January 23, 2016, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Date of Decision: December 24, 2015
Heard Before: Adjudicator Alan Mervin
REASONS FOR DECISION
Mr. Quoc Nguyen was injured in a car accident on January 14, 2003 when he was driving and was rear ended by a pick-up truck. He was taken by ambulance to the hospital and released the same day. His car was a write off. Mr. Nguyen claims significant soft tissue injuries to his head, neck and back in the accident, and hasn’t worked since the accident. He applied for benefits from TD. TD Home terminated weekly income replacement benefits on February 3, 2004. When the parties were unable to resolve their disputes through mediation Mr. Nguyen applied for arbitration at the FSCO.
The issues in this hearing are:
Has Mr. Nguyen suffered a catastrophic impairment (CAT) as a result of the car accident?
Is Mr. Nguyen entitled to Income Replacement Benefits (IRBs) from February 4, 2004, and ongoing? If so, how much?
Is Mr. Nguyen entitled to housekeeping and home maintenance benefits?
Is Mr. Nguyen entitled to attendant care benefits in the monthly amount of $487.62 from May 22, 2008, to date and ongoing?
Is Mr. Nguyen entitled to a Special Award with respect to the claim for Income Replacement Benefits, and if so, what is the quantum of the special award?
Mr. Nguyen has not suffered a catastrophic.
Mr. Nguyen is not entitled to Income Replacement Benefits.
Mr. Nguyen is not entitled to housekeeping and home maintenance benefits.
Mr. Nguyen is not entitled to Attendant Care Benefits.
Mr. Nguyen is not entitled to a special award.
Mr. Nguyen was employed as a cleaner immediately prior to the motor vehicle accident. His family claims he stays in his room watching tv, speaks unintelligibly, requires spoon feeding, and toileting assistance. He has no social life. Mr. Nguyen claims he has suffered a catastrophic impairment as a result of the motor vehicle accident.
TD presented several days of video surveillance evidence of Mr. Nguyen which were made between 2004 and 2008. The videos show behavior that is markedly different than Mr. Nguyen presented at assessments and at the hearing. He appeared to be working, driving, and living a full life in the series of videos spanning the years.
The Arbitrator reviewed the evidence and law in the case. He spent a large amount of time dealing with surveillance video evidence at the hearing. Mr. Nguyen was made aware of the videos in November 2008, and they were provided to him. During the 8th day of the hearing Mr. Nguyen moved for an exclusion order of all the video surveillance evidence and testimony of witnesses associated with it based on the insurer’s non-compliance with Rule 40 of the Dispute Resolution Practice Code. He based his objections on the allegations he was unaware of the handwritten notes made by investigators during videotaping, and that the notes were not produced. TD was not aware the notes had not been provided. TD’s investigators were permitted to testify at the hearing and to be cross-examined. None of the video appeared to be edited.
Mr. Nguyen argues that there is arbitral authority to exclude the surveillance evidence based on the fact that portions of the surveillance videos may have been edited. In this case however there is no evidence that anything was edited nor that video was withheld. Rule 40 specifies that a party seeking to rely on surveillance evidence to produce all of the surveillance evidence or none of it. The Arbitrator noted there was no prejudice to Mr. Nguyen as he was given an opportunity to cross examine at least some of the investigators in this case. In addition, all of the video material and written reports were given to him years ago. There was also no suggestion that anything in the surveillance reports was inaccurate or differed from the notes. And, after having an opportunity to compare the notes to the reports, Mr. Nguyen asked no questions at the hearing to test the accuracy of the notes.
The Arbitrator reviewed the volumes of contrasting medical records in tandem with the video surveillance, along with the questionable testimony of Mr. Nguyen’s witnesses. The Arbitrator concluded that it was 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 videos show him conversing with associates, and performing a host of other activities depicted on multiple days of video footage that simply cannot be reconciled in any way with the man who has been described in the medical reports or by his family as unable to perform toileting functions without soiling himself and when he is hungry, he points to his stomach because he is unable to ask for food.
The Arbitrator noted that due to the many inconsistencies in Mr. Nguyen’s evidence on which his assessors relied in forming their opinions, and considering the great disparity in the presentation given by him to his assessors over a similar period as the video evidence, all of his medical evidence is suspect and unreliable. The possibility that he is providing a false presentation in light of what has been reported by the assessors as opposed to how he appears on the videos also must be considered in deciding what weight to give to the evidence.
On this basis the Arbitrator concluded that Mr. Nguyen’s medical evidence is unreliable and the Arbitrator was not satisfied that the Mr. Nguyen has proven, on a balance of probabilities, that he has suffered a catastrophic impairment.