Neutral Citation: 1995 ONICDRG 21
File No. A-008938
ONTARIO INSURANCE COMMISSION
BETWEEN:
DUONG BUI
Applicant
and
SIMCOE & ERIE GENERAL INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Duong Bui, was injured in a motor vehicle accident on April 1, 1993. He applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 6721. Weekly income benefits were paid by the Insurer from August 31, 1993 to December 20, 1993. Mr. Bui claims to be entitled to further weekly income benefits. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is Mr. Bui eligible for weekly income benefits from December 21, 1993 forward?
What is the amount of weekly income benefits to which Mr. Bui is entitled?
Is Mr. Bui entitled to a special award under the provisions of section 282(10) of the Insurance Act.
The Applicant also claims interest on any amounts owing and his expenses incurred in the hearing.
Result:
Mr. Bui is not entitled to weekly income benefits after December 21, 1993.
It is not necessary for me to determine the amount of weekly income benefits, in view of the answer to the first issue.
Mr. Bui is not entitled to a special award under the provisions of section 282(10) of the Insurance Act.
Hearing:
The hearing was held in Ottawa, Ontario, on February 13, 1995, before me, K. Julaine Palmer, arbitrator. The hearing was held in the French language, at the request of Mr. Bui. Mr. Brian Boicey testified in English. His evidence was interpreted to the Applicant.
Present at the Hearing:
Applicant:
Duong Bui
Insurer's Representative:
Peter Annis, Barrister and Solicitor
Insurer's Officer:
Tricia Doyle, Supervisor, Accident Benefits
Witnesses:
Duong Bui, Brian Boicey, Hoa Ngo
Mr. George A. Desjardins acted as an interpreter of French and English for the assistance of the parties.
Evidence and Findings:
Background
Mr. Bui was injured in a motor vehicle accident on April 1, 1993. At the time of the accident, he was not employed. However, he had worked for Bell Northern Research as a member of its scientific staff from July 15, 1974 to January 22, 1993. Accordingly, Mr. Bui qualified as a person entitled to receive benefits under section 12 of Part IV of the Schedule. In addition, Mr. Bui was the part-owner of a video store, although it appears from his testimony that his interest in the business was by way of capital investment only.
After the accident, Mr. Bui was taken by ambulance to Ottawa Civic Hospital. There he was examined in the emergency department and released after about six hours. He stated that he had great pain in his chest, back and neck. He testified that he returned home but 24 hours later returned to the hospital, again by ambulance. None of the hospital records were before me at the hearing.
Mr. Bui reported the accident to his Insurer by telephone on April 4, 1993. The Insurer sent him an Application for Benefits and an Employer's Confirmation of Income form. When the Insurer had not heard from Mr. Bui by July 5, 1993, it closed its file (after writing to him on June 21, 1993 and warning him that this would occur unless they heard from him by June 30, 1993).
Mr. Bui did submit an Application for Accident Benefits, dated April 13, 1993, received by the Insurer on July 7, 1993. The application had lines marked through all the boxes where information should have been provided about the Applicant's employment. The Medical or Psychological Report form was returned with the words "not applicable" written across it, as was the Employer's Confirmation of Income form and the authorizations for employment and medical information.
Mr. Bui recovered quite well after the accident and resumed his normal activities. He began to work about the end of April 1993 as a software engineer for a Montreal company called Le Groupe Sixgraph Informatique Inc. However, in mid-August, while playing tennis, Mr. Bui suffered an injury to his back. He testified that it was the second or third time that he had played tennis since the accident. Mr. Bui felt that the pain which he had suffered after the accident had returned. He sought medical assistance on August 24, 1993 at the Fisher Family Medicine Centre. The physician who examined him diagnosed low back strain with marked muscle spasm. He queried whether this was an exacerbation from the motor vehicle accident in April 1993.
