Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 243

FSCO A13-012623

BETWEEN:

LAN THI NGUYEN

Applicant

and

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Maggy Murray

Heard: July 21, 22, 23, 24, 2015, February 2 and 3, 2016 in Kitchener, Ontario

Appearances: Tuyen (Joseph) Nguyen for Mrs. Nguyen

Jonathan Schrieder for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Lan Thi Nguyen, was injured in a motor vehicle accident on August 6, 2010. 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, attendant care benefits, housekeeping benefits, medical benefits and refused various cost of examination expenses. The parties were unable to resolve their disputes through mediation, and Mrs. Nguyen applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. This hearing was conducted through a Vietnamese interpreter.

The issues in this hearing are:²

1. Is Mrs. Nguyen entitled to receive a weekly income replacement benefit in the amount of $566.06 per week from November 9, 2011 onwards?

2. Is Mrs. Nguyen entitled to receive the following medical benefits for services provided by Proactive One Health Care:

i. $20 ($1,747.50 less $1,727.50 paid by State Farm) for multiple region therapy, pursuant to a treatment plan dated August 2, 2011;³

ii. $1,330.02 for a total body assessment, multiple region therapy, ultra sound and massage therapy pursuant to a treatment plan dated November 11, 2011;⁴

iii. $990 for acupuncture dated July 29, 2011?⁵

3. Is Mrs. Nguyen entitled to attendant care benefits in the amount of $440.72 per month from December 30, 2011 through August 5, 2012?

4. Is Mrs. Nguyen entitled to payments for housekeeping and home maintenance services in the amount of $100 per week from December 30, 2011 through August 5, 2012?

5. Is State Farm liable to pay Mrs. Nguyen’s expenses in respect of the arbitration?

6. Is Mrs. Nguyen liable to pay State Farm’s expenses in respect of the arbitration?

7. Is Mrs. Nguyen entitled to interest for the overdue payment of benefits?

Result:

1. Mrs. Nguyen’s claims are dismissed.

2. The issue of the expenses of this proceeding is deferred.

EVIDENCE AND ANALYSIS:

Witnesses

The Applicant testified on her own behalf and did not call any witnesses. In the text The Law of Evidence in Canada, it is stated: “an unfavourable inference can be drawn when, in the absence of an explanation, a party ... fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party.”⁶ I draw a negative inference from the Applicant’s failure to call any witnesses who would have helped to establish her case.

Dr. Lam, a chiropractor who allegedly treated the Applicant and submitted treatment plans on her behalf, and Dr. Geleff, who allegedly submitted treatment plans on behalf of the Applicant, testified on behalf of the insurer.

Background

The Applicant was 55 years old at the time of this accident. She purchased automobile insurance on June 9, 2010, less than two months before the accident, with optional increased income replacement benefits of up to $600 per week,⁷ although she was unemployed and had not worked in years. According to Revenue Canada, the Applicant did not file income tax returns for 2007 to 2009.⁸

The Applicant was one of five people in a vehicle driven by a gentleman named Tom that was struck on the front driver side while it was waiting to make a right hand turn.

The Applicant alleges she began working as a chef at a restaurant called Quon Ngon in July 2010, approximately five weeks before this accident.⁹ According to the Applicant, any inconsistencies in the documentary evidence produced and that of her testimony are because interpreters misinterpreted what she said to doctors. As well, some of the medical professionals the Applicant saw spoke her first language, Vietnamese, and she did not have to use an interpreter when speaking with these doctors. According to the Applicant, these doctors also misunderstood her. I have reviewed all of the documents that were filed and marked as exhibits during this hearing.

Parties’ Positions

According to the Applicant, this accident caused her physical and emotional damage. She worked as a chef at the time of the accident and has been off work since the accident. She cannot work and still needs ongoing medical treatment. She is seeing a psychiatrist, Dr. Tran, as a result of the accident.

According to the insurer, credibility is a major issue in this case. The circumstances surrounding the Applicant’s pre-accident employment are suspicious. Benefits were terminated properly based on the opinions of an orthopaedic surgeon, psychologist and occupational therapist. No such health professionals support the Applicant’s claims.

