Neutral Citation: 1994 ONICDRG 136

File No. A-004833

ONTARIO INSURANCE COMMISSION

BETWEEN:

Khoi N. Trinh

Applicant

and

Alpina Insurance Company, Limited

Insuiei

DECISION

Issues:

The Applicant, Khoi N. Trinh, was injured in a motor vehicle accident on April 30, 1992. He applied for and received statutory accident benefits from Alpina Insurance Company, Limited ("Alpina"), payable under Ontario Regulation 672¹. Weekly benefits were terminated by Alpina on November 19, 1992. Mr. Trinh claims weekly benefits from November 20, 1992 through July 31, 1993. The parties were unable to resolve their dispute through mediation, and Mr. Trinh applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8.

The issue in this hearing is:

1. Is Mr. Trinh eligible for weekly benefits after November 19, 1992?

The Applicant also claims interest on any outstanding amounts, and his expenses incurred in the hearing.

Result:

1. Mr. Trinh is not eligible for weekly benefits after November 19, 1992.

2. Mr. Trinh is entitled to his expenses of the arbitration.

Hearing:

The hearing was held in North York, Ontario, on December 14, 1993, before me, Fred Sampliner, arbitrator.

Present at the Hearing:

Applicant:

Khoi N. Trinh

Applicant's Representative:

Audrey R. Newman Barrister and Solicitor

Insurer's Representative:

Guy Farrell Barrister and Solicitor

Witnesses:

Khoi Nguyen Trinh, Applicant Kimberley A. Hunt, investigator Rosylin Goldlist, occupational therapist

Mr. Trinh's testimony was translated by Mr. Tri Nguyen of Global Translation Services.

Exhibits:

Exhibit 1

Joint Arbitration Brief

Exhibit 2

Dr. Vu's clinical notes

Exhibit 3

Photographs of the automobile damage

Exhibit 4/5

Surveillance photographs

Exhibit 6

Curriculum Vitae of Rosylin Goldlist

Evidence and Findings:

At the time of the April 30, 1992 motor vehicle accident Mr. Khoi Nguyen Trinh was 32 years old. Mr. Trinh was a front seat passenger in a car driven by his friend, when it was struck on the right side. Mr. Trinh claims that he suffered back pain, neck stiffness, headaches and dizziness as a result of the accident. He claims that the injuries he suffered entitle him to weekly benefits under section 13 of the Schedule from November 20, 1992 until July 31, 1993.

Section 13 provides a $185.00 weekly benefit to insured persons who are not considered employed or self-employed at the time of the accident. At the time of the April 30, 1992 accident, Mr. Trinh had not been employed or self-employed for at least eight months, but he was actively looking for work. It is agreed that his claim should be considered under section 13.

In order to be eligible for weekly benefits under section 13, Mr. Trinh must prove, on a balance of probabilities, that he suffers a substantial inability to perform the essential tasks of his everyday life. At the hearing Mr. Trinh described housework, looking for employment, basketball and physical workouts as his routine activities and essential tasks.

Mr. Trinh testified that at the time of the April 30, 1992 accident he shared an apartment in Toronto with his girlfriend and her young daughter. He regularly assisted his girlfriend in cooking, cleaning and laundry. I accept Mr. Trinh's evidence that he regularly assisted his girlfriend with the household chores, and I find them to be essential tasks.

Mr. Trinh also testified that he looked for employment three or four times a week. He answered newspaper advertisements, made calls on businesses and picked up short-term jobs through Manpower Temporary Services. I am willing to accept Mr. Trinh's search for employment as an essential task because Mr. Trinh regularly engaged in this activity, and it seems fair to recognize the value of Mr. Trinh's attempts to find a permanent place in the workforce. I find that Mr. Trinh's employment-search activities are part of his essential tasks.

Mr. Trinh testified that he regularly engaged in sports prior to the accident. Mr. Trinh stated that at the time of the accident, he played basketball with friends every day and worked out at a gymnasium. I accept that Mr. Trinh regularly engaged in physical exercise and that sports are important to Mr. Trinh's well-being. I find that basketball and Mr. Trinh's physical workouts at a gym are part of his essential daily tasks.

Mr. Trinh testified that he could do everything before the accident, and could do nothing after the accident. He repeated this statement several times in responding to questions about specific tasks.

