Neutral Citation: 1995 ONICDRG 16
File No. A-004179
ONTARIO INSURANCE COMMISSION
BETWEEN:
DICH QUANG LE
Applicant
and
MARKEL INSURANCE COMPANY OF CANADA
Insurer
DECISION
The Applicant, Dich Quang Le, was injured in a motor vehicle accident on July 12, 1990. He applied for statutory accident benefits from the Insurer, payable under Ontario Regulation 6721. He received weekly income benefits of $199.77 until November 8, 1992, when benefits were terminated. He claims ongoing benefits after that date. He also contends that he is entitled to benefits at the rate of $238.40 per week.
The issues in this hearing are:
Is Mr. Le entitled to ongoing weekly income benefits under section 12 of the Schedule after November 8, 1992?
What is the proper amount of weekly income benefits payable?
Is the Applicant entitled to be reimbursed for his expenses incurred in the arbitration proceeding?
Is the Applicant required to pay an amount of up to $2,000 to the Insurer, under subsection 282(11.2) of the Insurance Act, R.S.O. 1990, c.I.8, as amended?
The Applicant also claims interest on any amounts outstanding.
An issue as to reimbursement of $57.50 for a medical report was resolved before the hearing started.
The Applicant's claim for a special award was withdrawn at the outset of the hearing.
Result:
Mr. Le is not entitled to weekly income benefits after November 8, 1992.
The amount of benefits payable is $199.77 per week.
Mr. Le is not entitled to his expenses in the proceeding.
Mr. Le is not required to pay the Insurer any amount under subsection 282(11.2) of the Insurance Act.
Hearing:
The hearing was held in North York, Ontario, on June 13 and 14, 1994, before me, Nancy Makepeace, arbitrator. The parties filed written submissions, dated June 20, 1994 (Insurer), June 28, 1994 (Applicant), and June 29, 1994 (Insurer).
Present at the hearing:
Applicant:
Dich Quang Le
Applicant's Representative:
Peter Daly Barrister and Solicitor
Insurer's Representative:
Brian Leck Barrister and Solicitor
Insurer's Officer:
Trevor McCallum
Witnesses:
Dich Quang Le, the Applicant
Dr. A. Donskoy, the Applicant's family doctor
Tina Huynh, the Applicant's counsellor
Dr. G. Lloyd, orthopaedic specialist
Dr. HJ. Arndt, psychiatrist
Exhibits and other documents before the arbitrator are listed in an appendix to this decision.
The Applicant was assisted throughout the proceedings by Mr. Dao Dinh, an interpreter in the Vietnamese language.
Background facts:
The Applicant, Mr. Dich Quang Le, is 35 years old. He emigrated to Canada from Vietnam in August 1984. After spending about a year in Nova Scotia, he moved to Toronto. He has held a number of jobs since his arrival in Canada, including light assembly work, working as a dishwasher in a restaurant, carrying packages to and from a warehouse, and cutting wood. He has also had a number of periods of unemployment. At the time of the accident, Mr. Le had worked at Safeco Manufacturing, a manufacturer of safety helmets, since August 14, 1989. Safeco went out of business in late 1990 or early 1991.
On July 12, 1990, Mr. Le was a passenger on a TTC bus, when the bus stopped suddenly, and he fell to the floor. He suffered an avulsion injury to his right middle finger: a part of the pulp of the fingertip was torn away. He also injured his left elbow, right hip and right arm, but he had recovered from these injuries by the time benefits were terminated, and they are not at issue in this proceeding.
Immediately after the accident, he was taken to Sunnybrook Hospital Emergency Department, where the finger wound was repaired, stitched and dressed. He also received a tetanus shot.
The wound healed by about the end of September 1990. However, the finger remains disfigured. Approximately half of the soft tissue of the fingertip is missing, and the fingernail curves over the tip of the finger in a "parrot beak" deformity. There seems to be no dispute that the disfigurement is permanent.
