Neutral Citation: 1996 ONICDRG 36

File No.: A-007765

ONTARIO INSURANCE COMMISSION

BETWEEN:

SINH VAN NGUYEN

Applicant

and

ALLSTATE INSURANCE COMPANY of CANADA

Insurer

DECISION

Issues:

The Applicant, Sinh Van Nguyen, was injured in a motor vehicle accident on March 7, 1993. He applied for and received statutory accident benefits from Allstate Insurance Company of Canada, payable under section 13 of Ontario Regulation 672.¹ Weekly benefits were terminated by the Insurer on July 4, 1993. 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:

1. Is Mr. Nguyen entitled to weekly income benefits under section 13 of the Schedule from July 5, 1993 to November 15, 1993?

2. Is the Insurer entitled to repayment of weekly benefits paid to Mr. Nguyen under section 27(1) of the Schedule?

3. Is Mr. Nguyen entitled to payment of his expenses under section 282(11) of the Insurance Act?

4. Is the Insurer entitled to a payment from Mr. Nguyen under section 282(11.2) of the Insurance Act?

The Applicant also claims interest on any amounts owing, and his expenses incurred in the hearing.

Result:

1. Mr. Nguyen is not entitled to weekly income benefits under section 13 of the Schedule.

2. Mr. Nguyen is required to repay Allstate Insurance Company of Canada the sum of $2,960.00 plus interest thereon calculated from the date of this decision pursuant to the provisions of section 27(3) and (4) of the Schedule.

3. Mr. Nguyen is not entitled to payment of his expenses under section 282(11) of the Insurance Act.

4. Mr. Nguyen is required to pay Allstate Insurance Company of Canada the amount of $1,000.00 under section 282(11.2) of the Insurance Act.

Hearing:

The hearing was held in Toronto, Ontario, on February 20, 1995, before me, Janice Mackintosh, Arbitrator.

Present at the Hearing:

Applicant:

Sinh Van Nguyen

Applicant's

Thanh (David) Gian

Representative:

CUU Long Legal Services

Insurer's

Joanna Chadwick

Representative:

Barrister and Solicitor

Insurer's

Antonio Cioffi

Officer:

Senior Claims Representative

Witnesses:

Mr. Sinh Van Nguyen and Mr. Antonio Cioffi testified at the hearing.

Mr. Wayne Vu provided interpretation services in the Vietnamese language.

Exhibits: Sixteen exhibits were filed.

Preliminary Issues:

At the outset of the hearing, the parties raised several preliminary issues. The Applicant requested an adjournment of the hearing. This request had previously been made to the Executive Coordinator/Registrar of the OIC Dispute Resolution Group (Registrar), by a Fax transmission of February 14, 1995 and was denied by the Registrar by Fax transmission dated February 16, 1995.

The Insurer brought two cross motions. The first was for an order denying the Applicant an opportunity to proceed to arbitration, on the basis that he had failed to make himself reasonably available for a medical examination arranged by the Insurer for June 28, 1993. The second was to invoke the contempt provisions of the Statutory Powers and Procedures Act, R.S.O. 1990, Chap. S.22 as amended, against the Applicant, for his continuing failure to produce documents in accordance with the order of the pre-hearing arbitrator recorded in the pre-hearing letter dated November 9, 1994. Section 13 of the Statutory Powers and Procedures Act, R.S.O. 1990, Chap. S.22, sets out a procedure for stating a case to the Divisional Court, seeking punishment against a party as if he or she were guilty of contempt of court. Success on either of the Insurer's preliminary motions would have postponed the determination of the substantive issues of the Applicant's entitlement to further weekly benefits under section 13, as well as the Insurer's claim for repayment.

The Insurer ultimately abandoned these motions and argued that the Applicant's renewed request for an adjournment ought to be denied; that the hearing on the substantive issues ought to proceed forthwith; and that an adverse inference ought to be drawn against the Applicant, in respect of the documents he had failed to produce. The Insurer relied upon the decision of Arbitrator Palmer in Pietro Manti and Wawanesa Mutual Insurance Company, December 17, 1992, OIC File No. A-001496.

Following submissions of the parties in respect of the various motions, I offered the parties an opportunity to adjourn the hearing on certain terms and conditions including the Applicant's fulfilment of the outstanding productions ordered and payment to the Insurer of an amount up to a maximum permitted under section 282(11.2) of the Insurance Act, prior to the return date of the hearing. The Applicant did not accept these conditions.

