Neutral Citation: 1997 ONICDRG 164

OIC A96-000797

BETWEEN:

NHUY HUYNH

Applicant

and

WELLINGTON INSURANCE COMPANY

Insurer

DECISION

The Applicant, Nhuy Huynh, was injured in a motor vehicle accident on July 28, 1993. She received statutory accident benefits from Wellington Insurance Company, payable under Ontario Regulation 672¹, until Wellington terminated weekly income benefits on May 26, 1995. Mrs. Huynh claims ongoing benefits. The parties were unable to resolve their disputes through mediation, and Mrs. Huynh applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is the Applicant entitled to weekly income benefits pursuant to section 12(1) and section 12(5)(b) of the Schedule after May 26, 1995?
Is the Applicant entitled to further housekeeping and babysitting expenses pursuant to section 6 of the Schedule?

Mrs. Huynh also claims interest on any amounts owing and her expenses incurred in the arbitration proceeding.

The Applicant is not entitled to weekly income benefits after May 26, 1995.
The Applicant is entitled to payment of further housekeeping and babysitting expenses in the amount of $4,780 together with interest in accordance with section 24 of the Schedule.

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on July 28, 29 and 30, 1997.

Present at the Hearing:

Applicant:

Nhuy Huynh

Mrs. Huynh's Representative:

Neil Sacks

Barrister and Solicitor

Wellington's Representative:

Edmund W. Kent

Barrister and Solicitor

Halifax's Officer:

Les Choo-Wing

(Halifax Insurance Company purchased Wellington after the accident)

Before:

William J. Renahan

Arbitrator

Introduction:

Mrs. Nhuy Huynh claims that she suffered disabling injuries as a result of a motor vehicle accident which occurred on July 28, 1993. For the most part, the medical evidence indicated that Mrs. Huynh suffered soft tissue injuries to the neck and back. Mrs. Huynh argued that she developed fibromyalgia and that the trauma of the accident also caused or aggravated spinal disc or vertebrae injuries or disease. At the time of the accident Mrs. Huynh was four months pregnant with her second child. She was employed as a machine operator. She has not returned to that work.

Wellington paid weekly income benefits pursuant to section 12 of the Schedule until May 26, 1995. It also paid $9,000 in a lump sum towards babysitting and housekeeping expenses.

Overview:

Mrs. Huynh is 37 years old. She was born in Vietnam and immigrated to Canada in 1981.

A dominant feature of this case was Mrs. Huynh's failure or inability to fully answer the questions of both counsel. Mrs. Huynh testified through Mr. Minh Tran, a Vietnamese interpreter. I was satisfied with the interpretation.

Mrs. Huynh gave much of her evidence by answering "yes" or "no" to leading questions. Other than the answers she gave to leading questions, she was only able to describe the factory work she did for three years as putting glue in an item. She did not know whether the item was metal or plastic. She had difficulty describing how many floors were in her house. Dr. Chan, a psychologist, examined Mrs. Huynh for the Insurer with the assistance of a psychological assistant who was fluent in Vietnamese. Dr. Chan commented on the difficulty she had "extracting" information from Mrs. Huynh and noted that "it was necessary to repeat and elaborate the questions in order to make any significant headway." Dr. Chan's psychological assistant indicated that Mrs. Huynh had a lot of difficulty with many simple terms. Ruth Billet performed a vocational evaluation of Mrs. Huynh and testified that although Mrs. Huynh said she was a trained teacher in Vietnam, she had below average intelligence and scored very low on all aptitude tests. She also found her inconsistent and confused.

Mrs. Huynh often referred to a note book when testifying, particularly when asked for dates. She explained that she did not know the birth dates of her children because in Vietnam years are named after animals and because it was sufficient to remember the ages of her two young children. I heard no other explanation as to why Mrs. Huynh had difficulty testifying. I heard no evidence that her difficulty was due to injury suffered in the motor vehicle accident.

I summarize Mrs. Huynh's relevant testimony as follows: she cannot work because of pain in her back; she does not know if she is able to work; she has three problems, back pain, asthma and bladder incontinence; she cannot work because of illnesses; her mother, father, husband and brother help with the housework; she asked to return to work this year and her former manager told her the job was no longer available; she applied for work at about six factories; she worked as a sewing machine operator for six days at the beginning of this summer but stopped because of pain; she is waiting for the other factories to call her; and, the only reason she cannot work is because of her back and shoulder.

