Neutral Citation: 1995 ONICDRG 127

File No. A-008054

ONTARIO INSURANCE COMMISSION

BETWEEN:

NGA KHA

Applicant

and

PILOT INSURANCE COMPANY

Insurer

DECISION

The Applicant, Nga Kha, was injured in a motor vehicle accident on November 19, 1991. She applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672¹. Pilot Insurance Company paid Ms. Kha weekly income benefits under section 12 of the Schedule, until July 27, 1993. Ms. Kha claimed ongoing entitlement to weekly income benefits, and payment for a medical report. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Issues:

The issues in this hearing are:

1. Is Ms. Kha entitled to receive weekly income benefits under section 12 of the Schedule after July 27, 1993?

2. Is Ms. Kha entitled to be paid $1,150 under section 23(4) of the Schedule for a medical report prepared by Dr. Eng dated November 10, 1993 ?

3. Ms. Kha also claims interest on overdue benefits and her expenses in respect of the arbitration.

Result:

1. Ms. Kha is not entitled to weekly income benefits under section 12 of the Schedule after July 27, 1993.

2. Ms. Kha is not entitled to be paid $1,150 for a medical report prepared by Dr. Eng under section 23(4) of the Schedule.

3. Ms. Kha is entitled to her expenses in respect of the arbitration.

Hearing :

The hearing was held in North York, Ontario, on November 30, December 1, 5 and 6, 1994, before me, Suesan Alves, arbitrator.

Present at the Hearing:

Applicant:

Nga Kha

Applicant's Representative:

Antonio Azevedo Barrister and Solicitor

Insurer's Representative:

Rudolph Lobl Barrister and Solicitor

Witnesses:

Ms. N. Kha

Mr. Q. D. Kha

Ms. D. Kha

Ms. E. Morando

Dr. F. Eng

Dr. M. Ford

Ms. K. McKenzie (McCormick )

Ms. A. R. Freisenhausen

Dr. F. Langer

Dr. H. Scher

Ms. P. Yolleck.

Translation services in the English and Vietnamese languages were provided by Mr. Wayne Vu and Ms. Victoria Tran.

Exhibits: The exhibits filed at the hearing are detailed in Appendix A.

Evidence and Findings:

a) Pre-accident employment

Prior to the accident, Ms. Kha worked as an industrial sewing machine operator at Weston Apparel Limited (Dylex) for five and a half years.²

At work, Ms. Kha sat in front of a sewing machine. To her left stood a rack of hangers with plastic bags which contained pre-cut fabric for men's slacks. To her right stood a rack of hangers on which Ms. Kha placed the slacks after sewing them. Ms. Kha moved the hangers forward by pushing a button.³

Ms. Kha was responsible for sewing the outside and inside leg seams of men's slacks, using a single needle machine. From a seated position, she reached up with her left hand, obtained a plastic bag and removed the pieces of fabric. She placed the fabric on her lap, matched the front and rear parts of the slacks, aligned the seams, and, while slightly bent forward, positioned the garment under the sewing machine foot.

She depressed the sewing machine foot with her right foot, so that the garment was secure, then used her left foot to operate the pedal causing the sewing machine to stitch. She used her hands to guide the seam under the needle as the machine stitched the slacks. She made four stitching runs - two per trouser leg. Once the seams were sewn, Ms. Kha removed a piecework ticket from the slacks, attached it to a sheet of paper, and placed the slacks on the rack to her right. The piecework tickets were tallied at the end of her shift to calculate her pay.⁴

Ms. Kha was paid on a piecework basis. She received 40 cents for each pair of slacks sewn. The production standard for the position is 260 pairs of slacks per shift. Ms. Kha testified that her production was between 250 to 270 pairs of slacks per shift. The Record of Employment suggests that Ms. Kha averaged 140 pairs of slacks per shift during the 19 weeks prior to this accident. Ms. Kha worked from 8:00 a.m. - 4:45 p.m. She had 15 minute breaks in the morning and afternoon, and a 45 minute break at lunchtime.