In his testimony at the hearing, Mr. Trinh had difficulty focusing on the questions asked. During his testimony he complained of headaches, fatigue, dizziness, and an inability to concentrate. He took several breaks during the testimony to gather his thoughts.

Mr. Trinh testified that from the April 30, 1992 accident until August 1992, he could not clean the apartment or cook. By August 1992, he was able to do some cleaning and a little cooking. He said that by November 1992 he could also drive a car, do light laundry loads, prepare meals sometimes, take public transit, and shop. However, Mr. Trinh stated that he continued to be unable to play basketball, work out with weights at the gym and do the heavier household chores, like vacuuming and bathroom cleaning.

Mr. Trinh's evidence was inconsistent. His broad and exaggerated statement that he could do nothing after the accident clearly conflicted with his testimony that he was cooking and doing laundry by August 1992. Mr. Trinh also said that between the accident and termination of weekly benefits, his medical condition did not improve. That statement contradicts his own evidence that he resumed performing some of the household chores.

While I might be able to attribute this inconsistency in Mr. Trinh's evidence to language difficulties, there were other instances in which Mr. Trinh became confused. He testified that he saw Dr. "Rick" Ramroopsingh after the accident. Mr. Trinh said that Dr. Ramroopsingh examined him, referred him to physiotherapy and massage, and prescribed medication. However, during cross-examination, Mr. Trinh could not recall Dr. Ramroopsingh's name. Following this answer, Mr. Trinh explained that he could not concentrate and was confused. At other points Mr. Trinh's testimony was confused. He lacked recall of the facts and was inconsistent. For these reasons, I do not find his evidence particularly convincing.

Dr. "Rick" Ramroopsingh's medical reports, and clinical notes and records were introduced. Dr. Ramroopsingh found that Mr. Trinh initially complained of severe headaches, dizziness, neck pain and stiffness, back pain, chest tenderness, shoulder pain and poor sleep. He diagnosed post-traumatic headaches and dizziness, myofascial injury to the cervical and lumbosacral regions, chest and left thigh contusions, and sleep disturbance. Dr. Ramroopsingh's handwritten clinical notes and records, which I find difficult to read, do not show any significant change in Mr. Trinh's symptoms through July 1993. The June 24, 1993 medical report states that Mr. Trinh continued to suffer the same back, neck, headache and sleep disturbances as he did immediately after the accident. As of June 24, 1993, Dr. Ramroopsingh believed that Mr. Trinh was not fit to resume his normal activities.

Dr. Reuven Lexier, an orthopaedic surgeon, examined Mr. Trinh at the request of Alpina. No translator was present, and it appears that Dr. Lexier's conversation with Mr. Trinh was limited. Dr. Lexier's July 28, 1992 medical report notes similar complaints to those mentioned by Dr. Ramroopsingh. However, Dr. Lexier found no evidence of a disability, and he recommended that Mr. Trinh return to his normal duties.

Dr. Lyndon Mascarenhas also examined Mr. Trinh at Alpina's request. Dr. Mascarenhas reviewed Mr. Trinh's medical records, interviewed Mr. Trinh through a translator and conducted a physical examination. Dr. Mascarenhas, in his November 11, 1992 report, found that Mr. Trinh had full movement of the back, legs and shoulders. He concluded that Mr. Trinh was physically fit to perform his normal daily activities.

Mr. Trinh was examined by a neurologist, Dr. L.M. Picard. At Mr. Trinh's first visit to Dr. Picard on June 14, 1993, x-rays of Mr. Trinh's head and neck were taken. A brain scan and an EEG were also performed. The results were normal. Dr. Picard examined Mr. Trinh again on July 20, 1993. From the consultation notes of both examinations, it is apparent that Dr. Picard found no motor, reflex or sensory abnormalities. Mr. Trinh could walk on his heels and toes without difficulty, and bend over to touch his toes "with a little encouragement". Dr. Picard found no organic cause for Mr. Trinh's continuing headaches. He diagnosed post-traumatic headaches and post-traumatic soft tissue injuries.

