Neutral Citation: 1995 ONICDRG 88
File No. A-007463
ONTARIO INSURANCE COMMISSION
BETWEEN:
NHUNG KIM PHAM
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
DECISION
Issues:
The Applicant, Nhung Kim Pham, claims she was injured in a motor vehicle accident on June 5, 1993. She applied for accident benefits from Allstate Insurance Company of Canada ("Allstate") payable under Ontario Regulation 6721. She also claims a special award, since Allstate refused to pay any benefits.
Allstate claims Mrs. Pham is not entitled to benefits as she was not in the motor vehicle at the time of the accident. 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.
The issues in this hearing are:
Is Mrs. Pham entitled to accident benefits under the Schedule, in respect of an accident which occurred on June 5, 1993?
Is Mrs. Pham entitled to a special award under section 282(10) of the Insurance Act on the basis that Allstate unreasonably withheld or delayed the payment of benefits?
Is Allstate entitled to the repayment of interim benefits paid?
The parties also claim interest on any amounts owing. Mrs. Pham claims her expenses incurred in the hearing. Allstate claims an award in the amount of its assessment fee, pursuant to section 282(11.2) of the Insurance Act.
Result:
Mrs. Pham is not entitled to accident benefits, as she was not an occupant of the motor vehicle in the accident of June 5, 1993.
Mrs. Pham is not entitled to a special award under section 282(10) of the Insurance Act.
Allstate is entitled to repayment of the interim benefits, plus interest, paid pursuant to the order of the pre-hearing arbitrator.
Allstate is entitled to an award in the amount of $1,000, to be paid by Mrs. Pham, pursuant to section 282(11.2) of the Insurance Act.
Hearing:
The hearing was held in Toronto, Ontario, on November 2 and 3 and December 12, 1994, before me, Frederika Rotter, Senior Arbitrator.
Present at the Hearing:
Applicant:
Nhung Kim Pham
Applicant's
Michael J. Gillen
Representative:
Barrister and Solicitor
Insurer's
Jim Flaherty
Representative:
Barrister and Solicitor
Insurer's
Teresa Kayahara
Claims Manager
The proceedings were transcribed by Quest Court reporting services.
Interpretation services in English and Vietnamese were provided by Wayne Vu.
Witnesses:
Mrs. Pham
Police Constable Tracie Monkman
Tam Thi Vu
Tong Van Doan
Virginia Ann Stevenson
Roy Raghunan, Ph.D. (Psychology)
Ms. Sheila Ormerod
William Lees Gold
Documents before the Arbitrator
The exhibits are listed in Appendix A.
Evidence and Findings:
On June 5, 1993, some time shortly after noon, an accident occurred in the parking lot of the Square One shopping mall in Mississauga, Ontario. Mrs. Nhung Kim Pham claims that she, together with three other Vietnamese women, was a passenger in a car owned by Mr. Tong Van Doan, when that car was hit by another car backing out of a parking spot. She claims accident benefits including weekly income and child care benefits, and supplementary medical and rehabilitation benefits, as a result of her alleged injuries from the accident.
The primary question before me is whether Mrs. Pham was a passenger of the motor vehicle when the accident took place. I heard evidence from five witnesses who claimed to be present at the accident scene. Based on that evidence, I have concluded that Mrs. Pham was not a passenger, and therefore she is not entitled to the accident benefits she has claimed. My reasons for reaching this conclusion are set out in my discussion of the evidence concerning the motor vehicle accident, as follows:
Evidence of the Motor Vehicle Accident
(1) The Accident
Mrs. Pham is a refugee from Vietnam who settled in Canada with her family in 1991. At the time of the accident, she was living with her husband and their two children (an 18 year old son and an 11 year old daughter) in a three-bedroom apartment at 25 San Romanoway, in the Jane-Finch area of Toronto.
At the hearing Mrs. Pham testified about the events of the accident on Saturday, June 5, 1993. I was able to compare her evidence with a statement she made on October 27, 1993, to Mr. William Lees Gold, the staff claims consultant who investigated the accident on behalf of Allstate.
