Van Tri Nguyen v. Unifund Assurance Company, 2017 ONFSCDRS 36

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 36

FSCO A14-010114

BETWEEN:

VAN TRI NGUYEN

Applicant

and

UNIFUND ASSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Arbitrator Kenneth Conroy

Heard:

In person at ADR Chambers on November 15-17, 2016

Appearances:

Mr. Kwaku Bona for Mr. Van Tri Nguyen

Mr. Calogero Rumeo for Unifund Assurance Company

Issues:

The Applicant, Mr. Van Tri Nguyen, was injured in a motor vehicle accident on May 22, 2013 and sought accident benefits from Unifund Assurance Company (“Unifund”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Van Tri Nguyen, through his then representative, 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 Mr. Nguyen entitled to receive a non-earner benefit?
Is Mr. Nguyen entitled to receive a medical benefit?
Do Mr. Nguyen’s injuries fall within the Minor Injury Guideline?
Is Mr. Nguyen entitled to interest for overdue payment of benefits?
Is either party entitled to its expenses of the Hearing?

Result:

Mr. Nguyen is not entitled to receive a non-earner benefit.
Mr. Nguyen is not entitled to receive a medical benefit.
Mr. Nguyen’s injuries fall within the Minor Injury Guideline.
There is no interest payable to Mr. Nguyen.
The Insurer is entitled to its expenses of the Hearing in the amount of $4,000.00.

EVIDENCE AND ANALYSIS:

At the outset of the Hearing, the Applicant’s representative, Mr. Kwaku Bona, licensed paralegal, sought to have a Motion heard to be removed from the record. Submissions were heard and the Applicant’s representative produced a document signed by the Applicant, terminating his representation. Mr. Bona indicated that this was against his advice. The Applicant confirmed that he had signed the document and then requested an adjournment of the Hearing. The Applicant received an adjournment of this Hearing on a previous date at his request, making this the second request for an adjournment. Counsel for the Insurer objected to the adjournment of the Hearing but took no position as to the removal of the representative.

As a result of the submissions heard, the Hearing was ordered to proceed as the Applicant’s request did not fall within the guidelines stated in Practice Note 9 of the Dispute Resolution Practice Code, which states the requirements in which adjournments to a Hearing may be granted. It was clear that the termination of the Applicant’s representative was as a result of the Applicant’s action. It was further ordered that the representative be removed as representative for the Applicant.

The Applicant gave evidence on his behalf and called no witnesses. His work history is that he had worked years ago in a fish factory but has been on social assistance for several years. An Arbitration Brief was submitted by the Applicant’s former representative which was identified as Exhibit A. It contained Disability Certificates, correspondence as well as clinical notes and records of St. Joseph’s Health Centre and the Applicant’s family physician, Dr. Nguyen. Previously, a list of documentation was ordered to be produced by Arbitrator Diamond on September 1, 2016. Production by the Applicant did not occur and remained outstanding at the time of the Hearing.

The Applicant received chiropractic and physiotherapy treatment for soft tissue injuries. The Applicant stated at the Hearing that he continued to experience right arm pain, neck and lower back pain. There is no evidence in the family doctor’s notes of ongoing complaints and no record was produced by the Applicant to indicate he pursued any further treatment. The evidence stated by the Applicant at the Hearing, was that he in fact went for extended visits to Vietnam in 2013 and 2014 to visit family. He visited his family doctor upon his return. There is no further evidence of any further discomfort other than what was stated at the Hearing by the Applicant. The Applicant did not call any treatment providers to give evidence or to support his claim that he continued to experience muscle pain. In the Applicant’s OCF-18,² the Applicant’s own treatment provider, Dr. Choe, chiropractor, indicated that the injuries sustained by the Applicant were predominantly a minor injury as defined within the Minor Injury Guideline. The Applicant received no treatment other than from Dr. Choe.

The Applicant attempted to present during his evidence further clinical notes and records of his family doctor. Counsel for the Insurer objected to such documents being submitted as they were not served properly and in a timely fashion by the Applicant or his former representative. The documents were ruled to be inadmissible for the purpose of the Hearing.

An Insurer Examination (“IE”) was performed in December 2013 by Dr. Mascarenhas, who gave evidence at the Hearing for the Insurer.

Much of the evidence of the Applicant was vague. Under cross-examination, the Applicant could not recall who assisted him with housekeeping. He could not recall if any other doctors conducted a comprehensive assessment or treatment other than Dr. Mascarenhas. However, he was unable to identify this doctor at the time of the Hearing as the doctor he visited. Having conducted an IE, the doctor concluded that the Applicant had sustained a neck strain, thoracic strain and shoulder strain. There was no indication of right shoulder dislocation. Dr. Mascarenhas indicated that the Applicant’s pre-existing conditions of high blood pressure and cholesterol had no effect on the Applicant’s recovery and that the Applicant’s injuries were nothing more than strains requiring only 8-12 weeks of treatment. He further found that the Applicant had no functional limitations and that he was able to perform all of his activities independently. The doctor also concluded in his evidence that the Applicant did not suffer a complete inability to carry on a normal life. In conclusion, Dr. Mascarenhas indicated that, in his professional opinion, the Applicant had sustained only minor injuries as per the Minor Injury Guideline, and that he did not meet the non-earner threshold. Dr. Mascarenhas was the only witness for the Insurer.

When given the opportunity to cross examine Dr. Mascarenhas, the Applicant indicated that the doctor’s evidence was accurate and correct. He also attempted to ask the doctor for medical advice on what he should do about his complaint of discomfort at this time.

I was able to conclude that the Applicant had failed to produce documents and witnesses that could possibly have assisted him in his claims. He concurred with the findings of the Insurer’s doctor at the Hearing and failed to meet the burden of proof in presenting his case and entitlement to benefits claimed.

EXPENSES:

The Applicant failed to meet the burden of proof required of him, he unilaterally terminated his representation immediately prior to the Hearing and failed to produce documentation required of him. Having reviewed the Bill of Costs provided by the Insurer’s Counsel and submissions heard, the Insurer is entitled to costs in the amount of $4,000.00, inclusive of costs and disbursements.

February 6, 2017

Kenneth Conroy

Arbitrator

Date