Kuei Lien Chung v. State Farm Mutual Automobile Insurance Company, 1998 ONFSCDRS 85

Neutral Citation: 1998 ONFSCDRS 85

FSCO A96-002062

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

KUEI LIEN CHUNG

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION

Issues:

On September 29, 1994, Ms. Chung was hit by a van while crossing the street. Because of her injuries, she has not returned to her job as an assembler. State Farm Mutual Automobile Insurance Company ("State Farm") paid her income replacement benefits (IRBs) under the Schedule¹ until July 22, 1995. The parties disagree about whether Ms. Chung continued to suffer a "substantial inability to perform the essential tasks of her employment," which is the test for entitlement to income replacement benefits under the Schedule. However, they agree that if I find Ms. Chung remains disabled as of September 29, 1996 (104 weeks post-accident), State Farm is obliged to deliver an offer of loss of earning capacity benefits under section 20 of the Schedule. They also agree that the correct amount of her weekly income benefit is $318.87.

This issues in this hearing are:

1. Is Ms. Chung entitled to IRBs between July 22, 1995 and September 29, 1996?

2. Is Ms. Chung entitled to a special award on the basis that State Farm unreasonably terminated benefits?

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

Result:

1. Ms. Chung is entitled to IRBs up to and including September 29, 1996, plus interest.

2. Ms. Chung is not entitled to a special award.

3. Ms. Chung is entitled to her expenses of the arbitration.

Evidence and Findings:

Background

Ms. Chung, now aged 50, emigrated to Canada in 1977 with her husband and three sons. Although she understands some English, she requires a translator in her native tongue, Hakka, for any medical or legal terms.

Ms. Chung has worked hard and steadily since arriving in Canada, primarily at assembly line jobs. For the eight years preceding the accident, she worked at Invotronics Manufacturing as an assembler. Her English was insufficient to allow her more responsible positions on the line. However, she had an excellent work record there. Her employer testified that she was cooperative, punctual, and dependable. Her record shows "very little absenteeism." In 1990 she won Invotronics's Perfect Attendance Award, which entailed a trip for two to Las Vegas and some spending money.

Over her eight years at Invotronics, Ms. Chung held a variety of line positions. Her last one, which she occupied at the time of the accident, was as a leak test operator. Although the job could be performed sitting or standing, most workers sat for the entire 8-hour day, except for brief lunch and coffee breaks. In this job, Ms. Chung would reach to her left, pick up a 2 lb fuel sender from the bench, and then bend forward in order to insert the sender into the tester. By pressing a hydraulic button, she lowered the device into the tester. She then leaned forward in order to visually inspect it for air leaks. Another button raised the device, whereupon Ms. Chung removed it from the tester and placed it on the bench, to her right. The action is similar to that of putting a stopper in a sink, and was repeated approximately 80 times per hour. The essential tasks of this job thus involve prolonged sitting, repeated bending, and moderate reaching and lifting. I find that it was a sedentary job and relatively light.

Ms. Chung's health in the years preceding this accident was good, except for a brief period in 1993 when she was diagnosed as a diabetic and missed approximately one month from work while she was trying to get the condition under control. During this period, she applied to Sun Life Insurance, her disability carrier at work, for disability benefits. The claim was disallowed, and Ms. Chung did not pursue the matter further because, through dietary changes, she was able to stabilize her condition. I attach little significance to this claim, as it was isolated and not pursued beyond the initial stages.

There were no other illnesses or absences of any significance while Ms. Chung was at Invotronics. Most importantly, there is no history of any injuries to her chest or left knee, the areas most significantly affected in this accident.

The Accident and its Aftermath

On September 29, 1994, Ms. Chung was crossing the street when she was hit by a van. She was thrown in the air for 10 feet before landing on the pavement. She did not lose consciousness but was immediately aware of pain in her left knee and chest. She was transported by ambulance to hospital where she received initial treatment and diagnostic tests, including x-rays. She was not admitted and the following day attended her family physician, Dr. Medina. Dr. Medina soon referred her to Dr. Liao, a physiatrist, who was then practising in association with Dr. Kachooie, also a physiatrist. Dr. Liao in turn referred Ms. Chung to Dr. Sattarian, an orthopaedic surgeon who specializes in knee injuries.

