Quoc Nguyen v. TD Home and Auto Insurance Company, 2017 ONFSCDRS 42

Financial Services Commission of Ontario

Neutral Citation: 2017 ONFSCDRS 42 Appeal: P16-00007

OFFICE OF THE DIRECTOR OF ARBITRATIONS

QUOC NGUYEN Appellant

and

TD HOME AND AUTO INSURANCE COMPANY Respondent

BEFORE: David Evans

REPRESENTATIVES: Peter B. Cozzi for Mr. Quoc Nguyen Daniel Siu and Marcel Malfitano for TD Home and Auto Insurance Company

HEARING DATE: July 29, 2016

APPEAL ORDER

Under section 283 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 Regulation 664, R.R.O. 1990, as amended, it is ordered that:

1. The Arbitrator’s Order of December 14, 2015 is confirmed and this appeal is dismissed.
2. If the parties are unable to agree about expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

February 9, 2017

David Evans Director’s Delegate

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Mr. Quoc Nguyen appeals Arbitrator Mervin’s order of December 24, 2015, in which the Arbitrator found that Mr. Nguyen was not catastrophically impaired and was not entitled to any of the benefits he claimed.

Mr. Nguyen essentially argues that his own near-catatonic state at the arbitration hearing was the evidence supporting his impairment, and that the Arbitrator erred in accepting the evidence that suggested otherwise.

However, the Arbitrator had evidence to support his conclusions, and I find no errors of law in how he arrived at his conclusions.

II. BACKGROUND

Mr. Nguyen was in an accident on January 14, 2003. He claimed various benefits from TD Home and Auto Insurance Company pursuant to the SABS–1996.¹ TD Home paid IRBs until February 3, 2004. Mr. Nguyen disputed the termination of benefits by filing for mediation and arbitration.

At arbitration, Mr. Nguyen claimed that he was catastrophically impaired and that he was entitled to income replacement, housekeeping and attendant care benefits and a special award. As he claimed catastrophic impairment, he was assessed in 2011 and 2012 by Centric Health on the insurer’s behalf.

Mr. Nguyen’s family testified that he cannot speak, mostly stays in his room watching TV, and requires assistance with eating and toileting. But the Arbitrator noted that TD Home had surveillance from 2004-2008 that he found showed a markedly different demeanour.

The Arbitrator noted that seven surveillance discs from 2004, 2005, 2008, and 2011 were entered into evidence, although that from 2011 “contained little information of significance.” The Arbitrator noted that Mr. Nguyen became aware of the surveillance in November 2008, and received copies in December 2008.

The Arbitrator rejected the Appellant’s motion brought after eight hearing days to exclude the surveillance because some notes were not produced. He found the omission was unintentional, the notes added nothing substantial to the evidence, and the prejudice was nonexistent as Mr. Nguyen was able to cross-examine at least some of the investigators.

The Arbitrator described the surveillance overall as follows:

Over the course of four years when the videos were taken, Mr. Nguyen is seen driving a vehicle on complex routes, including 400 series highways, dialling what appeared to be complex long-distance telephone numbers from a pay phone, servicing his vehicle and talking and interacting with other people. On the video, he was seen entering the Pho Linh Vietnamese Restaurant on College Street on one occasion at lunch time, exiting some time later. He appeared to have been stopping for lunch. On other occasions, he is seen carrying coffees in a tray from Tim Horton’s. He visits multiple motor vehicle repair shops, particularly Imperial Auto and Royal Auto, where he is seen interacting with mechanics and participating in automobile maintenance.

The Arbitrator contrasted that with Mr. Nguyen’s oblivious appearance at the hearing. The Arbitrator found that his testimony added little to the evidence, and that he “presented as a man with limited cognitive abilities and awareness.” But the Arbitrator found that the videos taken over a four year period showed Mr. Nguyen engaging in social functioning, completing everyday tasks, and engaging in complex goal-directed behaviour, whereas none showed him presenting any visible indications or signs of physical or mental impairment.

