Neutral Citation: 1994 ONICDRG 62
File No. A-004832
ONTARIO INSURANCE COMMISSION
BETWEEN:
KHANH NGOC NGUYEN
Applicant
and
ALPINA INSURANCE COMPANY, LIMITED
Insurer
DECISION
Issues:
The Applicant, Khanh Ngoc Nguyen, sustained soft tissue injuries to his neck and back in a motor vehicle accident on April 30, 1992. He applied for and received weekly benefits from the Insurer, payable under section 13 of Ontario Regulation 672.1 Weekly benefits were terminated by the Insurer on December 1, 1992. The Applicant is seeking further weekly benefits from December 2, 1992 to November 17, 1993. The Applicant states that he is now able to resume most of his normal pre-accident essential tasks. The parties were unable to resolve their dispute through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issue in this hearing is whether the Applicant continued to suffer substantial inability to perform the essential tasks in which he would normally engage from December 2, 1992 to November 17, 1993.
The Applicant also claims interest on any outstanding amounts, and his expenses incurred in the hearing.
Result:
The Applicant did not suffer a substantial inability to perform the essential tasks in which he would normally engage after December 2, 1992.
The Applicant is entitled to his expenses incurred in this hearing.
Hearing:
The hearing was held in Toronto, Ontario, on November 17, 1993 and December 21, 1993, before me, Janice Mackintosh, arbitrator.
Present at the Hearing:
Applicant:
Khanh N. Nguyen
Applicant's
Audrey Newman
Representative:
Barrister and Solicitor
Insurer's
Gregory Heckel
Representative:
Barrister and Solicitor
Translator:Son
Nguyen and Chau Tran of Global Translation Services
Witnesses:
The Applicant; Karen Rucas, occupational therapist; Paul Ankcorn, private investigator; Michael Peter Wright, private investigator.
Exhibits:
Exhibit 1
Joint book of documents, with nine tabs. Items are listed in Schedule A.
Exhibit 2
Video tape of Applicant taken by King-Reed & Associates on August 25, 1992.
Counsel for the Insurer relied on several decisions of the Commission which are listed in Schedule B.
Evidence and Findings:
The Applicant is a thirty-nine year old man who has been living and working in Canada for fourteen years. Upon his arrival in Canada in May 1980, the Applicant attended English language classes on a full-time basis for ten weeks. He left his English classes to take full-time employment in a foam company. Less than two years later he was laid off. Some time later he obtained full-time work with the Woodbridge Foam Company and he worked there as an inspector and packer until he was laid off in June 1991. He has not worked since that date and was not employed at the time of the motor vehicle accident on April 30, 1992.
Pre-accident medical condition:
Approximately two years into his job with Woodbridge Foam, the Applicant was involved in a work-related injury in the winter of 1985. He was unable to work for three months due to a strained back. In April 1987, approximately one year after his return to work, the Applicant was involved in a motor vehicle accident, which strained his neck and back and caused headaches. The Applicant was unable to return to work from these injuries for approximately one year. The Applicant stated that he was almost fully recovered from his neck and back injuries and headaches when he returned to work in April 1988. He continued to work at Woodbridge Foam over the next three years, until he was laid off in June 1991. No medical records which pre-dated the Applicant's motor vehicle accident of April 1992 were provided to me. The Applicant began to see a new family doctor shortly after the motor vehicle accident. In the absence of pre-accident medical information, I accept the Applicant's statement that he had fully recovered from injuries sustained in the April 1987 accident, prior to sustaining similar injuries to his neck, and low back, causing headaches, as a result of the car accident in April 1992.
Pre-accident activities:
Prior to the accident of April 30, 1992, the Applicant was unemployed. He lived in a two-bedroom apartment which he shared with a friend and his friend's wife. His daily activities involved washing, dressing, making his bed, tidying his bedroom, eating food which was generally prepared by his friend's wife, and going out to look for a job. The Applicant had been receiving unemployment insurance benefits until shortly before his car accident. He had been actively engaged in searching for a new job in anticipation of the expiration of his UIC benefits. The Applicant attended his local Canada Manpower office to look at the job listings and often went to the Vietnamese community association to check their job advertisements. Sometimes friends would drive him to factories to fill out job applications.
After his job search, he generally picked up some food items on his way home, and did some vacuuming or sweeping of the shared areas of the apartment. The Applicant did not know how to cook, however he offered some assistance to his friend's wife who generally prepared the evening meal. In the late afternoon and evenings, the Applicant usually watched between one and three hours of television or movies, and read newspapers or magazines. The Applicant and his friend alternated doing the laundry in the basement laundry-room of their apartment once or twice a week. On some evenings, friends would drive the Applicant to visit his girlfriend and their child, who lived some distance away. In the warm months, the Applicant played informal soccer, tennis, or swam with friends approximately once or twice a week.