Over the ensuring years, Ms. Chung's injuries have persisted and to some extent worsened. Although her chest injury continues to cause her discomfort, the main difficulty is with hr left knee, which sustained direct and significant damage in the impact. She has had two arthroscopic procedures and underwent a trial return to work, which failed. Her attending physicians predict that she will never again be gainfully employed. Although I agree with State Farm that her job was relatively undemanding, for the following reasons I find Ms. Chung is substantially disabled from performing the essential tasks of her employment.

Analysis:

There were strong indications from the beginning that the knee injury was significant. In December 1994, State Farm arranged for Dr. David Goldstein to assess Ms. Chung. Dr. Goldstein, whose facility also operates as a Disability Assessment Centre (DAC), reported a "ligamentous injury to the left knee with a possibility of underlying internal derangement." He found she could not ambulate properly, which was clearly an obstacle for a return to the work place in the near future." Dr. Goldstein noted that she was scheduled for an arthroscopy in January and recommended awaiting its results before giving an estimate as to when she might be able to return to work.

This proved prescient. Dr. Sattarian, who performed the arthroscopy in January 1995, made the following post-operative diagnosis:

Severe posterior laxity of the left knee. Possible posterior cruciate tear and articular injury to the medial femoral condyle and partial tear of the medial meniscus.

Dr. Sattarian advised Ms. Chung to continue with physiotherapy. In the meanwhile, State Farm had retained Ms. Janet Blaha of Herrold & Vernon Disability Management Inc., in the hope of getting Ms. Chung back to work. Drs. Medina and Sattarian, along with the employer, agreed that Ms. Chung could attempt a trial return to work. In what turned out to be an overly optimistic decision, State Farm advised Ms. Chung on May 29 that she was fit to return to work by mid-June and that benefits would be discontinued on July 12, 1995. Ms. Chung objected to this decision, requested a DAC and retained Mr. Toomath as counsel.

The trial return to work occurred on June 19 to 23, 1995. Although it involved a position even lighter than the one Ms. Chung held before the accident, each day she reported extreme knee pain within an hour of beginning work. She required Tylenol #3 and had to lie down at work. After leaving work, she went for physiotherapy.

State Farm suggested that Ms. Chung's behaviour was inconsistent during this work trial. It noted that she stopped working each day because of alleged knee pain, but then proceeded to physiotherapy, which included exercises on a treadmill and stationary bike. I, too, found some inconsistency in this behaviour. However, I note that those exercises occupied no more than 10 to 20 minutes per day, and were combined with various passive modalities. The entire session lasted one hour, and Ms. Chung arrived by taxi and was picked up by her husband. She had also been told by several physicians that physiotherapy was essential for her condition. For all these reasons, I do not attach quite the sinister meaning to these episodes that State Farm would urge.

Dr. Sattarian recommended a Functional Abilities Evaluation (FAE) before Ms. Chung participated in any further return to work plan. On July 19 and 20, 1995, the Health Recovery Clinic conducted an FAE for the purposes of a DAC. and concluded that Ms. Chung could return to work on a gradual basis. Dr. Medina requested a further assessment by Dr. A. Kachooie, who had taken over the case from Dr. Liao when she left the clinic. Dr. Kachooie assessed Ms. Chung in September 1995, and was highly critical of the DAC's findings. In his report of April 25, 1996, he found she was "markedly disabled," and that her prospect of returning to gainful employment was "almost nil." He documented ligamentous damage and instability in the left knee, along with osteoarthritis in the medial compartment.

Dr. Kachooie suggested the use of a knee brace, as well as a cane for walking. He recommended a rehabilitation program at the YMCA, which Ms. Chung attended, but which produced little improvement. He also tried injections of hyaluronic acid in her left knee, which is designed to replace the patient's knee fluid. This produced only temporary improvement. Dr. Kachooie continued to see her periodically and documented her numerous attempts at physiotherapy and work-hardening programs. The records indicate that since the accident, Ms. Chung has spent over 44 months at seven different rehabilitation facilities. Dr. Kachooie concluded that despite a cooperative attitude and genuine desire to improve, she "certainly would not be able to return to her previous job as an assembly-line worker as prolonged sitting would increase the intercompartmental pressure in the knee joint. . . this in turn would impair her level of concentration."