Credibility of the Applicant

The evidence suggests that the Applicant suffered soft-tissue injuries in this accident. She claims that these injuries resulted in chronic pain and psychological impairment. Her complaints, however, are subjective. Although an imaging test within eight days after this accident noted “mild degenerative changes involving the lumbar spine,”¹⁰ I heard no evidence that the changes found in Ms. Nguyen’s spine were caused or contributed to by trauma.

Important factual inconsistencies, misrepresentations or material non-disclosure of relevant facts by an applicant and lack of corroboration can be fatal to an applicant's claims. In the absence of objective evidence, the credibility of the Applicant is crucial and it is due to a lack of credible evidence that the Applicant's claims fail. Below are some examples of the Applicant’s lack of credibility.

Failure of Applicant to Produce Doctors’ Records

The Applicant failed to produce the clinical notes and records of Drs. Limacher, Tmachuk. Suleman and Kerenyi, despite the insurer’s repeated requests for this information.¹¹ I draw a negative inference from the failure to produce these records.

Failure of Applicant to Disclose Pre-accident History

The Applicant failed to disclose to several medical professionals her significant history of pre-accident difficulties. Various reports indicate that the Applicant's medical history is "unremarkable".¹² It raises serious questions both about the cause of the Applicant's alleged symptoms and about her credibility and reliability as a historian.

For example, according to the transcribed clinical notes and records of Dr. Tran, her family doctor,¹³ the Applicant’s pre-accident history included information that she was:

i. Prescribed Tylenol #2 on December 3, 2004

ii. Prescribed Mobicox (anti-inflammatory) on January 22, 2005

iii. Complaining of dizziness and low back pain and prescribed ibuprofen on September 1, 2005

iv. Prescribed ibuprofen (anti-inflammatory) on November 19, 2005

v. Complaining of headache and dizziness and prescribed ibuprofen (anti-inflammatory) on January 2, 2006

vi. Complaining of dizziness and headache and prescribed Tylenol #2 on March 18, 2006

vii. Complaining of dizziness on May 8, 2006

viii. Prescribed Tylenol #2 on March 9, 2007

ix. Complaining of dizziness and headache and prescribed ibuprofen on July 22, 2007

x. Diagnosed with migraine headache and prescribed codeine on August 3, 2007

xi. Prescribed codeine on September 15, 2007

xii. Complaining of dizziness and headache and prescribed ibuprofen on April 24, 2010

Unfortunately, the transcription of Dr. Tran’s clinical notes and records is missing information for the period May 25, 2010 - December 6, 2012, and the decoded OHIP summary that was produced at the hearing is not entirely legible, despite the Applicant’s undertaking to produce a legible OHIP summary.¹⁴

Inconsistent Evidence With Respect To Whether The Applicant Was Assisted Getting Out Of The Car Following The Accident

The Applicant told various medical professionals different things with respect to how she exited the vehicle following this accident. For example, she told Dr. Frydman that she exited vehicle unassisted.¹⁵ She told Dr. Goodman that the driver helped her exit vehicle.¹⁶ She told Dr. Gharsaa that she exited vehicle with assistance of another passenger.¹⁷ Then she testified that she was helped by two female passengers. Then she testified that one female passenger assisted her. Then she testified that she could not remember if anyone helped her.

Inconsistent Evidence Regarding How the Applicant Went Home Following The Accident

The Applicant testified that after the accident, she took a taxi home. However, medical reports state that she was driven home by the vehicle in which she was a passenger.¹⁸

Inconsistent Evidence With Respect To The Driver Of The Car The Applicant Was A Passenger In

At her Examination Under Oath, the Applicant testified that she knew Tom through her daughter,¹⁹ but, she testified at this hearing that she was the one who knew Tom and Tom wanted to meet her daughter.