Since Mr. Nguyen gave little useful testimony, most of the lay testimony came from his wife, Hoan Phan, and his daughter, Thanh Quyen (Amy) Nguyen. However, the Arbitrator found neither to be credible.

Hoan Phan, Mr. Nguyen’s wife, described him as essentially non-functioning and claimed she had to provide extensive care. However, she appeared to know little of what Mr. Nguyen was doing during the surveillance. For instance, he was gone for hours one day, but she thought he had gone for a walk that usually lasted 1.5 hours or less. The Arbitrator found her not credible and portions of her testimony “simply unbelievable… At times it appeared that her responses were being created as she testified.” Ms. Phan also testified that Mr. Nguyen showed significant impairment right away. But Dr. Joel Eisen, a psychiatrist, who was part of the Insurer’s expert CAT assessment team at Centric Health, reported that she said Mr. Nguyen had rapidly deteriorated in the three years before the assessment he conducted in February 2012, which would be 2009 (the year after Mr. Nguyen learned of the surveillance). Dr. Pravesh Jugnundan, a General Practitioner at Centric Health, noted the contrast between what the DVD of 2004 showed and how he was described in 2011. Ms. Phan’s explanation was that he fluctuated between his present state and what is seen on the DVD. The Arbitrator noted that this was the first time any family members admitted that on some days Mr. Nguyen presented normally. The Arbitrator concluded that Hoan Phan’s testimony was “unreliable, inconsistent with both her previous statements and with the testimony and reports of other witnesses,” so he gave it little weight.

Mr. Nguyen’s daughter Amy testified that she accompanied her father to all medical interviews and appointments to interpret for him, so generally speaking she answered the assessors on his behalf. Similarly, when she took her father to see Dr. M. Mamelak, the Applicant’s psychiatrist, it was always the three of them; herself, her father and her mother.

The Arbitrator noted that Amy testified the same as her mother that there was a big difference in Mr. Nguyen’s presentation immediately after accident. She stated she had been unaware he was driving on days when he was recorded doing so. When confronted with a contradiction between her testimony and her mother’s, Amy agreed with her mother’s version. She claimed that right away Mr. Nguyen had no memory of the accident. When she was confronted with medical reports showing he described it in great detail, she said he forgot and then remembered, then denied saying he didn’t remember on the stand. The Arbitrator concluded that, contrasted against the video evidence, Amy’s portrayal of her father’s condition, activities and limitations was simply not believable.

Turning to the medical evidence, the Arbitrator noted that Mr. Nguyen claimed he had a catastrophic impairment due to a mental or behavioural disorder as defined in s. 1.1(g) of the SABS because he had at least a Class 4 or marked impairment in one of the four spheres of functioning.

For Mr. Nguyen, Dr. Mamelak, the treating psychiatrist, opined that Mr. Nguyen had at least a category 4 marked impairment in all 4 spheres of functioning, while the Insurer’s psychiatrist, Dr. Joel Eisen, found Mr. Nguyen not to be suffering any impairment in any of the 4 spheres. The Arbitrator preferred Dr. Eisen’s evidence because of Dr. Mamelak’s disdain for the surveillance evidence, which he had apparently only skimmed. The Arbitrator found Dr. Mamelak’s explanation for Mr. Nguyen’s driving – it was a learned response – unacceptable, and otherwise he found Dr. Mamelak offered no explanation for the difference between the surveillance and Mr. Nguyen’s deportment.