I find that Ms. Kha's essential tasks were to match pieces of fabric, align the seams, position and guide the fabric through a sewing machine, operate the sewing machine, stitch four seams, and remove and attach a piecework ticket.

In order to complete these tasks, Ms. Kha was required to sit at the machine, reach, twist, stand, operate pedals with either or both feet, and use her hands and eyes to ensure that she stitched the seams accurately with the sewing machine.

(b) Pre-accident condition

Ms. Kha testified in her examination-in-chief that before the motor vehicle accident she had never had any problems with her back. However, the clinical notes and records of Dr. Eng, who saw Ms. Kha for pain management following the motor vehicle accident, reflect a pre-accident history of back pain, commencing about three years before the accident.

According to Dr. Eng's note of November 9, 1993, Ms. Kha reported that "after periods of long sitting, she felt some low back pain on standing up which eased or stopped after walking a few minutes. At no time did she have to be off work due to low back pain. She was able to do her housework."

Ms. Kha's work attendance records confirm that she had very few absences from work prior to the motor vehicle accident. I find that while Ms. Kha had some pre-accident low back pain, it did not affect her ability to perform her j ob duties.

(c) Post-accident condition:

On November 19, 1991, Ms. Kha was a pedestrian crossing Black Creek Drive at Weston Road, on her way to work, when she was struck by a truck. She was taken to Humber Memorial Hospital where x-rays were taken. She was released that day and went home to rest. Later that day, her friend took her to see Dr. Sonny Talangbayan.

Ms. Kha testified that she sustained injuries to her left arm, left breast, abdomen, both legs, the inner aspect of her left elbow, her left side, right shoulder and neck. Her treatment included medication, physiotherapy, chiropractic treatment and injections with xylocaine and corticosteroids in the lumbar and sacral regions for her pain.

Ms. Kha testified that she was unable to work because of pain in three areas of her body: her low back, her legs, and her spinal column when she twists in her chair. Counsel for Ms. Kha submitted that psychological factors were involved in Ms. Kha's failure to return to work. I will deal with each of these aspects of the claim.

Low back pain

Ms. Kha testified that whenever she sits down she experiences "an acute pain" in her low back; she did not believe that she could remain seated for seven and a half hours. Ms. Kha's work schedule involved sitting at the sewing machine in the morning for one hour and 45 minutes. She then had a 15 minute break, and worked for one hour and 30 minutes when she had a 45 minute lunch break. After lunch, she worked for two hours and 30 minutes, took a 15 minute afternoon break, worked for one hour and 45 minutes and left work at 4:45 p.m.⁵

Ms. Kha agreed that in addition to the scheduled breaks, she could also leave to go to the washroom if necessary, or, stand to reach a bag of fabric if it was out of position. She agreed that nobody cared if she got up from her chair so long as she did her work. Ms. Kha noted, however, that she had co-workers on either side of her and such breaks could interrupt production.

Counsel for the Insurer pointed out that at the hearing, Ms. Kha had remained seated all morning and after the lunch break without any apparent difficulty. He noted that this was in excess of her job requirements which incorporated the scheduled breaks. He asked Ms. Kha why she was unable to do this at work. Ms. Kha responded that she had been injured in a motor vehicle accident and was "entitled to rest while I'm still hurting." Following this question, Ms. Kha got up from her chair and walked about briefly, while holding her low back with her hand. I noted that during the first two days of the hearing, she stood up in this manner on only four occasions.

Applicant's medical evidence:

Dr. Talangbayan referred Ms. Kha for physiotherapy. She commenced these treatments in January 1992. On March 16, 1992, Ms. Kha was discharged from physiotherapy. The discharge report stated that Ms. Kha made a good recovery, was fit to return to previous activities and had received instructions on home exercises. Ms. Kha stated that she understood the recommendation meant that she was to return to her job. She did not do so.

