November 24, 2014

SABS Update – The Difficulty in Self-Representation

For the week of November 24 to November 28, 2014

Nguyen v Federation Insurance Company of Canada, Appeal P13-00029, Adjudicator David Evans

Mrs. Nguyen, a self-represented claimant, appealed the Order of Arbitrator Lloyd Richards, dated August 28, 2013 in which he found that Mrs. Nguyen was not entitled to either caregiver benefits or non-earner benefits. The appeal was dismissed, as Mr. Evans did not find any errors in law regarding the Arbitrator’s decision.

MVC January 27, 2003. Federation Insurance Company (“Federation”) accepted that Mrs. Nguyen suffered a substantial inability to engage in the caregiving activities in which she engaged at the time of the accident. It paid her the benefit for her children under the age of 16, pursuant to s.13 of the SABS. Federation ended the benefits after August 23, 2008, when it claimed that Mrs. Nguyen could now care for her remaining daughter who was less than 16 years of age. Ms. Nguyen sought reinstatement of the benefit to February 23, 2009, the date on which her daughter turned 16. Mrs. Nguyen also claimed a non-earner benefit (“NEB”) under s.12 (1)(2) of the SABS thereafter.

The issue of the extent of Mrs. Nguyen’s disability was the same for both benefits: the complete inability test needs to be met when seeking payment of caregiver benefits post the 104 week mark. Similarly, NEB is payable to an insured person if they suffer a complete inability to carry on a normal life within 104 weeks after the accident, has received a caregiver benefit, and there is no longer a person in need of care. The Arbitrator found that Mrs. Nguyen did not meet the test in both cases.

The Arbitrator gave little weight to Mrs. Nguyen’s medical evidence, and preferred the evidence of Federation. He discounted the disability certificate of Dr. P. Tran, the claimant’s psychiatrist, because he ignored Mrs. Nguyen’s pre-accident impairments that had affected her ability to function. The Arbitrator also found that the assessment of Mrs. Nguyen’s chiropractor, Dr. Prokofiew, gave the impression that Mrs. Nguyen was completely unable to function physically, since she did not complete many of the assessment activities. Dr. Prokofiew, however, did not address this issue, nor did he present evidence at the hearing to clarify the report.
Regarding Mrs. Nguyen’s NEB benefits, the Arbitrator stated that in particular, a comparison of a claimant’s activities and life circumstances before the accident to those after should be considered. 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.

At the beginning of the appeal hearing, Mrs. Nguyen’s daughter, who represented Mrs. Nguyen at the appeal hearing, asked for leave to call doctors to testify. She was denied, as this did not relate to a question of law.

Mrs. Nguyen submitted that the Arbitrator erred in law in several ways in assessing the evidence. Mrs. Nguyen presented various issues that she had with the medical reports used by Federation. For example, she stated that Ms. Saunders, occupational therapist, “made errors and mistakes in her report and as a result apologized in her addendum report”. These errors were typographical, and Ms. Saunders did not withdraw her conclusion, bur rather confirmed it. The report, addendum, and alleged errors were all before the Arbitrator, and so Mr. Evans did not find an error in law in the Arbitrator’s review of the report.

Mrs. Nguyen also submitted that she developed depression and chronic pain as a result of the accident, and referred to a lumbar CT scan and cervical spine x-rays. This however, goes to the Arbitrator weighing the evidence before him, and he was not required to explicitly acknowledge the x-ray and CT scan results, and they were dealt with in the insurer’s examination. Mr. Evans decided that no error of law was raised in her submission.

Mrs. Nguyen also raised a new issue, which was that of her capacity during the arbitration hearing. She stated that the hearing went ahead, even though she was attending psychological treatment, and had psychological impairments that caused her to be mentally incapable at the time. Mr. Evans did not find that the Arbitrator erred in law by allowing Mrs. Nguyen to present her own case. Mrs. Nguyen’s daughter had attended the hearing with her, and assisted her greatly throughout the entire process. The issue of capacity was also never raised by Mrs. Nguyen, and there is a presumption of capacity in the absence of evidence to the contrary.

Mr. Evans concluded that Mrs. Nguyen had not raised any errors in law regarding the Arbitrator’s decision. The appeal was, therefore, dismissed.

 

IMPLICATIONS

This decision demonstrates the difficulty that self-represented claimants endure when trying to present their side of the story. Perhaps even with legal representation, the hearing and appeal decisions would have remained the same. However, the odds appear to be stacked against the self-represented party who is unfamiliar with the applicable accident benefits law, and the proper procedures to be followed.
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