Other Lay Witnesses:

Diep Vo is Mrs. Huynh's sister-in-law. She was in the vehicle at the time of the accident and was not injured. She claimed that from the time of the accident she performed housekeeping chores and caregiving for Mrs. Huynh six hours a day, five days a week for three years. She did not know the names of Mrs. Huynh's two children. She said that Mrs. Huynh paid her in cash and that she did not know where she got the money to pay her. Diep Vo said that Mrs. Huynh was tired and sick, complained of back and neck pain, did light housework, lied down and played with and fed the baby. She did not know who helped with the housework after she stopped.

Linh Huynh is Diep Vo's 25-year-old daughter and lives with her mother. She was in the vehicle at the time of the accident and was not injured. She explained that the accident occurred as the three were returning home from work. She said that her mother helped Mrs. Huynh out of the vehicle. They decided not to go to the hospital. She did not know who took care of Mrs. Huynh's children after the accident. Linh Huynh sees Mrs. Huynh about once or twice a month. She said that before the accident Mrs. Huynh walked quickly with joy in her face. Now she walks slowly. She is sad and frowns all the time.

Applicant's Return to Work in May 1997:

Mrs. Huynh obtained full-time employment as a sewing machine operator with Action Sport Knit on May 27, 1997. She quit that employment on June 5, 1997, two months before the hearing. The plant manager who hired Mrs. Huynh did not testify. However, the parties agreed that she would say that she did not speak with Mrs. Huynh. She observed Mrs. Huynh from time to time and did not notice any signs of discomfort or receive any reports from Mrs. Huynh or her supervisor. Mrs. Huynh quit without explanation and returned to the factory with her husband to pick up her pay cheque. The supervisor asked why Mrs. Huynh quit and Mr. Huynh said that his wife was not feeling well and that her back hurt as a result of an accident and that she could not perform the job. Mrs. Huynh saw Dr. Talangbayan on June 7, 1997. He recorded that she complained of low back pain, that she tried to work that week and that her pain was aggravated by prolonged sitting. This is the only evidence I heard concerning Mrs. Huynh's attempted return to work.

An attempt to return to work is highly relevant evidence in a claim based on disability. In Foden v. Co-Operators Insurance Association, [1978] I.L.R. Para. 1-1045 (S.C.O.), Reid J. said:

No one, in my opinion, should be discouraged from attempting to take up their former work, or any work, out of fear that the attempt might be held against him. Far from necessarily proving that an insured has the capacity to perform his task it may, as in my opinion it does here, prove the reverse. There is no better evidence of incapacity to perform a task than the failure of an honest and sustained attempt to do it.

Other than the evidence I have set out, Mrs. Huynh and her witnesses did not elaborate on Mrs. Huynh’s attempt to return to work shortly before the hearing. Neither Mrs. Huynh or her witnesses provided the kind of detail I would expect about the attempted return to work considering that Mrs. Huynh had not worked for four years and then worked six days shortly before the hearing. I heard no details of what those days were like. I find that the attempt to return to work does not tend to show that Mrs. Huynh is disabled from work.

Medical Evidence:

Mrs. Huynh saw two family doctors after the accident, Dr. Daniel Wong and Dr. Talangbayan. Her doctors referred her to Dr. Weinberg, an orthopaedic surgeon, and to two rheumatologists, Dr. Halmos and Dr. Bookman. Mrs. Huynh's lawyer referred her to a third rheumatologist, Dr. Joseph Wong. Mrs. Huynh was treated at the Canadian Back Institute and at a rehabilitation clinic operated by Dr. Kramarchuk. She underwent physiotherapy, chiropractic treatment, hydrotherapy and acupuncture.

The Insurer retained Dr. Chan, a psychologist, Dr. Liao, a physiatrist, and the Ontario March of Dimes for medical opinions.

Diagnostic Imaging:

X-rays and a bone scan indicated extensive sclerosis (hardening due to excessive growth of fibrous tissue) of both sacro-iliac joints.

The weight of medical opinion was that this condition occurs in women who have had multiple childbirth and is caused by the stretching of the pelvic bones that occurs during childbirth and that Mrs. Huynh's sclerosis in both sacro-iliac joints was not disabling. I am not satisfied that the sclerosis in both sacro-iliac joints disabled Mrs. Huynh from her employment or that the trauma of the motor vehicle accident caused or significantly contributed to this condition.