Another medical witness for Mr. Nguyen was Mr. Wayne De Ryck, a kinesiologist/rehab consultant retained by him. Mr. De Ryck visited the Nguyen home twice, in September 2007 and September 2012. On the first occasion he never saw Mr. Nguyen, so his Future Care Costs Analysis Report was based solely on his daughter Amy’s information. The second time, he did see Mr. Nguyen, but it was unclear if the answers came from him or from Amy. Mr. De Ryck appeared surprised by the videos, since he testified he did not expect to see Mr. Nguyen doing what they showed him doing. Regarding the inconsistencies between the surveillance and his reports, he said they were based on what Amy said. The Arbitrator found his conclusions suspect and unreliable as they were based on information from the family members. Although Mr. Nguyen advanced the reports as a basis for an attendant care benefits claim, the Arbitrator noted that Mr. De Ryck never personally assessed the Applicant’s attendant care needs and he was not retained for that purpose, nor was he in a position to do so. Further, the Arbitrator noted that, even if the information in his report was accepted as sufficient to stand in place of a Form 1, which was never provided, he found the information in his report was not first hand or reliable.

Regarding the Insurer’s medical evidence, an Impairment Determination Multidisciplinary Assessment Report of the Applicant was commissioned by the Insurer and conducted in 2011 and 2012 by Centric Health. Their findings were contained in the Centric Health Multidisciplinary Report dated March 28, 2012.

Dr. Joel Eisen, Psychiatrist, in his IE report dated March 28, 2012, found no impairment ratings were applicable because there was insufficient evidence that Mr. Nguyen had a psychiatric disorder attributable to the accident. Most of the information came from Amy Phan. The Arbitrator noted that her description of her father’s deterioration from 2009 onward followed her finding out about the surveillance. This contrasted with her testimony that he had been unchanged from the date of the accident. Dr. Eisen noted that the surveillance showed Mr. Nguyen was high functioning, “except for an insignificant brief clip showing the Applicant attending a medical appointment in March 2011.”

The Arbitrator found there was no objective evidence of any sudden deterioration other than as reported by Ms. Phan. Further, even if the presentation was true, he found nothing tied the alleged sudden deterioration to the 2003 MVA.

Dr. Eisen testified that the videos were inconsistent with category 4 or 5 impairments and that driving is not a reflexive activity. Dr. Eisen was also cross-examined about the March 28, 2012 report of Ms. Tazmeen Lalani, Occupational Therapist at Centric Health, who saw him two days later. He testified that the radical differences between how Mr. Nguyen appeared to Ms. Lalani compared to Mr. Nguyen’s oblivious, uncooperative and unresponsive appearance before him raised questions about etiology. Dr. Eisen said that, given the gross level of inconsistencies, he could not determine if the Applicant had a psychiatric disorder, nor could he make a diagnosis. In conclusion, the Arbitrator accepted in totality the evidence of Dr. Eisen, on the basis that it was objective and factually sound, and where it differed from that of Dr. Mamelak, he preferred the evidence of Dr. Eisen.

Another member of the Centric team was Dr. Christopher Gallimore, orthopaedic surgeon. He found no musculoskeletal impairment, nor did the videos show any. He also noted that a video showed smooth movements of head-turning and neck-flexing, which he had told Dr. Khoury, a physiatrist who had assessed the Applicant on August 3, 2004, he could not do. Dr. Gallimore said the Applicant would not have been able to do what he observed him doing in the video, if, indeed, his presentation to Dr. Khoury was accurate. The Arbitrator noted that the cross-examination largely focused on whether CAT DAC procedures were followed. He found that using DAC guidelines to discredit the conducting of the current assessments had to be given very little weight, as this is simply no longer the law in Ontario. He accepted Dr. Gallimore’s opinion that from an orthopaedic perspective, the Applicant has no impairment.

The Arbitrator then reviewed additional medical evidence primarily to highlight the contrast in the presentation of Mr. Nguyen to the various assessors during the time periods when he was under surveillance. For instance, Dr. Shahira Khoury, psychiatrist, examined Mr. Nguyen on August 3, 2004, with the assistance of a Vietnamese interpreter. He said he was unable to drive, but this was three weeks before video showed him driving for hours. Similarly, on October 15, 2007, the Applicant met with Dr. S. Scherer, a rehabilitation psychologist and educational specialist, and Mr. Nguyen was unresponsive. But, the Arbitrator noted, this was less than three months before Mr. Nguyen was again seen driving for hours (January 9, 2008).

