Neutral Citation: 1997 ONICDRG 171

OIC A96-001322

ONTARIO INSURANCE COMMISSION

BETWEEN:

HUONG THI THANH LE AND CHINH MINH NGUYEN

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicants, Ms. Huong Thi Thanh Le and her husband, Mr. Chinh Minh Nguyen, were involved in a motor vehicle accident on September 24, 1995. Both Applicants applied for income replacement benefits as well as payment of physiotherapy accounts. After paying some of the physiotherapy accounts, the Insurer refused to pay anything further, taking the position that the Applicants were not injured and therefore not entitled to benefits. The parties were unable to resolve their disputes through mediation, and the Applicants 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. Nguyen entitled to income replacement benefits from October 1, 1995 to April 29, 1996?

2. Is Ms. Le entitled to income replacement benefits from March 16, 1996 to August 1, 1996?

3. Are the Applicants entitled to payment of accounts from Integrated Health Recovery Inc. in the amount of: (a) Mr. Nguyen - $4,425.00 (b) Ms. Le - $2, 175.00?

4. Is the Insurer entitled to repayment of the amount paid on behalf of Mr. Nguyen to International Managed Health Care Inc. in the amount of $1,100.40?

5. Are the Applicants entitled to a special award?

The Applicants also claim interest on any amounts owing and their expenses incurred in the hearing.

Result:

1. Mr. Nguyen is not entitled to income replacement benefits from October 1, 1995 to April 29, 1996.

2. Ms. Le is not entitled to income replacement benefits from March 16, 1996 to August 1, 1996.

3. The Applicants are not entitled to payment of accounts from Integrated Health Recovery Inc.

4. The Insurer is not entitled to repayment of monies paid on behalf of Mr. Nguyen to International Managed Health Care Inc.

5. The Applicants are not entitled to a special award.

6. The Applicants are entitled to be compensated for their expenses of this arbitration.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on July 22, 23 and 24, 1997, before me, Guy Jones, Arbitrator.

Present at the Hearing:

Applicants:

Huong Thi Thanh Le and

Chinh Minh Nguyen

Applicants'

Altor Shields

Representative:

Barrister and Solicitor

Allstate's

Harry J. Daniel

Representative:

Barrister and Solicitor

Allstate's

Mike Tolan and

Officers:

Craig Stroyan

Interpreter:

Mr. Minh Tran

Witnesses:

Ms. Le

Mr. Nguyen

Dr. A. Donskoy

Dr. B.T. Dang

Ms. Tracy Neary

Dr. Brian Allen

Dr. Peter Knight

Exhibits:

Fifteen exhibits were filed.

Facts:

On September 24, 1995, Mr. Nguyen was driving a car westbound on Carvile Road when he stopped behind another car for a red light at Bathurst Avenue in Toronto. Another motor vehicle, driven by Mr. Neary, stopped a short distance behind the Nguyen vehicle. Mr. Neary's foot then apparently slipped from the brake and his car moved forward and struck the Nguyen motor vehicle in the rear. The Nguyen vehicle did not strike the vehicle stopped ahead of it. The property damage to the Nguyen motor vehicle was minimal, and no damage was done to the Neary motor vehicle.

Neither Mr. Nguyen nor his wife, Ms. Le, who was a passenger in the front passenger side of the Nguyen motor vehicle, attended at the emergency department of any hospital. Both attended at the offices of Dr. A. Donskoy on September 26, 1995, two days after the accident. Mr. Nguyen complained of injuries to his head, neck, chest and low back, as well as headaches and dizziness. He claims that he was unable to work from the time of the accident until April 29, 1996. Ms. Le complained of injuries to her neck, and low back, as well as headaches and dizziness. She was eight and-a-half months pregnant at the time of the accident and on pregnancy leave from work. Pursuant to the provisions of the Schedule,¹ she was not entitled to receive income replacement benefits until the end of the maternity leave period, which was March 16, 1996. She claims to have been unable to work until August 1, 1996, because of the accident related injuries. Both Applicants received extensive physiotherapy for their injuries. Mr. Nguyen received $1,100.40 worth of treatments from International Managed Health Care Inc. as well as later treatment from December 22, 1995 to May 26, 1996 in the amount of $4,425.00 from Integrated Health Recovery Inc. Ms. Le received treatment from February 26, 1996 to March 26, 1996 in the amount of $2,175.00 from Integrated Health Recovery Inc.