Applicant's Unreliable Records

The Applications for Expenses submitted by the Applicant to the Insurer concerning the housekeeping and attendant care services purportedly provided by her service provider, Phuong/ Tho Nguyen, are unreliable and can be given no weight. Specifically, they indicate that Phuong/ Tho Nguyen provided assistance to the Applicant from August 7, 2010 to November 12, 2011. However, at her Examination Under Oath, the Applicant testified that Phuong/Tho only helped her for one month.²⁰

The Applicant told Dr. Lam that her roommate assisted her with housekeeping.²¹ She told Dr. Goodman she got help from her daughter, grandkids and landlady.²² She also told Dr. Gharsaa her daughter helped her 2-3 times a week.²³ At her Examination Under Oath, she testified that her daughter and nephew helped her.²⁴ However, she testified at this hearing that she did not get help from her daughter. None of the aforementioned people were called to testify by the Applicant and accordingly I draw a negative inference against the Applicant.

Inconsistent Evidence With Respect to Applicant’s Level of Improvement Following Accident

The May 17, 2011 neurological report of Dr. Veidlinger, who the Applicant saw at the request of Proactive, states that the Applicant believed she was 75% improved.²⁵ According to the Applicant, the interpreter made an error.

Five months after the report of Dr. Veidlinger, the October 5, 2011 psychological insurer’s examination states that the Applicant did not feel there was any improvement in her condition.²⁶

Two weeks after a psychological insurer’s examination, an orthopaedic insurer’s examination was conducted in which it is noted that the Applicant felt she was 50% improved.²⁷

In another orthopaedic insurer’s examination one year after the first insurer’s orthopaedic examination was conducted, the Applicant reported that she felt 60% improvement in her condition.²⁸

The Applicant’s explanation for these differences was that either the interpreters made an error or perhaps she felt better sometimes. I find both of these explanations disingenuous.

Depression

Dr. Tran, a psychiatrist who conducted the medical appointment in Vietnamese, noted in his 2014 report that the Applicant has been depressed for the past six years (ie., two years before the accident) since her mother died. Dr. Tran further noted in 2015 that the Applicant used to cut her wrists and overdosed when she was in her 30’s. The Applicant testified that she only cut her wrists once but that she did not have any psychological issues before this accident. I prefer the evidence of Dr. Tran because I found the Applicant’s evidence regarding Vietnamese speaking doctors misinterpreting information unlikely.

Other Motor Vehicle Accidents and Alcohol Use

Dr. Tran also noted that the Applicant was involved in motorcycle accidents in Vietnam and she used to drink a lot of alcohol up to the time her mother died. According to the Applicant, it was her husband that used to get in accidents and drink. Again, and for the same reasons, I prefer the evidence of Dr. Tran.

Income Replacement Benefits

A person who is employed at the time of the accident is entitled to income replacement benefits ("IRBs") if they can prove that, as a result of and within two years of the accident, they suffer a substantial inability to perform the essential tasks of that employment. No IRBs are payable for the first week of the disability. The Insurer is not required to pay an income replacement benefit after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.

Because Ms. Nguyen purchased optional benefits, if income replacement benefits are payable, they can be recovered at up to $600 per week.²⁹ Ms. Nguyen applied for and received income replacement benefits from the Insurer in the amount of $556.06 per week from August 13, 2010 to November 8, 2011. The Applicant received approximately $37,000 in income replacement benefits from State Farm.

The Applicant’s testimony regarding not working after the accident was not extensive. I heard little more than her claim to be unable to stand for too long or do any heavy job.

The Applicant produced photocopies indicating she was paid by cheques by Quon Ngon. She received five cheques over a five week period, each covering one week of work.³⁰ The cheques were numbered 7, 8, 9, 10 and 11. I find this unusual because presumably Quon Ngon would have written cheques for other items necessary for the operation of a restaurant, such as rent, food, other staff, utilities, during this five week period.