Mr. Le complains of ongoing hypersensitivity in the finger. He says he has a "shock-like" pain when he touches something, especially something sharp or hard. Also, his finger sometimes feels "tight", and it is sensitive to cold and weather changes. He contends that he is unable to do any job that requires use of the finger to grip or manipulate objects. He also claims that he is depressed and anxious because of the disfigurement and disability he suffered as a result of the accident. He contends that because of these problems, he is unable to return to his pre-accident job. Further, he claims that he is entitled to weekly income benefits after 156 weeks because his injury continuously prevents him from engaging in any job for which he is reasonably suited by education, training and experience. Mr. Le also claims that he can no longer play the guitar, because of the sensitivity of his finger; he has played guitar as a hobby for many years. He also claims that his social life has been affected by his depression.
The Insurer contends that Mr. Le no longer suffered a substantial inability to return to his pre-accident job after November 8, 1992. Further, the Insurer contends that Mr. Le's injury does not prevent him from doing another job for which he is reasonably suited by education, training and experience. The Insurer also contends that Mr. Le is malingering, and has failed to cooperate in his rehabilitation. The Insurer submits that Mr. Le has failed to mitigate his losses.
The test for entitlement to weekly benefits:
Mr. Le is entitled to weekly income benefits under subsection 12(1) of the Schedule for the period in which he is substantially unable to perform the essential tasks of his pre-accident job as a result of the accident.
Subsection 12(5) provides that after 156 weeks, an applicant is only entitled to weekly income benefits if the accident-related injury continuously prevents him from doing any job "for which he is reasonably suited by education, training or experience".
Essential tasks of the pre-accident job:
Evidence about Mr. Le's essential tasks at Safeco came from his oral testimony, his earlier statements about his job duties during the Functional Abilities Evaluation performed at the Accident Injury Management Clinic (AIM)(Exhibit 1, Tab 13), his description of his job duties on the Application for Accident Benefits form (Exhibit 2, Tab 1), and the Employer's Confirmation of Income form (Exhibit 2, Tab 4).
I find that Mr. Le was employed as an assembler, and his job was to assemble and insert components into helmets for firefighters, construction workers, and the like. The components involved were symbol caps. He worked eight hours a day, five days a week, with the usual breaks. The job was done while standing at an assembly line. Mr. Le's job was to carry a box of helmets from the warehouse, set up the machine for stamping the helmets, place each helmet into the machine and press a button and pull a lever to stamp it. He would then cut off the excess vinyl, and stack the completed helmets. He usually stamped about 200 helmets an hour. About five times a day, he would remove the stacked helmets from the line and package them in a box on a skid, which would be taken to the warehouse.
Mr. Le told the examiners at the Accident Injury Management Clinic that packaging the helmets involved lifting up to 30 to 40 pounds. However, according to the AIM report, the job description provided by Direct Rehabilitation Services said that "Mr. Le typically does not have to lift much more than 1 - 2 lbs at a time during his regular work day" (Exhibit 1, Tab 13, p. 8). I was presented with no evidence in support of the heavier lifting requirement. I find that the job was a light assembly job requiring only light lifting.
Medical evidence:
Dr. Alex Donskoy has acted as Mr. Le's family doctor since the accident; according to Mr. Le, he had no family doctor before the accident. Dr. Donskoy testified at the hearing, and his clinical notes and records and standard form reports (Form 4) were filed.
Dr. Donskoy first examined Mr. Le on July 13, 1990, the day after the accident. He changed the dressing on the wound, and prescribed Tylenol 3. Since then, Mr. Le has continued to see Dr. Donskoy about twice a month with complaints about his finger. Dr. Donskoy testified that while the pain has decreased since the accident, and movements of the finger are normal, Mr. Le remains unable to grip or lift with the right hand, and cannot manipulate objects with sharp edges. Accordingly, it was Dr. Donskoy's opinion that Mr. Le remains unable to return to his pre-accident job. Dr. Donskoy recommended that Mr. Le retrain for a job which minimizes use of the finger.
After his initial attendance at Sunnybrook Hospital on the day of the accident, Mr. Le returned nine times for follow-up visits with Dr. S.J. McCabe, a plastic surgeon at the hospital, between July 17, 1990, and April 10, 1991. In his October 5, 1990 report to Dr. Donskoy, Dr. McCabe stated that when he saw Mr. Le on October 3, the wound had healed, although the fingertip was "slightly hypersensitive" and Mr. Le had "a severe nail deformity". Dr. McCabe believed that the hypersensitivity could be improved by therapy. He also noted that he had talked to Mr. Le about having a revision amputation, but Mr. Le was "reluctant to have any other treatment". In his final report to Dr. Donskoy, dated April 11, 1991, Dr. McCabe stated that Mr. Le "was left with some hypersensitivity and cold sensitivity", although he had been treated with massage and desensitization. Mr. Le testified that he attended for physiotherapy at Sunnybrook Hospital for two weeks in December 1990.