Dr. Talangbayan was provided with a copy of the discharge summary in about February 1993. He signed a statement dated February 24, 1993, prepared by a rehab worker, Ms. Yolleck, indicating that he would have encouraged Ms. Kha to return to work had he received a copy of the discharge report of March 16, 1992.

Ms. Kha's position that her low back pain renders her unable to perform the essential tasks of her job was supported by Dr. Eng. Dr. Eng has post-graduate training in internal medicine. He presently has a general and a consulting practice in pain management and saw Ms. Kha in that capacity, commencing in February 1993.

Dr. Eng testified that Ms. Kha's pain was due to three factors. Firstly, Ms. Kha had a congenital problem, spinal stenosis -- her spinal column was narrower than normal. In Dr. Eng's opinion this in itself could cause pain. Secondly, there was an annular bulge of one of her discs into her narrowed spinal canal. Dr. Eng testified that annular bulging, even if minimal, can cause pain, depending on what the bulge impinges upon.

Thirdly, Ms. Kha had grade 1 spondylolisthesis -- an anterior slippage of her fifth lumbar vertebra. In Dr. Eng's opinion, this was either genetic and worsened by the trauma of the motor vehicle accident, or caused by the accident and worsened over time. In his report of November 10, 1993, Dr. Eng stated that the spondylolisthesis "likely plays a significant role in causing [her] low back pain." In his report of May 31, 1993, Dr. Eng stated that Ms. Kha would continue to have low back pain from the spondylolisthesis regardless of whether her injuries from the motor vehicle accident resolved.

Dr. Ford, an orthopaedic surgeon, saw Ms. Kha at the request of Dr. Eng. Dr. Ford was called to testify as part of the Applicant's case. Dr. Ford stated that he had reviewed the x-rays and CAT-Scan reports prior to testifying. He agreed with Dr. Eng that Ms. Kha had spinal stenosis and that persons with spinal stenosis are more predisposed to suffer back pain. However, Dr. Ford stated the spondylolisthesis is "not as clear on the films as Dr. Eng states". In Dr. Ford's opinion Ms. Kha had no serious orthopaedic problem, and no objective structural injury. He found no condition which would prevent Ms. Kha from working.

Dr. Ford preferred not to comment on the issue of Ms. Kha's disability; he suggested that a functional capacity assessment, in which the length of time a person can stand, sit, lift etc. is objectively assessed, might provide more helpful information in this regard.

Insurer's medical evidence

Ms. Yolleck, a rehab worker retained by the Insurer, interviewed Ms. Kha in 1992. According to her report dated September 27, 1992, Ms. Kha complained that she could sit comfortably for only 10 to 15 minutes. Ms. Yolleck noted that her interview with Ms. Kha lasted two hours. During that interview, Ms. Kha remained seated on a couch without apparent difficulty.

Dr. Indech, an orthopaedic surgeon, examined Ms. Kha at the request of the Insurer on April 29, 1992 and again on November 18, 1992. In April 1992, Dr. Indech stated that Ms. Kha was substantially disabled. On November 18, 1992, Dr. Indech concluded that Ms. Kha was not substantially disabled. His report indicates that Ms. Kha sat in his office for one hour and 50 minutes, apart from the short period of time during which he examined her.

In Dr. Indech's opinion, Ms. Kha's x-rays of November 29, 1991 looked normal; he could not observe spondylolisthesis. The x-rays of November 5, 1992 showed a grade one fifth lumbar spondylolisthesis, Dr. Indech commented that "it would be most unusual for a fifth lumbar spondylolisthesis to be caused by the kind of accident" in which Ms. Kha had been involved.

Dr. Langer, an orthopaedic surgeon, examined Ms. Kha on behalf of the Insurer on July 7, 1993. Dr. Langer testified that he had examined Ms. Kha's x-rays, and found no evidence of spondylolisthesis. Dr. Langer stated that a person is either born with spondylolisthesis or develops this condition as a result of degenerative disease, not because of trauma. Dr. Langer noted no evidence of trauma related problems, such as fractures or disc herniation.