Regarding the surveillance, the Arbitrator stated:

It is exceedingly difficult to reconcile the appearance, demeanour, and capabilities of Mr. Nguyen as he appears in videos over a 4-year time period, with that of the testimony of family, and various experts’ testimony and reports. The surveillance videos present a man who appears to be functionally normal in the way he goes about his activities, over a period of several days spanning 4 years post-accident.

The Arbitrator found no way to reconcile the documentary evidence and Mr. Nguyen’s presentation with the videos. He noted that the Insurer’s own witnesses were apparently surprised by the level of functioning. Both Dr. Gallimore and Dr. Eisen said a person who suffered a category 4 impairment could not perform as the Applicant appeared to perform on the videos. The Arbitrator found that “the surveillance videos paint an entirely different picture than that of a man who has been described by his doctor as having at least a marked (category 4) impairment in all 4 domains of functioning.”

He concluded:

Having seen the surveillance videos, in my view, most if not all of the Applicant’s significant medical evidence in my mind is unreliable, as it is not based on objective criteria, but rather observations of the Applicant’s presentation at the assessments, and as described by the family member translating and providing information to the assessor.

The Arbitrator found the other evidence suspect, especially when it seemed Amy or other family members had described Mr. Nguyen’s condition, especially to Dr. Mamelak and Mr. De Ryck: “It is impossible to determine how much of what has been said is direct interpretation as opposed to a narrative as presented by the family member.” The Arbitrator therefore found all of Mr. Nguyen’s medical evidence was suspect and unreliable and reflected a possible false presentation. He found that where there was a conflict, he preferred the insurer’s evidence. Accordingly, the Arbitrator found that Mr. Nguyen does not suffer from a catastrophic impairment.

Regarding income replacement benefits, the Arbitrator found the same problems with credibility, so he did not find entitlement. As for housekeeping and home maintenance, Mr. Nguyen was not entitled to it beyond two years as he was found not catastrophic, and he was unable to rely on the evidence that might suggest entitlement up to two years. As for the attendant care benefits, again there was no entitlement after 104 weeks. As for the period up to then, no Form 1 was ever filed, nor was the issue ever mediated, so the Arbitrator found he had no jurisdiction to consider the claim. Finally, he found a Special Award was not payable as no benefits were owed and the Insurer terminated benefits based on sound medical opinions and reports. Accordingly, all of Mr. Nguyen’s claims were dismissed.

III. ANALYSIS

This case turns on the fact that the Arbitrator found Mr. Nguyen gave no useful evidence, his wife and daughter provided testimony that was not credible, and his experts relied on the undependable history to form their opinions. The Arbitrator reasonably found that the evidence was untrustworthy, of little assistance, and provided no basis for finding in favour of Mr. Nguyen.

As set out in s. 283(1) of the Insurance Act, a party to a FSCO arbitration may appeal the order of the arbitrator to the Director or his Delegate on a question of law. However, most of the submissions made by Mr. Nguyen relate to how the Arbitrator weighed the evidence. That is the Arbitrator’s role and not mine. As long as there was evidence to support the Arbitrator’s conclusions, there can be no error of law and I have no basis to intervene.

For instance, Mr. Nguyen submits that the Arbitrator erred in relying only on his oral testimony, which was of little use, because his whole presentation at the hearing was the evidence supporting his impairment. In the absence of finding him a malingerer, the Arbitrator should have found him psychologically impaired and not relied on the reporting of his wife and child, and submits that the most important evidence was the impression of what one saw in and what one heard from the Appellant Quoc Nguyen, and in what one believed about his presentation based on a totality of the evidence.

However, aside from the fact that the Arbitrator’s role is not to make a medical determination, that submission goes entirely to the Arbitrator’s findings of fact. The Arbitrator was fully entitled to consider the evidence of the wife and daughter in context, including not only the internal inconsistencies of their evidence but also the surveillance of Mr. Nguyen.

