Neutral Citation: 1998 ONICDRG 100, 1998 ONFSCDRS 100

FSCO A96-000686

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

PHIM PHONE LIN

Applicant

and

TTC INSURANCE COMPANY LIMITED

Insurer

DECISION

Issues:

The Applicant, Phim Phone Lin, was injured while a passenger in a Toronto Transit Commission bus on November 9, 1993. She applied for and received supplementary medical and weekly income benefits from TTC INSURANCE COMPANY LIMITED ("TTC"), payable under the Schedule¹ TTC terminated supplementary medical benefits effective March 27, 1995 and weekly income benefits effective April 11, 1995. The parties were unable to resolve their disputes through mediation, and Ms. Lin applied for arbitration at the Financial Services Commission of Ontario² under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this hearing are:

1. Is the Applicant entitled to weekly income benefits under sections 12(1) and 12(5) of the Schedule after April 11, 1995?

2. Is the Insurer entitled to repayment of supplementary medical benefits paid in respect of psychological treatments received by the Applicant from Dr. F. C. F. Tang prior to March 27, 1995?

Ms. Lin also claims interest on any amounts owing and her expenses incurred in the hearing.

I note that the following two issues, which had been identified in the Mediators' Reports as unresolved, were not pursued at the hearing: the quantum of weekly income benefits payable to the Applicant and the repayment of supplementary medical benefits in respect of treatment received by the Applicant from Alliance Health & Rehabilitation Inc.

Result:

1. The Applicant is not entitled to weekly income benefits after April 11, 1995.

2. The Insurer is not entitled to repayment of supplementary medical benefits paid in respect of treatment received by the Applicant from Dr. Tang prior to March 27, 1995.

Hearing:

The hearing was held at the offices of the Financial Services Commission of Ontario in North York, Ontario, on November 23, 24 and 25, 1998, before me, David Leitch, Arbitrator.

Present at the Hearing:

Applicant:

Phim Phone Lin

TTC's

Franceen Rogovein

Representative:

Barrister and Solicitor

Interpreters:

John Tam, November 23 and 25, 1998

Chun Ho, November 24, 1998

Witnesses:

Ms. Phim Phone Lim

Dr. F. C. F. Tang

Ms. Yimbing Chiu

Mr. Trevor McCallum

Exhibits:

A list of exhibits is attached as Appendix to this decision.

Representation of the Applicant at the Hearing:

The Notice of Rescheduled Hearing issued to the parties in July 1998 indicated that the hearing dates were peremptory to the Applicant. The Applicant appeared on the first day of the hearing without a representative. Her ability to speak English was very limited. Through a Chinese/English interpreter hired by the Commission, the Applicant stated that her previous lawyer could not represent her due to a language problem. She did not specifically request an adjournment but claimed that she was still trying to find a lawyer. The Insurer submitted that the hearing should proceed.

The Applicant produced a document from the Ontario Legal Aid Plan which stated that the Plan did not cover the cost of legal representation at "an OIC hearing." When the Applicant indicated that she had no means to pay a lawyer herself, I asked whether she intended to have someone other than a lawyer represent or assist her or whether she intended to represent herself. After taking a break to consider the matter, the Applicant indicated that she would represent herself.

The applicable provisions of the Schedule:

In order to qualify for weekly income benefits beyond April 11, 1995, Ms. Lin must satisfy the eligibility test created by section 12 (1) of the Schedule for the period April 12, 1995 and November 8, 1995 and the eligibility test created by section 12(5) of the Schedule for the period after November 9, 1995. She must, in other words, prove on a balance of probabilities that, during the first period, she suffered a substantial inability to perform the essential tasks of her pre-accident occupation and, during the second period, that her accident-related injuries continuously prevented her from engaging in any occupation for which she was reasonably suited by education, training and experience.

In order to be entitled to repayment of the supplementary medical benefits paid in respect of Dr. Tang's treatment prior to March 27, 1995, the Insurer must prove, as a first step, that these payments were not "reasonable expenses resulting from the accident" within the meaning of section 6 of the Schedule. Additional issues as to whether the payments were made through "error or fraud" within the meaning of section 27 of the Schedule do not arise in this case.

