Neutral Citation: 1999 ONFSCDRS 40

FSCO A97-001778

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

SUONG NGUYEN

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

David Leitch

Heard:

January 25, 26, 27 and 28, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Algis S. Pace for Ms. Nguyen

Thomas Clemenhagen for Allstate Insurance Company of Canada

Issues:

The Applicant, Suong Nguyen, was injured in a motor vehicle accident on December 8, 1996. She applied for and received statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹ Allstate stopped paying for treatment on March 27, 1997 and terminated weekly income replacement benefits on April 16, 1997. The parties were unable to resolve their disputes through mediation, and Ms. Nguyen applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Ms. Nguyen entitled to payment for the treatment she received from D.N. Physiotherapy between March 27 and July 30, 1997?

2. At what rates is Allstate required to pay for the treatment?

3. Is Ms. Nguyen entitled to income replacement benefits from April 17, 1997 to December 7, 1998?

4. Is Ms. Nguyen entitled to interest on any amounts owing?

5. Is Ms. Nguyen entitled to her expenses incurred in this arbitration proceeding?

6. Is Allstate entitled to an order for an amount it alleges Ms. Nguyen agreed to pay in respect of missed medical appointments?

Result:

1. Allstate shall pay for the treatment Ms. Nguyen received from D.N. Physiotherapy between March 27 and July 30, 1997.

2. Allstate shall pay for treatment at the rates charged. The parties agree that the amount outstanding for treatment to July 30, 1997 at the rates charged was $5,614.38 without interest.

3. Ms. Nguyen is not entitled to income replacement benefits from April 17, 1997 to December 7, 1998.

4. Allstate shall pay interest on the amounts owing under this decision in accordance with the Schedule.

5. The issue of expenses in relation to this arbitration proceeding may now be spoken to if necessary.

6. The issue of whether the Insurer is entitled to an order for an amount it alleges Ms. Nguyen agreed to pay in respect of missed medical appointments may now be spoken to if necessary.

EVIDENCE AND ANALYSIS:

Background

Ms. Nguyen was injured on December 8, 1996 when the stopped vehicle in which she was the right front seat passenger was struck, head-on, by another vehicle. The speed of the other vehicle on impact was not established but its driver was killed.

Records of Ms. Nguyen's examination at the emergency ward of a nearby hospital² indicate that her chief complaints were "pain in the neck, right thumb, legs and chest." X-rays findings were negative except for the right thumb. Ms. Nguyen claims her pain has persisted in all areas except the chest. She also claims to have developed headaches and back pain and undergone personality changes as a result of the accident.

Ms. Nguyen commenced treatment at D.N. Physiotherapy & Rehab Clinic Inc. ("D.N.") on December 11, 1996 and this treatment continued, on a frequent basis, until July 30, 1997. The Insurer stopped paying for the treatment effective March 27, 1997 and also disputes the amounts D.N. invoiced for its services.

Ms. Nguyen claims not to be able to return to her pre-accident job as a sewing machine operator because of the injuries she sustained in the accident. The Insurer disagrees, having terminated her income replacement benefits on April 16, 1997.

1. Treatment between March 27 and July 30, 1997

D. N.'s first treatment plan for Ms. Nguyen, dated December 17, 1996, was received by the Insurer on January 21, 1997.³ It called for "chiro and kines sessions", combining services provided by a chiropractor and a kinesiologist, at the frequency of 5 sessions per week for a period of 12 weeks, and massage therapy, at the frequency of 2 half-hour sessions per week for a period of 6 weeks.

The Insurer responded by letter to Ms. Nguyen's lawyers dated January 30, 1997, stating that "the duration and extent of the treatment that is recommended appears excessive."⁴ The letter indicated that the Insurer would, therefore, require Ms. Nguyen to be assessed by a Designated Assessment Centre (DAC). For reasons not disclosed by the evidence, the DAC examinations did not take place until May and June 1997 and the DAC reports are dated July 29, 1997. In the interim, the Insurer arranged for Ms. N to be examined on March 21, 1997 by Dr. G. M. Vincent, an orthopaedic surgeon, with respect to both income replacement benefits and medical and rehabilitation benefits.

In his report dated March 26, 1997,⁵ Dr. Vincent stated that he could find no evidence to support any ongoing physical disability. He expressed the opinion that chiropractic and massage treatment was not required and should be discontinued. He wrote: "Any further therapy would likely result in perpetuating this woman's illness behaviour and prolonging her sickness role."

Ms. Nguyen nevertheless proceeded with the treatment recommended by D.N. and D.N. submitted a second trea tment plan dated March 27, 1997, received by the Insurer April 14, 1997.⁶ This second treatment plan called for a further 8 weeks of chiro and kines sessions, 3 times a week for 4 weeks and 2 times a week for 4 weeks. Ms. Nguyen continued treatment until July 30, 1997.

The DAC reports⁷

The DAC was conducted by an orthopaedic surgeon, Dr. I. Grosfield, a psychiatrist, Dr. R. Notkin, a chiropractor, M. Rajwani and a physiotherapist, Susan Wagar.

Dr. Grosfield diagnosed soft tissue injuries to Ms. Nguyen's neck, lower back, mid back and knees and a chip fracture at the base of the right thumb. He found that these injuries had "largely healed in terms of the acute pain and restriction of movement" and he anticipated that they would "completely resolve." He wrote:

At the present time, I do not feel she requires further chiropractic treatments, rehabilitation exercises, or massage therapy. I feel her prognosis would be markedly improved with a return to the work situation itself which will provide the aforementioned movements and exercises but in a more active manner.