The Applicant agreed that his activities as an inspector and packer at the Woodbridge Foam Company were more strenuous and demanding than his activities during his period of unemployment.
Post-accident medical condition:
On April 30, 1992, the Applicant was driving north on Spadina Avenue when the car he was driving was bumped on the passenger side by a car coming out of an alley onto Spadina. The Applicant was wearing a seat-belt and did not hit his lower body on the inside of the car, however, his head hit the headrest and he felt dazed. He did not seek immediate medical attention, but over the next few days he began to experience neck, chest and back pain, as well as headaches.
About one week after the accident, the Applicant went to a new family doctor upon the recommendation of friends. He first saw Dr. Ramroopsingh on May 4, 1992. In a Form 4 medical report provided to the Insurer, dated July 28, 1992, Doctor Ramroopsingh diagnosed the Applicant as suffering from post-traumatic headaches, neck strain (cervical), and low back strain (lumbo sacral). In subsequent Form 4 medical reports the family doctor also noted the Applicant's complaints of poor sleep. In his medical report dated October 18, 1992, Dr. Ramroopsingh referred to the Applicant's complaints of dizziness, and strain to the shoulder girdle area. The doctor noted that the Applicant's earlier complaints of chest wall pain had subsided. Dr. Ramroopsingh noted no objective signs of significant structural damage to the neck and back, and concluded that the Applicant suffered multiple soft tissue injuries (myofascial). The family doctor prescribed conservative treatment of rest, local heat, mild analgesics, muscle relaxants, massage, and physical therapy, with a gradual increase of activity and slow introduction of home exercises.
Approximately four months post accident, the Insurer arranged for the Applicant to see Dr. Lyndon Mascarenhas. In his report dated August 25, 1992, Dr. Mascarenhas noted the same complaints recorded by Dr. Ramroopsingh and agreed with the family doctor's general diagnosis. Like Dr. Ramroopsingh, Dr. Mascarenhas found no neurological symptomatology. However, whereas Dr. Ramroopsingh made a general notation of decreased range of movement in the Applicant's neck and back regions (Form 4 medical reports), Dr. Mascarenhas noted the following specifics:
On assessment of his [the Applicant's] cervical spine he had a normal cervical curvature and full range of motion in terms of forward flexion, extension, lateral rotation and lateral flexion. None of these movements caused him any particular discomfort. On palpation of his cervical musculature he had no focal muscle spasm or masses, however he was tender at the base of his cervical spine near the spinous processes of CT, and near the sub-occipital region. In addition he exhibited some interscapular discomfort, and was very tender on deep palpation near the lumbosacral area, from L4-S1 as well as the bilateral sacroiliac margins.
Range of motion of his lumbosacral spine revealed good forward flexion, extension and lateral bending.
He was able to straight leg raise bilaterally to approximately 75°, and no leg dominant pain was noted.
Range of motion of both shoulder girdles revealed satisfactory abduction, forward flexion, internal and external rotation. He reported some discomfort along the upper margins of both trapezius muscles, and on abduction manoeuvres, but there was no impingement symptomatology.
Dr. Mascarenhas reassured the Applicant that his complaints of sexual dysfunction, which coincided with a lot of other stressors in his life, were not related to the motor vehicle accident. Dr. Mascarenhas opined that the Applicant could expect to have myofascial type of symptomatology and experience musculo skeletal discomfort over the next few months with declining frequency and severity. However, based on his detailed assessment of August 25, 1992, Dr. Mascarenhas was of the opinion that the Applicant was capable of returning to his former occupation at Woodbridge Foam, in the event the factory began calling back its laid off workers.
Dr. Mascarenhas suggested that it was time for the Applicant to taper off from the more conservative, passive, modalities of treatment, the objective of which is to provide focal analgesia and to generally assist in range of motion, appropriate during the acute phase of his injury. Dr. Mascarenhas recommended an increased level of activity, incorporating more of an exercise-based program into the Applicant's overall rehabilitation.
The Applicant's family doctor commented upon Dr. Mascarenhas' August 25, 1992 report in his own medical report, dated October 18, 1992. Dr. Ramroopsingh did not dispute the specific physical findings of Dr. Mascarenhas, however he did not agree that the Applicant was capable of returning to work and indicated that the Applicant's experience of pain interfered with his ability to do housework and the activities of daily living. Dr. Ramroopsingh noted that his patient experienced neck pain when he kept his head in one position for an extended period of time, low back pain after sitting or standing for a prolonged period of time, and back pain while doing activities requiring bending and/or lifting.
