Neutral Citation: 1994 ONICDRG 55
File No. A-002889
ONTARIO INSURANCE COMMISSION
BETWEEN:
SUNGIL KIM
Applicant
and
ROYAL INSURANCE COMPANY OF CANADA
Insurer
DECISION
Issues:
The Applicant, Sungil Kim, was injured in a motor vehicle accident on July 22, 1990. He applied for and received statutory accident benefits from the Royal Insurance Company of Canada ("Royal"), payable under Ontario Regulation 672.1 Weekly income benefits were terminated by Royal on July 29, 1991. The parties were unable to resolve their dispute through mediation and the Applicant applied for arbitration under the Insurance Act.
The issue in this hearing is:
Is Mr. Kim entitled to weekly benefits after July 29, 1991?
The Applicant also claims interest on any outstanding amounts, a special award, and his expenses incurred in the hearing.
Result:
Mr. Kim is not entitled to weekly benefits after July 29, 1991.
Mr. Kim is not entitled to a special award.
Mr. Kim is entitled to his expenses of the arbitration.
Hearing:
The hearing was held in North York, Ontario, on November 8 & 9, 1993, before me, Fred Sampliner, arbitrator.
Present at the Hearing:
Applicant:
Sungil Kim
Applicant's
Representative:
Alfred M. Kwinter
Barrister and Solicitor
Insurer's
Representative:
Wayne Edwards
Barrister and Solicitor
Witnesses:
Hyan Koo Kim, Applicant's son
Jung Sook Kim, Applicant's daughter
Sungil Kim, Applicant
Dr. Matthew C.Y. Kim, family physician
Exhibits:
Exhibit 1
Reports of Dr. Matthew C.Y. Kim, dated February 24, 1992; March 24, 1992; and September 11, 1992.
Exhibit 2
Clinical notes and records of Dr. Matthew C.Y. Kim.
Exhibit 3
Report of Dr. Robert L. Ikeman, dated April 6, 1990.
Exhibit 4
Reports of Dr. Arthur Bookman, dated August 28, 1991; January 21, 1992; April 26, 1992; December 24, 1992; and June 22, 1992, with attached physiotherapy discharge notes and two radiology reports.
Exhibit 5
Reports of Dr. Michael C. Hall, dated July 29, 1991, and April 22, 1992.
Global Translation Services translated the testimony of Mr. Sungil Kim.
Legal Transcript Services recorded the proceedings.
Evidence and Findings:
Mr. Kim was 65 years old and retired at the time of the July 22, 1990 automobile accident. He was struck by a car while crossing the street at the corner of Dundas and Chestnut in the city of Toronto. He was thrown about 10 to 15 feet by the impact, and sustained cuts and bruises to his back, as well as a swollen left hip. Mr. Kim was taken to the hospital where he was treated and released.
Mr. Kim testified that he could not move around his apartment for three or four days after the accident. His family assisted him.
Mr. Kim claims that he continues to experience pain in his left lower back and hip, which interferes with his ability to perform his normal household chores and other activities.
Mr. Kim claims that because he cannot perform the essential tasks of his daily life, he is accordingly entitled to ongoing weekly benefits from Royal under section 13 of the Schedule. 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. In order to be eligible for section 13 weekly benefits Mr. Kim must prove, on a balance of probabilities, that he suffers a substantial inability to perform his essential tasks of daily life as a result of the accident.
Royal paid Mr. Kim one year of weekly benefits after the accident. Royal does not dispute Mr. Kim's eligibility during the year that it paid weekly benefits. However, the company contends that Mr. Kim's medical condition before the accident caused his remaining disability after it ceased payment of weekly benefits.
Mr. Kim testified that in his last two jobs before retiring he worked as a gardener and did general cleaning at a restaurant. He said that he slipped and fell in about 1983, while he was working as a gardener, injuring his left leg and hip, the same areas injured in the July 22, 1990 motor vehicle accident. Although he went back to work for a short time after this injury, Mr. Kim stated that he tired easily and felt that he could no longer perform as well as previously.
After Mr. Kim left his gardening job he worked for a short time doing general cleaning at a hotel restaurant until he retired. Mr. Kim said that at times he suffered low back pain while working at the restaurant, and sometimes needed to rest or take medication.
Mr. Kim was not sure of the month and year that he retired from the work force, but said that it was sometime in 1985 or 1986. He said that he left work because he was becoming weaker with his age.
Mr. Kim's testimony about his back problems during the period between his retirement and the accident was not consistent. He denied suffering headaches or back pain before the accident. However, he also testified that he visited his family physician, occasionally took pain medication and needed to rest with a heating blanket to relieve his back pain. I find that Mr. Kim does not have an accurate recall of his pre-accident condition.
