Neutral Citation: 2006 ONFSCDRS 122

FSCO A05-001923

BETWEEN:

THI AN TRANG TRAN Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Denise Ashby

Heard: June 29, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: No one appearing for Ms. Thi An Trang Tran Anna-Marie Musson for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Thi An Trang Tran, was injured in a motor vehicle accident on January 10, 2003. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ State Farm terminated weekly income replacement benefits and housekeeping and home maintenance benefits. As well, it denied certain medical benefits. The parties were unable to resolve their disputes through mediation, and Ms. Tran 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:

Is Ms. Tran entitled to receive a weekly income replacement benefit pursuant to section 4 of the Schedule?
Is Ms. Tran entitled to receive a medical benefit for chiropractic treatment, massage therapy and physiotherapy pursuant to section 14 of the Schedule?
Is Ms. Tran entitled to payments for housekeeping and home maintenance services pursuant to section 22 of the Schedule?
Is State Farm liable to pay Ms. Tran's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c.I.8?
Is Ms. Tran liable to pay State Farm's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c.I.8?
Is Ms. Tran entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Result:

Ms. Tran is not entitled to receive a weekly income replacement benefit pursuant to section 4 of the Schedule.
Ms. Tran is not entitled to receive a medical benefit for chiropractic treatment, massage therapy and physiotherapy pursuant to section 14 of the Schedule.
Ms. Tran is not entitled to payments for housekeeping and home maintenance services pursuant to section 22 of the Schedule.
State Farm is not liable to pay Ms. Tran's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c.I.8.
Ms. Tran is liable to pay State Farm's expenses fixed at $1,500.00 in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c.I.8.
Ms. Tran is not entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule.

Chronology:

The Financial Services Commission of Ontario's arbitration file provides the following chronology:

On November 22, 2005, a Notice of Motion to remove Ms. Tran's counsel of record was couriered to Ms. Tran. The Notice was sent to the two addresses in the Commission's records. One was returned.
On November 30, 2005, an order was made removing Ms. M. Meropoulos, a lawyer with Ipacs Law Office, as solicitor of record.
On December 1, 2005, the Commission sent a letter advising Ms. Tran of the order removing her counsel from the record and giving notice of the pre-hearing scheduled for May 2, 2006 to be held at the Commission's offices. This letter was addressed to Ms. Tran at both addresses. They were not returned to the Commission.
A pre-hearing letter dated May 15, 2006, advising of production orders and setting June 29, 2006 as the date for hearing, was sent to Ms. Tran. The letter was addressed to her at the address for which there had been no returned mail. It was not returned.
On May 17, 2006, the Commission served an Amended Notice of Hearing on Ms. Tran. The Notice was not returned.

Procedural Rulings:

The hearing was commenced, as scheduled, on June 29, 2006, no one appearing for Ms. Tran. Ms Tammy Vivien attended on behalf of State Farm. I recessed the proceedings to permit the interpreter to assist the Case Administrator in contacting Ms. Tran by telephone. Their attempts were unsuccessful. Having recessed for over thirty minutes, no one appearing for Ms. Tran, I resumed the hearing.

On the basis of the information contained in the Commission's file, set out above, I ruled that Ms. Tran had received notice of the hearing and that an arbitrator may dispose of the case in her absence. Further, as Ms. Tran failed to attend or send a representative, despite receiving notice, the hearing should proceed in her absence.

EVIDENCE AND ANALYSIS:

No oral evidence was called. However, State Farm submitted its pre-hearing brief as an Exhibit.

Ms Tang is required to prove her claim on a balance of probabilities. She has submitted no evidence to support her claims for an income replacement benefit, medical benefit, and housekeeping and home maintenance benefit. State Farm submits that the documents and the report of Dr. Peter E. Parker, physiatrist, are evidence that Ms. Tran received the benefits claimed to the extent to which she was entitled.

