Jackson Lam v. Liberty Mutual Insurance Company, 1997 ONICDRG 221

Neutral Citation: 1997 ONICDRG 221

OIC A96-000590

ONTARIO INSURANCE COMMISSION

BETWEEN:

JACKSON LAM

Applicant

and

LIBERTY MUTUAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Jackson Lam, was injured in a motor vehicle accident on October 11, 1994. He applied for and received statutory accident benefits from Liberty Mutual Insurance Company ("the Insurer"), payable under the Schedule¹ The Insurer terminated weekly income replacement benefits on December 13, 1995. The parties were unable to resolve their disputes through mediation and Mr. Lam applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The only issue in this hearing is:

1. Is the Applicant entitled to weekly income replacement benefits pursuant to Part II of the Schedule for any part of the period December 14, 1995 to August 26, 1996?

Mr. Lam also claims interest on any amounts owing, and his expenses incurred in the hearing.

Result:

1. The Applicant is entitled to weekly income replacements benefits from December 14, 1995 to August 26, 1996.

2. The Applicant is entitled to interest on overdue payments in accordance with section 68 of the Schedule.

3. The Applicant is entitled to his reasonable expenses of the arbitration.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on January 15 and 16, 1997.

Present at the Hearing:

Applicant: Jackson Lam

Mr. Lam's Representative: F. Longley Barrister and Solicitor

Liberty Mutual's Representative: George Frank Barrister and Solicitor

Before: William J. Renahan Arbitrator

Overview:

Hamilton Lam was injured in a motor vehicle accident on October 11, 1994. He received weekly income replacement benefits for about 14 months until December 13, 1995. Eight months later, on August 26, 1996, Mr. Lam returned to his work as a cook. He claims that he could not return to work earlier because he was disabled from dizziness caused by the accident. The Insurer claims that all the doctors who were asked to express an opinion on the ability of Mr. Lam to return to work, including Mr. Lam's family doctors and the doctors who performed an assessment at a Designated Assessment Centre, concluded that Mr. Lam could return to work before the Insurer terminated income replacement benefits.

Background:

Mr. Lam immigrated to Canada from Vietnam in 1979. From then until the time of the motor vehicle accident he worked steadily in the restaurant industry, first as a dishwasher and eventually as a head cook. At the time of the accident he was 37 years old and had worked as head chef at a fine dining Italian restaurant, for five years.

In the early morning hours of October 11, 1994, Mr. Lam was the front seat passenger in a vehicle, returning home to Toronto from Windsor with friends. The accident occurred in Toronto. Mr. Lam was half-asleep when the driver drove into a parked vehicle. The air bag on Mr. Lam's side of the vehicle deployed. Mr. Lam was dazed and was awakened either by police or ambulance personnel slapping his face. He did not go to the hospital. The next day he went to his family doctor, Dr. H. Ng. Dr. Ng noted contusions to the temple and scalp on the right side of the head and that Mr. Lam complained of dizziness. Mr. Lam testified that he was knocked unconscious. Doctors who examined him reported that he hit the right side of his head on the window or on the pillar between the front and rear doors. I find that the force of the collision or the deployment of the air bag, or both, forced the right side of Mr. Lam's head into some part of the interior of the vehicle on the passenger's side.

Law:

Mr. Lam is entitled to weekly income replacement benefits under Part II of the Schedule during the period he suffered a substantial inability to perform the essential tasks of his employment as a cook.

Essential tasks of employment

Mr. Lam and Andre Casale, the manager of the restaurant where Mr. Lam worked, testified as to Mr. Lam's essential tasks of employment. The kitchen of the restaurant is horseshoe shaped and comprises five work stations. From 1989 to the 1994 accident, Mr. Lam worked the evening shift from about 3:00 p.m. to 11:30 p.m. He continued to work those hours after he returned to work in August 1996 and his tasks before and after the accident were the same.

Mr. Lam sets up the five work stations and prepares meats, seafood and sauces at his station. Food is stored in the basement and Mr. Lam goes down to the basement about eight times during an evening to retrieve the food and cooking ingredients required for the shift. Mr. Lam's station comprises both sides of a walk way. On one side of the walk way is a waist high refrigerator with three drawers and a work area on top. On the other side is a stove about 12 feet long with 10 gas burners and a charcoal grill. Mr. Casale makes pasta at another work station. Another employee operates a pizzeria and oven. The last work station is for preparation of appetizers and salads. On the weekend a fourth employee works at this station. During the week, the three other employees cover this station. Mr. Lam also takes pails of sauces and broths he has made to the basement for storage until the next day. The kitchen does not contain a chair. The only place to sit close to the kitchen is on the basement stairs.