At the request of the Insurer, Mr. Le was examined by Dr. G.J. Lloyd, an orthopaedic surgeon who specializes in hand surgery, on December 20, 1990 (report found at Tab 9, Exhibit 1). Dr. Lloyd noted the nail deformity, and stated that the scar was "quite sensitive". He reported that Mr. Le "would not make any attempt to use his middle finger in manipulative activities, claiming that it was sensitive". He thought that Mr. Le "could reasonably argue that the lack of manipulative dexterity would make it difficult for him to currently return to his pre-accident job".
Dr. Lloyd did not see the need for psychological treatment. He recommended an eight week desensitization program, which would be aimed at toughening the skin of the fingertip and reintegrating use of the finger. If that did not work, he recommended surgery to revise the amputation. According to Dr. Lloyd, the surgery required is "comparatively minor", and would leave Mr. Le with "minimal disability". In his testimony at the hearing, Dr. Lloyd discussed the surgical options. If hypersensitivity persists, one option is to bury the affected nerves in the bone of the finger. Another is to amputate at the distal interphalangeal joint, although this might reduce the range of motion in the finger.
Dr. McCabe referred Mr. Le to Dr. Arnie Freiberg, a plastic surgeon with a subspecialty in hand surgery. Dr. Freiberg recommended a skin graft to replace some of the missing pulp and improve the curved nail deformity. It was Dr. Freiberg's opinion that surgery would improve the appearance of the finger, and "may or may not" reduce the hypersensitivity. However, Dr. Freiberg was clear that the finger would never look normal (July 11, 1991 letter to Dr. Donskoy).
Mr. Le was again examined by Dr. Lloyd on October 8, 1991 (report, dated December 31, 1991, at Tab 9, Exhibit 1). Mr. Le reported no improvement. Dr. Lloyd said, "I think it is surprising to the point of being incredible that a patient who suffered an injury to the pulp of a digit seventeen months ago has remained disabled, and is still procrastinating as to what he should do about it."
In August 1992, Brenda Rasmussen, of Direct Rehabilitation Services, referred Mr. Le to the Orthopaedic and Arthritic Hospital for a Functional Abilities Evaluation, at the Insurer's request. Physiotherapist Sandy Fielding found that he had normal range of motion in the metacarpal phalangeal and proximal interphalangeal joints, but only half the normal active flexion of the distal interphalangeal joint. Mr. Le reported hypersensitivity to tapping and light touch around the entire fingertip. He avoided use of the finger, which affected his grip strength. However, Ms. Fielding observed that Mr. Le "repeatedly put his right hand in his pocket without expressing any form of discomfort". Mr. Le was not interested in desensitization or surgery. Ms. Fielding recommended that he return to work in a job "where he is not relying fully on the right hand to complete the job requirements" (report of August 7, 1992, Tab 11, Exhibit 1).
The assessment was discontinued when Mr. Le refused to continue with range of motion, grip strength, and carrying tests (report of occupational therapists, S. Hannah, J. Hutchison and occupational therapy assistant, A. Kleban, dated August 14, 1992, Tab 12, Exhibit 1). He complained that he was unable to continue because of pain. However, the examiners noted that he "frequently" put both hands in his pockets, and "was able to easily remove his TTC photo from his left shirt pocket with his right hand", without any sign of discomfort. Again, "he was able to press the fingers of both hands together in a tripod position". The examiners concluded:
... the client appeared to be pain-focused and unwilling to work through his discomfort. He did not appear to be interested in returning to any form of work as reflected in his statement that it will be 3 to 4 years before he will be able to determine what he is capable of doing. During the assessment he made frequent reference to contacting his lawyer. The client did not wish to cooperate, and, as a result, the assessment was discontinued.