Analyses and Findings:

Weekly Benefits

In order to be entitled to income replacement benefits, the Applicants must show that they suffered a substantial inability to perform the essential tasks of their employment, pursuant to section 7 of the Schedule.

Essential Tasks of Employment

Prior to the motor vehicle accident, Mr. Nguyen was employed as a labourer at a sheet metal assembly company called Spraybake Canada Limited. The job involved lifting metal sheets which could weigh up to 100 pounds. The job undoubtedly involved heavy lifting as well as some bending.

Ms. Le, prior to going on pregnancy leave, had been working as a labourer at Viva Gusto Foods Limited. Her job was to roll spring rolls. She was part of an assembly line, and after finishing her rolls, she would pass them along to be fried. The job involved lifting individual spring rolls, with no bending. It did require standing at the assembly line for up to eight hours at a time, with the exception of lunch and coffee breaks.

The Accident and Injuries

A great deal of time was spent at the hearing leading evidence with regard to the accident itself and its possible effect on the injuries alleged to have been suffered by the Applicants. It was the position of the Insurer that the impact was of such minimal force that the Applicants could not possibly have been injured.

There was conflicting evidence regarding the severity of the impact. Ms. Le described the impact as "strong," and Mr. Nguyen described the impact as "very hard" and indicated that it pushed his car close to the car ahead. He also claimed that the impact was sufficiently severe that despite the fact that he had a chest and lap seatbelt on, his head and chest hit the steering wheel. He indicated that he immediately felt dizzy and nauseated as did his wife.

Ms. Tracy Neary, a passenger in the front passenger seat of the motor vehicle that struck the Nguyen motor vehicle, was called as a witness for the Insurer. She indicated that her husband who was driving the motor vehicle came to a stop a short distance behind the Nguyen motor vehicle. She indicated that after stopping, her husband's foot either slipped off the brake or he let the pressure off the brake momentarily and then put the break on again quickly. She described the impact as a "jolt" like stopping quickly rather than an accident, as such. She indicated that initially her sister, who was in the back seat of the car, was not even sure if contact had actually been made. She also indicated that her 17 month old child, who was asleep in the back seat of the car, was not awakened by the collision.

Ms. Neary indicated that the damage was limited to a line or mark one or two inches long on the Applicants' rear bumper. While she indicated that the line was horizontal, she admitted on cross-examination that she could have been wrong about this, and that the direction of the mark "was not one of the high points of her recollection of the accident."

The Insurer filed pictures of both cars as exhibits during the course of the hearing. Exhibit nine shows no apparent damage to the Neary motor vehicle, which is consistent with Ms. Neary's testimony. Exhibit ten shows a number of pictures of the rear of the Nguyen motor vehicle. The pictures show a one or two inch vertical line or mark in the vinyl plastic bumper on the upper edge of the rear bumper, just below the right hand corner of the licence plate. This is consistent with an impact with the right "bumperette" on the Neary motor vehicle. There was some suggestion that the rear left brake light of the Nguyen motor vehicle may have been cracked in the collision. The appraiser who examined the car after the collision apparently considered that this was previous damage. While I am of the view that it was probably damaged previously, I do not believe that a great deal rests on this. The photos of the Nguyen motor vehicle indicate to me, and I so find, that there was minimal impact between the two motor vehicles.

The Insurer filed the report of Mr. Thomas Prescott, a professional engineer with considerable experience in accident reconstruction. Mr. Prescott examined the photographs of the two motor vehicles, the damage appraisal report and statements of Ms. Le, Mr. Nguyen and Ms. Neary. The purpose of Mr. Prescott's investigation was to attempt to determine the vehicle speeds and collision forces involved in the accident. After considering all the material before him, Mr. Prescott concluded that the speed change of the Nguyen vehicle would have been less than five kilometres per hour. Mr. Prescott then went on to discuss various studies which indicate that at speed changes of less than eight kilometres per hour, human volunteer test subjects have experienced no injuries and that while occasional pain was reported, this pain dissipated in a very short period of time.