The three or four employees work closely together in a confined space. Mr. Casale described how they must work as a team and "flow" together as they move around and reach around each other without bumping each other. On the weekends the restaurant serves 200 to 250 meals, most of which are prepared between 6:00 p.m. and 9:30 p.m. Mr. Casale said that he is hot-tempered, confronts his staff and gets frustrated easily. He said that between 6:00 p.m. and 9:30 p.m. the staff have to run and have no time to rest. He described working in the kitchen during the busy hours as "hellish." Mr. Casale was asked whether he was happy with Mr. Lam's work after he returned in August 1996. He replied that he was happy "at the moment." I find that Mr. Casale is a demanding manager.

I find that Mr. Lam is required to simultaneously cook and prepare a large number of meals in a stressful environment and confined space using sharp knives, gas flames from 10 burners, a charcoal grill, hot oil and hot sauces, being careful not to injure himself or bump into other workers. The question is whether the dizziness Mr. Lam complained of, prevented him from substantially performing these tasks during the period in question.

Medical evidence:

On October 12, 1994, the day after the accident, Dr. Ng recorded that Mr. Lam complained of dizziness. In his Health Practitioner's Certificate he diagnosed "concussion, contusions of temple and scalp and strain of neck and back." The next month the Insurer referred Mr. Lam for physiotherapy and hydrotherapy at King Rehabilitation Centre. In January 1995, the Insurer referred Mr. Lam to Dr. White, an orthopaedic surgeon. Dr. White felt that Mr. Lam could return to work the next month, or the month after. In March 1995, Dr. Ng also felt that Mr. Lam could perform part-time work.

That month the Insurer appointed Paula Stewart, a case worker, to try to make arrangements for trial work at the restaurant. Mr. Lam and Mr. Casale agreed and on April 8, 1995, Mr. Lam tried to work at the restaurant. Mr. Lam said that he lasted three hours on a Friday night and left shaking with his head spinning. The next day he left early with the same complaints. Mr. Casale said that Mr. Lam "performed not too badly" and that he wanted him to work the next weekend. He also said that he noticed Mr. Lam holding onto the counter for support.

Ms. Stewart arranged for Mr. Lam to work at the restaurant on six or seven occasions during the rest of the summer of 1995. Mr. Lam tried to work on those occasions and each time left after a few hours with similar complaints of dizziness and shaking.

Mr. Lam was not happy with Dr. Ng's encouragement to do part-time work when he felt he could not do it. He saw another family doctor, Dr. BeHarry, in May 1995 and he too suggested that Mr. Lam return to work. Mr. Lam returned to Dr. Ng.

The Insurer referred Mr. Lam to Dr. White again in July 1995. Dr. White noted that Mr. Lam was concerned about his dizziness and was nervous about returning to work. He concluded that Mr. Lam was not prevented from working from a musculoskeletal point of view. He recommended a neurological consultation for the dizziness.

Dr. Moddel performed a neurological examination for the Insurer in August 1995. He found no neurological abnormalities and concluded that Mr. Lam was able to return to work. He reported:

There is no evidence of vertigo on posturing and the dizziness he describes is a lightheaded feeling and it is not a true vertigo and it is not related to any peripheral, vestibular or central nervous system abnormalities ... The dizziness, as I mentioned, is a lightheaded feeling and it is quite benign.

That same month, Dr. Ng said that he thought Mr. Lam could return to full-time work. The Insurer advised Mr. Lam that it would terminate weekly income replacement benefits and Mr. Lam requested an assessment at a Designated Assessment Centre.

The assessment was performed over October and November 1995 by a chiropractor, an orthopaedic surgeon and an occupational therapist. The assessors noted that Mr. Lam complained of dizziness when asked to squat and stand up quickly and that at the end of the evaluation he complained of dizziness and fatigue. They recorded:

He was also observed to be in dynamic standing for 30 minutes before requesting to sit down for a few seconds due to complaints of "dizziness". Would benefit from a high stool ... nervous in returning back to work since he stated that he felt "dizzy quite often" and of the concern that he might fall. Based on his performance, it is felt that the client is able to meet the demands of standing provided that he could alternate between sitting and standing for a short period of time whenever required. ...

The client was cooperative and put forth a fair effort during the evaluation... but the limiting factor was subjective complaints of dizziness.

