Binh Thi Nguyen v. Federation Insurance Company of Canada, 2014 ONFSCDRS 161

Commission des services financiers de l’Ontario

Neutral Citation: 2014 ONFSCDRS 161

Appeal P13-00029

Appellant

and

FEDERATION INSURANCE COMPANY OF CANADA¹

Respondent

BEFORE:

David Evans

Rose Le (the Appellant’s daughter) for Binh Thi Nguyen Caroline Meyer for Federation Insurance Company of Canada Also present: Ms. Binh Tran, Vietnamese interpreter

HEARING DATE:

September 9, 2014

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

The Arbitrator’s order of August 28, 2013 is confirmed and this appeal is dismissed.
If the parties are unable to agree on the legal expenses of this appeal, an expense hearing shall be requested pursuant to the Dispute Resolution Practice Code (Fourth Edition, Updated – January 2014), but as set out below and within sixty days of the date of this decision.

October 3, 2014

David Evans Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Mrs. Binh Thi Nguyen appeals the order dated August 28, 2013 by Arbitrator Lloyd (J.R.) Richards, in which he found that, pursuant to the SABS–1996,² Mrs. Nguyen is not entitled to either caregiver benefits or non-earner benefits.

II. BACKGROUND

Mrs. Nguyen was injured in a motor vehicle accident on January 27, 2003. Federation Insurance Company of Canada accepted that she suffered a substantial inability to engage in the caregiving activities in which she engaged at the time of the accident, so it paid her a caregiver benefit for her children under age 16, pursuant to s. 13 of the SABS. Subsection 13(1) provides that a caregiver benefit is payable if, at the time of the accident, the insured person was residing with and primarily providing care for a “person in need of care,” defined in s. 2(1) as meaning “in respect of an insured person, another person who is less than 16 years of age…”

Federation terminated the benefits after August 23, 2008, when it claimed Mrs. Nguyen could now care for her remaining daughter who was less than 16 years of age. Mrs. Nguyen sought reinstatement of the benefit to February 23, 2009, the date on which her daughter turned 16. Mrs. Nguyen claimed a non-earner benefit (NEB) under s. 12(1)2 of the SABS thereafter, described next.

The issue of the extent of Mrs. Nguyen’s disability was the same for both benefits. First, s. 13(4) provides that an insurer is not required to pay the caregiver benefit “for any period longer than 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to carry on a normal life.” Similarly, pursuant to s. 12(1)2, an NEB is payable to an insured person who sustains an impairment as a result of an accident and “The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident, received a caregiver benefit as a result of the accident and there is no longer a person in need of care.”

The Arbitrator found in both cases that Mrs. Nguyen did not meet the “complete inability to carry on a normal life” test.

The Arbitrator gave little weight to Mrs. Nguyen’s medical evidence. He found that the disability certificate by Dr. P. Tran, psychiatrist, was “an attempt to buttress Mrs. Nguyen’s case, rather than a true assessment of her condition” because he ignored her pre-accident impairments that had affected her ability to function. Similarly, he found that the assessment by Dr. Konrad Prokofiew, chiropractor, gave the impression that Mrs. Nguyen was completely unable to function physically since she did not complete many of the assessment activities, yet he “did not address this fact, nor did he present evidence at the hearing to clarify his report.”

In general, the Arbitrator preferred Federation’s evidence. Federation relied on a 2008 insurer’s examination by Lorak Assessments in support of its termination of Mrs. Nguyen’s benefits. Dr. Alborz Oshidari, physiatrist, noted self-limitations in Mrs. Nguyen’s examination, found no organic cause for her presentation, and put no restrictions on her. The same self-limiting performance meant that the occupational therapist, Joan Saunders, could not make a determination of Mrs. Nguyen’s functional impairments. The Arbitrator discounted the opinion of Dr. Monte Bail, a psychiatrist on the Lorak team, that Mrs. Nguyen did not suffer any impairment and was a malingerer.

The Arbitrator found that Mrs. Nguyen exaggerated her physical complaints to bolster her claim. While he found she suffered psychological impairments as a result of the accident, he was not persuaded these met the disability test. The Arbitrator noted that by the time Mrs. Nguyen’s benefits were terminated she had been in the Hong Fook Mental Health Association program that provided supportive counseling and addressed health concerns. Furthermore, “as of June 2008 Mrs. Nguyen had reported that her physical and mental health status had improved as had her family’s relationship and social connection.” The Arbitrator found that, while Mrs. Nguyen was readmitted to the Hong Fook program in 2011, the readmission was not related to the accident.

Regarding caregiving activities, Mrs. Nguyen’s evidence was that in 2008 they primarily involved cooking and driving her daughter to school, library, and temple. The Arbitrator found that Mrs. Nguyen

was not completely unable to lead a normal life at the time her benefits were terminated. Mrs. Nguyen presented evidence that she was afraid to drive. However, her daughter’s school was apparently close enough for her to walk her daughter there. Mrs. Nguyen did not demonstrate that she was physically or emotionally incapable of accompanying her daughter to school, the library or to temple.