Dr. Ramroopsingh also disagreed with the more active treatment program recommended by Dr. Mascarenhas. The family doctor supported the continuation of passive treatment modalities, avoidance of strenuous activity and a more gradual return to daily activities. The Applicant testified that Dr. Ramroopsingh encouraged him to walk as part of his overall rehabilitation. The Applicant followed the treatment recommendations of his family physician. The Insurer continued to pay weekly benefits to the Applicant.
Approximately six and a half months post-accident, the Applicant was examined by Dr. Stanley Sober, at the request of the Insurer. In a report dated November 12, 1992, Doctor Sober noted that the Applicant was taking less medication than before, was obtaining passive treatments approximately twice a week, and had received no instruction in any home exercise program.
The Applicant reported daily headaches, sleep disturbances, sexual dysfunction and neck discomfort. The other main complaint was of low back pain which was aggravated by activity and bending.
Upon examination, Dr. Sober noted a normal posture and neck position and symmetrical lower extremities. There was no muscle spasm or muscle wasting. The Applicant was unable to go on tiptoes or heels but no gross muscle weakness was noted (although slight weakness of the left foot was observed). The Applicant was restricted in the supine straight leg raising position, but was able to perform the comparable leg extension, while sitting upright on the examination table. The Applicant complained of tenderness throughout the lumbar spine and posterior iliac crests, but Doctor Sober found no palpable abnormality. The Applicant's range of neck movement was extremely limited upon specific examination, but was quite free at other times during the assessment. The Applicant's movement of his back was quite restricted. Dr. Sober noted that in general the Applicant's range of movement was significantly more restricted than it had been two and one half months earlier when the Applicant was examined by Dr. Mascarenhas. Dr. Sober noted that the Applicant tended to exaggerate his disability and concluded that the restriction of movement was likely deliberate and voluntary.
Dr. Sober opined that the Applicant was not substantially disabled from the activities of daily living, but based on the limitations exhibited by the Applicant, he was substantially disabled from returning to factory work involving movement and lifting with physical activity. Dr. Sober agreed with Dr. Mascarenhas' recommendation for a more active, exercise-based program and suggested that with this more appropriate therapy the Applicant should be capable of factory work within another month.
At the request of the Insurer, the Applicant underwent a functional abilities evaluation. The evaluation was conducted on November 17, 1992. The Applicant's complaints recorded at that time included headaches; neck pain with sudden or repetitive motions; lower back pain with prolonged sitting, standing, or walking; sleep loss; memory loss; and double vision.
The evaluation was conducted by an occupational therapist who concluded that the Applicant possessed the physical tolerances necessary to carry out his daily housekeeping and self-care activities. The evaluator found that the Applicant had a normal range of motion in the four limbs, normal balance, good sitting tolerance of up to 65 minutes, adequate reaching ability, adequate handling capabilities to meet his activities of daily living, and the ability to occasionally lift weights of up to 25 pounds. The Applicant was able to walk on his heels and toes with ease.
The Applicant's limitations included a reduced range of motion in the cervical and upper spine during the specific range of motion testing, although his neck movements were noted to be frequent, fluid and unguarded during other portions of the lengthy evaluation. The Applicant exhibited restricted standing, walking, climbing and weight bearing tolerances during the evaluation. The Applicant was reluctant to continue with walking and stair climbing activities. He stopped to rest eight times during a 30 minute walk and discontinued the stair climbing exercise after two minutes. He exhibited reduced grip strength bilaterally. The evaluator noted that results from the maximum voluntary effort test performed by the Applicant suggested symptom magnification.
The Insurer terminated weekly benefits following receipt of the functional abilities evaluation report in late November 1992.
In his testimony, the Applicant observed that there was no translator in the Vietnamese language present during the examination conducted by Dr. Mascarenhas. He complained that the translator who was present during the interview and physical examination portion of the functional abilities evaluation, was not present during the afternoon session which measured his physical performance by a specific series of tests and exercises. Counsel for the Applicant submitted that any discrepancies or inconsistencies in the Applicant's responses and observations made by these examiners should be attributed to language and communication problems and should be disregarded.
Dr. Mascarenhas makes no reference to language difficulties with the Applicant in either of his reports dated August 25 and November 6, 1992. He reports that he obtained information partially from the Applicant and partially from medical reports of Dr. Ramroopsingh forwarded to him by the Insurer. In her report dated November 26, 1992, the occupational therapist noted that during the lengthy interview portion of the Applicant's functional abilities evaluation, the Applicant's "command of English was sufficient to answer the majority of the questions posed by the examiner; the interpreter interceded only rarely." In her testimony, the occupational therapist did note that the Applicant's limited facility with written English prevented him from reading and completing questionnaires related to an assessment of the Applicant's subjective limitations. Consequently, these tests were not completed by the Applicant and no opinion was rendered in connection with them. In his report dated November 12, 1992, Dr. Sober noted that the Applicant "speaks a good deal of English, but the interview was assisted by the use of an interpreter."