For the reasons outlined below, I denied the Applicant's request for an unconditional adjournment of the hearing. The hearing proceeded and in accordance with the principles set out in Pietro Manti and Wawanesa Mutual Insurance Company, I drew several adverse inferences of fact against the Applicant.

Evidence and Findings:

Mr. Sinh Van Nguyen was a passenger in an automobile when it was involved in an accident on March 7, 1993. I heard no evidence with respect to the severity of the accident. Mr. Nguyen testified that, at the time of the accident, he was enrolled in a program to learn English as a second language (E.S.L.) close to his home in Hamilton, Ontario. He claims that he had been attending the program since 1992, five days a week, between the hours of 9:30 a.m. and 2:30 p.m., with an hour for lunch. Mr. Nguyen described his essential tasks as an E.S.L. student as "sitting at a desk and listening to a teacher and nothing else."

With the assistance of Mr. Gian, a Vietnamese-speaking paralegal, Mr. Nguyen submitted an application for accident benefits to the Insurer.² On the Application form, Mr. Nguyen checked off that he was an "unpaid homemaker" at the time of the accident. He did not check off the reference to "full time student." Mr. Nguyen provided no information in the section of the application form relating to the "nature and extent of injuries sustained as a result of the accident." He checked off the box confirming that he was "unable to continue his work/studies/normal activities as a result of the accident" from March 7, 1993, but did not respond to the question concerning his inability to perform the essential tasks in which he would normally engage. Mr. Nguyen provided no additional information concerning the nature of his disability or his essential tasks in his application for arbitration dated June 10, 1994. The pre-hearing arbitrator ordered Mr. Nguyen to provide a statement of his essential tasks at the time of the accident. Mr. Nguyen did not provide such a statement. At the hearing Mr. Nguyen provided no information concerning his description of himself as an unpaid homemaker and gave no evidence concerning homemaking tasks. Consequently I conclude that Mr. Nguyen was not engaged in any essential tasks as an unpaid homemaker at the time of the accident, despite his having checked off that box on his application for accident benefits.

At the time of the accident, Dr. K. Ng was Mr. Nguyen's regular family doctor.

Dr. Ng had treated him since his arrival in Canada in 1992. Dr. Ng's office was within walking distance of Mr. Nguyen's residence in Hamilton. However, on the advice of friends, Mr. Nguyen decided to see Dr. Rick B. Ramroopsingh, in connection with his accident. Dr. Ramroopsingh's offices are located in Toronto. Mr. Nguyen arranged for a friend to drive him to see Dr. Ramroopsingh approximately every two weeks commencing March 11, 1993 to December 2, 1993.³

Mr. Nguyen testified that it took at least two hours or longer, with traffic, to make the round trip from Hamilton to Toronto. Dr. Ramroopsingh speaks no Vietnamese and the Applicant's English language skills are limited. Mr. Nguyen admitted that during the time he was seeing Dr. Ramroopsingh he continued to see Dr. Ng and his Vietnamese speaking associate, Dr. Lam, for regular care, purportedly unrelated to the accident. Mr. Nguyen offered no explanation why he chose to make the two-hour trip to see Dr. Ramroopsingh rather than be treated by his own family doctor whom he continued seeing in any event, and whose office was within walking distance of his home. The pre-hearing arbitrator ordered Mr. Nguyen to produce the clinical notes and records of Dr. Ng, but Mr. Nguyen failed to do so.⁴ In these circumstances, I draw the conclusion that Mr. Nguyen chose a doctor, who he believed would be more accepting of his claim for disability than his regular family doctor or who lacked familiarity with his pre-accident medical condition.

A form 4 medical report dated March 15, 1993 was prepared by Dr. Ramroopsingh and forwarded to the Insurer.⁵ The report notes post traumatic headache, neck strain, chest wall contusion, sleep disturbances, and low back strain. Dr. Ramroopsingh noted that Mr. Nguyen was "presently unfit to do lifting, repetitive twisting/turning of neck or back" and stated that the duration of disability was to be reassessed. The report makes no reference to Mr. Nguyen's essential tasks. Mr. Nguyen gave no evidence at the hearing concerning essential tasks which required lifting, repetitive twisting/turning of the neck or back, nor did he provide information concerning such tasks in response to the pre-hearing arbitrator's order to provide a statement of his essential tasks at the time of the accident. I therefore conclude that Mr. Nguyen was not engaged in essential tasks requiring the type of movement referred to by Dr. Ramroopsingh in his report dated March 15, 1993.