Mrs. Pham's testimony differs in its details from her statement to Mr. Gold. For example, she testified that shortly before noon of the day of the accident, her friend Tam Thi Vu came to see her, at her apartment. However, in her statement to Mr. Gold, she indicated that Mrs. Vu and another woman named Ms. Thu, whom she had never met before, came to see her at her apartment, at about 10:30 or 11 a.m.. In her testimony at the hearing, she said that Mr. Gold wrote her statement down wrong.
Mrs. Pham testified that she was alone in the apartment - her husband and children had gone out. Mrs. Vu suggested an outing and told her that someone was waiting downstairs to take them shopping somewhere. Mrs. Pham testified she then changed her clothes, got ready and went downstairs to the front of the apartment building, where (according to her evidence at the hearing) two people were waiting in a black two-door sports car: the driver, a gentleman named Tong Doan, and the passenger, a Ms. Thu. Mrs. Pham claimed she did not know these people, but Mrs. Vu made the introductions and everyone entered the car. The evidence shows that Mr. Doan lived in the same building as Mrs. Pham, at 25 San Romanoway.
Mrs. Pham sat next to Mr. Doan, in the front passenger seat. She testified that Ms. Thu sat behind her and Mrs. Vu sat behind Mr. Doan. Mr. Doan proposed that they all go to a Woolco store at a mall. Mrs. Pham could not say which mall, or where it was. She could not remember how long the drive took - it seemed a long drive.
Mrs. Pham testified that they had almost arrived at the mall when the accident happened, in the parking lot of the mall. It was raining at that time.
Mrs. Pham testified that a car backing out of a parking spot hit the side of the car near the door where she was sitting. She could not describe the speed at which the vehicle was moving but said it was "a strong impact". She stated "It was such a strong impact - I believe the door was broken off." I heard no other evidence of such extensive damage to the car door.
Mrs. Pham said she was "in a state of shock" as a result of the accident and didn't notice anything else afterwards. She claimed she remained seated in the car, but does not remember whether anyone else got out - she thought "probably not, except for Mr. Doan". In cross-examination she said the other women were "probably" or "possibly" still in the back seat. She "did not pay attention" to the movement of the other women, although she confirmed that they would have had to push either her seat or the driver's seat forward, to leave from the back seat of the two-door car.
She did not tell Mr. Doan she was injured because she had no time to do so. He left the car right after the accident, and when he returned he was "busy, taking care of things," and she did not wish to bother or upset him.
She testified that after the accident she "sort of fell asleep"; she was anxious and scared, "like a little dizzy" or "flashy". She stated that she could remember the events of the accident only vaguely, because it occurred quite a while ago. She did not pay attention to what was happening outside the car as she was nervous and anxious.
She saw a police officer "vaguely". She was in the front seat of the car, with her eyes sometimes open, sometimes closed. She heard Mr. Doan speaking with the police officer. Mrs. Pham could not explain why the police officer who attended the accident scene did not see any women passengers in the car.
She also heard and saw Mr. Doan talking loudly with some men - she does not know who they were - but she did not see him talking to the driver of the other vehicle. She could not explain, either, why the driver of the other vehicle did not see three women in the Doan car.
She does not remember how long she remained in the car before Mr. Doan took her home. She testified that after leaving the accident scene, Mr. Doan took her right home, before dropping off the two other women, who were still in the car.
I found Mrs. Pham's evidence about the motor vehicle accident vague and evasive. She claimed she experienced it as a traumatic event, yet she was able to give very few specific details about what actually occurred. She could not even guess how long she spent in Mr. Doan's car, or how far they travelled to get to the mall. The contradictions between her testimony and the account of the accident she provided to Mr. Gold caused me to doubt her credibility. Her credibility is further damaged by the evidence of her own witnesses.
(2) Evidence of Mrs. Tam Thi Vu
The testimony of Mrs. Pham's friend, Mrs. Tam Thi Vu was similar to that of Mrs. Pham.
Mrs. Vu, like Mrs. Pham, described the accident as a "big strong impact" which caused her to become dizzy and then fall asleep. She does not remember how long she slept or when she woke up, but she was still in the parking lot waiting for the police to arrive when she woke up. Mr. Doan had left the car - she assumed to call the police.