In an insurer’s examination by a psychologist conducted in September 2011,³¹ the psychologist concluded that the Applicant did not suffer a substantial inability to complete the tasks of her employment as a chef/cook. In another insurer’s examination conducted by an orthopaedic surgeon in October 2011,³² the doctor concluded that the Applicant’s soft-tissue injuries resolved and that she did not suffer a substantial inability to perform the essential tasks of her employment.³³ Based upon these reports, the Insurer terminated IRBs effective November 9, 2011.³⁴

The Applicant's testimony regarding her inability to work was uncorroborated by any witnesses or by any reliable documentary evidence and, as outlined above, I find her not credible. The Applicant has failed to adduce sufficient, credible evidence to meet her onus of proof. She has failed to produce sufficient medical evidence to rebut the opinions of the Insurer's assessors.

For these reasons, the Applicant's claim for income replacement benefits is dismissed.

Medical Benefits

The test for entitlement to medical benefits is whether the expenses are reasonable and necessary as a result of an accident, provided they are of a type specified in the regulations and in an amount that does not exceed the maximum permitted by the regulations.

Proactive One Healthcare, on behalf of the Applicant, submitted various treatment plans to the Insurer, seeking funding for the following treatment:

i. $990 for acupuncture pursuant to a treatment plan dated July 29, 2011 by Dr. Nguyen Lam, a chiropractor;³⁵

ii. $20.00 ($1,747.50, less $1,727.50 paid by State Farm) for multiple region therapy pursuant to a treatment plan dated August 2, 2011 by Dr. Nguyen Lam, a chiropractor;³⁶

iii. $1,330.02 for a total body assessment, multiple region therapy, ultra sound and massage therapy pursuant to a treatment plan dated November 11, 2011 by Dr. Jason Mazzarella, a chiropractor.³⁷

i and ii: Treatment Plans by Dr. Lam at Proactive Health Care Clinic dated July 29, 2011 and August 2, 2011

The only witness from Proactive who appeared before me to testify is Dr. Lam, a chiropractor. I place little weight on Dr. Lam’s evidence for reasons which include: (a) There was no explanation provided as to why the expenses in question were reasonable and necessary for any of these plans at the time they were proposed; (b) His report of how the accident occurred is incorrect. Although the vehicle in which the Applicant was travelling was hit on the driver’s side front bumper, Dr. Lam reported that the Applicant’s vehicle was rear ended;³⁸ (c) The Proactive file in evidence did not contain any of Dr. Lam’s acupuncture records and according to Dr. Lam, Proactive could not find them; (d) Dr. Lam could not recall if he worked at Proactive for one, two or three years. I find it unusual that a professional cannot recall the length of time they worked somewhere, especially considering it was within the last 10 years.

The Applicant's only testimony that remotely related to these claims was that she went for acupuncture treatment at the Proactive Clinic between 10 and 50 times and she did not remember what the acupuncturist looked like. I find the Applicant’s evidence on this issue not credible. Specifically, if someone saw a treating practitioner even 10 times, I find it likely that they would recall some details about what the practitioner looked like, for instance the practitioner’s approximate age, gender, height, weight, tone of voice.

iii: Treatment Plan by Dr. Jason Mazzarella at Proactive Health Care Clinic dated November 11, 2011

In the insurer’s examination dated December 28, 2011, Dr. Gharsaa,³⁹ an orthopaedic surgeon, reviewed an extensive number of documents prior to concluding that the treatment plan dated November 11, 2011 is not reasonable or required.⁴⁰

Dr. John Geleff testified on behalf of State Farm. Three treatment plans allegedly authored by Dr. Geleff recommended various goods and services on behalf of the Applicant, such as two MRI’s for $1,200 each, amongst other services.⁴¹ Two of the three treatment plans are allegedly co-authored by Dr. Geleff and Dr. Mazzarella.⁴²

Dr. Geleff’s testified that: (a) He has never worked for Proactive; (b) He has never treated the Applicant; (c) He does not have a patient by the Applicant’s name; (d) He does not recall ever seeing the Applicant before the day he gave evidence at this hearing; (e) He has never authored a treatment plan in his life; (f) He does not know how his name came to appear on the treatment plans; (g) He has never worked with Dr. Mazzarella; (h) He never authorized that his signature be used by Proactive.