Dr. Sattarian conducted a second arthroscopy on September 4, 1998. It confirmed to him signi­ficant injury to the cruciate ligament, and to the articular sufrace of the medial meniscus. It also reaffirmed the opinion given in his report of August 20, 1998, wherein he stated that Ms. Chung could not return to her pre-accident employment. He anticipated further deterioration of the arthritis of her left knee, and predicted that she would eventually require a knee replacement. State Farm relied on the evidence of Dr. Geoffrey Lloyd, the othopaedic surgeon it retained who examined Ms. Chung on two occasions. Dr. Lloyed testified that although Ms. Chung likely sustained an impairment to her knee in this accident, she is not disabled from her employment. He diagnosed an "articular surface damage to the medial femoral condyle in the presence of a knee that was beginning to show changes of degenerative arthritis." He went on to state that "there is really no convincing evidence that this patient had any major ligament injury. . ." Dr. Lloyd concluded that Ms. Chung should have been able to return to her job wihtin 10 weeks after the first arthroscopy, which occured on January 24, 1995.

I prefer Dr. Sattarian's views over Dr. Lloyd's. First, Dr. Sattarian (as the treating orthopaedic surgeon) has examined Ms. Chung many times over a prolonged period of time. He also performed both arthroscopic procedures. By contrast, Dr. Lloyed assessed Ms. Chung on only two occasions and at the request of State Farm. Second, Dr. Sattarian specializes in the assessment and treatment of knee injuries (they compose approximately 70 percent of his practice), whereas Dr. Lloyd, who no longer practices surgery, cannot claim such expertise. I find both these factors put Dr. Sattarian in a better position to advise this tribunal.

I also have some difficulty with the basis of Dr. Lloyd's opinion. The thrust of his evidence was that although Ms. Chung may be impaired from certain strenuous types of activities, she is able to perform her job because it is light, sedentary work with little stress on the knee. But Dr. Sattarian noted that while seated at her job, Ms. Chung's leg would be bent at the knee, at a 90% angle, for prolonged periods of time, thereby putting considerable stress on her knee. Although Ms. Chung acknowledged that she is permitted to stand, most workers perform the job sitting, presumably because they work for eight-hour shifts. In any case, Dr. Sattarian was not the only medical assessor who opined that she could not perform the job in either position. In May 1995, International Managed Health Care (IMHC) performed a functional assessment, and concluded that neighter Ms. Chung's sitting or standing tolerance met her job demands. Dr. Mallan, the physician who oversaw the program at IMHC recently reviewed her progress and made these comments about her job demands:

. . .it is my opinion immobility is the key factor here and while she could perform parts of her function, this could not be sustained over an 8 hour day i.e. long periods of time for repetitive days . . .In essence the sustained posture i.e. sustained sitting posture would cause the knee to stiffen up and exacerbate intra articular pain. The pain would also affect her concentration on tje job, which requires assembling/testing 80 parts per hour, obviously a very repetitive procedure and woruld be or become beyond her capabilities. Even if she were permitted to perform her job function standing, which would be worse, again the key factor is immobility. [emphasis added]

Dr. Lloyd testified that "hundreds of thousands of Candians" with similar structural damage are able to work at jobs as or more demanding that Ms. Chung's. It is well known that people may have very different but legitimate responses to the identical injury. It is not my role to assess how Ms. Chung functions relative to other Canadians, but rather to determine whether she alone can perform her job. In that regard, I accept the opinion of Drs. Medina, Sattarian and Kachooie that she is not able to peerform her job tasks eight hours a day, five days a week.