A Functional Abilities Evaluation was performed on August 24 and September 14, 1992, by general practitioner Dr. M. Matthews, chiropractors D. Kopansky-Giles and L. Barbuto, and kinesiologist J. Scott, at the Accident Injury Management Clinic. They reported that Mr. Le perceived himself to be in moderate to severe pain, and believed his injury was affecting his activities of daily living and preventing him from returning to work. On examination, it was noted that there was no suggestion of disuse of the hand. Orthopaedic and neurologic testing was normal, except for the hypersensitivity on palpation of the scar tissue. Active range of motion testing and strength testing of the finger were voluntarily limited. Grip strength in the right hand was limited by pain. However, the examiners noted that Mr. Le "overreacted" whenever one of them approached his hand. Further,
Mr. Le's behaviour was inconsistent with his report of severe pain on use of his hand. He was repeatedly putting his hand in and out of his pocket and had no difficulty in completing the questionnaires by hand (which took over 30 minutes). He was apparently unaware of pain in the hand during these activities. However, when asked to perform, Mr. Le would then cradle or hold his right hand with the left, and report that it was too painful or too weak to use.
Mr. Le was able to complete a 15-minute job simulation test, as follows:
He was asked to pick up materials from above shoulder height, place them on a waist-high table, handle the materials from position to position, and them [sic] place them (mimicking stacking) on an adjacent shelf.
He was also asked to push and pull a heavy door, as well as pulling levers and squeezing objects. He was also asked to perform fine manual dexterity by performing sorting and putting together puzzle pieces.
He was able to handle materials weighing from 2 - 5 lbs without much difficulty, although he preferred to cradle the heavier pieces in his hand to reduce the need for grasp force. According to his previous job description, and the one provided by Direct Rehabilitation Services, Mr. Le typically does not have to lift much more than 1 - 2 lbs at a time during his regular work day.
Mr. Le reported a feeling of pressure in the finger tip on pushing or pulling the door, so he chose to use his left hand or used the palm of his right hand to do the task. He had little difficulty in performing the fine manual dexterity tasks, although he reported pain in his third finger, and he most often utilized his index finger for the task.
Mr. Le was able to complete the 15 minute time period set for the test, although he reported pain and fatigue in his right hand during certain parts of the job task mock-up.
The examiners recommended that Mr. Le return to his pre-accident job immediately, resuming his full duties over two or three weeks.
In her report to the Insurer (November 13, 1992), Ms. Rasmussen summarized the results of the functional abilities evaluations, the opinions of Dr. Donskoy and Dr. Lloyd, and her discussions with Mr. Le and his former employer. She referred to the conclusion reached by the examiners at the AIM that:
This loss of sensation equates to a 15% impairment of the middle finger according to the AMA impairment guidelines. The injury in turn relates to a 3% impairment of the hand and upper extremity and a 1% impairment of the whole person.
She recommended that Mr. Le undergo a work hardening/simulation program and be instructed in a home exercise program. She made no recommendations with regard to alternative jobs, because she found that he was able to return to his pre-accident job (Tab 14, Exhibit 1).
In June 1993, Dr. Donskoy referred Mr. Le to Premier Treatment & Health Management Centre. The reports of Tuyen Vo Allard, a vocational rehabilitation counsellor with Premier, were filed (Exhibit 1, Tab 7). Ms. Allard found that Mr. Le's level of physical functioning was normal, but he was anxious, frustrated, depressed and angry about his deformity. He also felt "cheated, abused, disrespected and mistreated" by the experts who had examined him. Finally, he felt "emotionally abused by the long waiting period for the court settlement, resulting in a psychological ambivalence with regard to the vocational planning". In her initial report, Ms. Allard stated that Mr. Le "has lost his motivation to participate in his own rehabilitation to return to a normal healthy life". She recommended intensive psychological therapy, and a training course at Skills for Change.
After the first meeting with Ms. Allard, Mr. Le discontinued counselling for about eight weeks. According to Ms. Allard, he resumed counselling on November 16, 1993 on the advice of his lawyer.
He saw her about 12 times, and he was discharged on March 18, 1994, because of his failure to participate in rehabilitation. In her report of February 1, 1994, Ms. Allard stated that Mr. Le is "very ambivalent in making decisions or accepting any advice". He was then even more depressed than previously.
