Bao Ngoc Nguyen v. Allstate Insurance Company of Canada, 2001 ONFSCDRS 90

Neutral Citation: 2001 ONFSCDRS 90

FSCO A99-000109

BETWEEN:

BAO NGOC NGUYEN

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION ON VARIATION/REVOCATION

Before:

Fred Sampliner

Heard:

By telephone conference call on March 23, 2001.

Appearances:

Mr. Nguyen was not present or represented

Todd J. McCarthy for Allstate Insurance Company of Canada

Issues:

Allstate Insurance Company of Canada (Allstate) requested a variation/revocation, under Rule 61.1(c) of the Dispute Resolution Practice Code (Third Edition), of my final arbitration order. Allstate argues that the Applicant's three medical reports, which I ordered Allstate to pay as section 24 expenses under the Schedule¹, should be considered part of the expenses of the arbitration process. Allstate's application was heard under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue on the application is:

Should the order be varied to reflect that the three medical reports are not section 24 expenses under the Schedule?

Result:

The order should be varied to indicate that the three medical reports are not section 24 expenses under the Schedule.

EVIDENCE AND ANALYSIS:

Mr. Bao Ngoc Nguyen was not present during the teleconference hearing on Allstate's application for variation/revocation nor did a representative appear on his behalf. I am satisfied that Mr. Nguyen knew about this proceeding because the Commission's hearing notices and letters were sent to him at the two addresses he provided, and none have been returned by Canada Post.

In the October 24, 2000 arbitration order, I denied Mr. Nguyen's claim for further income replacement benefits, but allowed him reimbursement for the expenses of three medical reports; two medical reports of Dr. Michael Kliman (September 28, 1998 and November 2, 1998) and one report of Dr. Joseph Wong (March 19, 1999). Mr. Nguyen used these medical reports to support his disability claim, and the parties' brief submissions focussed on that issue.

Both parties made only passing reference to the categorization of the three medical reports. There was no evidence to support Mr. Nguyen's submission they were reports from Designated Assessment Centres under section 43 of the Schedule. I categorized them as section 24 expenses, the pertinent portion of which is below:

Cost of Examinations

(1) The insurer shall pay for all reasonable expenses incurred by or on behalf of an insured person for the purpose of this Regulation in obtaining and attending an examination or assessment or in obtaining a certificate, report or treatment plan, including,

(a) fees charged by a person who conducts an examination or assessment or provides a certificate, report or treatment plan;

(b) fees charged by a designated assessment centre; and

(c) transportation expenses incurred in transporting the insured person to and from an examination or assessment, including transportation expenses for an aide or attendant.

Neither the pre-hearing letter nor Mr. Nguyen's application for arbitration indicate he claimed these expenses from Allstate under section 24. He never submitted a formal application for benefits to Allstate requesting payment of these expenses under section 24, and this Insurer never issued a denial. On this evidence, I find that Mr. Nguyen did not procedurally put Allstate on notice or make application for these expenses under section 24.

All three reports were addressed to the representative that Mr. Nguyen used to file for arbitration. It is clear to me that these reports were prepared at his representative's request. There is no evidence that the three reports were utilized by Mr. Nguyen's health care practitioners to treat his condition or establish his entitlement to other benefits under the Regulation.²

Therefore, I find that Mr. Nguyen's primary purpose for commissioning the three examinations and reports was to establish his claims through the arbitration process.³ Consequently, I find that the three reports are not section 24 benefits under the Schedule, but are more appropriately characterized as expenses of the arbitration process. The October 24, 2000 order is varied accordingly.

June 18, 2001

Fred Sampliner Arbitrator

Date