Linh N. Do v. Royal Insurance Company of Canada, 1997 ONICDRG 116

ONTARIO INSURANCE COMMISSION

Neutral Citation: 1997 ONICDRG 116

OIC A95-000643

BETWEEN:

LINH N. DO

Applicant

and

ROYAL INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, Linh N. Do, was injured in a motor vehicle accident on August 28, 1992. He applied for and received statutory accident benefits from Royal Insurance Company of Canada ("Royal"), payable under Ontario Regulation 672.¹ Royal terminated weekly income benefits by letter dated March 18, 1993. Royal also rejected Mr. Do's claim for the costs of acupuncture treatment, a TENS machine, an orthopaedic bed and travel expenses. The parties were unable to resolve their disputes through mediation and Mr. Do applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mr. Do entitled to the costs of acupuncture treatment, a TENS machine, an orthopaedic bed and travel expenses, pursuant to section 6(1) of the Schedule?

Mr. Do also claims interest on any amounts owing, and his expenses incurred in the hearing. The Insurer claims that Mr. Do should reimburse the Insurer its $2,000 assessment fee, pursuant to section 282(11.2) of the Insurance Act.

Result:

1. Mr. Do is not entitled to the costs of acupuncture treatment, a TENS machine, an orthopaedic bed or travel expenses, pursuant to section 6(1) of the Schedule.

2. Mr. Do is not entitled to his expenses of the arbitration.

3. Mr. Do is not required to reimburse the Insurer its assessment fee.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on September 10 and 11, 1996.

Present at the Hearing:

Applicant: Linh N. Do

Royal's Representative: Stanley C. Tessis, Barrister and Solicitor

Royal's Officers: Ms. Nancy Kline Mr. Ha Vu

Witnesses: Linh N. Do

Exhibits: The parties filed 29 exhibits.

Evidence and Findings:

Background

Mr. Do was involved in a motor vehicle accident on August 28, 1992. The car he was driving was struck on the rear left-hand side by another vehicle attempting to change lanes. Although the damage to Mr. Do's car was apparently estimated to be $1,000.00, a photo introduced at the hearing showed only a small dent in the left rear end of the car. Mr. Do acknowledged that the collision was minor. He did not seek medical attention the day of the accident. He did not experience any pain for at least a few days after the accident. He saw Dr. Anh Nguyen, a general practitioner, three times in the two and half weeks following the accident, but this was in connection with ongoing consultation concerning Mr. Do's pre-accident condition of rheumatism. He did not mention the accident to Dr. Nguyen. Nor did he visit his family physician, Dr. Chu Quang Le.

Mr. Do was advised by a friend to see Dr. Rick Ramroopsingh concerning the accident. He saw Dr. Ramroopsingh approximately three weeks after the accident, complaining of headaches, sleep disturbance, and pain in the left shoulder, neck, chest and low back. Dr. Ramroopsingh prescribed pain-relief medication and referred him to the Metro Orthopaedic & Rehabilitation Clinic for physiotherapy. He attended there until May 1993. He then underwent extended chiropractic treatment, physiotherapy and acupuncture with various other clinics and physicians. Mr. Do continues to complain of headaches, sleep disturbances, and pain in the chest, left shoulder, neck, left trunk area and upper and low back, which he attributes to the 1992 motor vehicle accident. He also maintains that the accident and his resulting injuries reasonably required acupuncture treatments, a TENS machine, an orthopaedic bed and associated travel expenses. The Insurer maintains that any physical symptoms suffered by Mr. Do are related to his pre-accident problems, that Mr. Do has consistently concealed these problems from the physicians who examined him following the accident, and that the evidence, in any event, does not establish that the medical devices and treatments claimed are reasonable or necessary expenses. Under section 6(1) of the Schedule, Mr. Do bears the onus of showing that these devices and treatments are required as a result of the accident and are reasonable.

Analysis:

For the following reasons, I am not satisfied that Mr. Do's symptoms are related to the 1992 motor vehicle accident, or that the medical and rehabilitation items claimed are reasonable expenses within the meaning of section 6(1) of the Schedule.

Pre- and Post-Accident Symptoms

Mr. Do had numerous physical problems in the years and months leading up to the accident. These problems continued after the accident, and are virtually identical to those he claims arose from the accident. In the two months immediately preceding the accident, Mr. Do saw Dr. Nguyen several times and complained about left chest pain, low back pain, left shoulder and upper back pain, headaches and sleep disturbances.