Mr. Bui was not able to return to work after this incident. He claimed disability benefits from a life insurance company and received benefits of $500 per week for 17 weeks, until the end of December 1993.
In about December 1993, Mr. Bui began to work for two of his friends, who owned Kinteak Solutions Inc. Mr. Bui testified that he was never on the payroll of Kinteak, but from time to time one of the owners would give him some money. He filed a letter from Kinteak, dated July 15, 1994, stating that up until that date, Mr. Bui had earned $1,326 from Kinteak. Another document, dated February 17, 1994, stated that Mr. Bui was working at Kinteak Solutions Inc. from December 20, 1993 "as a non-paid trainee in computers repair. Kinteak allows Mr. Bui to leave any time of the day if his back pain bothers him. To date Mr. Bui averaged about 3 hours of work a day." Mr. Brian Boicey, a coworker with Mr. Bui at Kinteak, testified and confirmed that Mr. Bui worked with him, usually standing up, and often worked only three to four hours in a day. He also testified that Mr. Bui was not able to carry heavy objects.
The Insurer paid Mr. Bui weekly income benefits from August 23, 1993 to December 20, 1993. The first cheque was sent on November 29, 1993, covering the period from August 23 to November 29, 1993 at a rate of $185.60. The Insurer also paid for chiropractic treatment at that time. Since it was confused about Mr. Bui's employment status, the Insurer assigned an Ottawa adjuster to obtain more information directly from Mr. Bui. The Insurer does not seek repayment of any benefits paid to Mr. Bui, however it does not admit that Mr. Bui was entitled to the amounts which he claimed, and which were paid to him.
In this case, I must determine whether Mr. Bui is eligible for weekly income benefits from December 20, 1993 onward as a result of injuries he received in the motor vehicle accident of April 1, 1993. However, the only evidence which links the pain or injury which Mr. Bui sustained in August 1993 to the motor vehicle accident, is Mr. Bui's own assertion that the pain was in the same place and of a similar severe intensity to the pain that he experienced in April. In my view, this evidence alone is insufficient to establish that Mr. Bui's complaints after December 20, 1993 arose as a result of the injuries he received in the accident of April 1, 1993.
Amount of Benefit
Because I have determined that Mr. Bui is not entitled to benefits under section 12 of the Schedule, it is not necessary for me to comment on the amount that he should receive.
Special Award
There is no basis upon which to make a special award to Mr. Bui under the provisions of section 282(10) of the Act.
Expenses:
The Applicant seeks an award of the expenses he has 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 Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139, 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.
The Applicant is entitled to his expenses as set out in Schedule 1 of the Dispute Resolution Practice Code. Mr. Bui's expenses will be minimal given the fact that he represented himself and did not provide any new medical documentation or hospital records. In the event that the parties cannot agree as to the total amount of expenses, a party may apply to the Commission for assessment of the expenses.
Order:
Mr. Bui is not entitled to weekly income benefits after December 21, 1993.
It is not necessary for me to determine the amount of weekly income benefits, in view of the answer to the first issue.
Mr. Bui is not entitled to a special award under the provisions of section 282(10) of the Insurance Act.
Mr. Bui is entitled to his expenses incurred with respect to the arbitration.
March , 1995
K. Julaine Palmer
Arbitrator
Date
MEMORANDUM
TO:
SALLY BAKER
MANAGER ARBITRATION COORDINATION
FROM:
JULAINE PALMER
ARBITRATOR
RE:
DUONG BUI v. SIMCOE & ERIE - TRANSLATION OF DECISION INTO FRENCH
FILE NO.:
A - 008938
Mr. Bui had his hearing in French and the decision should issue in French. Accordingly, will you please send the attached English draft off for translation.
Freddi Rotter and I will review the French version when it gets back.
If the translator needs to contact me, she can reach me at 590-7052. I will be away on vacation from March 13 to 17, 1995 inclusive. I don't think there will be any difficulties; it's quite straightforward.
Thank you very much.
March 10, 1995