The Medical Evidence:
Dr. Matthew C.Y. Kim (no relation to Mr. Kim) had been Mr. Kim's family physician since 1985. Dr. Kim testified at the hearing.
Dr. Kim's medical reports and his testimony in chief supported Mr. Kim's claim that his back problems and headaches were caused by the accident. However, Dr. Kim's clinical notes and records of Mr. Kim's treatment before the accident conflicted with his view of Mr. Kim's condition.
The clinical notes and records of Mr. Kim's family doctor reveal that Mr. Kim suffered from back problems before the accident. Dr. Kim's notes date from August 17, 1987. At his August 22, 1987 visit, Mr. Kim complained of low back pain. Similar complaints are noted on June 30, 1988; July 10, 1989; July 28, 1989; August 8, 1989; August 31, 1989; November 23, 1989; December 11, 1989; and January 25, 1990. Mr. Kim did not complain of back pain from the end of January 1990 until the July 22, 1990 accident, but Dr. Kim did record complaints of headaches and neck pain and he diagnosed depression.
Shortly before the accident, Dr. Kim referred Mr. Kim to a rheumatologist, Dr. Ikeman, for assessment. Dr. Ikeman's medical report of April 6, 1990 states:
Thank you for referring this 65 year old retired Korean gardener for a rheumatology assessment. For the past 4-5 years he has complained of intermittent pain on the right side of his head, which seems to originate in the occipital area and radiate around to the right side of his head and eyes. It usually occurs in the late afternoon and evenings, but does not interfere with his sleep. The intensity of these pains have increased over the past month. He denies any neck or shoulder pains. Apparently his wife died about a month ago from, what sounds like, a ruptured aneurism. She presented with severe headaches.
He also complains of a 5-6 year history of intermittent left-sided low back pain which radiates down the left leg to the knee. It is aggravated by walking long distances. He describes intermittent numbness in the painful area, but no weakness. He is currently not taking any medications for the pain. Apparently he was tried on some pills in the past which did relieve some of his pain, but he stopped them. He's currently living with his youngest son, since the death of his wife. He has no functional limitations. [emphasis added]
At the conclusion of the report Dr. Ikeman stated his impressions:
Mr. Kim's right-sided headaches are possibly due to an intermittent right occipital neuralgia. I could find no clear pathology in his cervical spine to explain the pain. Apparently you did do x-rays of both is [sic] c-spine and skull, but he did not bring them with him. He has an intermittent lumbosacral strain with referred pain to his left leg, which may be due to the underlying degenerative changes and spondylolisthesis. [emphasis added]
In his testimony Dr. Kim agreed that Mr. Kim had a degenerative back condition before the accident. However, Dr. Kim testified that Mr. Kim's back condition after the accident was different than before the accident. Yet, when Dr. Kim was read excerpts from his clinical notes of the office visits, he acknowledged that Mr. Kim's complaints of pain were substantially similar before and after the accident.
I find that the clinical notes and records of Dr. Kim are an accurate reflection of Mr. Kim's pre-accident condition. Consequently, I find that Mr. Kim was symptomatic with back and neck pain and headaches during the period before the accident.
Mr. Kim visited his family doctor shortly after the July 22, 1990 accident. Dr. Kim's clinical note of the July 27, 1990 office visit states that Mr. Kim suffered headaches and low back and neck pain in an automobile accident. Dr. Kim's handwritten notes after this visit are often hard to read, but it appears to me that Mr. Kim chiefly suffered headaches, anxiety, depression and neck stiffness after the accident. Lower back pain and hip complaints do not reappear in Dr. Kim's notes with any regularity until the spring of 1991.
In the late spring of 1991 Mr. Kim was referred by his family physician to a different rheumatology specialist than before the accident. Dr. Arthur Bookman at Toronto Western Hospital examined Mr. Kim on five occasions between August 1991 and June 1992. After each visit he prepared and sent a report to Dr. Kim, all of which were introduced into evidence. Dr. Bookman also ordered X-rays and a bone scan of Mr. Kim's spine. The radiology report is included with Dr. Bookman's records.
Based upon the radiology report and his examinations, Dr. Bookman diagnosed that Mr. Kim suffered from osteoarthritis and spondylolisthesis of the lumbar spine. Dr. Bookman characterizes these conditions as degenerative changes. In his April 26, 1992 report, Dr. Bookman states:
Concluded investigations demonstrate moderate osteoarthritis of his lumbar spine at the L-5, S-1 level, mild degenerative spondylolisthesis at that level as well. Bone scan rules out metastatic disease and demonstrates only these degenerative changes at L-5, S-1. [emphasis added]
Dr. Bookman made no finding that the degenerative changes were caused by the accident, and I find that his diagnosis is similar to Dr. Ikeman's pre-accident impressions of Mr. Kim.