He saw Dr. Robert Ikeman, a rheumatologist, three months before the accident, and complained of left shoulder and neck pain which had become progressively worse over the preceding two years. Dr. Ikeman felt Mr. Do's symptoms were likely due to an underlying cervical, thoracic and lumbar strain, and might be exacerbated by mild underlying degenerative changes.

Mr. Do testified that he had had a "weak" neck before the accident. He also said he had had back pain for about six to seven years prior to the accident. Mr. Do had complained to Drs. Le and Ngoc-Khoi Huang in 1987 of headaches, neck pain, left shoulder pain, insomnia, and upper back and chest pain. He also told Dr. Le he had had upper back pain for months, and had had headaches for years. He also complained to Dr. Garry Moddel, a neurologist, in 1987 that over the past two years, he had been having constant pain radiating from his spine into his neck and head. On the one hand, Mr. Do claimed that his post-accident symptoms were essentially the same as before the accident, but that they were more pronounced. On the other hand, he suggested that the pains were different than before. In particular, he complained of "muscle spasm" in his upper left back, left shoulder, neck and chest, that was not there previously. He claimed that this muscle spasm was in some way verified by the x-rays he had had, although none of the physicians appear to say this.

I am not satisfied that the symptoms Mr. Do experienced after the accident were significantly different from those he experienced before the accident. The various post-accident clinical notes and records do not reflect a particular concern with "muscle spasm." They do contain some mention of this, but generally, and far more consistently, refer to "pain," "tenderness," "stiffness" and "strain" in the noted areas of Mr. Do's body. Mr. Do testified that he did not mention "muscle spasm" to his doctors. At the hearing, he also did not consistently distinguish between his pre-and post-accident symptoms. I find that Mr. Do's symptoms remained essentially unchanged following the accident.

Opinions on Causation

The physicians and rehabilitation workers who saw Mr. Do consistently found that his symptoms were caused by the motor vehicle accident. This includes Drs. Koonar and Kwok, both of whom examined Mr. Do at the request of the Insurer. However, none of these individuals were aware of Mr. Do's pre-accident problems. Mr. Do, in fact, told them that his pre-accident health was excellent. The one exception to this appears to be in Dr. Kachooie's report of September 5, 1995, where Mr. Do mentioned mild pre-accident chest and low back discomfort. However, Dr. Kachooie also notes Mr. Do as denying any history of previous musculoskeletal disorders, and as having an otherwise unremarkable past medical history. Dr. Kwok also notes some "lung pain" and low back pain prior to the accident, but notes that "apparently his general health was good."

At the hearing, Mr. Do openly acknowledged that he did not want the Insurer to know about his previous medical treatment. In particular, he said that he did not show the Insurer a 1994 note from Dr. Nguyen (the physician he was seeing immediately prior to the accident) because he did not want the Insurer to relate his post-accident injuries to his pre-accident symptoms.

On the basis of this evidence, I am not prepared to find that Mr. Do's post-accident symptoms were caused by the motor vehicle accident. The physicians who examined Mr. Do were either largely or completely unaware of his pre-accident problems. Mr. Do intentionally withheld this information from them so that they would not draw a connection between his pre- and post-accident symptoms. Given the similarity between those symptoms, I find that the physicians and rehabilitation workers may well have reached a different conclusion concerning the source and nature of his problems. I am not prepared to infer that Mr. Do's post-accident symptoms were the result of an aggravation of his pre-existing condition. I note that the collision itself was very minor in nature. Mr. Do has not discharged the onus on him of establishing, on a balance of probabilities, that his post-accident symptoms are related the 1992 motor vehicle accident.

Mr. Do's Credibility

I further find on this basis that Mr. Do is not credible in relation to the symptoms he has identified. Given Mr. Do’s selective and misleading description of his medical history, I am not prepared to find that his symptoms are as he has described. I note Dr. Hoang’s clinical notes of May 6, 1992, which suggest that Mr. Do was not willing to work and wanted family benefits for life. At the hearing, Mr. Do attempted to explain that he simply felt he might be entitled to higher social assistance benefits since he had a serious illness.