State Farm suggested that Ms. Chung could manage her job by alternating between standing and sitting positions. However, the thrust of both Dr. Kachooie's and Dr. Sattarian's evidence, which I accept, is that any combination of those positions for a prolonged period causes disabling pain and reduced concentration. At the same time, while I accept their opinion that Ms. Chung is not capapble of her former full-time position, I do not agree that she is incable of any kind of sedentry work, especially if its available on a part-time basis. It is inconceivable to me that Ms. chung can, as she claims, pursue physiotherapy, watch TV or sit with her family for two to three hours, but cannot manage a light, sitting job within her skill level for the same amount of time. I am troubled that she has not attempted to find such employment at any place other than Invotronics, where part-time work was not available. The results of this case might have been different if the Insurer had availed itself of section 13 of the Schedule, which allows it to reduce benefits where a duly notified applicant fails to obtain suitable alternative employment, including part-time work.² Had it done so, I would have seriously considered awarding Ms. Chung a reduced benefit. However, all I am permitted to decide in this case is whether she can return to her pre-accident position, which was obviously a full-time, eight hour day job.

State Farm also relied on the Functional Abilities Evaluation (FAE) performed on July 19 and 20, 1995, by the Health Recovery Clinic, which concluded that she could return to work. But that FAE only recommended that she return "on a gradual basis, in order to further build her work tolerances for performing her job." Moreover, Dr. Kachooie, who assessed her shortly after, raised valid concerns about the report's objectivity, accuracy and comprehension of knee pathology.

State Farm pointed out that as early as March, 1995, Dr. Liao stated that she had "no objections to [Ms. Chung] returning to work." Dr. Kachooie testified that Dr. Liao joined his practice soon after she graduated, but that he eventually asked her to leave his practice because of various complaints about her performance. In his report of August 12, 1998, Dr. Kachooie stated that Dr. Liao's opinion that Ms. Chung could return to work was made "somewhat prematurely as I do not think she [had] a proper clinical assessment from this patient..." He suggested that in this case, Dr. Liao exercised "poor medical judgement." More importantly, I note that Dr. Liao did not have either the arthoroscopy or bone scan results when she assessed Ms. Chung, and therefore lacked some critical objective evidence. I therefore give her opinion little weight.

State Farm noted that there are several indications that Ms. Chung's knee is arthritic, a degenerative condition that it suggests pre-dated the accident. I found Dr. Kachooie's evidence on this point quite persuasive. He noted that all of us develop "wear and tear" in our joints as we age, but that in Ms. Chung's case, those changes must have been insignificant pre-accident because she was completely asymptomatic. He also stated that the injuries revealed in the arthoroscopy results were not consistent with arthritic changes that occur with age. They are traumatic in nature and have caused her to develop arthritic changes in her knee joint at a vastly accelerated pace. I find that both Ms. Chung's medical condition pre-accident and the objective evidence of trauma to her knee post-accident support Dr. Kachooie's views.

State Farm suggested that some of Ms. Chung's knee damage might have been caused by various falls she sustained since the accident. I find these episodes insignificant. Dr. Medina's clinical note of January 6, 1996, records an injury to Ms. Chung's left knee on December 25, 1995: "...she lost her balance as her left knee felt weak, she fell down and hit her left knee on the floor." There is no evidence as to whether this injury significantly aggravated Ms. Chung's knee. In any case, her own description of the incident suggests that it arose at least indirectly from this accident, as she fell because of instability on her left knee - a condition well documented since the accident.

I was also referred to a clinical not from IMHC of April 30, 1995, stating "reports 10 yr. History of diabetes (has had 3 falls at home due to dizziness)..." Again, I have no evidence what, if any physical damage was caused by those falls or what bodily parts were affected. I note as well that Ms. Chung disputed the accuracy of this note, and advised that they were only two falls.

State Farm suggested that Ms. Chung was not motivated to return to work. It referred to comments recorded by Ms. Blaha (the caseworker) following interviews with Ms. Chung. For example, in her report of March 30, 1995, Ms. Blaha noted: "Ms. Chung appeared to be a little resistive when she responded that she does not feel 100 percent and that she will not return to work until her pain will go away... Ms. Chung claims she needs more time before returning to work." I do not infer from this that Ms. Chung was uncooperative, but rather that she did not believe she was physically capable of resuming her job tasks. Indeed, this is consistent with the advice she was receiving from her medical advisors at the time.