The Applicant conceded that his family doctor does not speak Vietnamese, and that the majority of his discussions with his doctor are done without the aid of a translator. The Applicant noted that one of the workers in Dr. Ramroopsingh's office speaks Vietnamese and is available to help the Applicant when he runs into difficulty explaining something to his family doctor.
I am not persuaded that the absence of a Vietnamese translator during Dr. Mascarenhas' examination and during part of the functional abilities evaluation negates the observations made and conclusions reached by those assessors any more than the absence of a translator during a majority of the Applicant's office visits with his family doctor negates the observations and conclusions of Dr. Ramroopsingh. The Applicant's fourteen years of living and working in Canada, along with the comments of the various medical practitioners who dealt with the Applicant, satisfy me that the Applicant's ability to speak English was sufficient to enable him to describe his symptoms and complaints and to respond to the simple commands of a physical examination.
The preponderance of the medical evidence supports the view that by November 1992, at the latest, there was no physiological or functional explanation for the Applicant's stated inability to perform the bulk of his essential tasks, including self-care and housekeeping activities, as well as job searching efforts. Furthermore, two of the specialists independently reached the conclusion that the Applicant was exaggerating his symptoms and was voluntarily restricting his range of motion.
In his report dated October 18, 1992 and again on February 12, 1993, the Applicant's family physician noted that the Applicant was restricted by pain only when he engaged in activities which required prolonged sitting, standing, repeated bending or lifting or keeping his head in one position for an extended period of time.
Applicant's post-accident activities:
Immediately following his accident, the Applicant testified that he could only wash, dress, feed himself and attend medical appointments. Approximately two weeks after the accident, the Applicant moved into a one-bedroom apartment which he shared with a friend, until the arrival of his wife from Vietnam in February 1993. He and his wife continued to reside in this apartment.
The Applicant testified that following the accident he relied upon his friend to do almost everything for him. His friend changed the Applicant's bed linen, cleaned the apartment, did the Applicant's laundry, shopped and prepared meals for him. In addition, his friend worked four or five days per week and attended English classes in the evening. The Applicant could not specifically recall when he was able to do some of these tasks for himself but he guessed that his friend helped him until the arrival of the Applicant's wife in February 1993. Thereafter, the Applicant testified that his wife performed many of these tasks. The Applicant testified that his friend continues to reside in Toronto but neither the Applicant's wife nor his friend were called to testify on the Applicant's behalf.
The Applicant described his recovery as slow but steady. He explained that after the first few months following his injury, he took fewer and fewer pain killers and sleeping pills. He assumed more and more tasks and activities up to November 17, 1993, when he felt well enough to return to full-time employment and began job hunting again. The Applicant stated that he can now sweep but he has still not resumed mopping and vacuuming, nor has he returned to the activities of swimming, soccer, or tennis.
I generally found the Applicant's evidence to be vague, somewhat inconsistent, and unconvincing. For example, the Applicant stated that immediately after the accident he could not watch television, but he did not explain why. His principal activities were limited to walking around his apartment and the apartment house hallways, reading magazines, and relaxing. Approximately a week or so after the accident, the Applicant resumed watching television, gradually returning to the number of hours he watched before the accident.
During his evidence, the Applicant explained that he could not search for a job because travelling by public transportation made him dizzy, he found it difficult to sit in the manpower offices, and reading job advertisements caused his vision to become blurry and made him dizzy. He did not explain why he was able to read magazines and watch television shortly after the accident but continued to suffer dizziness and blurred vision when reading job advertisements up to 19 months post-accident.
The Insurer arranged for surveillance of the Applicant to be conducted on August 25, 1992. The activities described in the surveillance report of the private investigation firm, and depicted in the video (Exhibits 1 and 2) included: using public transportation for an extended period; descending and climbing several sets of streetcar and subway stairs without hesitation, while using the handrail only occasionally; walking, sitting and standing for a continuous period of one hour and forty-five minutes, followed by a short burst of jogging; bending in and out of a car several times within a five minute period with no observed awkwardness or hesitation. I accept the evidence of the private investigators concerning the Applicant's activities in August 1992. Yet, the Applicant exhibited considerable difficulty when asked to perform similar activities of walking, standing, stairclimbing and bending during the functional abilities evaluation test (which was conducted almost three months after the surveillance). During his testimony, the Applicant attributed his difficulties at the functional evaluation to back pain. During her testimony, the occupational therapist recalled that the Applicant complained of a headache. In view of these inconsistencies I accept the opinions of the occupational therapist and Dr. Sober, that the Applicant was exaggerating his symptoms and was voluntarily restricting his range of motion when examined by them.