Counsel for the Applicants pointed out that Mr. Prescott had not actually examined the Nguyen vehicle, but had only seen the photographs, and therefore little weight should be given to his evidence. While it obviously would have been preferable for Mr. Prescott to have examined the vehicle itself, Mr. Prescott's experience, as well as the numerous photographs introduced at the hearing, lead me to accept Mr. Prescott's conclusion that the speed change in the Nguyen vehicle was, in all probability, less than five kilometres per hour. Having said that, however, I do not accept Mr. Prescott's comments regarding the physical injuries which may or may not have resulted because of the impact. Mr. Prescott is a professional engineer and while he has expertise in accident reconstruction, he is not a medical doctor nor was he personally involved in running any of the tests he referred to, and I am not prepared to accept his conclusions as to the likelihood of injury given such an impact.

The Insurer also called Dr. Brian Allen to testify. Dr. Allen has a Ph.D in transportation and traffic engineering from the University of California and considerable expertise in accident reconstruction. In addition, he has participated in and has reviewed of various studies which have looked at the effect of low impact motor vehicle accidents on human beings. Dr. Allen testified that in determining the force that an impact has upon a person in a motor vehicle, it is important to look at the change in the velocity of the struck motor vehicle. This is referred to as "the delta velocity" or "Delta V." Dr. Allen reviewed the same materials as Mr. Prescott, as well as the various medical reports filed. He carried out an independent study of the likely change in the vehicle speed, or delta velocity, and determined that the delta velocity was certainly less than eight kilometres per hour and more likely five kilometres per hour or less.

Dr. Allen then went on to review the studies done of low impact crashes and the physical movement of the persons involved in such accidents. Dr. Allen testified that given the speeds involved, and the fact that Mr. Nguyen had a shoulder/lap belt on, he would not have struck the steering wheel with his chest and head as he claimed. I agree with Dr. Allen in this assessment.

Dr. Allen also testified that the test studies generally indicate that there is typically no injury in a delta velocity that is less than 16 kilometres per hour, but some authorities believe that you can have minor transient injuries at delta velocities of eight kilometres per hour. It is worthy of note that Dr. Allen has been involved in organizing some of the experiments. Dr. Allen concluded, based on his analysis, as well as the various studies, that given a delta velocity of five kilometres per hour or less in this case, there would be no chance of neck or low back injury to either Applicant.

On cross-examination, Dr. Allen was questioned regarding the effect of low impact collisions on persons with degenerative disc disease in their low back, such as Mr. Nguyen had. Interestingly, some of the studies have included persons with degenerative disc disease, and those persons were not injured in five kilometre per hour delta velocity crashes. In this regard, I note that Mr. Nguyen's x-rays indicate only minimal degenerative changes in the lumbar spine and no changes were noted in the cervical spine.²

The Insurer also called Dr. Peter Knight to testify. Dr. Knight is a general surgeon with special expertise in the care and management of motor vehicle trauma victims. In addition, he has extensive experience and expertise in the field of motor vehicle crashes and injury analyses.

Dr. Knight studied essentially the same materials as Dr. Allen. He concluded that neither Applicant was subjected to sufficient forces to cause the symptoms of which they complained. At most, the accident might conceivably have caused minimal discomfort that would have disappeared within 24 to 48 hours.