Evidence:

Ms. Lin was injured on November 9, 1993 while a passenger in a Toronto Transit Commission bus. She testified that she was standing up, holding on to a stanchion, when the bus stopped quickly, causing her to be thrown forward and then backward. The medical reports filed indicate that Ms. Lin struck her back on the ticket or fare box and may have also struck her head, right arm and shoulder in some way. Ms. Lin testified that she got off the bus and took a taxi to see her family doctor, Dr. Chang, but Ms. Lin did not introduce into evidence the records of this doctor or any of her initial treatment providers. She has not returned to her job as a hotel housekeeper, the job she has held steadily since her arrival in Canada in 1980.

The earliest medical report submitted into evidence before me was that of Dr. John Zeldin, an orthopaedic specialist who examined Ms. Lin at the Insurer's request, with the assistance of an interpreter, on April 22, 1994. Dr. Zeldin was of the opinion that Ms. Lin was "long since over the significant physical sequelae of her injury" and "is able to return to her full and regular activity including the essential duties of her occupation."

Despite Dr. Zeldin's opinion, the Insurer did not terminate Ms. Lin's weekly income benefits until after it received the results of a "Multi Disciplinary Assessment" by Workable Centres Inc. dated January 31, 1995. Ms. Lin was examined at Workable by a general medical doctor, Dr. V. MacLennan, an orthopaedic specialist, Dr. Geoffrey J. Lloyd, and a psychological consultant, Dr. R. Peter Bernstein, all with the assistance of interpreters, on January 19. On January 20, Ms. Lin was subjected to a Functional Abilities Evaluation and, based on her performance, it appeared that Ms. Lin was unable to perform the essential tasks of her pre-accident occupation. However, the functional abilities' evaluators noted "reports of pain, with no signs of biomechanical strain or physiological challenge evident" and stated that "Ms. Lin has greater physical abilities than demonstrated." This finding and the findings made on Ms. Lin's physical and psychological examinations by Drs. Lloyd and Bernstein, led the Workable assessors to conclude:

...there are no objective findings to support the contention that this patient remains disabled. She might have some continuing pain on the basis of per-existing degenerative disc disease, but it is unlikely that the pain would have such profound implications as is alleged by Ms. Lin...

Ms. Lin is not psychologically disabled from a return to work. There is no evidence of Post-Traumatic Stress Disorder and Ms. Lin may be considered to be depressed as a result of her dissatisfaction with her life situation as it existed prior to this subject accident.

This conclusion, combined with the earlier report of Dr. Zeldin, led, in turn, to the Insurer's decision to terminate all benefits in March and April 1995.

The earliest report of a treatment provider entered into evidence was that of Dr. Fay C.F. Tang, a psychologist, who first saw Ms. Lin on March 12, 1994. Dr. Tang testified at the hearing as a witness for the Applicant and produced her entire file. Dr. Tang's first report describes Ms. Lin's bus accident and states:

She is still suffering from pain in her shoulders, back of her neck and low back. She also has sleep disturbance. Bad weather has a negative effect on her condition. She receives physiotherapy three times a week with slight positive effect. She is on medication for pain and sleep. Emotionally she is depressed and she worries about her own occupational future as well as her marital situation. [Dr. Tang had earlier noted that Ms. Lin was separated and lived alone.] She would benefit from psychological help.

Dr. Tang continued to see Ms. Lin on a frequent basis, providing cognitive support therapy and teaching her relaxation exercises, until March 27, 1995. On March 31, 1995, Dr. Tang completed a Psychological Discharge Report indicating that Ms. Lin had achieved "maximum psychological improvement." Dr. Tang testified that Ms. Lin was psychologically disabled as a result of the accident of November 9, 1993 but that by April 1995, Ms. Lin was able to control any remaining psychological disability and was capable of returning to her work. Dr. Tang did not diagnose a post-traumatic disorder and agreed that she was not qualified to express a medical opinion about Ms. Lin's physical problems.