Dr. Kim concluded in his three medical reports that the changes in Mr. Kim's spine were the result of the accident. His September 11, 1992 report states:
Mr. Kim [sic] suffers from chronic pain syndrome (headache, shoulder pain, low back pain, anxiety attacks, indigestion, insomnia, and depression). Since the MVA on July 22, 1990, a numerous investigations [sic] including two EEG's, Bone scan, and referral to Dr. Bookman (Rhumatologist) [sic], found him to have osteroarthritis [sic] of L5, S1, spondylolisthesis, and osterporosis [sic]. He did not complain of his back pain until the MVA on July 22, 1990. He is not able to function the way he was able to before the accident, suffering continuous pain of head, neck, and low back. He also complains of a numerous [sic] other pain. [emphasis added]
I do not accept Dr. Kim's conclusion that his patient's symptoms are the result of the accident. When Dr. Kim wrote that his patient did not complain of back pain before the accident he was ignoring his patient's pre-existing symptoms recorded in his clinical notes and records, as well as Dr. Ikeman's April 1990 diagnosis.
Dr. Kim admitted that his report was wrong in stating that he had not treated Mr. Kim for back problems. In addition, Dr. Kim's reports offer no explanation of his patient's history of headaches, depression and neck stiffness. As a consequence of Dr. Kim's failure to disclose and explain Mr. Kim's pre-existing conditions, I find his opinion untrustworthy.
The medical evidence demonstrates that Mr. Kim suffered similar headaches, back pain and neck stiffness, both before and after the July 22, 1990 accident. Mr. Kim's denial of these symptoms is simply not credible in the face of this medical evidence. Dr. Kim's opinion is not trustworthy because he ignored the April 1990 medical findings of Dr. Ikeman, and he mis-stated his patient's pre-existing condition. Therefore, I do not find medical support for Mr. Kim's contention that his back condition, headaches or neck pain were the result of the accident.
Daily Tasks:
I also heard evidence that Mr. Kim may not have performed the household chores he claimed to be performing at the time of the accident. Mr. Kim and two of his adult children testified about the division of household tasks at the Kim residence. Mr. Kim lived in a one bedroom apartment at the time of the accident. His wife died in March 1990, about four months before the accident. Until her death, Mr. Kim had never performed any household tasks.
Mr. Kim's son, Hyan Koo Kim, testified that in a traditional Korean home the woman performs all of the household work. According to Mr. Kim's son, his parents always followed the Korean tradition where the wife did all of the housecleaning, laundry and cooking. I accept that Mr. Kim did not cook, clean or do laundry while he lived with Mrs. Kim.
Mr. Kim stated that when his wife died he grieved over his loss for about a month, during which time he lost his appetite and had difficulty sleeping. He testified that he did very little during the month after his wife's death. He received daily visits from family members who cooked, cleaned, shopped and washed clothes for him.
Mr. Kim testified that by May of 1990 he was not receiving much assistance from his family. He said that he could look after his daily hygiene, clean his one bedroom apartment, cook for himself most of the time, and launder his own clothes and linens. He also walked daily and took public transit to socialize and shop.
Evidence was presented that a friend moved in with Mr. Kim after his wife died. Mr. Kim testified that a female friend moved into his apartment for five or six months, following his wife's death. He was unable to specifically recall the period of time he began this living arrangement, and in cross-examination Mr. Kim also denied that he was living with anyone at the time of the accident.
However, the evidence from Mr. Kim's son, Hyan Koo Kim, indicated that Mr. Kim was living with this friend at the time of the accident. Mr. Kim's son was able to specifically recall his father's living arrangements after his mother's death. He testified that a woman moved in with his father shortly after his mother died. Hyan Koo Kim said that he was quite angry that his father would live with another woman so soon after his mother's passing. I found Mr. Hyan Koo Kim's emotional testimony reliable and persuasive. Consequently, I find that a woman lived with Mr. Kim at the time of the accident.
Mr. Kim's living arrangements cause me to question his assertion that he assumed the cooking, cleaning and laundry chores shortly after his wife's death. Hyan Koo Kim testified that he first became aware of his father's difficulty managing the household in November 1990, that is roughly five or six months after the one month grieving period. Correspondingly, Mr. Kim lived with a woman during this time. Since I accept the evidence of Mr. Kim and his son that the woman in a traditional Korean household performs the housekeeping chores, it logically follows that Mr. Kim may not have performed these tasks at the time of the accident. However, I did not receive any direct evidence that someone other than Mr. Kim was performing the household chores, and I do not base my decision upon this inference.
Mr. Kim's son and daughter testified that their father was performing the household chores at the time of the accident. Yet, they testified that they did not witness their father performing these activities. Jung Sook Kim and Hyan Koo Kim testified that between the death of their mother and their father's accident they were busy with their jobs and family commitments. They testified that they usually did not visit Mr. Kim during the week. They regularly visited their father on Sundays.