The assessors concluded that a high stool at work would help.

Dr. Bushak, the orthopaedic surgeon, wrote that Mr. Lam said that dizziness was his worse problem and that it was:

Aggravated by standing or walking for prolonged periods of time. In fact, even coughing and sneezing seem to aggravate his dizziness. Sometimes his headaches can aggravate his dizziness. ... He has no other apparent neurologic symptoms when he gets the dizziness such as aparesthesia of his face, double vision or difficulty talking or hearing.

Toward the end of the examination, he again advised me that he is very worried about killing himself if he goes back to work. He said he could fall downstairs if he is carrying any heavy plates or pots. In addition, he often has to carry large pots of boiling water for the spaghetti and that he could sustain serious injuries if he falls.

Dr. Bushak found no significant orthopaedic disability and opined that "There appears to me an anxiety or functional component to his overall symptom complex."

The assessors at the Designated Assessment Centre expressed the following opinion:

It is our consensus opinion that Mr. Lam is not substantially disabled and is able to resume his pre-accident activities as a chef. Mr. Lam's injuries were myofasical in nature which are resolved given the length of time since his motor vehicle accident. His main complaint was "dizziness" although he did not demonstrate any neurological signs of vertigo. [emphasis on original]

The Applicant's lawyer referred Mr. Lam to Dr. Weinstock, a family doctor, who referred Mr. Lam to Dr. A.J. da Silva an otolaryngologist [ear, nose and throat specialist]. On April 26, 1996 Dr. da Silva noted that Mr. Lam complained of dizziness and vertigo with flexion and extension of the neck. He concluded:

This man has a post-traumatic labyrinthine concussion. The dizzy spells will last for a long time and with time they should resolve completely.

He arranged for ENG studies, however, Mr. Lam returned to work in August 1996 before those studies were carried out.

Mr. Lam's credibility is relevant to the determination of two issues. The first issue is whether Mr. Lam suffered from dizziness. His complaints were subjective and I heard no independent objective evidence to verify the symptom of dizziness. If Mr. Lam did suffer from dizziness, the second issue is whether the dizziness disabled him from performing the essential tasks of his job. None of the medical evidence specifically addresses the issue of whether dizziness caused by concussion of the inner ear was disabling.

Whether Mr. Lam suffered from dizziness caused by the accident

From Dr. Ng's first note, the day after the accident, until Mr. Lam returned to work, every health care professional who had contact with Mr. Lam noted his complaint of dizziness. In most cases it was noted as his primary complaint. As well, Mr. Casale said that when Mr. Lam returned to work on a trial basis the staff were always bumping into each other and he noticed that Mr. Lam held onto the counter to steady himself. Mrs. Lam said that after his weekly benefits were terminated, her husband continued to have dizzy spells and that he had to use the handrail when using the stairs. I find that Mr. Lam was a credible witness and I accept his evidence that he suffered dizziness after the accident.

Dr. da Silva, an otolaryngologist, diagnosed Mr. Lam as suffering from a post-traumatic labyrinthine concussion and opined that his dizzy spells would last a long time. This opinion was not countered. Although Dr. Moddel, a neurologist, did not find any neurological abnormality, he did not specifically address the diagnosis of labyrinthine concussion. Further, a concussion to the inner ear seems to me to be consistent with the mechanics of the impact. Mr. Lam was half-asleep at the time of the accident and not in a position to brace himself. The force of the collision as well as the force of the air bag deploying probably forced the side of his head against some part of the vehicle interior. I find that the trauma of the collision probably caused concussion to the inner ear.

Whether Mr. Lam was disabled from dizziness

Dr. da Silva, an otolaryngologist, was the only doctor who diagnosed concussion to the inner ear and for the most part, the medical evidence did not address the issue of whether this kind of injury was disabling. Dr. White and Dr. Bushak are orthopaedic surgeons and their opinions that Mr. Lam was not disabled from an orthopaedic point of view are not helpful. Although Dr. Ng was aware that Mr. Lam suffered a blow to the side of the head, he did not diagnose or comment on inner ear concussion.

Although the Insurer's neurologist, Dr. Moddel, reported that Mr. Lam's dizziness was "not related to any peripheral, vestibular or central nervous system abnormalities," I heard no evidence explaining this statement or relating it to Dr. da Silva's diagnosis of inner ear concussion.