Mrs. Vu said she could not see the driver of the red car that had hit the Doan vehicle. She heard Mr. Doan talking to people. She does not know to who or for how long, because she was sitting in the rear of Mr. Doan's car with her eyes closed. She heard voices speaking both English and Vietnamese so she thought someone had brought an interpreter.
Mrs. Vu said she opened her eyes "vaguely" and saw three or four men including Mr. Doan. She did not pay attention to what was going on because, she testified "it was not my business". Mrs. Vu denies she left the car at any time to go into the mall.
She remembers a police officer at the scene of the accident - she knew it was a police officer because of the blue uniform, but could not say whether the officer was a man or a woman.
Mrs. Vu testified that after the accident, Ms. Thu was picked up by her family - before she and Mr. Doan took Mrs. Pham home. She remembered that Ms. Thu was not in the car on the way home but could not remember where, when, or how she left the vehicle. She could not remember whether Ms. Thu left the car out of the passenger door, which had been damaged in the accident, or out of the driver's door. She confirmed that she herself was sitting behind the driver, so Ms. Thu would have had to climb or crawl over her to leave by the driver's door. However, she could recollect no details about Ms. Thu's exit from the vehicle. Mrs. Vu said she thought her memory was affected by the accident.
Counsel for Mrs. Pham, in submissions, commented about Mrs. Vu's evidence that it would be "charitable to call it unconvincing." Mrs. Vu appeared to remember no details at all about the accident. In this, her evidence resembles Mrs. Pham's: both women claim that this traumatic event somehow put them to sleep, or into a state where they lost all consciousness and awareness of what was occurring just outside the car - although neither one claims a head injury.
Mrs. Vu's evidence only differs from Mrs. Pham's in that she claimed that the third woman, Ms. Thu, somehow left the car before they went back home to Mrs. Pham's.
(3) Evidence of Mr. Tong Van Doan
Mr. Doan testified that he is the owner of the black two-door Pontiac vehicle that was involved in the accident of June 5, 1993. He lived at 25 San Romanoway, in the same building as Mrs. Pham, at the time of the accident. He said he first met Mrs. Pham on the day of the accident - he did not know her before.
Mr. Doan testified that when the accident occurred, he had three passengers. Mrs. Pham was seated in the front, next to him, and two other women were in the back. He does not remember who sat where. They were in the parking lot of Square One in Mississauga. It was a rainy day. After the accident, he immediately left his car. He spoke briefly to the driver of the other car, and asked her for her insurance policy number. Then he went to call the police.
Mr. Doan testified that he went into the mall to call the police. Then he also telephoned some of his friends - three Vietnamese gentlemen who lived in the neighbourhood and could act as interpreters.
Mr. Doan testified that after he finished making his calls, he went into the lobby of the Woolco store for a smoke. One of his friends, an individual named Duc, found him there after first looking for him at the scene of the accident. Mr. Doan testified that when he returned with Duc to the accident scene, a police officer was already there.
At the accident scene, the police officer was talking with the driver of the other car. Mr. Doan testified that when she finished with the other driver, he and Duc spoke with the police officer. Mr. Doan testified that he told the police officer that four people were in the car at the time of the accident - himself and three women. He denied that either he or his friends had indicated that there were male passengers in the vehicle.
Mr. Doan explained that Duc and two other men, Thong and Loi, arrived on the scene before the police officer got there. He could not explain why they would have told the police officer that they were passengers in his car, and denied that they had done so in his presence.
Mr. Doan told the police that no one had been injured, because, he said, at that time he did not know that anyone had been injured. Mr. Doan said that when he returned to the car, the three women were still sitting there. He could not explain why the police officer and the driver of the other vehicle deny seeing any women passengers in the car.
He said that at some point, before he left the accident scene, Ms. Thu's family came and picked her up, but he does not remember when. When he left Square One, Mrs. Pham and Mrs. Vu were still in the car. He went straight home, to his apartment, in the same building where Mrs. Pham lives.