Income Replacement Benefit:

Section 4 of the Schedule requires Ms. Tran to establish that as a result of an accident she suffered an impairment which substantially disabled her from performing the essential tasks of her employment.

State Farm produced the report of Dr. Peter E. Parker, physiatrist, dated May 29, 2003. He concluded, having examined Ms. Tran and reviewed the documents described in the appendix to his report, that:

... Ms. Tran's complaints of cognitive dysfunction, visual disturbance and dyspnoea cannot be substantiated by physiological factors that would result from the mechanism of injury. The clinical evaluation of Ms. Tran failed to identify any significant objective impairment leading to any disability.²

Based on Dr. Parker's opinion State Farm terminated Ms. Tran's income replacement benefit.

Ms. Tran has failed to produce any evidence to counter Dr. Parker's opinion that she was not disabled or any evidence that she met the test set out in section 4 of the Schedule. Therefore, Ms. Tran is not entitled to an income replacement benefit.

Medical Benefit:

Ms. Tran claimed a medical benefit for chiropractic treatment, massage therapy and physiotherapy.

State Farm produced a copy of the Disability Certificate submitted on Ms. Tran's behalf by her family physician. The Disability Certificate dated February 4, 2003 indicates that Ms. Tran was diagnosed as having sustained a Whiplash Associated Disorder grade II injury which substantially disabled her from carrying on her normal pre-accident activities.³ State Farm received two treatment plans dated February 10 and May 7, 2003.⁴ Both treatment plans were approved subject to the Commission's fee guidelines for the services provided.

In denying further treatment, State Farm relied on Dr. Parker's opinion that no further physical treatment was reasonable or necessary because in his opinion she did not have an "objective impairment."⁵

Section 14 of the Schedule requires that Ms. Tran establish that she sustained an impairment as a result of the accident and that the medical benefits incurred were reasonable and necessary.

State Farm has produced the Disability Certificate which was the basis for approving the treatment set out in the February and May treatment plans. It was satisfied that no further treatment was reasonable or necessary on the basis of Dr. Parker's opinion. Ms. Tran has failed to prove an incurred expense which was either reasonable or necessary treatment of an accident related impairment. Therefore, Ms. Tran is not entitled to a medical benefit pursuant to section 14 of the Schedule.

Housekeeping and Home Maintenance Benefits:

In order to meet the test set out in Section 22 of the Schedule, Ms. Tran must prove she was substantially unable to perform her pre-accident housekeeping and home maintenance tasks as a result of an accident related impairment and the expenses she incurred to have those tasks done were reasonable and necessary.

State Farm submits that it reasonably terminated Ms. Tran's housekeeping and home maintenance benefit on the basis of Dr. Parker's opinion that she was not substantially disabled from performing her pre-accident housekeeping and home maintenance tasks.⁶

Ms. Tran has failed to produce any evidence in support of her claim that she is entitled to a housekeeping and home maintenance benefit beyond the period and amount paid by State Farm. Therefore, she is not entitled to a housekeeping and home maintenance benefit pursuant to section 22 of the Schedule.

EXPENSES:

State Farm submits that it should be entitled to its expenses fixed at $1,500.00.

Ms. Tran has failed to communicate with the Commission in respect of her claim. She failed to communicate with and instruct her former counsel in respect of the arbitration. She failed to attend proceedings or send a representative on her behalf. She did not produce any evidence in support of her claim. Ms. Tran has met with no success in asserting her claim.

Having considered the criteria set out in the Expense Regulation found in Section F of the Dispute Resolution Practice Code, fourth Edition Updated - October 2003), I find the quantum of expenses sought by State Farm to be very reasonable. Therefore, I exercise my discretion under section 282(11) of the Insurance Act, R.S.O. 1990, c.I.8 and order Ms. Tran to pay State Farm's expenses fixed at $1,500.00.

July 21, 2006

Denise Ashby Arbitrator

Date

Financial Services Commission of Ontario