The report of the Designated Assessment Centre acknowledged Mr. Lam's complaints of dizziness and concluded that Mr. Lam could overcome the problem if he used a high stool at work or otherwise sat and occasionally rested. Mr. Casale said that during the busy hours from 6:00 p.m. to 9:30 p.m. no one in the kitchen had time to rest. Given the number of meals to be prepared by a staff of three or four I accept this evidence. I also accept Mr. Casale's evidence that a high stool for Mr. Lam would interfere with the smooth operation of the kitchen during busy hours. I find that Mr. Lam could not take any sort of helpful rest during the busy hours of 6:00 to 9:30 p.m. and that he could not use a high stool.

I do not find Mr. Casale's statement that he wanted Mr. Lam to return to work the weekend after the first trial period in April 1995 evidence that Mr. Lam could work. Mr. Casale had tried to fill Mr. Lam's position but was unable to find a worker as good as Mr. Lam. Mr. Lam never knew whether his job would remain open. In fact, Mr. Lam was able to return to work nearly two years after the accident because Mr. Casale could not find a suitable replacement. Therefore, I find that Mr. Casale's statement that he wanted Mr. Lam to return to work the weekend after the first trial period was more indicative that he could not find a replacement for Mr. Lam than evidence that Mr. Lam could perform his job on a regular basis.

Mr. Lam attempted to return to work on the six or seven occasions when the Insurer arranged part-time hours on a trial basis. The medical reports generally indicate that Mr. Lam appeared cooperative, pleasant and motivated. I do not attach a great deal of significance to the fact that Mr. Lam did not attempt to return to work between the summer of 1995 and the time he returned to work in August 1996. He said that he only attempted work when the caseworker arranged it and no one arranged for him to attempt work in the one year before he decided to return. In view of other evidence which indicates that Mr. Lam was motivated to return to work, I do not find his failure to try work in the one year before August 1996 justifies a finding of a lack of motivation on his part.

At the functional abilities evaluation conducted at the Designated Assessment Centre, the assessors noted that Mr. Lam was "cooperative and put forth a fair effort" but that he was limited by dizziness. The only report that indicated that Mr. Lam was not motivated was a neuropsychological report commissioned by Dr. Weinstock. The behavioural therapist and psychologist who wrote the report found that Mr. Lam's motivation and effort were below average. However, they noted that Mr. Lam was moderately depressed and that his sadness may have caused his apparent lack of motivation. Mr. Casale said that Mr. Lam does not talk at work as much as he used to and Mrs. Lam said that her husband had a bad temper and fatigue when he was off work. A consultant at the King Rehabilitation Centre noted in April 1995 that Mr. Lam was depressed and uncharacteristically angry at his wife and child. Dr. Weinstock also found that Mr. Lam was depressed and worried about his future. I find that any lack of motivation noted in this neuropsychological assessment was due to Mr. Lam's depression.

Mrs. Lam also said that her husband earns more money than she does as a teller and that she and their daughter missed his income when he was not working. She said that she had to borrow money from her parents to pay the mortgage on their house. Mr. Lam said that he worked steadily from when he arrived in Canada in 1979 until the accident in 1989. In a questionnaire prepared by the King Rehabilitation Centre, Mr. Lam ticked off a box indicating that he "can only do his usual work, but no more." In the totality of the evidence, I do not accept this as evidence that Mr. Lam was capable of returning to work before August 1996. Mr. Lam agreed with nearly every statement that was put to him in cross-examination. It appears to me that this check mark in a box is more indicative of Mr. Lam's desire to be cooperative and provide the questioner with the answer he is seeking rather than an indication of his ability to work.

Considering his steady work history, his attempts to return to work, his family's financial need, his unhappy situation while at home and unable to work and his testimony that he returned to work as soon as he could, I am satisfied that Mr. Lam was motivated to return to work as soon as he could.

I described Mr. Lam's tasks earlier in this decision. The medical evidence does not address the effect of inner ear concussion and dizziness on Mr. Lam's ability to perform these tasks. I accept Mr. Lam's testimony that he could not work through the hectic dinner hour on a regular basis because of dizziness. I find that he was substantially unable to perform his tasks until he returned to work on August 26, 1996.

Expenses:

Pursuant to section 282(11) of the Insurance Act, the Applicant is entitled to his reasonable expenses.

Order:

1. The Applicant is entitled to recover from the Insurer weekly income replacement benefits pursuant to Part II of the Schedule for the period December 14, 1995 to August 26, 1996.

2. The Applicant is entitled to interest on overdue payments in accordance with section 68 of the Schedule.

3. The Applicant is entitled to his reasonable expenses of the arbitration.

William J. Renahan 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.