Mr. Doan was cross-examined about a statement he had made to Mr. Gold, the claims consultant investigating Mrs. Pham's claim. He did not remember whether he told Mr. Gold that at the time of the accident, the three women were seated in the rear of the car, or whether he said that Mrs. Pham was in the front, and the other two were in the back. He thought that if Mr. Gold had a note about the three women being in the back, he wrote it down wrong. At the hearing he said he now remembers that Mrs. Pham was in front, next to him.
Mr. Doan also denied telling Mr. Gold that immediately after the accident, the three women ran into the mall to shop. He said he did not know whether or not they went to shop - it is possible that they went to the washroom, or to make a telephone call. He was not paying attention to the women after the motor vehicle accident. He left the car and does not know what the women were doing after that. He thinks maybe Ms. Thu called her family because someone came to pick her up. He did not know whether the women had returned by the time the police officer had arrived, and could not explain why the police officer would say she saw no one in the car.
Mr. Doan was able, in his evidence, to give an accurate description of the accident scene and the relative positions of the cars involved, including the police car. He was also able to sketch the scene accurately (in Exhibit 8). Yet in cross-examination, he stated he could not remember the "details" about the movements or positions of the three women in the car, on the day of the accident. He finally said he did not know whether or not they left the car after the collision: "that's up to what they are saying."
In assessing Mr. Doan's evidence, I find it striking that he felt it necessary to somehow explain the absence of women and the presence of men at the accident scene. I find it difficult to believe Mr. Doan's evidence that he called three friends who immediately came to the mall, in the rain, before the police arrived. Why did Mr. Doan need to call three friends to interpret and assist, for a relatively minor collision? Why did the men who arrived not interact with or attend to the women Mr. Doan claims were in the car?
I find Mr. Doan's evidence implausible and contradictory. His answers on cross-examination were vague and evasive. He was not a credible witness.
(4) Evidence of Virginia Anne Stevenson
Ms. Stevenson is the driver of the vehicle that collided with Mr. Doan's car on Saturday, June 5, 1993. She testified that the accident occurred at 11:30 or 11:45 a.m., as she was backing out of a parking spot at Square One in Mississauga. It was a rainy day. Immediately after the collision, both vehicles stopped moving, and she and the other driver got out.
Ms. Stevenson testified that when she left her car, she and the other driver were standing in between the two cars. Ms. Stevenson observed one passenger in the other car: a man.
Ms. Stevenson testified that she and the other driver exchanged insurance information. Then he left the scene and went to call the police. Ms. Stevenson testified that the driver eventually returned and told her he had called the police. The passenger left the car, about 15 minutes later.
A police officer arrived within about an hour. The officer first approached the driver of the other car, then she came over to speak with Ms. Stevenson. She told Ms. Stevenson to move her car back into the parking spot. Ms. Stevenson said the passenger from the other car came back at some point after the police officer arrived.
Ms. Stevenson said the officer inspected her car and commented that she had fared very well: her vehicle had sustained no damage. In cross-examination, Ms. Stevenson stated that she did not notice a black paint transfer and small dent in her bumper, which the police officer had apparently noted. She said she previously had a few marks on her car and did not notice anything more after the accident.
(5) Evidence of Police Constable Monkman
Police Constable Tracie Monkman testified that she has been with the Peel regional police force about six and one half years. She investigated the accident at Square One in Mississauga on June 5, 1993. She arrived at the accident scene at about 1:10 p.m.
Police Constable Monkman testified that she remembered the accident scene. She could accurately describe the relative positions of the cars, which had not been moved when she arrived. She saw "two Asian gentlemen" at the scene, who said they were passengers in the black car. They then left to find the driver of the car, who they said was on the phone.
Police Constable Monkman testified that she then spoke to Ms. Stevenson, and got her particulars. She had started filling out the accident reports when the driver of the other vehicle returned.
Police Constable Monkman testified that she spoke to Mr. Doan in English, in the presence of the two other gentlemen who acted as interpreters. Mr. Doan said there were four people in the car, including himself, but that no one had been hurt. Both of the other men present agreed they had not been hurt. Police Constable Monkman testified that she did not list the names of the passengers in her report because no injuries were reported.