In December 1993, Dr. Donskoy arranged for Mr. Le to see Dr. San Nguyen, a Vietnamese-speaking psychiatrist. Dr. Donskoy testified that Mr. Le did not see Dr. Nguyen because the earliest appointment was in June 1994. However, Dr. Donskoy advised Ms. Allard that "the client is very fearful and reticent to take this action due to previous negative experiences with specialists" (signed confirmation letter, January 19, 1994, Tab 7, Exhibit 1).
In December 1993, Mr. Le began seeing Tina Huynh, a psychological consultant with Premier. Ms. Huynh testified at the hearing. She is qualified as a medical doctor in Vietnam, and she is a naturopath, but in Canada she is qualified neither as a doctor nor as a psychologist. She has no academic training as a psychologist other than a few months of a night school college course that she did not complete. However, she testified that she has provided individual supportive counselling and psychoeducation, mostly to Vietnamese clients, for four years, and does so under the supervision of a psychologist, Dr. James Belfrage. I accepted her expert testimony based on her Canadian experience and the fact that she is supervised by a psychologist. I found her assessment of Mr. Le to be candid and fair.
In her initial report (January 18, 1994), Ms. Huynh set out Mr. Le's psychological complaints: constant fatigue, occasional headaches and dizziness, permanent insomnia, loss of appetite, reduced libido, social withdrawal, anxiety around cars and public transit, nightmares and flashbacks, and difficulties with concentration, reading and memory. According to Ms. Huynh, Mr. Le's test results show "a severe level of anxiety", "major thought difficulties", and "a high level of depression".
In her report of June 8, 1994 (Exhibit 2, Tab 9), Ms. Huynh stated that Mr. Le showed a noticeable psychological improvement in March 1994. However, he did not return to therapy after the beginning of May, and he did not sustain the improvement; he would show improvement in one session and then at the next session again express anger about his loneliness, and lack of job and money. Mr. Le reported to Ms. Huynh that he had tried to return to work in March or April 1994, but he lasted only one day because the job involved rolling copper wire, using his fingertips, and he could not tolerate the pain. He now wanted to study printing at college, but said that he would not apply for the course until the arbitration was finished. In cross-examination, Ms. Huynh testified that Mr. Le felt that he could not proceed with his rehabilitation until he received a lump sum from the Insurer to compensate him for his injury. Indeed, Ms. Huynh's clinical notes show that in almost every session Mr. Le focused on the arbitration and the prospect of a monetary settlement from the Insurer.
On April 12, 1994, Mr. Le was examined by Dr. H.J. Arndt, a psychiatrist, at the Insurer's request. Dr. Arndt testified at the hearing, and his reports were filed (dated April 22, 1994 and May 25, 1994, Exhibit 1, Tab 10). Dr. Arndt accepted that Mr. Le was experiencing some symptoms in his injured finger. However, Dr. Arndt believed that Mr. Le had adopted an "invalid role", and was deliberately prolonging his disability in order to receive weekly income benefits. In Dr. Arndt's opinion, no further psychological or psychiatric treatment would benefit Mr. Le.
I did not find Dr. Arndt's evidence helpful. In his two letters, he relied heavily on the suggestions of undermotivation in the reports of Ms. Allard and Ms. Huynh. I have the impression that Dr. Arndt addressed the issue of Mr. Le's credibility and motivation, rather than his psychiatric health. Finally, I do not accept his unsupported speculation that Mr. Le may have psychological problems relating to his experiences in Vietnam and in a refugee camp.
Conclusion:
I am not satisfied that Mr. Le's injury renders him substantially unable to do his pre-accident job after November 8, 1992.
As early as October 1990, Dr. McCabe reported that Mr. Le's fingertip was only "slightly hypersensitive". In November 1990, the Sunnybrook Hospital records indicate that Mr. Le had full range of motion, and no hypersensitivity. By September 1992, the examiners at the Accident Injury Management Clinic reported that Mr. Le was able to complete a 15-minute job simulation test based on his pre-accident job.
Dr. Lloyd testified that the prime role of the middle finger is to perform the three-point pinch, along with the thumb and index finger. This function can be performed by the ring finger, or alternatively, by the shortened middle finger, especially if it is bandaged to reduce sensitivity. It was Dr. Lloyd's opinion that Mr. Le would even be capable of keyboarding, despite his finger injury. The only tasks he could not perform would be tasks requiring the use of all ten fingers at once. Dr. Lloyd testified that he found it "astounding" that someone could claim total disability on the basis of an injury to the middle finger.