A computed tomography scan of the lumbosacral spine indicated "some annular bulging at the level of the interspace between L4-5 associated with some impingement on the intervertebral foramina."

Except for Dr. Joseph Wong, all of the other doctors who commented on the scan thought that the bulging of the vertebral disc at L4-5 was not significant. Dr. Wong admitted that he could not say whether the disc bulge was caused by the motor vehicle accident. I am not satisfied that the disc bulge was disabling or that the motor vehicle accident caused or significantly contributed to this condition.

Medical Opinions on Chronic Pain:

Mrs. Huynh testified that she had pain in her back and shoulder, asthma and bladder incontinence. The doctors generally agreed that asthma and bladder incontinence were not disabling and were not caused by the accident and I accept that evidence.

Although Mrs. Huynh only testified about pain in her low back and shoulder, some of the medical examiners referred to pain in other parts of the body, headaches, depression and sleeping difficulties.

On August 24, 1994, Dr. Daniel Wong, Mrs. Huynh's first family doctor, estimated that Mrs. Huynh could return to work by the end of October 1994. In October, Dr. Chan, a psychologist, reported to the Insurer that Mrs. Huynh was not disabled due to any psychological disorder. She wrote:

In my opinion, Ms. Huynh's preoccupation with and magnification of pain complaints are such that they suggest the diagnosis of Pain Disorder, chronic type (DSM IV). This is a mental disorder characterized by a focus on pain in which psychological factors are deemed to play a significant role in the maintenance and exacerbation of her pain. I believe that secondary factors also reinforce her pain in a very significant way. Despite their good intentions, I have reasons to believe that her family and friends are inadvertently reinforcing her pain and illness behaviours, for example, by taking over her household responsibilities.

In December 1994, Dr. Liao reported to the Insurer that her examination revealed that Mrs. Huynh could return to work although Mrs. Huynh thought she was severely disabled.

On December 7, 1994 the Ontario March of Dimes reported:

Mrs. Huynh is able to meet most of the job requirements except for frequent bending and constant reaching. However, she still lacks endurance, speed and motivation during all the job tasks.

The physiotherapists who wrote the report recommended a work-hardening program.

In the spring of 1995 the Canadian Back Institute discharged Mrs. Huynh because she was not improving. It wrote:

We strongly encourage Ms. Huynh to increase her activity level, acknowledging that this may aggravate her present symptomatology but will not cause structural harm. The importance of maintaining a home exercise program and an active lifestyle in order to combat increased disability was discussed. . . Failure to comply with the above recommendations will merely propagate disability behaviour and secondary disuse changes such as weakness and stiffness. Continued formal therapy of any kind is unlikely to result in a significant change in her report of symptomatology or functional ability. Numerous attempts have been made to contact the family physician with this plan, but without success.

That spring Dr. Weinberg reported that he could not see any structural problem or organic pathology. He also recommended an exercise program.

Throughout 1996, specialists continued to recommend exercise. In February Dr. Halmos wrote to Dr. Talangbayan:

I do not believe that she has a lot of symptoms. Perhaps some explanation as to what she can expect might help.....To keep her reasonably active and to make her understand what is going on would be most important.

In October 1996 Dr. Bookman wrote to Dr. Kramarchuk that Mrs. Huynh had features of fibromyalgia. He wrote:

She was strongly reassured at this point and advised to persist with the exercise program and physiotherapy which you have already prescribed.

In November 1996 Dr. Chin, a general surgeon, wrote to Dr. Talangbayan that she should continue with physiotherapy and exercises.

On January 14, 1997 Dr. Halmos wrote to Dr. Talangbayan:

She has been doing daily treatments now for a year. I wonder whether this is indicated or not. This lady does not seem to understand that some degree of discomfort is most of time going to be present. . .

By March 1997 Dr. Bookman had concluded that Mrs. Huynh had fibromyalgia and that she could not do repetitive factory type work. In July 1997, Dr. Joseph Wong concluded that Mrs. Huynh had developed fibromyalgia and a chronic pain syndrome and that she was disabled.