By letters dated June 14, 1993 the Insurer notified Mr. Nguyen and his representative, Mr. Gian, that an appointment had been arranged in Toronto for June 28, 1993 with Dr. Curkowskjy, for the purposes of an Insurer's medical examination.⁶ The correspondence stated that Mr. Nguyen was required to attend a medical examination pursuant to the provisions of his policy and should notify the Insurer a week in advance if assistance with transportation or a new date were required. Mr. Nguyen testified that upon receipt of the Insurer's letter he notified Mr. Gian, that he could not attend the appointment because his friend was not available to drive him to Toronto. He asked Mr. Gian to contact the Insurer to arrange another date. Mr. Nguyen did not attend the scheduled appointment and was never notified of a new appointment date. The Insurer abandoned its preliminary motion to determine whether Mr. Nguyen had made himself reasonably available for its medical examination, and I make no findings on this issue.

The Insurer terminated benefits to Mr. Nguyen effective July 4, 1993, on the basis that he had failed to attend the medical examination scheduled for June 28, 1993, without reasonable excuse.⁷ The Insurer subsequently took the position that the Applicant had failed to establish that he suffered a substantial inability to perform the essential tasks in which he would normally engage, as a result of the accident.⁸

With the assistance of Mr. Gian, Mr. Nguyen filed for arbitration. The parties and their representatives attended a pre-hearing discussion at the Commission on November 7, 1994. An interpreter in the Vietnamese language was also present to assist Mr. Nguyen. The pre-hearing arbitrator ordered the Applicant to produce the following documents, not later than December 7, 1994:⁹

1.1. The complete clinical notes and records of Dr. Ramroopsingh, and Dr. K. Ng, from March 1992 to the present.

2. A statement of the Applicant's essential tasks at the time of the accident.

3. Records of the schools where the Applicant attended prior to the accident, and between July 5, 1993 and the end of November 1993.

A hearing date for February 20, 1995 was set. The Applicant testified that he understood and was aware of these requirements and dates.

There is some confusion between Mr. Gian and his client concerning their efforts to contact each other and to comply with the production orders of the pre-hearing arbitrator. Suffice it to say that neither of them took any steps to obtain the documents specified in the order prior to the December 7, 1994 deadline. In cross examination, Mr. Nguyen acknowledged that he could have walked to the office of Dr. Ng and to the location of the E.S.L. program to obtain his records. The clinical notes and records of Dr. Ramroopsingh were available and were ultimately obtained in February 1995, within two or three days of being requested.¹⁰ The information concerning Mr. Nguyen's essential tasks was entirely within his own knowledge and could have been provided at any time. I find the pre-hearing order for production could have been satisfied with a minimum of time and effort on the part of Mr. Nguyen and/or his representative.

Mr. Nguyen testified that shortly after the pre-hearing conference he received news of an automobile accident in Vietnam involving his aunt and uncle. The other driver in the accident was killed and there was some suggestion of a legal proceeding. His aunt was in hospital with a broken leg and required financial assistance. Mr. Nguyen testified that he became so pre-occupied with his aunt's situation in Vietnam that he half-forgot about the pending arbitration relating to his own disability claim. In his efforts to raise funds for his aunt and uncle, he met with various people, travelled to British Columbia, and left for Vietnam around December 11, 1994. In contrast, Mr. Nguyen made no effort to comply with the minimal requirements of the outstanding production order in his own case. I find that Mr. Nguyen's decision to ignore his obligations in the arbitration amounted to contempt of the order of the pre-hearing arbitrator, and disrespect for the proceedings at the Commission. In my view, the predicament of Mr. Nguyen's aunt in Vietnam did not excuse his omissions.

Mr. Nguyen testified that he informed Mr. Gian of his trip to Vietnam before he left and instructed him to postpone the arbitration due to a family emergency. He also testified that he forgot about his hearing until after his departure to Vietnam and contacted Mr. Gian from Vietnam some time after December 11, 1994, with those instructions. I find that Mr. Gian was aware of his client's absence as early as December 9, 1994 but made no attempt to notify the Insurer or the Commission of this problem until two months later when he faxed a message to the pre-hearing arbitrator on February 6, 1995, suggesting an adjournment and stating that he had been unable to contact his client since December 9, 1994 but expected him to be back in February 1995.¹¹ By letter dated February 7, 1995 (faxed the same date) the Registrar requested written reasons in support of an adjournment request, reminded Mr. Gian of the arbitration unit's adjournments policy and requested Mr. Gian to follow-up any outstanding productions.¹²