At the time her benefits were terminated, Mrs. Nguyen was no longer in her supportive counselling program [at Hong Fook] because her treatment providers closed her file based on her improvement. She has not presented evidence that she was housebound or physically or mentally unable to interact with her daughter.

Regarding the NEB claim, the Arbitrator cited the factors to consider set out in Heath and Economical Mutual Insurance Company, 2009 ONCA 391, in particular a comparison of a claimant’s activities and life circumstances before the accident to those after. The Arbitrator noted that it was difficult to determine these, as they were not addressed by Mrs. Nguyen’s prepared statement, which comprised her evidence in chief and was read into the record.

The Arbitrator derived Mrs. Nguyen’s activities from her self-reports to assessors. The Arbitrator found that Mrs. Nguyen’s focus on her children and on the illness of her husband before the accident left her socially isolated. He also found that taking care of and interacting with her children were the most important activities in her life. He found that currently Mrs. Nguyen is not as physically impaired as she presented to medical practitioners, her children live with her and she is not housebound. He concluded that Mrs. Nguyen is not continuously prevented from engaging in the most important activities in her life. Accordingly, the NEB claim was denied.

III. ANALYSIS

At the beginning of the appeal hearing, Ms. Rose Le, Mrs. Nguyen’s daughter, who represented her mother at the appeal hearing, asked for leave to call doctors to testify. I denied her request as this is an appeal hearing and not a re-hearing. Furthermore, as set out in s. 283(1) of the Insurance Act, appeals from an arbitrator’s decision are only “on a question of law.”

Mrs. Nguyen submits that the Arbitrator erred in law in several ways in assessing the evidence.

Mrs. Nguyen submits that Dr. Alborz Oshidari in his July 26, 2008 report “did not have a logical conclusion since his findings did not match his conclusion. Dr. Oshidari concluded that ‘there is a possibility that Mrs. Nguyen’s emotional condition is the contributing factor to prolongation of her disability, thereby preventing her to return to her activities of daily life.’” However, Dr. Oshidari is a physiatrist who was examining Mrs. Nguyen from the physical perspective. These were peripheral comments. Furthermore, the Arbitrator took these comments into account:

Dr. Oshidari was unable to come to a specific diagnosis considering the assessment failed to reveal any organic cause for her presentation. From a physical point of view, Dr. Oshidari was not able to put any restrictions on Mrs. Nguyen. He stated that if there were any restrictions, they were due to Mrs. Nguyen’s emotional condition or other factors outside of his expertise.

Mrs. Nguyen submits that Ms. Joan Saunders, the occupational therapist on the Lorak team, “made errors and mistakes in her report and as a result apologized in her addendum report.” However, the error referred to was more in the nature of a typographical error, and Ms. Saunders did not withdraw her conclusions but rather confirmed them. The report, the addendum, and the alleged errors were all before the Arbitrator, and I find no error in law in his review of the report:

Because of what she considered to be Mrs. Nguyen’s self-limiting performance during the Lorak in-home assessment and the functional abilities evaluation, occupational therapist Joan Saunders also concluded that she could not make a determination of Mrs. Nguyen’s functional impairments. Consequently, Ms. Saunders deferred her opinion to Dr. Bail’s psychiatry report.

Mrs. Nguyen submits that Dr. Monte Bail, the psychiatrist at Lorak, wrote a report that “purposely contained errors, changed and edited information from Ms. Nguyen’s previous insurer’s examination reports to ultimately fit his opinion that Ms. Nguyen’s caregiver benefits should be terminated.” However, as noted above, the Arbitrator did not assign great weight to Dr. Bail’s report. He found that Dr. Bail “did not fairly assess Mrs. Nguyen. His report was profoundly impacted by his belief that Mrs. Nguyen was not truthful about taking medications prior to the motor vehicle accident. In fact, Mrs. Nguyen’s family doctor had made an error which led Dr. Bail to reach the conclusion that he did.”

Mrs. Nguyen submits that the rebuttal report dated September 19, 2008 by Dr. Konrad Prokofiew, chiropractor, indicated that Mrs. Nguyen suffered a substantial inability to resume the essential tasks of her pre-accident caregiving duties. Aside from the fact that Dr. Prokofiew did not address the “complete inability to carry on a normal life” test, this is simply a matter of weighing the evidence. The Arbitrator gave little weight to the evidence of Dr. Prokofiew. There is no error of law.

Mrs. Nguyen submits that she developed depression, and chronic cervical and lower back pain as a result of the accident, and she also refers to a lumbar CT scan and cervical spine x-rays. Again, this simply goes to the Arbitrator weighing the evidence before him. No error is raised in this submission. The Arbitrator was not required to explicitly acknowledge the x-ray and CT scan results, and Dr. Oshidari dealt with them in his report and in cross-examination.