The Applicant testified that: (a) She met Dr. Geleff at the Proactive Health Care Clinic a couple of times; (b) She may have told Dr. Geleff about her condition and about her car accident; (c) She talked to Dr. Geleff about her health conditions and how she felt; (d) She did not know why Dr. Geleff would say he has never met her.

I prefer the evidence of Dr. Geleff to that of the Applicant because I found him to be credible and he has no incentive to lie. He is best suited to know whether he has worked at Proactive or authored a treatment plan.

Because Dr. Geleff’s name appears on treatment plans by Dr. Mazzarella, and because I have found that Dr. Geleff never authored a treatment plan or met the Applicant prior to this hearing, this calls into question the reliability of any evidence by Dr. Mazzarella.

In the absence of any evidence, other than the plans themselves, or arguments explaining how they are reasonable and necessary, I find that the Applicant has failed to meet her onus of proof. The Applicant has failed to adduce sufficient evidence to establish that these expenses were reasonable and necessary at the time they were proposed as a result of the August 2010 accident. Therefore, the Applicant’s claims for these medical expenses are dismissed.

Attendant Care Benefits

The Applicant claimed attendant care benefits for the period December 30, 2011 to August 5, 2012 at the rate of $440.72 per month.

State Farm is obliged to pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant. The monthly amount payable for the attendant care benefit is determined in accordance with Form 1, which is an assessment of attendant care needs form.

Attendant care benefits were terminated by the Insurer on December 16, 2010⁴³ because the Applicant failed to attend an insurer’s examination. The Applicant eventually underwent an insurer’s examination in December 2011 with an occupational therapist⁴⁴ who concluded that the Applicant did not have a substantial inability to resume her attendant care tasks⁴⁵ and could not find any objective or reliable evidence of impairment. It was on this basis that this benefit was terminated.

The alleged service provider(s) did not testify.

At an insurer’s examination,⁴⁶ the Applicant said that her daughter helped her with her personal care. At her Examination Under Oath, the Applicant testified that her “children”, including her daughter⁴⁷ helped her. At this hearing, the Applicant testified that her daughter never helped her with attendant care. This evidence is inconsistent.

Application for Expense forms⁴⁸ indicate that Phuong Nguyen, also known as Tho, provided the Applicant with attendant care from November 17, 2010 to November 15, 2011. However, at her Examination Under Oath, the Applicant testified that Tho only helped her for one month.⁴⁹

The Applicant underwent a Functional Capacity Evaluation with Dr. Frydman, a chiropractor, who she saw at the request of her representative. In his report dated November 1, 2011, Dr. Frydman states: “she is currently independent in all aspects of her personal care, and is able to manage all her previous self care functions without symptom aggravation.”⁵⁰

I do not believe Ms. Nguyen's testimony that she received attendant care assistance. I find that the expense forms the Applicant submitted are not reliable evidence of the attendant care allegedly provided to her. I have no reliable evidence that the Applicant was substantially disabled from her attendant care activities and if so, how much help her alleged service provider(s) gave her.

I find that the Applicant was not substantially disabled from performing her attendant care activities she normally engaged in after December 30, 2011.

The Applicant has failed to adduce sufficient, credible evidence to meet her onus of proof. She has failed to produce sufficient medical evidence to rebut the opinions of the Insurer's assessors. I have previously explained why I give little weight to the opinion of Dr. Lam in this case. Based upon the documentation available and the Applicant's vague and uncorroborated testimony, I am not satisfied that the Applicant has proven, on a balance of probabilities, that: (a) She required assistance with attendant care; (b) Ms. Phuong/Tho Nguyen actually provided attendant care more than one month after the accident, contrary to the Applications for Expenses which indicate that she provided attendant care from the time of the accident to November 2011; and (c) If the Applicant did require some attendant care beyond December 29, 2011, that this need was related to impairments caused or exacerbated by the August 2010 accident.

For these reasons, the Applicant's claim for attendant care benefits is dismissed.

