Neutral Citation: 2004 ONFSCDRS 23
FSCO A02-001455
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
XUAN VAN LE
Applicant
and
ECONOMICAL MUTUAL INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before:
Fred Sampliner
Heard:
October 7, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Mr. Le did not appear and no one appeared on his behalf.
Neil Reeves for Economical Mutual Insurance Company
Issues:
The Applicant, Xuan Van Le, was injured in a motor vehicle accident on April 2, 2001. He applied for and received statutory accident benefits from Economical Mutual Insurance Company ("Economical"), payable under the Schedule.1 Economical terminated Mr. Le's weekly income replacement benefits on June 26, 2001, and refused to pay treatment expenses he incurred at D.N. Physiotherapy Rehabilitation Clinic ("D.N. Clinic"). The parties were unable to resolve their disputes through mediation, and Mr. Le applied for arbitration at the Financial Services Commission of Ontario ("the Commission") under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
- Is Mr. Le entitled to a weekly $288.86 income replacement benefit from June 26, 2001 onwards under Part II of the Schedule?
Result: Mr. Le is not entitled to payment of income replacement benefits after June 26, 2001.
- Is Mr. Le entitled to payment of the $4,488.44 invoice from D.N. Clinic for his treatment?
Result: Mr. Lee is not entitled to payment of the invoice from D.N. Clinic.
- Is Mr. Le entitled to his expenses of the arbitration or is Economical entitled to its expenses under subsection 282(11) of the Insurance Act?
Result: Economical is entitled to its expenses of the arbitration process.
EVIDENCE AND ANALYSIS:
Mr. Le sustained a whiplash injury to his neck/shoulders and low back while a passenger in a friend's car that was struck at a Toronto intersection on April 2, 2001. He received chiropractic, massage, physiotherapy, laser and acupuncture treatments at D.N. Clinic from early April 2001 through July 2001.
Mr. Le was employed as a salon manicurist at the time of the accident. He claimed that he suffered a substantial inability to perform the essential tasks of his employment, and was therefore eligible for income replacement benefits under Part II of the Schedule. Mr. Le's claim was supported by an opinion from his family physician, Dr. Rajendra Beharry.
Mr. Le did not appear at the arbitration hearing to present further evidence in support of his claim for ongoing disability benefits. He had dismissed his lawyer shortly after the February 2003 pre-hearing discussion, and did not retain another representative to act for him during the intervening seven months until the October 2003 hearing dates.
I find that Mr. Le received notice of the arbitration hearing because the Commission's hearing notices and pre-hearing letter with the set hearing dates were not returned by postal authorities. The notice explained that the arbitrator may proceed with the hearing if a party is absent. On the October 7, 2003 first hearing day, I delayed the commencement 30 minutes after the 10:00 a.m. start time to await Mr. Le or his representative.
My findings are based on Economical's arbitration brief, and this evidence does not establish that Mr. Le suffered the requisite substantial inability to perform the essential tasks of his employment after the date that Economical terminated his benefits. The Insurer's experts acknowledge that Mr. Le suffered mild soft tissue injuries to his neck, shoulder and low back, as well as a psychological adjustment disorder. However, in May 2001 the examining specialist in occupational medicine, Dr. Katherine Isles, concluded that Mr. Le was physically capable of resuming his job, and in August 2001 the psychologist, Dr. Jonathan Siegel, opined that he did not suffer a significant psychological impairment that would prevent him from working as a manicurist.
Dr. Behany's first disability certificate in April 2001 is brief and gives no explanation for his conclusion that Mr. Le was disabled from his employment duties. In July 2001, Dr. Beharry's letter recommends medication for the diagnoses of pain disorder, depression, dizziness and sleep difficulties, but does not address Mr. Le's disability level. Dr. Beharry's second disability certificate in September 2002 indicates by ticking a box that Mr. Le can resume his work. However, I cannot read his handwriting on the form or his clinical records to shed any light on his conclusions.
Mr. Le has failed to meet his burden of proof. Dr. Beharry's initial disability opinion supporting the disability claim in April 2001 is not supported by the later opinion evidence, including his own second opinion in August 2001. These three conclusions support that Mr. Le did not suffer a substantial inability to perform his essential tasks as a manicurist as of late June 2001, and I find that he is not entitled to further income replacement benefits after June 26, 2001.
Economical did not pay Mr. Le's $4,488.44 treatment claim from D.N. Clinic based upon a July 2001 Insurer's medical report from the Orthopaedic and Arthritic Institute. The chiropractor, physiotherapist and sports medical doctor approved of Mr. Le's initial April 17, 2001 treatment plan, but concluded that he should exercise at home rather than continue with the second set of similar treatments that were recommended in the May 31, 2001 plan.
Mr. Le must establish on a balance of probabilities that the D.N. Clinic treatment was reasonable and necessary as a result of his accident injuries. He did not provide any evidence to support his claim, and neither does Economical's evidence support that the treatment in dispute was reasonable and necessary. I find that Mr. Le is not entitled to payment of $4,488.44, for his treatment expenses from D.N. Clinic.
EXPENSES:
Mr. Le did not pursue his claims. He was entirely unsuccessful in the result, and failed to provide Economical with the agreed documents. Recognizing these factors,2 I find that Economical is entitled to its expenses of this arbitration. Economical may submit a list of docketed time, applicable hourly rate(s) and disbursements to me within 10 days of this decision, if it wishes me to issue an order against Mr. Le for the expenses of the arbitration.
February 19, 2004.
Fred Sampliner
Arbitrator
Date
Neutral Citation: 2004 ONFSCDRS 23
FSCO A02-001455
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
XUAN VAN LE
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:
- Mr. Le's claims for income replacement benefits under Part II of the Schedule after June 26, 2001, and his claim for payment of $4,488.44 treatment at D.N. Clinic under Part V of the Schedule are dismissed.
February 19, 2004.
Fred Sampliner
Arbitrator
Date
Footnotes
- The 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.
- Rule 75 of the Dispute Resolution Practice Code (4th ed. May 31, 2001) and the Expense Regulation F