Police Constable Monkman testified that she spent 33 minutes at the accident scene. She inspected both vehicles for damage. Ms. Stevenson was alone in her vehicle: Police Constable Monkman noted that her car had sustained minor damage which she evaluated at $300: there was a black paint transfer on the bumper and the rear right corner was pushed in.
Police Constable Monkman also inspected the black Pontiac for damage, and testified that she saw no one in the car. She was able to look directly into the car. She stated that she would have observed passengers if they were in the car. She noted damage to the passenger-door side of the vehicle, which she estimated at $1,000. She testified that no one was in the Pontiac at any time, except for Mr. Doan, who got in to move the vehicle at her request, because it was blocking traffic.
Police Constable Monkman confirmed in cross-examination that she has a clear recollection of the accident, which is supported by her notes, some of which she made contemporaneously, and additional notes which she made afterwards. Her notes and the accident report were entered into evidence as Exhibit 6. Police Constable Monkman said she specifically recalled the accident because it was unusual for a driver to be absent from the scene.
I accept the evidence of Police Constable Monkman. I find she is a professional and impartial witness. She noted minor damage to Ms. Stevenson's car which that lady herself failed to observe. I am confident she would have noticed two or three semi-conscious women passengers in the Doan vehicle, if they had been there.
(6) Analysis of Evidence Regarding Motor Vehicle Accident
To say the least, the evidence which I heard about the events of the motor vehicle accident is troubling. No witness gave an account which matched that of any other.
Fortunately, I am not required to come to a correct and accurate conclusion about exactly who and how many were present at the accident scene. The question I must decide is simply whether I am persuaded, on a balance of probabilities, that Mrs. Pham and two other women were present at the accident scene, as she claims.
I have no hesitation in finding, on a balance of probabilities, that Mrs. Pham was not present at the accident. As I have indicated, her evidence and that of her witnesses was vague, contradictory, and implausible. She provided no credible explanation why the only two independent and disinterested witnesses - Ms. Stevenson and Police Constable Monkman - failed to see women passengers in the car. I find that the logical explanation is that they were not there.
All the witnesses agree that one or more Vietnamese men were present at the scene. Even Mrs. Pham and Mrs. Vu were "vaguely" aware of men's voices and conversations in Vietnamese. Unfortunately, the Vietnamese men were not called to testify, to explain how they came to be present at the accident scene. I find Mr. Doan's explanation for their presence highly unlikely. I find it more likely that these men, or some of them - and not the women - were passengers in the car. This accords with the evidence of Ms. Stevenson, and also of Police Constable Monkman, who said the men identified themselves as passengers.
My conclusion that Mrs. Pham was not present at the accident is further supported by my assessment of her evidence about the effects of the accident. Mrs. Pham testified about her alleged injuries from the accident, and the treatment she received. She also called a licensed psychologist to testify on her behalf. I found none of this evidence credible: on the contrary, the evidence about the alleged injuries and treatments added to my impression that Mrs. Pham was putting forward a dishonest and unjustifiable claim. For the sake of completeness, I will now deal with that evidence.
Injuries and treatment
(A) Physical problems:
Mrs. Pham was born in Thailand in 1952. She moved to Vietnam with her parents in 1961, and completed ten grades of school, and vocational training as a nurse. She worked as a nurse in Vietnam until 1989. She also married and had two children in Vietnam. In 1989, the Pham family travelled to Hong Kong in a small refugee boat. The family lived as refugees in Hong Kong for two years before emigrating to Canada. Mrs. Pham did sewing work in the refugee camp.
The family settled in Toronto in 1991. Mrs. Pham testified that she did a few odd jobs in Toronto - sewing, working in a supermarket - but only briefly. She described her essential tasks as doing the housework: cleaning, tidying, meal preparation and grocery shopping. She also was involved in supervising and caring for her children, especially her daughter.