The Insurer paid for the treatment Ms. Lin received from Dr. Tang until March 27, 1995 and claims repayment. There was a second period of treatment from December 1995 to March 1996 but the Insurer did not pay for these additional sessions. On cross-examination, Dr. Tang testified that these additional sessions were to treat Ms. Lin for her "reactive depression" following the loss of her weekly income benefits and, subsequently, her house.

Ms. Lin entered into evidence two letters, dated April 11, 1997 and May 12, 1997, written by Dr. M.T. Wong, a specialist in internal medicine and rheumatology, to her then family physician, Dr. S. Talangbayan. The first letter refers to the bus accident in 1993 and states "since then, she has noted chronic back pain." Dr. Wong also noted "evidence of strain to the right sacroiliac joint area" and, in his second letter, again reported finding "significant local tenderness in the right sacroiliac joint."

Ms. Lin also entered into evidence a consultation note dated August 1997 and a letter dated September 11, 1998 written by Dr. Hung-Tat Lo, a psychiatrist. The consultation note, addressed to Dr. Talangbayan, describes the "presenting problem" and "diagnostic formulation," respectively, as follows:

MVA Nov. 93 - residual pain Depressed over changes in life including desertion of husband Depressive disorder

Dr. Lo's letter is addressed to the Medical Advisor of an Income Security Programs office in Ottawa. It states, in part:

Patient was referred to me by his [sic] family doctor and was first seen in July 1996. Her problem started after the MVA in November 1993, with injury to her back and pelvis, and also headache, insomnia, anorexia, and depression. When I saw her in 1996, her physiotherapy has been stopped, but there was still a fair amount of pain and disability caused by the physical injury. Her psychiatric symptoms were also quite disabling...

Her diagnosis is a major depressive disorder, with partial response to treatment. Her current GAF is 55, and her prognosis is guarded. She is totally disabled from performing any job, and the prospect for such in the foreseeable future is slim. I will continue to treat her with medication and supportive psychotherapy.

In addition to the reports and testimony introduced into evidence by Ms. Lin, on her own behalf, the Insurer entered into evidence an orthopaedic evaluation, by Dr. Michael E. Kliman, a psychological evaluation, by Dr. I. L. Bruce Ally, and a Functional Capacity Evaluation, all prepared at Metro Orthopaedic Rehab Clinics in January and February 1996. Ms. Lin's evaluation at this facility was not at the Insurer's request (the evidence did not establish who requested or arranged for her evaluation there) but copies of the evaluations were sent to the Insurer in March 1996. Insurer's counsel decided, with no objection from Ms. Lin, to enter them into evidence though they caused no change in the Insurer's position regarding benefits payable to Ms. Lin.

The Functional Capacity Evaluation at Metro Orthopaedic Rehab Clinics, conducted just over a year after the Functional Abilities Evaluation at the Workable Centres Inc., produced much the same findings: based on her performance, Ms. Lin was unable to return to her pre-accident job but "due to her perceived pain, she self-limited her abilities and, thereby, did not appear to achieve her maximum in all the tasks involved in this evaluation, especially in the lifting tasks." Dr. Kliman observed that "psychological factors may be having a significant influence on the level of this woman's pain and disability in relationship to the chronic neck and back complaints she is experiencing." He did not think that Ms. Lin's right leg discomfort "represents a significant lumbo-sacral nerve root irritation." Dr. Ally ruled out the possibility of post-traumatic stress disorder. Rather, he expressed the opinion that Ms. Lin could be suffering from either "chronic pain syndrome or factitious disorder, with a physical component;" he could not say which due to the fact that he "did not have any medical reports and/or test results."

Findings:

Based on the evidence before me, I find that the Applicant has not proved, on a balance of probabilities, that her inability to return to her pre-accident or alternative employment after April 11, 1995 was or is the result of the injuries she sustained in the bus accident of November 9, 1993.

From a physical point of view, the reports of Drs. Zeldin and Lloyd refute the existence of the requisite degree of disability well before April 1995 and Dr. Kliman's report of February 1996 does not substantiate the existence of such disability. I do not accept Dr. Wong's observation that Ms. Lin has had chronic back pain since the accident as proof of the existence of a physical problem in Ms. Lin's back. Dr. Wong's report was written almost three and a half years after the accident, when he appears to have first seen her, and his observation is based entirely on Ms. Lin's complaints. Nor do the functional abilities/capacity evaluations conducted in 1995 and 1996 establish Ms. Lin's inability to return to work; self-restrictions were noted by both teams of evaluators.