I note as well that Mr. Do openly acknowledged that he misrepresented his pre-accident employment history. In particular, he provided the Insurer with a falsified document purporting to be a written offer of employment for a job allegedly beginning in October 1992, approximately two months after the accident. Mr. Do testified that he was under the influence of "bad people" when he did this, and that he was sorry. A written statement taken by the Insurer in 1994 clarified that Mr. Do was laid off from his job in 1989, and was still looking for work when the accident happened. He did not have a written offer of employment at the time of the accident.

Reasonableness of Expenses

I am not satisfied that the expenses claimed by Mr. Do result from the motor vehicle accident or are reasonable. Dr. Kachooie recommended a broad rehabilitation plan for Mr. Do, but this only included a brief period of acupuncture. He also recommended a TENS machine as necessary for Mr. Do's recovery. Dr. Nguyen wrote a brief prescription in 1994 stating that he did not know what to make of Mr. Do’s ongoing complaints, that Mr. Do wished to try acupuncture, and that he did not object to this. Mr. Do did not give this note to the Insurer until late in the hearing. Dr. Ramroopsingh wrote a brief prescription in 1996 stating that he agreed with Dr. Kachooie that acupuncture was a reasonable and necessary expense. He also wrote a brief prescription for an orthopaedic mattress stating that it was a reasonable and necessary expense, and a prescription stating "kindly provide" a TENS machine for Mr. Do. However, Dr. Ramroopsingh's September 1995 report to the Insurer does not specifically mention the need for acupuncture, a TENS machine or an orthopaedic bed.

For the reasons stated above, I do not find that these expenses are required as a result of injuries Mr. Do suffered in the motor vehicle accident. Further, the evidence submitted by Mr. Do does not explain why acupuncture treatment, a TENS machine, and an orthopaedic mattress are reasonable expenses, other than to say that they are necessary for his recovery. Dr. Nguyen does not appear to feel that acupuncture would be particularly helpful to Mr. Do.

Even without the benefit of Mr. Do's pre-accident medical history, both Dr. Koonar and Dr. Kwok concluded that the requested expenses were neither reasonable nor necessary. Dr. Koonar stated that since extensive chiropractic treatment did not significantly improve Mr. Do's condition, and since Mr. Do appeared to be suffering from fibrositis, pharmacologic therapy, as opposed to acupuncture, would be the most appropriate course of action. Dr. Kwok indicated that Mr. Do's soft-tissue injuries had healed by the time he examined him in 1995. He nevertheless stated that any additional treatment could include rest and medications, but that Mr. Do did not require any further treatments such as physiotherapy, chiropractic treatment, acupuncture, a TENS machine or an orthopaedic mattress.

I find the analysis of Drs. Koonar and Kwok more detailed and helpful in determining Mr. Do's need for the requested treatment and devices. I note that the two doctors reached their conclusions without Mr. Do's full medical history. Therefore, on all of the evidence, I find that Mr. Do has not established, on a balance of probabilities, that the medical and rehabilitation expenses requested are related to the accident and reasonable. Given my finding concerning the need for acupuncture treatments, I also find that the associated travel expenses are not reasonable.

Expenses:

Mr. Do admitted to serious misrepresentations, and to intentionally withholding information from the physicians and Insurer to bolster his case. In these circumstances, and in light of my findings on the merits of this case, I am not prepared to award Mr. Do his expenses of the arbitration.

In final submissions, the Insurer submitted that Mr. Do should be ordered to reimburse the Insurer its $2,000 assessment fee, pursuant to section 282(11.2) of the Insurance Act, on the basis that he brought an arbitration that was frivolous, vexatious or an abuse of process. Mr. Do was not given sufficient notice of this issue, and I therefore decline to make the order requested. I am, in any event, not prepared to order Mr. Do to reimburse the Insurer its assessment fee. Despite my findings on credibility, Mr. Do, in my view, honestly believed he was raising legitimate issues for determination concerning his medical condition and his entitlement to statutory accident benefits. I do not find this an appropriate case to exercise my discretion under section 282(11.2) of the Act.

Order:

1. Mr. Do is not entitled to the costs of acupuncture treatment, a TENS machine, an orthopaedic bed or travel expenses, pursuant to section 6(1) of the Schedule.

2. Mr. Do is not entitled to his expenses of the arbitration.

3. Mr. Do is not required to reimburse the Insurer its assessment fee.

June 25, 1997

Eban Bayefsky Arbitrator

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 On or Between June 22, 1990 and December 31, 1993. In this decision, the term "Schedule" will be used to refer to Regulation 672.