Mrs. Pham testified that when she got home, on the day of the accident, she felt "dizzy and painful". She said that gradually, with the passage of time, her pain increased, so that she was feeling more and more uncomfortable. She stated: "for a few days after the accident, I could do almost nothing, just lie down". She described her pain as mainly headaches, but also chest and neck pain that spread downwards to her hands and legs.
Mrs. Pham testified that, as she was a nurse, she at first treated herself with a "Vietnamese patch" - an adhesive pad with hot ointment. However, after a while, the pain became worse so she sought medical attention.
In her evidence in chief, Mrs. Pham did not "exactly remember" whether she saw Dr. Nhan T. Tong, her own family doctor, at any time after the accident. In cross-examination, it was suggested to her that she saw Dr. Tong on June 9, 1993, with complaints of weight gain and poor sleep, but did not mention the motor vehicle accident. When Mrs. Pham was asked why she did not tell Dr. Tong that she had been injured in an accident, four days earlier, she said it was because she wanted Dr. Tong to give her "an accurate diagnosis". When asked to elaborate, she said she did not want to tell him about the accident.
Dr. Tong's medical notes and records were filed as Exhibit 5. They show that he saw Mrs. Pham on June 9, 1993, July 3, 1993, in August, September, October and December of 1993, and January and March of 1994. At no time did Mrs. Pham tell Dr. Tong about the motor vehicle accident of June 5, 1993. In reexamination, she agreed when her counsel suggested that this was because she did not wish to create conflict between her medical doctors.
In submissions, counsel for Mrs. Pham characterized her reasons for not telling Dr. Tong about her injuries as "troubling" and "puzzling". He attempted to account for this behaviour by means of so-called "cultural norms". I find that cultural norms and inhibitions do not adequately or reasonably explain Mrs. Pham's conduct: the better explanation is that on June 9, 1993, she had no injuries to complain of.
Mrs. Pham consulted Dr. "Sonny" Talangbayan on June 16, 1993, about her alleged injuries. He was not her family doctor before the accident, but she had read about him in a Vietnamese paper, and understood that he specialized in accidents.
Mrs. Pham testified that Dr. Talangbayan gave her prescriptions to deal with the pain from her injuries, "but they did not work right away". She claimed that after the accident, her ability to work was "greatly reduced" and so her husband and son had to take over most of the housework. She could do only very simple tasks.
Mrs. Pham testified that eventually, "one or two months later", Dr. Talangbayan sent her for massage therapy and physiotherapy exercises. She stated "my situation was very serious then." She complained that she suffered from physical pain, which also produced sleep disturbances and irritability, causing her personality to change. Dr. Talangbayan referred her to a psychologist, Dr. Roy Raghunan, to deal with these symptoms.
Mrs. Pham's evidence about her pain was not credible: she was very vague and unspecific about the extent and duration of her physical complaints after the accident, and she did not mention any particular symptoms, apart from headaches, as being especially debilitating. Although her description of her symptoms was vague, she described the pain as extreme and intense.
The evidence shows that Mrs. Pham did not claim statutory accident benefits in respect of the accident until September 14, 1993 (exhibit 1-1). She did not start either physiotherapy or psychotherapy until October 1993. In cross-examination, Mrs. Pham could not explain why she waited so long to apply for benefits or obtain treatment.
Mrs. Pham testified that when she started seeing Dr. Raghunan in October 1993, she still could not do her usual chores - only light chores. However, the evidence filed (Exhibit 3) shows that Mrs. Pham told Dr. Raghunan's intake worker that as of October 6, 1993, she had "improved considerably" and "can do her housework now." In cross-examination, Mrs. Pham suggested that maybe the intake worker had made a mistake in recording the information. She then stated that "medically, physically" her situation was not very serious - the seriousness was in the forgetfulness, and psychological problems. She said her problem was half physical, half mental. Eventually, she said that she could not remember what she could and could not do, physically, in October 1993: "it's been a long time."
Mrs. Sheila Ormerod, Dr. Raghunan's administrative assistant and intake worker, testified that she interviewed Mrs. Pham through an interpreter, and filled out the intake document. She testified that when filling out such forms, she tries to make them as accurate as possible a report of what the person said.
