated Hong Le from October 22, 1992 to April 28, 1993 for post-traumatic stress disorder with associated factors of anxiety and depression. Dr. Raghunan's comprehensive clinical notes were filed at the hearing, as well as a form report and a narrative report. Dr. Raghunan's notes record the progress in treating Hong Le for recurrent and distressing recollections of the accident, nightmares, sleep disorders and anxiety. Dr. Raghunan discharged Hong Le from treatment April 30, 1993 and was of the view that Hong Le could return to his job, although he felt that Hong Le might require some supportive therapy in the future.
Taking the evidence as a whole, I conclude that Hong Le was disabled from substantially performing the essential tasks of his job as a cleaner until April 30, 1993. Although Hong Le continues to complain of some effects of the accident, I am of the view that he could do his job by May 1, 1993.
Repayment and Special Award
I have concluded that Thai Le is entitled to weekly income benefits as a result of this accident in the amount of $454.27 per week from April 16, 1992 until December 30, 1992. I have found that Hong Le is entitled to weekly income benefits of $419.33 per week from April 16, 1992 until April 30, 1993.
I noted previously, above, that in the certified copy of the income tax return of Hong Le, he reported he earned $4,200 as a "baby sister" [babysitter?] in 1992. I heard no evidence of this occupation whatsoever. To the extent that this employment occurred after the accident, the Insurer is entitled to a credit of 80 per cent of the amount earned under section 15 of the Statutory Accident Benefits Schedule.
I heard almost no evidence from either party at the hearing as to the amount of weekly income benefits which had been paid by the Insurer to the Applicants. No statement of agreed facts was filed which might have filled this gap. The parties did agree, however, that on July 15, 1993 Thai Le received a cheque for $370.00 representing payments for a two-week period, July 3 to 17, 1993 and that Hong Le received a cheque in the same amount for the period June 30 to July 4, 1993. The Response by Insurer states an amount which the Insurer claims it paid to a point in time, but I received no evidence in support of this contention.
Accordingly, I can make no order as to a repayment in this matter, since I have no evidence of the total amount of weekly income benefits the Insurer has paid.
Similarly, I can make no order as to a special award against the Insurer under the provisions of section 282 (10) of the Insurance Act, since I have no evidence of the amounts of payments, the dates of payments, nor the basis on which the payments were terminated or the amounts changed.
Expenses:
The Applicants seek an award of the expenses they have incurred in this arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:
The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.
The prescribed expenses and amounts are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990, Dispute Resolution Expenses.
In the Ralph McCormick v. Economical Mutual Insurance Company case (O.I.C. File No. A-000139), Senior Arbitrator Susan Naylor made the following comments about expenses, with which I agree:
The discretion to award expenses should be exercised, having regard to the intent and purpose of the legislative scheme. The arbitration process has been established under the Insurance Act, as amended, in order to facilitate applicants' access to relatively inexpensive, speedy and informal adjudication of disputes regarding no-fault benefits. The discretion to award expenses should be exercised in accordance with this objective, having regard to the individual circumstances of each case.
Accordingly, it is appropriate to award an applicant his or her expenses, unless, in the circumstances of the particular case, it is determined that the application for appointment of an arbitrator was manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings.
The Director of Arbitrations approved this statement of the principles guiding an award of expenses in the appeal decision in Vito Luigi Calogero v. The Co-Operators General Insurance Company (O.I.C. File No. P-000251, issued February 13, 1992).
In accordance with the above principles, I find that the Applicants are entitled to their expenses as set out in Schedule 1 of the Dispute Resolution Practice Code. In the event that the parties cannot agree as to the total amount of expenses, I remain seized of this matter and a party may apply for assessment of the expenses before me.
Order:
Le Van Thai is entitled to a weekly income benefit of $454.27. Le Ngoc Hong is entitled to a weekly income benefit of $419.33. To the extent that Hong Le's employment income of $4,200 as a babysitter was earned after the accident, the Insurer is entitled to a credit of 80 per cent of the amount earned under section 15 of the Statutory Accident Benefits Schedule.
Le Van Thai is entitled to weekly income benefits from April 16, 1992 until December 30, 1992. Le Ngoc Hong is entitled to weekly income benefits from April 16, 1992 until April 22, 1993.
I can make no finding as to the Insurer's entitlement to a repayment nor as to the Applicants' entitlement to a special award, due to a lack of evidence.
The Applicants are entitled to their expenses incurred in respect to the arbitration.
February 22, 1994
K. Julaine Palmer Arbitrator