Dr. Langer commented that in any event the spondylolisthesis was described as Grade 1, and on the CAT-Scan report as "questionable minimal spondylolisthesis of L-5 over S-1 - if at all". He acknowledged a spinal stenosis, but stated that it was minimal and that Ms. Kha did not have the classical symptoms of spinal stenosis.

Dr. Langer stated that Ms. Kha's x-rays were essentially normal for a person in her age group. He felt that the annular bulge reported on the CAT-Scan was essentially a normal finding, not a pathological one. In Dr. Langer's opinion, Dr. Eng's "suppositions are not borne out by the actual facts". Dr. Langer concluded that Ms. Kha was able to perform her job and had completely recovered from the physical effects of the motor vehicle accident.

Ordinarily, conditions such as spondylolisthesis are considered to be within the realm of expertise of orthopaedic surgeons. Even if Ms. Kha has spondylolisthesis, none of the orthopaedic surgeons were of the opinion that this accident could have caused the condition. I prefer the evidence of the orthopaedic surgeons to that of Dr. Eng, in this respect.

There remains Dr. Eng's opinion that Ms. Kha had a pre-existing problem of spinal stenosis and or spondylolisthesis, which was aggravated by her injuries. To succeed in this arbitration, the Applicant must establish that her injuries leave her substantially unable to perform her essential tasks. On several occasions, commencing in 1992, it was noted that Ms. Kha was able to sit in excess of the job requirements.

Ms. Freisenhausen, an occupational therapist, performed a functional abilities evaluation on the Applicant in conjunction with a physical therapist on September 26, 27 and 29, 1994. In a report dated October 12, 1994, the assessors jointly recommended that Ms. Kha return to work as a sewing machine operator, provided that she is able to take a one to two minute break from sitting every 20 to 30 minutes, and to stand, walk and stretch during the break. They encouraged Ms. Kha to start using her sewing machine at home to mentally prepare herself to return to work, and to resume her home exercise program.

Ms. Morando, the personnel manager at Dylex Limited, testified on behalf of Ms. Kha. She was not asked to confirm Ms. Kha's suggestion that any short breaks she might take would interrupt the work flow of her co-workers. The breaks contemplated by Ms. Freisenhausen are of one to two minutes in duration every 20 to 30 minutes. It seems unlikely that such breaks would cause an undue interruption in the work flow.

I conclude that the preponderance of the evidence establishes that Ms. Kha is able to sit at a sewing machine for sufficiently long periods that she can perform her essential tasks.

Leg pain

Ms. Kha testified that she was required to apply a great deal of force to the sewing machine pedal with her left leg. She stated that her continuing pain in both legs would make this difficult. The machine appears to be one which is powered electrically. Ms. Morando, the personnel manager who testified on behalf of the Applicant, was asked about the amount of force required to operate the pedals. Her response indicated that the force required was minimal. This discrepancy between Ms. Kha's evidence and that of Ms. Morando was not clarified.

In cross-examination, Ms. Kha agreed that she could use either leg to depress the pedal which caused the sewing machine to stitch. In February 1993, a functional capacities assessment was conducted at the Metro Orthopaedic and Rehabilitation Centre at the request of Ms. Kha's treating physician. The assessors concluded that she was able to use either her right or her left leg and foot for repetitive manipulation of the sewing machine.

Dr. Eng's report of November 10, 1993 noted a reemergence of pain in her left leg, where she was struck by the vehicle. However, the evidence does not indicate that at this time she was unable to use her right leg to operate the machine. The assessors who performed the functional capacities assessment in 1994 also concluded that Ms. Kha was able to use both legs to operate the sewing machine.

I conclude that the medical evidence does not support Ms. Kha's contention that she could not operate the sewing machine due to leg pain.

Twisting pain

Ms. Kha testified that she was required to twist while seated in order to remove a piecework ticket from the slacks and to place it on the sheet of paper, to be tallied. Ms. Kha stated that her spinal column hurt when she did this. In February 1993, Ms. Kha was assessed as being able to perform this rotation movement in the course of a two day functional capacities assessment.