To summarize: Mrs. Pham's testimony about her physical injuries and treatment suggests to me that she in fact sustained no verifiable injuries. I make the same finding about her alleged psychological symptoms, which I deal with below.
(B) Psychological symptoms and treatment:
Evidence of Mrs. Pham
Mrs. Pham testified that the pain and distress from her alleged injuries caused a "personality change." Her headaches and sleep problems made her forgetful, and disinclined to do her chores. She became very irritable: scolded her children unreasonably, and fought with her husband. She felt dizzy and discouraged, and lost her enjoyment of life. Nothing seemed to be worth trying for.
Mrs. Pham testified that Dr. Talangbayan referred her to Dr. Raghunan because of these symptoms. She said Dr. Raghunan spoke to her "psychologically," and gave her exercises and therapy which eventually comforted and helped her. She testified that Dr. Raghunan "lifted her spirits and emotions," so that she felt good, and could do more. By the time of the Vietnamese Tet (lunar new year) in late January or early February 1994, she was "almost back to normal." She enjoyed life, and had resumed her usual activities. Her last session with Dr. Raghunan was on March 29, 1994.
Mrs. Pham claimed the motor vehicle accident was a traumatic event, which affected her psychologically. In cross-examination, she agreed that her passage from Vietnam to Hong Kong in a small refugee boat was also very stressful to her, and "would be stressful to everyone in this world." However, she did not seek psychological counselling to help her cope with this experience. She first saw a psychologist only when Dr. Talangbayan referred her to Dr. Raghunan, after the motor vehicle accident.
Evidence of Dr. Raghunan
Roy Raghunan, Ph.D., is a psychologist licensed in Ontario, who has practised in this province since 1977. Most of the patients now in his practice are southeast Asian and Chinese people who have suffered injuries in motor vehicle accidents. Dr. Raghunan considers himself an expert in dealing with this population, although he is unable to speak Chinese or Vietnamese, and must communicate with his patients through an interpreter.
Dr. Raghunan testified that Mrs. Pham presented as very "anxious, weepy, distraught." She complained of difficulty sleeping. Dr. Raghunan said that after the initial intake, he completed a "dynamic assessment" of Mrs. Pham, taking into account Mrs. Pham's cultural heritage, and the fact that southeast Asians generally "will not disclose personal information or problems." This was done over about 10-12 sessions. He also did a "static assessment" by administering a trauma questionnaire on February 1, 1994.
Dr. Raghunan concluded, as of February 15, 1994, that all the symptoms showed that Mrs. Pham was suffering from a post-traumatic stress disorder, and that she was traumatized as a result of the motor vehicle accident. The post-traumatic stress disorder ("PTSD") led to "cognitive inefficiency" which meant she was unable to think, concentrate or solve problems, because of her anxiety.
Dr. Raghunan based his diagnosis of PTSD on the motor vehicle accident ofJune 5, 1993. He agreed that he really did not know whether or not Mrs. Pham was involved in a motor vehicle accident on that day, but commented "I must have some belief in my patient." He attributed Mrs. Pham's inability to provide any coherent account of the accident, to a "phobic" or "dissociative" memory.
He accepted Mrs. Pham's claim that she suffered from intrusive thoughts, memories and nightmares about the accident, even though he made no notes describing any concrete details about those thoughts and memories.
Dr. Raghunan offered Mrs. Pham various treatments, including relaxation and "cognitive reappraisal" techniques. Her therapy terminated on March 29, and Dr. Raghunan felt that she could return to her essential tasks as of April 1, 1994.
I was troubled by Dr. Raghunan's tendency to explain away the inconsistencies and anomalies in Mrs. Pham's behaviour and presentation by relying on cultural stereotypes and generalizations about southeast Asian people. I noted approximately a dozen such references in his testimony. For example, he explained Mrs. Pham's failure to tell her own family doctor about the alleged motor vehicle accident by suggesting that many of "these people" do not seek appropriate medical help after a traumatic event. He explained her failure to obtain active treatment and physiotherapy for almost four months by observing that many of "these people" do not understand the difference between active and passive treatment; even though he knew Mrs. Pham was a medical nurse, whom he described as "very bright."
