Tot Thi Nguyen v. Economical Mutual Insurance Company, 2003 ONFSCDRS 3

FINANCIAL SERVICES COMMISSION OF ONTARIO

Neutral Citation: 2003 ONFSCDRS 3

FSCO A02-000097

BETWEEN:

TOT THI NGUYEN Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Judith Killoran

Heard: December 16, 2002, at the offices of the Financial Services Commission of Ontario in Toronto. Preliminary Issue decision issued on December 17, 2002. Written submissions were due on January 13, 2003.

Appearances: No one for Ms. Nguyen Gordon L. Robson for Economical Mutual Insurance Company

Issues:

The Applicant, Tot Thi Nguyen, was injured in a motor vehicle accident on June 25, 2000. She applied for and received statutory accident benefits from Economical Mutual Insurance Company ("Economical"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Nguyen applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Ms. Nguyen entitled to receive weekly caregiver benefits, pursuant to section 13 of the Schedule?

2. Is Ms. Nguyen entitled to receive a medical benefit for various medical expenses, including transportation costs, claimed pursuant to section 14 of the Schedule?

3. Is Ms. Nguyen entitled to payments for housekeeping and home maintenance services, pursuant to section 22 of the Schedule?

4. Is either party liable to pay the other's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?

5. Is Ms. Nguyen entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?

Result:

1. Ms. Nguyen is not entitled to receive weekly caregiver benefits, pursuant to section 13 of the Schedule.

2. Ms. Nguyen is not entitled to receive a medical benefit for various medical expenses, including transportation costs, claimed pursuant to section 14 of the Schedule.

3. Ms. Nguyen is not entitled to payments for housekeeping and home maintenance services, pursuant to section 22 of the Schedule.

4. Ms. Nguyen is liable to pay $3,243.87 plus applicable GST, in expenses to Economical in respect of the arbitration under subsection 282(11) of the Insurance Act.

5. Ms. Nguyen is not entitled to interest pursuant to subsection 46(2) of the Schedule as there are no benefits owed.

EVIDENCE AND ANALYSIS:

In an earlier decision dated December 17, 2002, I ruled that Ms. Nguyen could file submissions until January 13, 2003 with respect to reopening this hearing. As I have not received any submissions from Ms. Nguyen, I will issue this decision based on the evidence presented at the hearing conducted on December 16, 2002.

On June 25, 2000, Ms. Nguyen was involved in a single vehicle accident in Hamilton in which she claimed to have sustained soft tissue injuries.² On January 22, 2001, Ms. Nguyen was involved in a second accident. This hearing is restricted to the issue of statutory accident benefits applied for by Ms. Nguyen with respect to the first accident.

On October 26 and 30, 2000, Ms. Sheila McMillan conducted an in-home occupational therapy assessment. She concluded that Ms. Nguyen demonstrated the ability to resume the majority of her pre-accident activities, provided she paced the tasks and took frequent breaks.³

Focus Assessments prepared a functional abilities report on April 27, 2001.⁴ The functional assessor, Dr. C. Arciszewski, concluded that Ms. Nguyen should be performing all her normal housekeeping and caregiving activities. He also stated that Ms. Nguyen's injuries from the June 25, 2000 accident should have resolved long before the January accident.

An independent psychological assessment was conducted by Dr. J. Siegel on April 20, 2001. Dr. Siegel concluded that Ms. Nguyen's adjustment difficulties did not "reach the threshold to constitute a substantial psychological disability as a result of either of her motor vehicle accidents that would prevent her from carrying out pre-accident activities of daily living."⁵

Ms. Nguyen must discharge the burden of proof in order to establish her entitlement to statutory accident benefits. She did not attend the hearing nor did she file any evidence to support her claims. I have reviewed all of the evidence before me and I find that Ms. Nguyen is not entitled to any of the benefits which she has claimed.

EXPENSES:

In its Response to the Application for Arbitration, Economical claimed its expenses of the arbitration. Counsel claimed a total of 32.5 hours at the Legal Aid rate of $87.94 per hour while a clerk's services were claimed for 5 hours at $23 per hour. That amounts to a total of $2,973.05 in legal fees. There are disbursements of $13.52 for long distance calls and $7.30 for photocopies, which are allowed. I do not allow the money spent for the court reporter, as it is a discretionary expense. However, I do allow $250 for the preparation time of the expert witness. I allow a total of $3,243.87 plus applicable GST in expenses which shall be paid by Ms. Nguyen to Economical.

Under subsection 282 (11.2) of the Insurance Act, 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 of the Insurance Act.

The submissions made by Economical related to abuse of process and delays by the Applicant. These issues relate to the criteria for a claim of expenses under subsection 282(11) of the Insurance Act and do not address specifically the state of affairs as they existed at the time the Applicant commenced the arbitration.

While I agree that there are some examples of the proceedings being prolonged as a result of Ms. Nguyen's actions, I am not convinced that from the outset, this proceeding was frivolous, vexatious or an abuse of process. I was not presented with any evidence or submissions that Ms. Nguyen was not involved in an accident nor that she did not suffer some injury or impairment that could have been attributable to the accident. Ms. Nguyen could reasonably have believed that she was entitled to some statutory accident benefits. I find that Economical is not entitled to any further expenses.

January 15, 2003

Judith Killoran Arbitrator

Date

Neutral Citation: 2003 ONFSCDRS 3

FSCO A02-000097

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

TOT THI NGUYEN Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Ms. Nguyen is not entitled to receive weekly caregiver benefits, pursuant to section 13 of the Schedule.

2. Ms. Nguyen is not entitled to receive a medical benefit for various medical expenses, including transportation costs, claimed pursuant to section 14 of the Schedule.

3. Ms. Nguyen is not entitled to payments for housekeeping and home maintenance services, pursuant to section 22 of the Schedule.

4. Ms. Nguyen is liable to pay $3,243.87 plus applicable GST, in expenses to Economical in respect of the arbitration under subsection 282(11) of the Insurance Act.

5. Ms. Nguyen is not entitled to interest pursuant to subsection 46(2) of the Schedule as there are no benefits owed.

January 15, 2003

Judith Killoran Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98, 114/00 and 482/01.
2. 2Exhibit 2, Tab 6
3. 3Exhibit 2, Tab 6
4. 4Exhibit 2, Tab 8
5. 5Exhibit 2, Tab 8, Dr. J. Siegel's report, p.12