I find no error of law by the Arbitrator in any of the above submissions.

A new issue raised by Mrs. Nguyen on appeal is that the Arbitrator erred in law by proceeding with the arbitration hearing with an unrepresented disabled applicant: “Thus, even though Ms. Nguyen was attending psychological treatment, was on medication and had psychological impairments that caused her to be mentally incapable, Arbitrator Richards erred in law by proceeding with the arbitration with Ms. Nguyen unrepresented.”

Regarding representation, Mrs. Nguyen attended the arbitration hearing with her daughter, Cindy Le. While the Arbitrator did not formally admit Ms. Le as her mother’s representative, in fact she was treated as such. Throughout the hearing the Arbitrator constantly addressed Ms. Le to make sure that her mother understood what was going on. To illustrate this further, Mrs. Nguyen’s evidence in chief consisted of a written statement in English. Even though the statement was written by Mrs. Nguyen, Mr. Robson, counsel for Federation at the arbitration hearing, suggested that the Vietnamese interpreter should interpret each paragraph and then ask Mrs. Nguyen if she agreed with it as her evidence. Ms. Le agreed to that process. The Vietnamese interpreter then read through that document, paragraph by paragraph, and at various points Ms. Le clarified points raised during the interpretation. Ms. Le also submitted documents to the Arbitrator to be admitted as evidence, assisted her mother throughout, cross-examined the witnesses, and made final submissions.

As for Mrs. Nguyen being “mentally incapable,” there is nothing to indicate that the Arbitrator should have considered this an issue. The issue of capacity was never raised or in dispute, and the Arbitrator had no obligation to direct a hearing on mental capacity.

Mrs. Nguyen submits that she was attending psychological sessions with Dr. Thao Nguyen from March 2011 to January 2013, that she was on medication, that she had been treated by Dr. Peter Tran, a psychiatrist, since 2003, and that she had a treating mental health worker, Anna Kavalak. However, the Arbitrator had exhibits regarding all the above before him, and he saw no reason to inquire into Mrs. Nguyen’s mental capacity. Just because a person may be receiving psychological or psychiatric treatment does not mean she is suffering from a mental difficulty that prevents her from conducting her own case.

As set out in H.I. and Aviva Canada Inc., (FSCO A02-001766, November 12, 2004), there is a presumption of capacity that is well entrenched in law. A person is presumed to have the capacity to deal with his or her own matters, in the absence of evidence to the contrary. A person has the right to have his or her decision-making autonomy respected in the absence of convincing evidence justifying such interference. Capacity is time and subject specific. The issue is whether Mrs. Nguyen had the requisite capacity to appreciate the reasonably foreseeable consequences of a decision to proceed with her arbitration on an unrepresented basis.

Rule 10 of the Dispute Resolution Practice Code sets out the practice for parties under a disability. Rule 10.1 provides that a party is presumed to have the mental capacity to, among other things, conduct his or her own case. Rule 10.2 deals with those who have been declared mentally incapable under the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (SDA). Mrs. Nguyen led no evidence that she had been declared mentally incapable pursuant to the SDA.

Rule 10.3 deals with those who have not been so declared under the SDA, but a party exhibits “signs of mental difficulty during the course of a … proceeding.” The Arbitrator found no such signs. He observed Mrs. Nguyen over the course of the arbitration hearing. He took care to ensure she understood what was going on, supported by advice from Cindy Le. He also observed Mrs. Nguyen herself make a final reply statement (arbitration transcript of February 1, 2013, pp. 145-46). He was in a position to assess any signs of mental difficulty in Mrs. Nguyen during the hearing, and his decision to permit her to represent herself is entitled to deference. There is no reason for me to intervene.

Accordingly, I find that the Arbitrator did not err in law in allowing Mrs. Nguyen to present her own case.

Mrs. Nguyen has not raised any errors in law regarding the Arbitrator’s decision. The appeal is therefore dismissed.

On a final note, shortly before I completed this decision, Ms. Rose Le, who represented her mother in this appeal hearing, sent an email to the appeals case administrator with an attached letter addressed to me, which was then forwarded to me. After I opened the attached letter, I realized that it contained settlement figures related to this case. I did not review these figures and immediately closed the letter. I do not see this as a matter where I have to recuse myself.

IV. EXPENSES

If the parties are unable to agree on the legal expenses of this appeal, applying the procedure set out in Rule 79.2 of the Dispute Resolution Practice Code, an expense hearing shall be requested, within sixty days of the date of this decision. The request shall be accompanied by a Bill of Costs describing the expenses claimed, the services received and the costs, as well as written submissions regarding entitlement to and/or the quantum of legal expenses, as are in dispute.

October 3, 2014

David Evans Director’s Delegate

Date

Footnotes

In the original arbitration hearing, the Insurer was named the Economical Mutual Insurance Company. In this appeal hearing, the Insurer’s name was clarified as Federation Insurance Company of Canada, which is one of The Economical group of companies.
The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.