In her report of May 2, 1995, Ms. Blaha noted: "It appeared that both [Ms. Chung] and her husband were stressed and occasionally stated that they are being pressured by the insurance company. Ms. Chung expressed that if she is pressured to return to work she will retain a lawyer.'! do not agree with State Farm that this comment reveals an adversarial or uncooperative approach by Ms. Chung. It was perfectly understandable, and even sensible for her to consider retaining counsel if she felt that her insurer was not responding adequately to her concerns.

I do not agree with State Farm that these examples indicate low motivation to return to work. I find instead that they are consistent with Ms. Chung's subjective perception of pain. I also find that Ms. Chung's outstanding, uninterrupted work history before this accident indicates a strong motivation to work.

Finally, I find nothing in the Insurer's surveillance videotape to persuade me that Ms. Chung can resume her job, or even that there are serious inconsistencies in her evidence.

Special Award:

Although I have found that Ms. Chung remained disabled from her job beyond July 22, 1995, I do not agree that State Farm unreasonably terminated her benefits. At the time it made that decision, it had opinions from Dr. Liao and Ms. Blaha indicating that Ms. Chung was able to resume her job tasks. Even Dr. Sattarian thought that she was ready for a trial return to work.

Moreover, State Farm received a DAC report stating that Ms. Chung was fit to return to work before it stopped paying her benefits.

I therefore decline Ms. Chung's request for a special award.

ORDER:

1. State Farm shall pay Ms. Chung IRBs of $318.87 from July 22, 1995 to September 29, 1996, plus interest.

2. Ms. Chung's claim for a special award is dismissed.

3. State Farm shall pay Ms. Chung her reasonable expenses of the arbitration.

November 23, 1998

Deena Baltman

Arbitrator

Date

Appendix

Hearing:

The hearing was held at the offices of the Financial Services Commission of Ontario in North York, Ontario, on February 23, 24, 25, 26, and November 2, 3, 4, and 6, 1998, before me, Deena Baltman, Arbitrator.

Present at the Hearing:

Applicant:

Kuei Lien Chung

Ms. Chung's Representative:

Ernest H. Toomath and Nicolette Holovaci

Barristers and Solicitors

State Farm's Representatives

William M. Sproull

Barrister and Solicitor

Andrea Andronopoulos

Assistant

Court Reporter:

Bill O'Neill, Sandy Holloway and Shari Baltalor

Interpreter:

Antonious Lo interpreted in the Hakka dialect (Chinese)

Witnesses:

The Applicant

Mr. Lichuan Chung, the Applicant's husband

Ms. Jennifer Hanlon - Fortune

Mr. Francis Chung

Mr. Ken Wilson

Dr. A. Kachooie

Ms. Janet Porikos

Dr. J. Sattarian

Dr. Geoffrey Lloyd

Exhibits:

15 exhibits were filed at the hearing.

Exhibit 1

Applicant's Medical Brief

Exhibit 2

Collateral Benefits Brief

Exhibit 3

Return to Work Brief

Exhibit 4

Job Analysis, Invotronics

Exhibit 5

Release documentation

Exhibit 6

Letter from State Farm dated May 29, 1995 and Mrs. Chung's response dated June 7, 1995

Exhibit 7

Employment records

Exhibit 8

Letter from Chan & Associates dated September 14, 1995 and Letter from Mr. Ernest H. Toohmath dated October 4, 1994

Exhibit 9

Mrs. Chung's Rehabilitation History

Exhibit 10

Respondent's Arbitration Brief

Exhibit 11

Photographs Brief

Exhibit 12

Respondent's Supplementary Medical/Rehabilitation Brief

Exhibit 13

Report of Centura Investigation

Exhibit 14

Surveillance Video

Exhibit 15

Extract from Ogilvie-Harris' book with Mr. Toohmath's handwritten comments

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94 and 463/96. O.R. 776/93 was extensively modified by O.R. 781/94; accordingly, where necessary, "1994 Schedule" refers to the original O.R. 776/93, and "1995 Schedule" refers to O.R. 776/93 as amended.
2. 2These factors may, of course, become relevant in any future LEC dispute.