With respect to the surveillance evidence, Mr. Nguyen submits that the Arbitrator placed entirely too much weight on the “outdated” surveillance evidence from the years immediately after the accident and too little on the video surveillance from March 10, 2011. He submits that it was a “clear error of law” for the Arbitrator to conclude that the 2011 video surveillance “contained little information of significance” when it was closest in time to the hearing. He then draws out further submissions based on that submission, culminating in the submission that the proper question was whether he had suffered a catastrophic impairment as of March 28, 2012.

However, those again are submissions related to the weighing of evidence. As the Arbitrator noted, by late 2008 Mr. Nguyen was fully aware that he could be under surveillance, so the usefulness of anything taped after that would be doubtful at best. The Arbitrator was fully within his rights to give little weight to that 2011 video. Therefore, he was entitled to rely on the supposedly “outdated” surveillance evidence, as it showed just how untrustworthy the evidence of Mr. Nguyen’s wife and child was, and he was not required to draw conclusions as if the 2011 video was decisive.

Mr. Nguyen submits that the Arbitrator erred in law because he improperly failed to consider the alleged significant problems with the Centric Health CAT Assessment report. For instance, Mr. Nguyen submits that the psychiatrist Dr. Eisen made no analysis of his condition in relation to the four functional domains as required by the AMA Guides. However, as noted above, Dr. Eisen found no impairment ratings were applicable because there was insufficient evidence that Mr. Nguyen even had a psychiatric disorder attributable to the accident. I do not see how Dr. Eisen could conduct that analysis of the four domains given that finding. Mr. Nguyen submits that Dr. Eisen also erred in relying on surveillance from January 2011 that was actually of a translator and not of Mr. Nguyen. However, as I read the report, Dr. Eisen did not rely on that surveillance at all but rather on the earlier surveillance. This shows the problem with Mr. Nguyen’s submission, as he now asks me to read the report and reach my own conclusions. His submission really goes to errors of fact, which is not the question before me. I do not see an error of law in the way the Arbitrator dealt with the Centric report.

Mr. Nguyen submits that the Arbitrator erred in refusing to apply the DAC Guidelines to the Centric Health report on Mr. Nguyen’s alleged impairment. However, DACs were eliminated effective March 1, 2006, and the Application for Catastrophic Impairment was dated October 25, 2007. I find the Arbitrator did not err in refusing to apply the DAC Guidelines.

Mr. Nguyen submits that the Arbitrator erred in admitting the surveillance into evidence when it was not reviewed by all the Centric Health team. However, since Centric Health was not performing a DAC, it was not required to conform to DAC guidelines from 1998 on the use of surveillance. As for Mr. Nguyen’s reliance on a guideline published by the College of Occupational Therapists of Ontario, it is aimed at those treating a client and it states that there is no obligation to review surveillance material, as OTs are autonomous practitioners. I find the Arbitrator did not err by considering the surveillance in these circumstances.

Mr. Nguyen submits that the Arbitrator erred in failing to grant him a special award. However, the Arbitrator found no benefits were payable, so no special award could be payable either. Furthermore, the Arbitrator made a specific finding of fact that the termination of benefits was based on sound medical opinions and reports, so there could have been no unreasonable withholding of benefits. The Arbitrator’s finding of fact is entitled to deference, so I find no error in his conclusion on this point.

In conclusion, I find no errors of law in the Arbitrator’s decision. The Arbitrator had evidence before him to support his conclusions, which he amply supported in his reasons. The appeal is therefore rejected.

On a final note, after the conclusion of the hearing Mr. Nguyen sought to file fresh evidence and an amended Notice of Appeal. I rejected these, saying that this was unprecedented, considering that the appeal had been concluded, and “Fresh evidence is very rarely admitted on appeal in any event because my powers on appeal do not include reviewing evidence and making my own findings about it.”

IV. EXPENSES

If the parties are unable to agree about expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

February 9, 2017

David Evans Director’s Delegate

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.