Mr. Kim's son testified that he drove his father to church with the rest of his family every Sunday. After church the family went out to eat at a restaurant. He said that the apartment was neat and clean when he picked his father up for church. However, he did not see his father performing any housework on Sundays. Mr. Kim's son said that he occasionally visited his father during the week. He said that he may have seen his father cleaning, but Hyan Koo Kim was not specific in what he saw, and I am not convinced that he witnessed Mr. Kim performing household chores.
Likewise, Mr. Kim's daughter, Jung Sook Kim, testified that she saw her father each Sunday during the months after her mother's death and before the accident. She said that her father was depressed, but he was able to cook, clean and shop for himself.
Jung Sook Kim also testified that on her Sunday visits she often cooked meals for her father and also cleaned his apartment. She did not know if anyone else was assisting her father during the week. Based on the daughter's testimony, I find that Mr. Kim had weekend assistance in cleaning and cooking at the time of the accident.
In short, the evidence is that Mr. Kim did not perform the household tasks before his wife's death and that he required weekend assistance with household chores during the months before the accident. His relatives did not have an opportunity to witness who cooked, cleaned, and washed laundry during the week. I find that there is not sufficient evidence to prove on a balance of probabilities that Mr. Kim regularly performed the household tasks at the time of the accident.
Instead, I find that Mr. Kim's essential tasks were limited. Mr. Kim testified that, aside from the household chores, he looked after his personal hygiene. He also said that he regularly walked, shopped, travelled by public transit, went to church on Sundays, and visited friends before the accident. I accept these as his normal tasks of daily life.
Mr. Kim said that after the accident he was able to take public transit to visit friends, shop and attend medical appointments, though with greater pain and difficulty. His son added that he occasionally took his father to the doctor, but admitted that his father was able to take the transit by himself. From the evidence of Mr. Kim and his son, I find that Mr. Kim was able to travel as he did before the accident.
Mr. Kim testified that he has been attending church regularly since the accident. Mr. Kim and his son agreed that they basically follow the same Sunday church and family outing schedule as before the accident. On this evidence I find that Mr. Kim's ability to engage in his church's activities remained unchanged in comparison to before the accident.
There was conflicting evidence of Mr. Kim's ability to look after his personal hygiene. Mr. Kim's daughter, Jung Sook Kim, stated that her husband helps her father shower and wash. She said her father can wash his face, brush his teeth and dress himself. However, Mr. Kim denied needing assistance with his personal hygiene. Neither did Mr. Kim's son mention that his father required assistance with his personal hygiene. In the face of Mr. Kim's denial that he required assistance, I cannot accept the daughter's statement that her husband, who did not testify, was required to assist her father in bathing. I find that Mr. Kim can perform his personal hygiene functions as before the accident.
Mr. Kim testified that his shopping has been more restricted since the accident. He said that since the accident he can walk for about ten minutes pain-free, which allows him to shop at stores close to his apartment. His daughter said that her parents had shared the shopping chores. After her mother's death Mr. Kim shopped alone. She said that the accident's effect was to make his shopping trips shorter and for a smaller number of items.
I find that the testimony that Mr. Kim's shopping is restricted is not plausible. Mr. Kim admits that he is able to travel by public transit to socialize with friends and attend medical appointments. He can walk pain-free for about ten minutes, and for longer periods with some discomfort. Notwithstanding that the medical evidence indicates this condition may have pre-existed the accident, I am not convinced that Mr. Kim's ability to buy the necessities of his life is restricted any more than it was before the accident.
Conclusion:
Doubtless, Mr. Kim suffered initial trauma from the accident, followed by discomfort and aggravation of his pre-existing back condition, but the medical evidence clearly shows that the complaints about his back before the accident and his condition and abilities post-accident remained substantially the same.
Pain and suffering resulting from symptoms are not the criteria for eligibility for weekly benefits under the Schedule. Mr. Kim must prove that he suffers a substantial inability to perform his essential daily activities. I find that Mr. Kim continued to shop, go to church, socialize, meet his medical appointments, look after his personal needs, and travel as he did before the accident. Therefore, Mr. Kim is not entitled to further weekly benefits. The termination of weekly benefits was reasonable, and I find that there is no basis for a special award.
Expenses:
Mr. Kim requests his expenses of the arbitration. Although he is not successful in his claim, I feel that he is entitled to his expenses in accordance with the regulations. If there is any dispute about the sum, then the parties may request a hearing on costs.
Order:
Mr. Kim is not entitled to further weekly benefits.
Mr. Kim is entitled to his expenses incurred in respect to the arbitration.
June 24, 1994
Fred Sampliner
Arbitrator
Date