The only expert evidence supporting Mr. Le's claim was that of Dr. Donskoy. Dr. Donskoy explained that in his bi-weekly visits, Mr. Le would complain about pain, and Dr. Donskoy would press on the finger and ask Mr. Le to try to grasp and lift a stapler. By March 1994, Mr. Le could grasp the stapler for a few seconds, but he still could not lift it between his thumb and middle finger. I find this implausible. I find that Dr. Donskoy relied almost exclusively on Mr. Le's subjective reports about his symptoms. Further, I have the impression that Dr. Donskoy was acting as Mr. Le's advocate in this matter. I am not able to rely on his assessment of Mr. Le's disability.
I find that Mr. Le is able to perform the essential tasks of his pre-accident job, with perhaps a few simple modifications. I find that he could operate the stamping machine and manipulate the helmets by using his index finger or ring finger instead of his middle finger, or by bandaging the middle finger to decrease its sensitivity.
Dr. Donskoy told Ms. Allard that Mr. Le could not do any job that required "touch kinesis, i.e. pressing, typing, writing" (signed confirmation letter from Ms. Allard, dated September 15, 1993, Exhibit 1, Tab 7). However, since the accident, Mr. Le has completed upper-year high school courses in Finite Mathematics, Physics, Chemistry, and Calculus, as well as two English as a Second Language courses. Presented with this evidence in cross-examination, Dr. Donskoy changed his opinion and stated that Mr. Le could write. The AIM examiners who conducted the functional abilities evaluation reported that Mr. Le "was able to write for up to 30 minutes ... without apparent discomfort" (Exhibit 1, Tab 13, p. 9). I do not accept that Mr. Le is unable to write. Further, though Mr. Le testified through an interpreter at the hearing, he corrected the translation at several points during his testimony, and relied on the interpreter less and less as the hearing went on. I do not accept that language problems preclude Mr. Le from performing jobs for which he is reasonably suited by education, training, or experience.
While in Canada, Mr. Le has worked at several light assembly jobs, as well as jobs as a dishwasher and labourer. He completed one or two years of university in Vietnam (in Mechanical Engineering), although he was forced to leave his studies when he was conscripted into the army. He has expressed interest in working as a printer. Although I was presented with no evidence about the job duties of a printer, I think I can safely presume that qualifications would include facility in English, keyboard ability, some academic ability and the ability to perform various grip and manipulation functions with the hands.
I find that Mr. Le is able to perform any number of jobs for which he is "reasonably suited by education, training or experience".
There is a great deal of evidence that Mr. Le is not motivated to rehabilitate himself or to return to work. Dr. Donskoy and Dr. Lloyd testified that Mr. Le could reduce the touch sensitivity of his finger by bandaging it. Mr. Le's response to this in cross-examination was that he had not wanted to be involved in the accident, and it was not up to him to wear a bandage to find a job.
Alternatively, Mr. Le could modify job tasks to minimize use of the finger (by using other fingers, for example). He could probably also reduce the sensitivity of the finger by completing a desensitization program and reintegrating use of the finger. Although he claimed that he attended therapy at Sunnybrook for two weeks in December 1990, I was presented with no details about this. He has refused all subsequent suggestions that he have desensitization therapy. He has also refused surgery which might improve the function of the finger.
The examiners at the Orthopaedic and Arthritic Hospital and the Accident Injury Management Clinic reported that Mr. Le voluntarily limited his use of the right middle finger during testing, and used the finger normally when he was not aware he was being observed. They also found him to be pain-focused and uncooperative.
Mr. Le testified that he has not engaged in any rehabilitation program because he is too busy. I find that he has not engaged in any rehabilitation program because he is not interested in rehabilitation. In her first meeting with Ms. Allard, he concluded that he was unmotivated. Mr. Le then discontinued therapy, until his lawyers advised him to resume it. In March 1994, Ms. Allard discontinued the therapy after about 12 visits because of Mr. Le's lack of motivation. She reported that he was unwilling to accept advice or make decisions which would facilitate his rehabilitation.