The difference in the opinions of these four medical experts is difficult to reconcile. Dr. Lexier and Dr. Mascarenhas saw no organic reason why Mr. Trinh should be limited in his activities. Dr. Picard found no neurological condition, but he commented that generally it was not unusual for soft tissue injuries to cause a dysfunctional condition. On the other hand, Dr. Ramroopsingh found that the myofascial injuries suffered by Mr. Trinh interfered with his ability to resume normal activities. However, there is no indication in any of the medical reports, clinical notes or records that any of these medical practitioners tested Mr. Trinh's functional abilities.

Rosylin Goldlist, an occupational therapist from Vocational Pathways Inc., conducted a functional abilities evaluation of Mr. Trinh on November 18, 1992. I was impressed by the report and testimony of Ms. Goldlist, and I find her evidence reliable.

The functional abilities evaluation of Mr. Trinh began at about 9:15 a.m. and ended around 3:30 p.m., with a half hour lunch break. Ms. Goldlist first took a personal history of Mr. Trinh through a translator. Ms. Goldlist asked Mr. Trinh about his daily routine.

Ms. Goldlist testified that during this interview Mr. Trinh told her he could perform most of his essential tasks. He was able to attend to his personal hygiene and grooming, prepare meals, shop and do all of the housekeeping, except vacuuming. Ms. Goldlist's testimony about what Mr. Trinh said he was capable of doing at the time of the November 18, 1992 interview sharply contrasts with Mr. Trinh's position that he could do very little housework at that time.

Following the interview, Mr. Trinh's physical strengths and weaknesses were tested. Ms. Goldlist reported that Mr. Trinh put forth a good effort throughout the testing. Ms. Goldlist said that Mr. Trinh showed a normal range of movement in his limbs and trunk, as well as good sitting, standing, walking, reaching, and stair climbing tolerance. His manual dexterity was found to be sufficient, and Mr. Trinh was able to squat and kneel for up to five minutes. Mr. Trinh could repeatedly lift 15 pounds for short time periods and distances. He could also push 100 pounds, but was tired afterwards. Ms. Goldlist states in her report that Mr. Trinh had few complaints during these tests. He suffered increasing neck discomfort while reaching overhead, and at the end of the testing, he had a headache.

Ms. Goldlist found some limitations in Mr. Trinh's abilities. He had about a 25% reduction in neck rotation and chin lift, his grip strength was reduced, and she suggested that Mr. Trinh avoid prolonged overhead reaching, lifting over 20 pounds, and extensive stair climbing.

Generally, Ms. Goldlist found that Mr. Trinh had a reduced work tolerance accompanied by headaches and fatigue. However, despite these limitations, Ms. Goldlist thought that Mr. Trinh could rest and still do his essential housekeeping chores and shopping. The testing of Mr. Trinh's actual physical abilities was done in a reasonably non-partisan manner, and Ms. Goldlist's conclusions are, in my view, an accurate assessment of his physical abilities. I accept the Vocational Pathways report, and find that Mr. Trinh was able to perform his household and personal tasks on November 19, 1992.

The Vocational Pathways report prepared by Ms. Goldlist states that Mr. Trinh jogged two or three times per week at the time of the accident, and that he did not resume this activity after his injuries. Additionally, Ms. Goldlist testified that Mr. Trinh had not resumed playing basketball by November 1992. However, neither Ms. Goldlist nor any of the other medical practitioners specifically addressed Mr. Trinh's ability to resume these sports activities. Since Mr. Trinh's evidence is unreliable, and none of the health care practitioners addressed this issue, I am without evidence to support Mr. Trinh's claim that he was not able to play sports after the benefits cutoff date.

Expenses:

Mr. Trinh is not successful in his claim for weekly benefits after November 19, 1992. However, I have the discretion to grant his expenses of the arbitration. In most cases a claimant is awarded these expenses, subject to the limitations set forth in the Dispute Resolution Practice Code.

Alpina submitted that Mr. Trinh should not be awarded his expenses because there was no evidence to support his claim. That is simply not the case here. Although Mr. Trinh's testimony was not persuasive, he presented some medical evidence which supports his claim. That evidence was not strong enough to prove his claim, but it does justify an expense award. Therefore, I find that Mr. Trinh is entitled to his expenses of the arbitration hearing.

Order:

1. Alpina is not obligated to pay Mr. Trinh weekly benefits after November 19, 1992.

2. Alpina shall pay Mr. Trinh his expenses of the arbitration.

Fred Sampliner Arbitrator

Date

¹ Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.