Analysis of Evidence on Chronic Pain:

I found a number of anomalies. Mrs. Huynh found it difficult to communicate, has low aptitudes and has not worked in four years, yet she asked her former employer if she could get her old job back, she applied to work at six other factories and she is waiting for calls from those factories. She said that she quit Action Sports Knit because of back pain, yet she said that she did not know if she could work full time. Her doctors encouraged activity, yet four years after the accident her family still does her housekeeping chores.

A theme running through most of the medical evidence, until the reports of Dr. Bookman and Dr. Wong, was that Mrs. Huynh's health problems were not organic and that she required exercise and reassurance. Dr. Wong and Dr. Bookman explained Mrs. Huynh's problems by diagnosing fibromyalgia. Dr. Bookman reported:

I must emphasize that this was a true physical injury with true myofascial sprain and that the evolution of the fibromyalgia pain syndrome is a well recognized clinical event subsequent to trauma.

The Insurer introduced an article² by Dr. Frederick Wolfe in which he wrote:

From the beginning, the debate about FM [fibromyalgia] has been whether the syndrome was primarily a psychologic or psychiatric disorder. The debate still rages.....There is little evidence that FM is a disease, and many of us who helped develop the FM construct still consider it a syndrome.

I accept the bulk of medical evidence which indicated that Mrs. Huynh's problems are not structural or organic.

Mrs. Huynh and her lay witnesses presented very little credible evidence concerning Mrs. Huynh's inability to work. I examined the medical evidence to determine which medical experts had the most insight into Mrs. Huynh's ability to work and which expert opinions appeared reasonable in the circumstances of this case.

Unlike the opinions of Dr. Wong and Dr. Bookman, Dr. Chan recognized and took into account Mrs. Huynh's inability or failure to communicate, a feature which I find significant. Dr. Chan's opinion is also consistent with a history of examinations and opinions which refer to a pain-focussed behaviour without an organic basis. As well, Dr. Chan's explanation that Mrs. Huynh's family encouraged her disability mentality is consistent with the little evidence I heard on the issue and explains why Mrs. Huynh tried to return to work but did not continue. I find that Dr. Chan had greater insight into Mrs. Huynh's problems than did Dr. Bookman and Dr. Wong, and that her opinion is reasonable. I prefer Dr. Chan's opinion that Mrs. Huynh is not psychologically disabled over the opinions of Dr. Bookman and Dr. Wong that she is disabled on account of fibromyalgia.

In October 1994, Dr. Chan thought that Mrs. Huynh could return to work in about three months. I accept this opinion. Accordingly, Mrs. Huynh has failed to establish that she could not engage in the essential tasks of her employment after May 26, 1995.

Housekeeping and Babysitting Expenses pursuant to section 6 of the Schedule:

I accept Dr. Chan's opinion that providing housekeeping and babysitting services beyond a certain point was counterproductive and reinforced pain and illness behaviour. In her report of October 20, 1994, she recommended that the Insurer gradually reduce homemaking assistance. I find that it was reasonable for the Insurer to fund homemaking assistance to alleviate a condition caused by the motor vehicle accident until October 20, 1994, and to gradually reduce homemaking assistance thereafter.

The value of homemaking assistance was established by Mrs. Huynh answering leading questions. The weekly amount of $210 for Diep Vo and then $180 for Mrs. Huynh's mother is calculated on the basis of about six hours a day, five days a week at the statutory minimum wage. I heard no other evidence on the calculation of housekeeping expenses. I allow the average of $195 per week for the approximate 64 week period from July 28, 1993 to October 20, 1994 in the amount of $12,480. The Insurer paid $9,000 for housekeeping and babysitting expenses. Mrs. Huynh is entitled to the difference in the amount of $3,480 for housekeeping and babysitting to October 20, 1994. Dr. Chan recommended that the Insurer gradually reduce homemaking assistance and that Mrs. Huynh return to work in three months. I allow a further $1,300 to compensate for housekeeping expenses on a gradually reduced basis over the next 13 weeks, for a total of $4,780.

Expenses:

I heard no submissions on expenses. If the parties cannot agree on entitlement, either party may apply for me to determine the issue.

Order:

Nhuy Huynh is not entitled to weekly income benefits pursuant to sections 12(1) and 12(5)(b) of the Schedule after May 26, 1995.
Nhuy Huynh is entitled to further housekeeping and babysitting expenses pursuant to section 6 of the Schedule in the amount of $4,780, together with interest pursuant to section 24 of the Schedule.

September 4, 1997