At approximately 19 months post-accident, the Applicant states he is well enough to return to full-time employment of a light nature. I can understand that the Applicant may have lacked the motivation to hunt for a job when he did not consider himself well enough to return to full-time employment. However, I find that the Applicant was physically capable of the activities of riding public transportation, sitting up to 65 minutes, standing, walking and reading, all components of the activity of job hunting, by the end of November 1992, at the latest.
The Applicant testified that a few months after the accident he could make his bed, and tidy his room but could not mop or sweep the floors. The Applicant did not do much cooking before the accident and still does little cooking, although on cross-examination he conceded that by November 1992, he could fry an egg or make a sandwich if he had to.
The Applicant claims that until recently he could not take the garbage to the garbage chute or go out shopping, yet in August 1992, he was able to travel extensive distances by public transportation, walk, ride in a car, and by November 1992 he could lift up to 25 pounds.
The Applicant claims that he could not do his own laundry until recently because he found it painful to bend; yet the occupational therapist testified that the Applicant was able to perform a full squat to the ground easily and fluidly, and was observed working on tasks in a squatting position for limited periods of time in November 1992. The occupational therapist recommended this position to the Applicant for the task of loading and unloading laundry. The occupational therapist also recommended this position with a long handled brush, for the task of cleaning the bathroom tub. However, the Applicant did not mention cleaning the bathroom as one of the tasks generally performed by him, in his evidence in chief.
In my view, none of the pre-accident essential tasks described by the Applicant require sitting in excess of his exhibited tolerance of 65 minutes, prolonged standing, repeated bending or lifting, or keeping his head in one position for an extended period of time, which are the activities identified by Dr. Ramroopsingh as causing pain. Furthermore, the Applicant had few time constraints or demands prior to the accident and could take as much time as he needed to perform the normal tasks of self-care and housekeeping. Similarly, after the accident, the Applicant could take as much time as he needed to perform his essential tasks as tolerated.
The preponderance of the medical opinion supports the view that the Applicant was substantially able to perform the essential tasks in which he normally engaged, albeit with some pain, from and after December 1, 1992. The testimony of the Applicant does not persuade me otherwise.
Expenses:
The Applicant requests his expenses of the arbitration. Although he is not successful in his claim, there was some support for his position in the medical reports of Dr. Ramroopsingh. I do not find this claim to be manifestly frivolous or vexatious and accordingly I exercise my discretion to award the Applicant his expenses. In the event of a dispute between the parties concerning the amount of such expenses, I will remained seized of this issue.
Order:
The Applicant did not suffer a substantial inability to perform the essential tasks in which he would normally engage from and after December 2, 1992.
The Applicant is entitled to his expenses incurred in respect to the arbitration.
July 15, 1994
Janice Mackintosh Arbitrator
Date
SCHEDULE A
ARBITRATION BRIEF INDEX (amended)
Hospital Records
Medical Reports
Dr. Mascarenhas, IME Report
Aug. 25, 1992
Dr. Mascarenhas, IME Report
Nov. 06, 1992
Dr. R. Ramroopsingh, Medical Report
Oct. 18. 1992
Dr. Sober, IME Report
Nov. 12, 1992
Dr. R. Ramroopsingh, Medical Report
Feb. 12, 1993
Dr. R. Ramroopsingh, Clinical Notes
May 04, 1992 to Aug. 31, 1993
OMPP Reports: Dr. Ramroopsingh
Jul. 28, 1992
Dr. Ramroopsingh
Oct. 31, 1992
Dr. Ramroopsingh
Apr. 28, 1993
Dr. Ramroopsingh
Nov. 05, 1993
Physiotherapy/Rehabilitation Reports
8
Vocational Pathways Inc. (Functional Abilities Evaluation)
Nov. 26, 1992
Other
9
King-Reed & Associates Ltd. Investigation Report
Aug. 25, 1992
SCHEDULE B
Lily Steele and Zurich Insurance Company, December 3, 1992, OIC File No. A-001024
Edgar Cowie and The Non-Marine Underwriters, Members of Lloyd's, March 9, 1993, OIC File No. A-001159
Selma Taves and The Wawanesa Mutual Insurance Company, August 10, 1993, OIC File No. A-003659