Housekeeping Benefits

The Applicant received approximately $2,000 in housekeeping benefits from State Farm for the period August 7, 2010 to December 16, 2010. The Applicant claimed housekeeping benefits from December 30, 2011 to August 5, 2012 in the amount of $100 per week.

Under section 22 of the 1996 Schedule the insurer shall pay reasonable and necessary housekeeping benefits if the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.

These benefits were terminated by the Insurer on December 16, 2010⁵¹ because the Applicant failed to attend an insurer’s examination. The Applicant eventually underwent an insurer’s examination in December 2011 with an occupational therapist.⁵² The examiner concluded that the Applicant did not have a substantial inability to resume her housekeeping tasks⁵³ and could not find any objective or reliable evidence of impairment. It was on this basis that this benefit was terminated.

The alleged service provider(s) did not testify.

The Applications for Expenses⁵⁴ for housekeeping indicate that housekeeping services were provided by Phuong Nguyen for the period August 7, 2010 to November 12, 2011, which is approximately 15 months. The Applicant testified that Phuong is also known as Tho. At her Examination Under Oath, the Applicant testified that Tho assisted her with housekeeping for one month after the accident.⁵⁵ At this hearing, the Applicant testified that Tho helped her with housekeeping for about one year. This evidence is inconsistent.

The Applicant testified that before the accident, she spent about four to five hours a day, four to five times a week, doing housekeeping, which is between 16-25 hours per week of housekeeping. However, during a medical examination after the accident, she reported that she spent 10.5 hours per week on housekeeping tasks prior to the accident.⁵⁶ This evidence is inconsistent.

The Applicant testified that her landlady never helped her. However, according to the occupational therapy report of Leslie Hisey, the Applicant’s landlady helped her with housekeeping tasks.⁵⁷

At an insurer’s examination,⁵⁸ the Applicant advised that her daughter comes to the house two to three times a week to complete the housework. At this hearing, the Applicant testified that: (a) her daughter never helped her with housekeeping, and later that (b) she could not recall if her daughter helped her with housekeeping. This evidence is inconsistent.

I do not believe Ms. Nguyen's testimony that she received the housekeeping assistance. I find that the expense forms the Applicant submitted are not reliable evidence of the housekeeping services allegedly provided to her. I have no reliable evidence that the Applicant was substantially disabled from her normal housekeeping activities and if so, how much help her alleged service provider(s) gave her.

I find that the Applicant was not substantially disabled from performing the housekeeping activities she normally engaged in after December 30, 2011.

EXPENSES:

With respect to the issue of the expenses of this proceeding, if the parties are unable to resolve this issue on their own, either party may, within 30 days, make a written request for me to determine the matter in accordance with Rules 75 through 79 of the Dispute Resolution Practice Code.

September 14, 2016

Maggy Murray Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 243

FSCO A13-012623

BETWEEN:

LAN THI NGUYEN

Applicant

and

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990 c. I.8 as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:

1. The Applicant's claims are dismissed.

2. With respect to the issue of the expenses of this proceeding, if the parties are unable to resolve this issue on their own, either party may, within 30 days, make a written request for me to determine the matter in accordance with Rules 75 through 79 of the Dispute Resolution Practice Code.

September 14, 2016

Maggy Murray Arbitrator

Date

a) Medical benefit for services provided by Proactive One Health Care in the amount of $1,565.26 for the SEMG Assessment dated August 23, 2010. b) Cost of examination for the following services by Access Rehab: i. $1,130.00 for the follow-up attendant care assessment dated July 26, 2012; ii. $169.50 for translation services dated July 26, 2012; iii. $1,130.00 for the in-home assessment dated August 13, 2012; iv. $197.75 for translation services dated August 13, 2012; v. $1,695.00 for the worksite assessment dated September 6, 2012; vi. $169.50 for translation services dated September 6, 2012; vii. $1,582.00 for the orthopaedic assessment dated October 17, 2012; viii. $1,921.00 for the functional abilities evaluation dated December 17, 2012; ix. $169.50 for translation services dated December 17, 2012. Pursuant to Rule 70.3(b) of the Dispute Resolution Practice Code — Fourth Edition, I permitted the above issues to be withdrawn, for which the Insurer advised it may seek its costs thrown away for the time it spent preparing for these issues.