Dr. Raghunan also indicated that he felt it was not necessary or important to obtain an accurate medical history of his patient from her family physician, because "these people" are usually embarrassed and ashamed to discuss personal or psychological information with their family doctor.
Dr. Raghunan did not know that Mrs. Pham was continuing to see Dr. Tong, her family physician, and assumed that she was seeing only Dr. Talangbayan. He assumed that her family doctor treated her for medical symptoms only, and not for psychological symptoms. Dr. Raghunan accepted that Mrs. Pham had developed sleep problems as a result of the motor vehicle accident - he was not aware that she had been complaining about sleep problems to her family doctor since December 1991.
Similarly, Dr. Raghunan did not know that since 1991, Mrs. Pham had complained of poor appetite and weight loss. He assumed that before the accident she was doing well, and that the motor vehicle accident was the "traumatic event" which caused her to require treatment. Dr. Raghunan did not know that Mrs. Pham's family doctor had prescribed antidepressants and tranquillizers, including Valium on two occasions (as documented in Exhibit 5) prior to the motor vehicle accident.
Finally, Dr. Raghunan acknowledged that before the motor vehicle accident, Mrs. Pham had significant stressors in her life: notably her experience as a "boat person" and refugee. However, his diagnosis of PTSD makes no reference to other potential causes for Mrs. Pham's psychological problems. Dr. Raghunan felt that Mrs. Pham's marital problems were caused by and related to the motor vehicle accident. In cross-examination, he indicated that he was not aware that Mrs. Pham and her husband had separated in April 1994, very shortly after the therapy had ended.
Dr. Raghunan relied solely on Mrs. Pham's own account of her problems to arrive at the diagnosis of PTSD. He failed to obtain or consider other relevant information about her psychological status. I have found that Mrs. Pham was not a truthful or reliable historian. I find Dr. Raghunan's diagnosis equally unreliable, based as it is on unsubstantiated cultural stereotypes combined with inaccurate and inadequate information.
Disposition of Claims
In light of Mrs. Pham's failure to establish, on a balance of probabilities, that she was involved in the motor vehicle accident on June 5, 1993, it is clear that her claim for accident benefits for injuries sustained in that accident cannot succeed.
It is equally clear that her claim for a special award under section 282(10) of the Insurance Act, cannot succeed.
Allstate has requested the repayment of interim benefits, ordered to be paid by the pre-hearing arbitrator. In light of my finding that Mrs. Pham is not entitled to accident benefits, I conclude that the interim benefits should be repaid, with interest, and I so order, pursuant to my authority to do under section 282(11.1) of the Insurance Act.
I am declining to grant Mrs. Pham her expenses. I find that it is not appropriate to award expenses in a case where I am persuaded that the Applicant has abused the arbitration process and the entire accident benefits system, by putting forward a manifestly unfounded claim.
I find that Mrs. Pham's claim was abusive and vexatious. Accordingly, I order that she pay Allstate an award in the amount of its assessment fee of $1,000, pursuant to the provisions of section 282(11.2) of the Insurance Act.
Order:
Mrs. Pham is not entitled to accident benefits, as she was not an occupant of the motor vehicle in the accident of June 5, 1993.
Mrs. Pham is not entitled to a special award under section 282(10) of the Insurance Act.
Allstate is entitled to repayment of the interim benefits, plus interest, paid pursuant to the order of the pre-hearing arbitrator.
Allstate is entitled to an award in the amount of $1,000, to be paid by Mrs. Pham, pursuant to section 282(11.2) of the Insurance Act.
June 30, 1995
Frederika Rotter
Senior Arbitrator
Date
Appendix A
Applicant's brief
Notes and records of Dr. Tuyet Vo
Intake form - Dr. Roy Raghunan
Statement of Thi Kim Nhung Pham
Notes of Dr. Tong
Documents from Police Constable Monkman
Statement of Police Constable Monkman
Accident report with drawing of Dr. Doan
Statement of V. Stevenson
Excerpt from DSM III
Assessment of claim form
Letter from Allstate to Dr. Raghunan, dated November 9, 1993