From a psychological point of view, I accept Dr. Tang's evidence that Ms. Lin was fit to return to work in March 1995 when she discharged Ms. Lin from her care. Ms. Lin did not return to work and was no longer in receipt of weekly income benefits after April 11, 1995. As a result, she appears to have encountered financial problems leading to the loss of her house and a "reaction depression" requiring a second period of treatment by Dr. Tang. But since I find that Ms. Lin was both physically and psychologically able to return to work by April 11, 1995, I cannot and do not find that this second period of treatment by Tang was accident-related.

Nor do I find that Ms. Lin's more profound psychological problems are accident-related. None of Drs. Tang, Bernstein and Ally diagnosed post-traumatic stress disorder and Dr. Ally's reference to possible chronic pain syndrome in February 1996 was equivocal. Dr. Lo's consultation note states that Ms. Lin's depression developed "after changes in life, including desertion of husband." This evidence does not establish, on a balance of probabilities, that the major depressive disorder which now prevents Ms. Lin from performing any job was originally caused or contributed to by the accident. It is more likely, based on the evidence presented, that the disabling psychological effects of the accident came to an end in March 1995 when Ms. Lin was discharged by Dr. Tang.

Ms. Lin is not, therefore, entitled to weekly income benefits after April 11, 1995.

Nor is the Insurer entitled to repayment of supplementary medical benefits paid in respect of the treatment received by Ms. Lin from Dr. Tang prior to March 27, 1995. Dr. Tang's evidence establishes that Ms. Lin only received this treatment up to the point that she benefitted from it, after which she was discharged. I find that the cost of this treatment constituted reasonable expenses resulting from the accident.

Expenses:

Neither the Applicant nor the Insurer has been successful at this hearing and neither party made representations with respect to expenses. I award no expenses to either party.

Order:

1. The Applicant is not entitled to weekly income benefits after April 11, 1995.

2. The Insurer is not entitled to repayment of supplementary medical benefits paid in respect of treatment received by the Applicant from Dr. Tang prior to March 27, 1995.

December 24, 1998

David Leitch Arbitrator

Date

APPENDIX

Exhibit 1

List of treatment dates from Alliance Health and Rehabilitation Clinic

Exhibit 2(a)

Dr. M.T. Wong's letter of April 11, 1997

Exhibit 2(b)

Dr. M.T. Wong's letter of May 12, 1997

Exhibit 3(a)

Dr. Lo's consultation Report of August 1997

Exhibit 3(b)

Dr. Lo's letter of September 11, 1998

Exhibit 4

Insurer's Arbitration Brief, 6 tabs

Exhibit 5

Dr. C.F. Tang's letter dated March 12, April 7 and 21, 1994

Exhibit 6

Dr. C.F. Tang's Progress Report of January 28, 1995

Exhibit 7

Dr. C.F. Tang's Psychological Discharge Report of March 31, 1995

Exhibit 8

Dr. C.F. Tang's Treatment Notes

Exhibit 9

Dr. C.F. Tang's Visual Pain Rating Schedule

Exhibit 10

Dr. C.F. Tang's Assessment Notes

Exhibit 11

Dr. C.F. Tang's list of treatment dates of February 13, 1996

Exhibit 12

Functional Capacity Evaluation of Metro Orthopaedic Rehab Clinics

Exhibit 13

Dr. Michael E. Kliman's report of February 15, 1996

Exhibit 14

Dr. Bruce Ally's Clinical Evaluation of February 20, 1996

Exhibit 15

Metro Orthopaedic Rehab Clinics' letter of March 4, 1996

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents On or Between June 22, 1990 and December 31, 1993, Regulation 672 of R.R.O. 1990, as amended by Ontario Regulations 660/93 and 779/93.
2. 2Effective July 1, 1998, the Ontario Insurance Commission was changed to the Financial Services Commission of Ontario, pursuant to the Financial Services Commission of Ontario Act, S.O. 1997, c.28.