Mr. Nguyen returned to Toronto on February 9, 1995 and arranged to meet with Mr. Gian on Sunday February 12, 1995, to sign an authorization for the release of Dr. Ramroopsingh's clinical notes and records.¹³ These records were provided to counsel for the Insurer on the afternoon of February 16, 1995. I heard no evidence of any efforts made by Mr. Nguyen or Mr. Gian to comply with the other outstanding orders for production. These orders remained outstanding at the commencement of the hearing on February 20, 1995, eleven days after Mr. Nguyen's return to Toronto. I conclude that Mr. Nguyen and his representative were more willing to obtain the productions they considered helpful to their case, and less concerned about productions which were of interest to the Insurer. This continuing disregard for the production order of the pre-hearing arbitrator and the rules of the Dispute Resolution Practice Code pertaining to the early exchange and disclosure of documents in arbitration,¹⁴ demonstrate contempt for the practice and procedures of the Commission and an abuse of its process. It also suggests a lack of appreciation for the basic principles of fairness and the right of each party to know the case it must meet prior to a hearing, on the part of Mr. Gian.

By Fax transmission of February 14, 1995 addressed to the Executive Coordinator/Registrar of the OIC Dispute Resolution Group (Registrar), Mr. Gian requested an adjournment of the February 20, 1995 hearing date, as follows:

I would like to inform the Registrar Office that the reason of requesting for an adjournment [sic] is that I cannot proceed [with] the matter since I am still unable to reach my client at this point, however; the I [sic] would request the next schedule date would set within the next 6 weeks, Thank you.

In light of the testimony at the hearing which established that a meeting occurred between Mr. Gian and his client on February 12, 1995, I find that Mr. Gian's statement to the Registrar was false. By Fax transmission dated February 16, 1995, the Registrar denied the adjournment request on the basis that the Mr. Nguyen was present at the pre-hearing discussion held November 7, 1994, had participated in the selection of the February 20, 1995 hearing date and ought to know of the date. The Registrar once again reminded the Applicant of his obligation to comply with the productions ordered by the pre-hearing arbitrator.

Mr. Gian renewed his request for an adjournment on the day of the hearing. He submitted that Mr. Nguyen's case was not ready to proceed due to his recent return from Vietnam. Mr. Gian indicated that his client would now like an opportunity to comply with the pre-hearing arbitrator's order for production in order to avoid the possibility of an adverse inference being drawn against him. I heard no evidence concerning what, if anything, was left to be done to prepare Mr. Nguyen's case for hearing, other than producing the documentation ordered by the pre-hearing arbitrator more than three months earlier. The Applicant rejected a proposal to adjourn the hearing on certain terms and conditions and I denied the motion for an unconditional adjournment on the basis that it did not fall within the parameters of the arbitration unit's adjournments policy published in the Dispute Resolution Practice Code.

Mr. Nguyen's position at the hearing was that the motor vehicle accident of March 7, 1993, substantially disabled him from performing the essential tasks of an E.S.L. student until November 15, 1993. He testified that following the accident, he tried to return to school but was unable to continue because he "felt pain in his body and his health was not good." He could not recall when or how long he tried to attend classes after the accident. He admitted that he subsequently returned to his English language classes, although he could not specifically recall when that occurred. He did not produce any school records to substantiate his statements, despite the order of the pre-hearing arbitrator that he do so.

His position at the hearing differs from the statement made in his original application for accident benefits, that he was an unpaid homemaker at the time of the accident. Mr. Nguyen offered no explanation for this discrepancy.

Mr. Nguyen testified that he was unable to attend classes for approximately eight months following the accident because his lower back pain made it difficult for him to sit in class for two hours in the morning and two hours in the afternoon. And yet within four days of the accident he felt well enough to choose to see a doctor in Toronto - a choice which involved regular round trips of over two hours - rather than see his own family physician in Hamilton. I conclude that Mr. Nguyen would not have made this choice if his back pain had been as disabling as he claims.

Mr. Nguyen maintained that after the accident he experienced neck pain when he turned around and chest pain accompanied by difficulty breathing. He testified that his concentration and performance in class were significantly impaired after the accident, although he could not describe his level of performance prior to the accident, and provided no supporting documentation from the school.

Mr. Nguyen relied upon the report of Dr. Ramroopsingh prepared shortly after the accident in support of his claim.¹⁵ Photocopies of the clinical notes and records of Dr. Ramroopsingh were also filed, however the Applicant made no specific reference to their content. The clinical notes and records are of little assistance to me as I cannot read them due to a combination of poor photocopy quality and difficult handwriting. I will not speculate as to their contents.