Dr. Knight also agreed with Dr. Allen that the studies indicate that having degenerative disc disease would not affect the likelihood of injury in low impact crashes. Dr. Knight also testified that Ms. Le's pregnancy would not have increased the likelihood of low back injury. Dr. Donskoy, who testified on behalf of Ms. Le, agreed with Dr. Knight in this regard. On cross-examination, Dr. Knight expressed the view, based on his 30 odd years experience, that some people from different cultures respond differently to physical insults. He agreed with counsel for the Applicants, who are from Vietnam, that people from the Far East may react differently than some people from other cultures and may require greater support. The difficulty I have in accepting counsel for the Applicants' position in this regard is that no evidence was led as to the effect that these particular Applicants were reacting in this way. Thus, while it is an interesting theory, I find that there was no evidence presented to support such a theory in this case. I also note that in re-examination, Dr. Knight indicated that he had already taken the Applicants' cultural background into account when he came to his conclusions with regard to their possible injuries.

Both Applicants were examined on behalf of the Insurer on February 28, 1996, by Dr. George Rado, a specialist in physical and rehabilitation medicine. The Insurer filed reports regarding both these examinations. With regard to Mr. Nguyen, Dr. Rado concluded that "There is nothing to indicate that he sustained any significant injuries. Any eventual injuries he had would have long ago resolved."³

With regard to Ms. Le, Dr. Rado reported that in late February 1996, or approximately five months post-accident, she advised him that she was still unable to work because of neck and back pain. In addition, she reported that while she was independent in her self care, and able to feed the baby, she could change the diapers only occasionally and if the baby were crying and she was alone, she would pick up the baby. Otherwise, she would only watch the baby.

Dr. Rado noted that the degree of restriction of range of movement claimed by Ms. Le would only be compatible with extreme acute trauma. He also noted inconsistencies on examination which precluded him from accepting the purported range of motion as reflecting her true condition. He went on to say:

There were no findings on examination which would indicate that she sustained anything but mild soft tissue injuries which would have healed a long time ago. Current findings are strongly suggestive of voluntary modulation of movement and strength production for whatever reason.⁴

Both Ms. Le and Mr. Nguyen were treated by Dr. Alex Donskoy for their injuries arising out of the motor vehicle accident.

Curiously, prior to this accident, both Applicants had used Dr. B.T. Dang as their family physician. Both Applicants indicated at the hearing that they had moved the day after the accident from Richmond Hill to Brampton and, accordingly, it was more convenient, given their injured state, to go to Dr. Donskoy. It is worth noting that Dr. Dang is situated on College Street in Toronto, and Dr. Donskoy is located in the Yonge-Finch area of North York. In any event, Mr. Nguyen indicated that they chose Dr. Donskoy because a friend recommended him. Ms. Le, on the other hand, indicated that they chose him as she had been familiar with his office as she had gone past it as it was near her home.

The reasons for changing family doctors becomes important in light of the fact that Mr. Nguyen had a history of chronic low back pain for which he had been treated by Dr. Dang, which he did not reveal to Dr. Donskoy. Accordingly, it is worthwhile to examine more closely the Applicants' reasons for changing doctors immediately after the motor vehicle accident. In the case of Ms. Le, she was approximately eight and a-half-months pregnant at the time of the motor vehicle accident, and had been seeing Dr. Dang for pre-natal care as late as one month before the accident. She advised Dr. Rado on February 28, 1996, by way of an interpreter, that she had not seen Dr. Dang since the accident. Given that one of the reasons provided for not seeing Dr. Dang was that it was too far to go in her injured condition, this would seem reasonable. The difficulty is that she was in fact continuing to see Dr. Dang after the motor vehicle accident. She saw Dr. Dang on four occasions between the time of the motor vehicle accident and seeing Dr. Rado in February 1996. On none of these visits, nor any subsequent visits, did she bother to tell Dr. Dang, who speaks Vietnamese, that she had been injured in a motor vehicle accident. It is to be recalled that during this time she claimed that not only could she not work, but she was essentially unable to take care of her child. While Ms. Le explained that she had already told Dr. Donskoy, who did not speak Vietnamese, of the motor vehicle accident, I do find her failure to tell Dr. Dang of her injuries while continuing to see her, curious, to say the least.

I find that the failure of Mr. Nguyen to tell Dr. Dang of his motor vehicle accident injuries even more curious. Despite seeing Dr. Donskoy for the motor vehicle accident injuries, he continued to see Dr. Dang on at least two occasions after the accident, and before returning to work. There is no mention of his motor vehicle accident injuries in Dr. Dang's clinical notes.