Ms. Kha agreed with the suggestion of counsel for the Insurer that a swivel chair might help her to perform the twisting motion required. She expressed some doubt however that her employer would permit her to use a chair different from that used by her co-workers. Ms. Kha agreed she had never asked her employer about this. Ms. Morando, the personnel manager who testified on behalf of the Applicant was not asked whether Ms. Kha would be allowed to use a swivel chair.

I conclude Ms. Kha's difficulties with the twisting movement do not substantially disable her from performing her essential job tasks.

Psychological factors

Counsel for the Applicant submitted that psychological factors also prevented Ms. Kha from returning to her job. Dr. Talangbayan's note on Ms. Kha's visit immediately before March 3, 1992 is "? reactive depression". Dr. Indech's report of April 29, 1992 states "It was obvious that she had a reactive emotional disorder to this accident and was suffering from a post-traumatic pain syndrome...She may need some psychological counselling as well." At the hearing Dr. Eng testified that Ms. Kha was "in the lower range of being mildly depressed".

Dr. Scher, a psychologist, examined Ms. Kha on behalf of the Insurer on May 3, 1993. Dr. Scher was asked to determine if psychological factors were impeding Ms. Kha's return to work. Dr. Scher concluded that Ms. Kha "is at the lower limit of the least severe end of the mildly depressed range." He stated that the emotional factors attributable to the motor vehicle accident would not prevent her from returning to work, and that Ms. Kha did not require treatment.

In my view the evidence does not establish that Ms. Kha's failure to return to work was caused by psychological problems, nor does it establish that she suffered from a psychological condition which caused or contributed to an inability to perform the essential tasks of her job after July 27, 1993.

Conclusion:

Ms. Kha was not a persuasive witness on her own behalf. In my view she tended to overstate the physical requirements of her job and to understate her ability to meet those requirements.

I do not agree with Ms. Kha's statement that she is entitled to rest until she is free from pain, because she was in a motor vehicle accident. Ms. Kha is entitled to weekly income benefits under the Schedule only if her pain renders her substantially unable to perform the essential tasks of her job. Ms. Kha's position that she is unable to work because of her pain is not supported by her own demonstrations of her ability to sit for periods in excess of her job requirements on many occasions. Her position was not supported by many of the witnesses called on her behalf. The preponderance of the evidence establishes that she was substantially able to perform the essential tasks of her job as an industrial sewing machine operator by July 27, 1993.

2. The medical report

The Applicant sought payment in the amount of $1,150 for a report prepared by Dr. Francisco P. Eng dated November 10, 1993. Counsel for the Applicant sought payment of this report as a "certificate" under section 23(4) of the Schedule.

Section 23 of the Schedule imposes an obligation on the Insurer to pay the costs of medical certificates. No maximum amount is provided in the Schedule for the completion of a certificate, nor is any requirement imposed that the amount charged be reasonable.

Section 29(3) provides that "A certificate required by subsection 23(1) shall be in Form 4." Form 4 is a "fill in the blanks" sort of form, with spaces for the qualified medical practitioner or psychological advisor to fill in information and answer a series of questions, so as to provide sufficient information for the insurer to assess the insured person's claim for weekly benefits.

Section 23(1) of the Schedule describes this information as the cause and nature of the injury for which the claim is made, an estimate of the duration of the disability caused by the accident and a treatment plan. As a matter of practice, this provision appears to be given a somewhat more flexible interpretation than referring only to the completion of a Form 4. For example, where following receipt of a Form 4 the insurer requests a narrative report, the insurer will pay a reasonable fee for the completion of the report. Dr. Eng had already provided one such report at the request of the Insurer.

Dr. Eng's report of November 10, 1993 was prepared at the request of counsel for the Applicant. It is a medicolegal report, some nine pages in length. The report reviews the opinions of the various orthopaedic surgeons and of the radiologist as to whether Ms. Kha has spondylolisthesis, sets out Dr. Eng's findings, contrasts Ms. Kha's pre- and post-accident functioning and provides an opinion as to the cause of Ms. Kha's pain. No opinion is expressed as to the duration of disability, nor is a treatment plan described. Dr. Eng indicates that he spent five hours and 45 minutes to prepare the report and, billed at the rate of $200.00 per hour, his account is $1,150.