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2When the hearing reconvened in February 2016, Ms. Nguyen sought to withdraw her claims for the following:
3. 3Exhibit 5, Tab 64U
4. 4Exhibit 5, Tab 64CC
5. 5Exhibit 5, Tab 64S
6. 6Second edition, J. Sopinka, S.N. Lederman, A.W. Bryant, Butterworths Canada Ltd, 1999 at 297, paragraph 6.321
7. 7Exhibit 5, Tab 25
8. 8Exhibit 5, Tab 30
9. 9Exhibit 5, Tab 18
10. 10Exhibit 5, Tab 65L at 53
11. 11Exhibit 5, Tab 62
12. 12Dr. Steiner (psychologist) in his report dated April 6, 2011 notes: “Ms. Nguyen’s medical history was unremarkable. She reported that she has not been involved in any previous accidents. She stated that she was in good health at the time of the accident. She denied any history of pain or psychological disturbance. ” (Exhibit 5, Tab 69A, at p. 2). See also report of Dr. Veidlinger dated May 17, 2011 where he states: “She has enjoyed good health in the past and has had no previous accidents.” (Exhibit 5, Tab 64 P, at p. 2)
13. 13Exhibit 5, Tab 3
14. 14Exhibit 5, Tab 8 at 2
15. 15Exhibit 5, Tab 68M at 3
16. 16Exhibit 5, Tab 67A at 7
17. 17Exhibit 5, Tab 67B at 8
18. 18Exhibit 5, Tabs 67A at 7 and 67B at 8
19. 19Exhibit 5, Tab 20 EUO at 47
20. 20Exhibit 5, Tab 20, EUO at 10-11
21. 21Exhibit 5, Tab 64Q at 13 and Tab 68G at 12
22. 22Exhibit 5, Tab 67A at 9
23. 23Exhibit 5, Tab 67B at 12
24. 24Exhibit 5, Tab 20 at 12-13
25. 25Exhibit 5, Tab 64P at 3
26. 26Exhibit 5, Tab 67A at 8
27. 27Exhibit 5, Tab 67B at 9
28. 28Exhibit 5, Tab 67H at 9
29. 29Section 27(1)1, O. Reg. 403/96
30. 30Exhibit 5, Tab 18
31. 31Exhibit 5, Tab 67A
32. 32Exhibit 5, Tab 67B
33. 33Exhibit 5, Tab 67B at 20
34. 34Exhibit 5, Tab 19, at 37-39
35. 35Exhibit 5, Tab 64S
36. 36Exhibit 5, Tab 64U
37. 37Exhibit 5, Tab 64CC
38. 38Exhibit 5, Tab 68A at 2
39. 39Exhibit 5, Tab 67 E
40. 40Exhibit 5, Tab 67 E at 8
41. 41Exhibit 5, Tab 64 A at 5
42. 42Exhibit 5, Tabs 64 I and 64 EE
43. 43Exhibit 5, Tab 19 at 8, Explanation of Benefits
44. 44Exhibit 5, Tab 67F
45. 45Exhibit 5, Tab 67F at 19
46. 46Exhibit 5, Tab 67A at 9
47. 47Exhibit 5, Tab 20 at 13
48. 48Exhibit 5, Tabs 37, 38, 39, 42, 43, 44, 47, 49, 51
49. 49Exhibit 5, Tab 20 at 10-11
50. 50Exhibit 5, Tab 68M
51. 51Exhibit 5, Tab 19 at 8, Explanation of Benefits
52. 52Exhibit 5, Tab 67F
53. 53Exhibit 5, Tab 67F at 18
54. 54Exhibit 5, Tabs 36-52
55. 55Exhibit 5, Tab 20 at 10-11
56. 56Exhibit 5, Tab 64 DD at 4-5
57. 57Exhibit 5, Tab 67F at 17
58. 58Exhibit 5, Tab 67B at 12