The report of Dr. Ramroopsingh notes chest pain soon after the accident but does not suggest that it is a disabling condition. It does not refer to breathing difficulties, or suggest that this is disabling or even causally related to the accident. Mr. Nguyen's complaints regarding his impaired concentration and intellectual performance were vague, unconvincing, and unsupported by school records or medical evidence. Dr. Ramroopsingh's report notes neck pain and suggests that Mr. Nguyen was unfit to do repetitive twisting and bending of his neck. However, Mr. Nguyen described no activities which required this kind of movement.

Mr. Nguyen's testimony was very general and almost impersonal. He barely mentioned his injuries or how they affected his activities over the eight months he claims he was disabled. He did not discuss his treatment or the course of his recovery. I am not persuaded that Mr. Nguyen ever suffered substantial disability following his accident.

The applicant bears the onus of proving his claim. In this case, Mr. Nguyen has failed to establish that he suffered a substantial inability to perform his essential tasks as a result of the motor vehicle accident of March 7, 1993. I conclude that Mr. Nguyen is not entitled to weekly benefits in the amount of $185.00 under section 13 of the Schedule, for any period.

Insurer's claim for repayment:

Mr. Nguyen received benefits of $185.00 per week from March 15, 1993 to July 4, 1993, for a total payment of $2,960.00.¹⁶ For the reasons set out above, I conclude that he is not entitled to any benefits The Insurer claims repayment of all the benefits paid to Mr. Nguyen pursuant to the provisions of section 27(1). The Insurer submits that it paid benefits, to Mr. Nguyen on the basis that he was engaged in the activities of an unpaid homemaker, as stated in his application for accident benefits and that he was disabled from engaging in activities which required "lifting, repetitive twisting/turning of neck or back" as reported by Dr. Ramroopsingh. As outlined above I find that Mr. Nguyen was not engaged in the activities of a homemaker and that his essential tasks did not require the movements noted in

Dr. Ramroopsingh's report. I find that the Insurer's mistaken impression was created by documents provided by Mr. Nguyen and as such Mr. Nguyen must repay the $2,960 he received through "error or fraud" plus interest calculated from the date of this decision pursuant to the provisions of section 27 of the Schedule.

In view of my earlier findings, I conclude that this is not an appropriate case for the Applicant to receive payment of his expenses. I find that both Mr. Nguyen and his representative Mr. Gian abused the process of the Commission and put the Insurer to needless trouble and expense. I order Mr. Nguyen to pay $1,000 to the Insurer pursuant to the provisions of section 282(11.2) of the Insurance Act.

Order:

1. Mr. Sinh Van Nguyen is not entitled to weekly income benefits under section 13 of the Schedule .

2. Mr. Nguyen is required to repay Allstate Insurance Company of Canada the sum of $2,960.00 plus interest thereon calculated from the date of this decision pursuant to the provisions of section 27(3) and (4) of the Schedule.

3. Mr. Nguyen is not entitled to payment of his expenses under section 282(11) of the Insurance Act.

4. Mr. Nguyen is required to pay Allstate Insurance Company of Canada the amount of $1,000.00 under section 282(11.2) of the Insurance Act.

March 7, 1996

Janice Mackintosh Senior Arbitrator (Acting)

Date

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the statutory Accident Benefits Schedule —Accidents Before January 1, 1994. In this decision, the term 'Schedule" will be used to refer to Regulation 672.
2. 2Exhibit 1. Application for accident benefits
3. 3Exhibit 7. Clinical notes and records of Dr. Ramroopsingh
4. 4Pre-hearing letter dated, November 9, 1994, part of Exhibit 4.
5. 5Exhibit 11. Medical report of Dr. Ramroopsingh dated March 15, 1993.
6. 6Exhibits 9 and 10.
7. 7Exhibit 13. Assessment of claim by Insurer form dated July 7, 1993.
8. 8Response by Insurer dated July 20, 1994
9. 9pre-hearing letter dated November 9, 1994, part of Exhibit 4
10. 10Exhibit 7. Clinical notes and records of Dr. Ramroopsingh
11. 11Exhibit 2. Message to pre-hearing arbitrator from Mr. Gian (faxed Feb 6, 1995).
12. 12Exhibit 3.
13. 13Mr. Gian confirmed the accuracy of these dates in his oral submissions in respect of the preliminary motions.
14. 14Dispute Resolution Practice Code - August 1995, Rules 30 to 32 inclusive.
15. 15Exhibit 11. Form 4 medical report on Dr. Ramroopsingh dated March 15, 1993
16. 16Exhibit 12.