I conclude that Dr. Eng's report is not a "certificate" within the meaning of the Schedule. Rather, it is a medicolegal report, an expense which the Applicant should claim under Section F of the Dispute Resolution Practice Code, item 5(4).

Expenses:

The Applicant seeks an award of her expenses. An arbitrator has a discretion to award these expenses pursuant to section 282(11) of the Insurance Act.

In exercising my discretion I have considered the intent and purpose of the legislative scheme, the need to facilitate applicants' access to the informal adjudication of disputes, the submissions of counsel and the circumstances of this case. I exercise my discretion to award the Applicant her expenses as provided under Part 6 of the Dispute Resolution Practice Code. In the event that the parties cannot agree as to the total amount of expenses, I remain seized of this issue and a party may apply for assessment of the expenses before me.

Order:

1. Ms. Kha is not entitled to weekly income benefits under section 12 of the Schedule after July 27, 1993.

2. Ms. Kha is not entitled to be paid $1,150 under section 23(4) of the Schedule for a medical report.

3. Ms. Kha is entitled to her expenses in respect of the arbitration.

September 11, 1995

Suesan Alves Arbitrator

Date

APPENDIX A

Exhibit 1

Copy of the clinical notes and records of Dr. Dang from June 28, 1993 to June 15, 1990, and covering letter dated November 25, 1994

Exhibit 2

Copy of the motor vehicle accident report

Exhibit 3

Copy of the clinical notes and records of Dr. Talangbayan from the date of the accident to October 1994

Exhibit 4

Copies of prescription receipts and travel expense form May 1994 - November 1994

Exhibit 5

Copy of Applicant's job description at Weston Apparel Manufacturing Company

Exhibit 6

Copy of Metro Orthopaedic and Rehab Services Discharge Summary

Exhibit 7

Copies of the clinical notes and records of Metro Orthopaedic and Rehab Services and discharge statement of February 11, 1993

Exhibit 8

Copy of Dr. Scher's report of May 10, 1993

Exhibit 9

Copies of three x-ray reports

Exhibit 10

Copy of the CAT-scan report transcribed December 2, 1993.

Exhibit 11

Copies of payroll records

Exhibit 12

Copy of Dr. Ford's report dated August 31, 1993

Exhibit 13

Copy of Dr. Indech's Report dated April 29, 1992

Exhibit 14

Copy of Dr. Indech's Report dated November 18, 1992

Exhibit 15

Copies of the clinical notes and records of Dr. F. Eng

Exhibit 16

Curriculum vitae of Dr. F. Langer and Dr. Langer's report dated July 7, 1993

Exhibit 17

Curriculum vitae of Dr. H. Scher and his report dated May 10, 1993

Exhibit 18

Handwritten notes of Melissa Clarke

Exhibit 19

Functional abilities evaluation dated October 12, 1994

Exhibit 20

Summary of recommendations of function abilities evaluation.

Exhibit 21

Reports of Rehabilitation Services of Canada at Tabs 3,4,6,7,8.10, 11, 12, 13, 14,16,18,20,22, 23 and 24 of Productions Brief.

Exhibit 22

Metro Orthopaedic and Rehabilitation Centre functional capacity evaluation at Tab 9 of Productions Brief

Exhibit 23

Reports of Dr. F. Eng at Tabs 17, 26 and 27 of Productions Brief.

Footnotes

1. 1Prior 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.
2. 2Employee Records from Weston Apparel Manufacturing
3. 3Functional Abilities Evaluation-Occupational Therapy Report, Productions Brief, Tab 30, page 10
4. 4Job description, Weston Apparel Manufacturing Company
5. 5Clinical notes and records of Dr. Eng, November 9, 1993