What is evident from Dr. Dang's notes is that Mr. Nguyen had been suffering from low back pain since at least 1981. Indeed, as recently as July 14, 1995, or approximately five weeks before the accident, Mr. Nguyen had visited Dr. Dang complaining of back pain and fatigue. He was given Voltaren and Tylenol #2 for this problem. The suspicions created by changing doctors right after the accident are highlighted by Mr. Nguyen's failure to tell Dr. Donskoy of his longstanding back pain.

At the hearing, Dr. Donskoy indicated that Mr. Nguyen had told him that prior to the accident he was in good health. Mr. Nguyen, when questioned at the hearing by counsel for the Insurer, also indicated that prior to the motor vehicle accident he was in good health. He also admitted at the hearing that he had longstanding back problems, and that he had seen Dr. Dang for this as little as five weeks before the accident. Having observed Mr. Nguyen at the hearing, I find that Mr. Nguyen is a fairly unsophisticated person operating in an unfamiliar surrounding and in a foreign language. It may well be that Mr. Nguyen intended to indicate that immediately before the accident, he was in good health despite difficulties before that. Nevertheless, I am very troubled by both Applicants' explanations for changing doctors and the failure to tell Dr. Dang of the post-accident injuries and Dr. Donskoy of the pre-accident injuries.

With regard to Mr. Nguyen, Dr. Donskoy testified that he had suffered soft tissue injuries to the chest, neck and low back and that it was reasonable for Mr. Nguyen to be off work until the end of April 1996. On cross-examination, Dr. Donskoy did admit that he had not been provided with a complete pre-accident history by Mr. Nguyen, and that this was important, especially given Mr. Nguyen's previous low back pains. Dr. Donskoy pointed out that he had observed objective findings of injuries, such as muscle stiffness in Mr. Nguyen's low back. It is interesting to note that Mr. Nguyen, when questioned at the hearing, indicated that his low back pain after the accident was like his low back pain prior to the accident, including the same intensity. In light of this, I find, as Dr. Knight suggested, that any low back pain and muscle tightening was caused not by the minor accident, but was simply a continuation of Mr. Nguyen's longstanding back problems.

With regard to Dr. Donskoy's other observations of Mr. Nguyen, including reduced rotation of movement, tenderness, etc., I find these to be subjective complains which, given Mr. Nguyen's lack of forthrightness, I am not prepared to accept at face value.

With regard to Ms. Le, Dr. Donskoy was also of the view that she had suffered soft-tissue injuries to her neck and back. He felt that she was unable to work until August 1996. In his report of May 29, 1996, he stated:

"At this time she suffers a substantial inability to perform the essential tasks of her occupation as a labourer which involved among others carrying, lifting and bending."⁵

At the hearing, it was brought to Dr. Donskoy's attention that Ms. Le's job simply involved rolling individual spring rolls and passing them on. There was no significant bending, carrying or lifting involved in the job. Dr. Donskoy then indicated that there was standing involved and he therefore maintained his position that she could not work.

After considering all the evidence, I am of the view that neither Ms. Le nor Mr. Nguyen suffered injuries such that they were unable to perform the essential tasks of their occupations. The photographs of the Applicants' car make it clear that the impact involved was minimal, and the testimony of Ms. Neary confirms this. When her testimony conflicts with that of Ms. Le and Mr. Nguyen, I prefer the evidence of Ms. Neary. I also accept the evidence of Dr. Knight and Dr. Allen that the impact was minimal and unlikely to injure the Applicants. While I am not convinced by these witnesses that the Applicants could not possibly have suffered an injury in this accident, I am satisfied that any such injuries would have been minor and would have resolved themselves quickly and not have been sufficient to cause the Applicants to miss work.

Claims for Physiotherapy

A considerable period of time was spent by counsel dealing with the claim by Mr. Nguyen for compensation for physiotherapy treatment by Integrated Health Recovery Inc. in the amount of $4,425.00 and by Ms. Le for $2,175.00, also by Integrated Health Recovery Inc. In addition, the Insurer claimed the return of $1,100.40 paid to International Managed Health Care Inc. for treatments to Mr. Nguyen.