Mr. Le refused to arrange an appointment with a Vietnamese-speaking psychiatrist, as Dr. Donskoy had recommended. He saw Tina Huynh only ten times between December 1993 and May 1994, and her notes and testimony reflect his focus on litigation and compensation rather than rehabilitation. For example, Mr. Le claims that he cannot do his housework because of his injury. Ms. Huynh, found this implausible, and testified that she told him "he was just lazy".
Even Dr. Donskoy admitted that Mr. Le's cooperation with rehabilitation was "not as was expected", and that the attitudes noted by Ms. Allard and Ms. Huynh were evident "right from the beginning".
I find that Mr. Le is primarily motivated to obtain financial compensation from the Insurer for his disfigured finger. In his testimony at the hearing, Mr. Le impressed me strongly as someone who feels aggrieved because of a disfigurement, and has put his life on hold in the hope that he will receive further compensation for his injury.
As arbitrators have often said in previous arbitration decisions, the Schedule does not provide compensation for "pain and suffering" alone. Mr. Le may well suffer from a minor permanent disability. Unfortunately, the Schedule does not compensate for permanent partial disability that falls short of "substantial disability". Nor does the Schedule compensate for disfigurement in the absence of disability, although "permanent serious disfigurement" may give rise to a "threshold case" under section 266 of the Insurance Act.
For the reasons given above, I find that Mr. Le was not disabled after November 8, 1992. I also find that any difficulties he continues to have after November 8, 1992 result almost entirely from his own decision to pursue compensation and not to pursue rehabilitation. They do not result from the accident.
Given my findings on these issues, it is not necessary for me to decide whether the doctrine of mitigation applies to statutory accident benefits.
Amount of benefit payable:
Mr. Le was employed by Safeco between August 14, 1989 and July 12, 1990. He received weekly income benefits of $199.77 per week.
Mr. Le contends that he is entitled to benefits of $238.40 per week, based on his paystub for the two weeks ending May 18, 1990. He earned $596 gross for those two weeks, for an average of $298 weekly (80% of $298 is $238.40).
This was a higher than average weekly income for Mr. Le. Subsection 12(7)1 allows an applicant to claim weekly benefits based on gross weekly income in the four weeks before the accident or the 52 weeks before the accident, whichever is greater. The Schedule does not allow an applicant to claim weekly benefits based on a single unusually high paycheque he received several months before the accident.
The Application for Accident Benefits and Employer's Confirmation of Income forms indicate that Mr. Le earned $11,736.75 over the 47 weeks he worked at Safeco (Exhibit 2, Tabs 1 and 4). Averaged over 47 weeks, this comes to a gross weekly income of $249.72.
These forms also indicate that Mr. Le earned a total of $953.60 in the four weeks before the accident, for an average of $238.40 per week.
Under subsection 12(7)1 of the Schedule, Mr. Le is entitled to the higher gross weekly income amount, of $249.72, 80% of which is $199.77.
Revenue Canada T4 and summary printouts (Exhibit 2, Tabs 3 and 6), show that Mr. Le's total Safeco income was $12,533, averaging $266.66 per week, 80% of which is $213.32. Copies of the T4s and income tax returns were not filed. I heard no explanation for the discrepancy between the tax forms and the application forms.
I prefer to rely on the information set out in the Application for Accident Benefits and the Employer's Confirmation of Income form. These forms were prepared a few days after the accident, and the adjuster confirmed the figures with Safeco's Personnel Manager on August 8, 1990.
I find that between July 19, 1990 and November 8, 1992, Mr. Le was entitled to benefits of $199.77 per week. He is not entitled to further benefits.
Expenses:
Subsection 282(11) of the Insurance Act provides as follows:
(11) 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 maximum set out in the regulations.
(11.1) The arbitrator may at any time during an arbitration proceeding make an interim award of expenses, subject to such terms and conditions as may be established by the arbitrator.
(11.2) If an insured person commences an arbitration that, in the opinion of the arbitrator, is frivolous, vexatious or an abuse of process, the arbitrator may award an amount to be paid by the insured person to the insurer that does not exceed the amount assessed against the insurer in respect of the arbitration under section 14.
In Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC 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 and The Co-Operators General Insurance Company, February 13, 1992, OIC File No. P-000251.
I found this application to have very little merit. I have no hesitation in denying the Applicant his expenses.
Effective January 1, 1994, arbitrators have the power to award the Insurer up to $2,000 where the arbitrator finds that the application was "frivolous, vexatious or an abuse of process". The Insurer asked me to make such an award against the Applicant in this case.
An award under subsection 282(11.2) lies in the discretion of the arbitrator. Although the application in this case had little merit, I accept that the Applicant suffered a permanent disfigurement and may have suffered a minor permanent disability as a result of the accident. I do not find it appropriate in these circumstances to make an order under subsection 282(11.2).
Order:
Mr. Le is not entitled to weekly income benefits after November 8, 1992.
The amount of benefits payable is $199.77 per week.
Mr. Le is not entitled to his expenses in the proceeding.
Mr. Le is not required to make a payment to the Insurer under subsection 282(11.2) of the Insurance Act, as amended.
February 28, 1995
Nancy Makepeace Arbitrator
Date
APPENDIX A
Exhibits:
Exhibit 1 -
Insurer's Medical Brief
Tab 1 -
Medical or Psychological Reports, July 13, 1990 - February 10, 1993
Tab 2 -
Note from Dr. Donskoy, dated November 1, 1991 Letter from Dr. Donskoy, dated September 17, 1993
Tab 3 -
Clinical notes and records of Dr. Donskoy
Tab 4 -
Records of Sunnybrook Hospital
Tab 5 -
Letters from Dr. SJ. McCabe, dated October 5, 1990 and April 11, 1991 Tab 6 - Letter from Dr. Arnis Freiberg, dated July 11, 1991
Tab 7 -
Reports from Tuyen Vo Allard, Premier Treatment & Health Management Centre, dated September 15, 1993, October 4, 1993, December 30, 1993, January 19, 1994, February 1, 1994, March 18, 1994
Tab 8 -
Report of Tina Huynh and Dr. James Befrage, dated January 18, 1994
Tab 9 -
Curriculum of Dr. Geoffrey J. Lloyd Letters from Dr. Lloyd, dated December 20, 1990, December 31, 1991
Tab 10 -
Curriculum Vitae of Dr. Hans J. Arndt Letters from Dr. Arndt, dated April 22, 1994, May 25, 1994
Tab 11 -
Physical Capacity Evaluation, dated August 12, 1992
Tab 12 -
Functional Abilities Report, dated August 14, 1992
Tab 13 -
Functional Abilities Evaluation Report, dated August 24, 1992
Tab 14 -
Curriculum Vitae of Brenda Rasmussen
Exhibit 2 -
Joint Document Brief
Tab 1 -
Ontario Automobile Insurance Application for Accident Benefits, dated July 13, 1990
Tab 2 -
Handwritten note re employment earnings
Tab 3 -
T4 computer printout
Tab 4 -
Employer's Confirmation of Income, dated July 16, 1990
Tab 5 -
Earnings record from Safeco Mfg. Limited, May 18, 1990
Tab 6 -
Income and deductions reports 1989 and 1990
Tab 7 -
Certificates of Completion - Ministry of Education
Tab 8 -
Letter from Metro Community Services Dept., dated October 12, 1993
Tab 9 -
Update report and clinical notes from International Managed Health Care, dated June 8, 1994
Tab 10 -
Report and records of Premier Treatment and Health Management Centre, dated January 19, 1994 and February 1, 1994
Exhibit 3 -
Curriculum Vitae of Drs. Donskoy and Belfrage and Ms. Huynh
Exhibit 4 -
Invoice from Dr. Burke's office, dated September 20, 1990
Exhibit 5 -
Letter to Lofranco, Longley & Vickar from Trevor McCallum, dated January 8, 1991
Exhibit 6 -
Letter to Lofranco, Longley & Vickar from J.R. Gilley, dated February 3, 1992
Exhibit 7 -
Letter to OIC from J.R. Gilley, dated March 2, 1992
Other Documents Before the Arbitrator:
Report of Mediator, dated April 2, 1993
Application for Appointment of an Arbitrator, dated June 16, 1993
Response by Insurer, dated July 8, 1993
Pre-hearing letter, dated September 14, 1993