With regard to the claim by the Insurer for repayment, while the treatments may have been unnecessary, section 70 of the Schedule requires that in order for there to be repayment, the payment must have been made through error, wilful misrepresentation, or fraud. In keeping with the law in this area as set out in Levenson and General Accident Insurance Company (February 18, 1992), OIC A-000260, I am of the opinion that the payment was not made as a result of error, wilful misrepresentation, or fraud and, accordingly, Mr. Nguyen need not repay the Insurer.

With regard to Ms. Le's claim for payment of the account from Integrated Health Recovery Inc. in the amount of $2,175.00 for treatments in February and March of 1996, it is agreed by the parties that despite a request for a certificate from the treating physician, pursuant to section 36 of the Schedule, stating that the treatments were reasonable and necessary, no such certificate was provided. Without the certificate, payment at that time would not be required and, accordingly, I find that the Insurer was not in default of the "pay now, dispute later" provision of the Schedule.

Counsel for the Insurer argued that the evidence given by Dr. Donskoy at the hearing, to the effect that the treatments which he prescribed were reasonable and necessary, is sufficient to order payment of the account. Even if I were in agreement with counsel's submission in this regard, it would require that I accept the doctor's opinion. The need for such treatment, however, was contingent upon the acceptance of Ms. Le's complaints as valid. In light of my earlier comments in this regard, I am unwilling to accept them, and I find that the treatments were not reasonable or necessary in February and March of 1996.

With regard to Mr. Nguyen's claim for treatment from Integrated Health Recovery Inc., in the amount of $4,425.00, covering the period from December 22, 1995, to March 26, 1996, the situation is somewhat similar to that of Ms. Le's. Like Ms. Le, there was a request for a certificate from the treating physician indicating that the treatments were reasonable and necessary. No such certificate was provided and, as such, I find that the Insurer was not in default of the "pay now, dispute later" provisions of the Schedule.

At the hearing, Dr. Donskoy testified that the treatments provided by Integrated Health Recovery Inc. were reasonable and necessary. As with Ms. Le, the need for such treatment is contingent upon acceptance of Mr. Nguyen's complaints being valid. In light of my comments earlier regarding Mr. Nguyen's credibility, I am not prepared to accept the complaints as valid.

Because of this and the testimony of Dr. Allen and Dr. Knight, which I accept, I am not convinced that the treatment was reasonable and necessary, and, accordingly, the Insurer is not obligated to pay for the treatment.

Special Award:

In light of my findings, no monies are owed to the Applicants by the Insurer, and, accordingly, there can be no special award. I would comment, however, that there was no evidence presented that would, in my opinion, warrant a special award in this case. While physiotherapy treatment which would normally be a "pay now, dispute later" provision, the Insurer had properly requested a certificate as to the necessity and reasonableness of the treatment, which was not provided. Accordingly, in my view, the Insurer acted appropriately in the circumstances.

Expenses:

I am exercising my discretion and allowing Mrs. Le and Mr. Nguyen their expenses, taking into account all the circumstances.

Order:

1. Mr. Nguyen is not entitled to income replacement benefits from October 1, 1995 to April 29, 1996.

2. Mrs. Le is not entitled to income replacement benefits from March 16, 1996 to August 1, 1996.

3. Mrs. Le and Mr. Nguyen are not entitled to payment of the accounts of Integrated Health Recovery Inc.

4. The Insurer is not entitled to repayment of monies paid on behalf of Mr. Nguyen to International Managed Health Care Inc.

5. The Applicants are not entitled to a special award.

6. The Applicants are entitled to their expenses of this arbitration

September 16, 1997

Guy Jones Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents after December 31, 1993, and before November 1, 1996, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94 and 781/94.
2. 2Exhibit 4, Tab 1E
3. 3Exhibit 4, Tab 2A, page 5
4. 4Exhibit 3, Tab 3A, page 6
5. 5Exhibit 3, Tab 1C, page 1