Dr. Notkin's psychiatric assessment, carried out with the assistance of a Vietnamese interpreter, concluded that Ms. Nguyen did not "meet the criteria for any major psychiatric diagnosis as related to this motor vehicle accident." While Dr. Notkin found "some transient depressive symptoms which are secondary to her experiencing pain," he saw no need for "psychological/psychiatric treatment."

Of the four DAC reports, Mr. Rajwani's chiropractic assessment is of particular importance given the nature of the treatment recommended by D.N. and questioned by the Insurer. After reviewing the medical history and conducting a physical examination, Mr. Rajwani concluded:

At this point in time, I do not feel that any further supervised rehabilitation is required. I feel that she has reached maximum therapeutic benefit from this type of care. Ms. Nguyen should be encouraged to continue to exercise independently and this should be encouraged by all health care practitioners involved in her case. Therefore, from a physical perspective, I do not believe she requires any further passive or active interventions. She should continue with a self-directed home exercise program which could be facilitated by one or two sessions by a registered kinesiologist or physiotherapist to provide her with an appropriate home program.

The physiotherapy assessment conducted by Susan Wagar reached a similar conclusion.

Disputing the DAC reports

In challenging the DAC reports, Ms. Nguyen relied first upon the results of a Functional Capacity Evaluation (FCE) conducted by Atila Balaban, an exercise physiologist, and Marvin Shedletzky, a chiropractor, on July 18, 1997.⁸ These evaluators recommended a work-hardening program of 4 to 6 weeks, 3 to 5 times a week.

Ms. Nguyen further relied upon the report of Dr. R. E. Smith, a physiatrist who examined her on July 23, 1997⁹ and who, like the FCE evaluators, recommended a work-hardening program but not further chiropractic therapy. Dr. Smith observed: "this lady has been in therapy for a very prolonged period of time and any further recommendations for therapy need to be done with a definite stop date when therapies will be discontinued."

Analysis and Findings:

Under the Schedule, Ms. Nguyen was entitled to receive medical benefits in respect of all reasonable and necessary expenses she incurred as a result of the accident.¹⁰

While neither explicit nor binding upon me, I find that the DAC reports imply that the expense of Ms. Nguyen's treatment at D.N. was reasonable and necessary up to the date of the DAC examinations on May 20 and 21, 1997. Mr. Rajwani's opinion was that it had been "adequate" and that she had "reached maximum therapeutic benefit from this type of care." Likewise, Dr. Grosfield stated that no further treatment was required at the present time. The FCE evaluators and Dr. Smith only questioned the efficacy of further D.N. treatment after Mr. Rajwani and Dr. Grosfield had already recommended terminating it.¹¹ I do not accept Dr. Vincent's opinion that D.N.'s treatment only perpetuated her disability.

I, therefore, find that the Insurer is required to pay for the care provided by D.N. after March 27, 1997 but up to what date?

The dates Mr. Rajwani and Dr. Grosfield were referring to in their reports were the dates of their examinations: May 20 and 21, 1997. The DAC was required by section 43(4) of the Schedule to supply Allstate, Ms. Nguyen and D.N. with copies of its reports "after conducting the assessment". However, the DAC reports were not issued until July 29, 1997 and could not have been received by Ms. Nguyen before July 30, 1997,¹² the date she stopped treatment. She may have stopped treatment earlier had the DAC reports been forwarded more promptly. In my view, any extra costs generated by this delay is more fairly borne by the Insurer who was better situated to eliminate it than was Ms. Nguyen.

I, therefore, conclude that the Insurer is required to pay for the care provided by D.N. to July 30, 1997.

2. At what rates is the Insurer required to pay for treatment?

By letter dated March 5, 1997,¹³ Brad Barber, the Insurer's Casualty Claim Manager, informed D.N. that its fees for chiropractic treatment, exercise sessions and massage therapy did not reflect "competitive pricing practices based upon our survey of similar clinics with the Greater Toronto Area."

D.N. responded on March 7, 1997 by forwarding a copy of its fee schedule. Mr. Barber then wrote a second letter to D.N. dated March 31, 1997¹⁴ which reads, in part, as follows:

I must confess that I was disappointed in your response given that it failed to address most of the points that I raised in my correspondence. I can only presume therefore that it is not your intention to respond in a substantive way to my concerns.

Accordingly, I am left in a position whereby I must be rather arbitrary in my approach to invoices received from your clinic.

The letter goes on to state the amounts Mr. Barber was prepared to pay for various services rendered by D.N.

This correspondence did not mention Ms. Nguyen's claim in particular but when D.N. forwarded invoices to the Insurer for services rendered to Ms. Nguyen, the Insurer reduced and paid them in accordance with Mr. Barber's letter and instructions. Ms. Nguyen was not aware of this controversy until much later because she had signed a "pay direct" form¹⁵ permitting the Insurer to deal directly with D.N.

Mr. Barber testified that D.N.'s billings were high compared to other clinics offering rehabilitation, chiropractic and physiotherapy services. He also testified that D.N.'s invoices combined different forms of treatment without indicating the duration of each component. On cross-examination, he acknowledged that no survey had been sent to D.N. and he did not produce one at the hearing. He agreed that no industry guidelines had yet been established under section 14(4) of the Schedule. He admitted that some clinics charge more for their services than D.N. but maintained that if pricing was not competitive it was not reasonable within the meaning of the Schedule.

Analysis and Findings:

The Insurer made no attempt to refer the issue of D.N.'s rates to the DAC which examined Ms. Nguyen. The DAC reports make no mention of this issue and I, therefore, have no opinion from that source. This does not appear to be in keeping with the procedure contemplated by the Schedule for the resolution of disputes pertaining to medical and rehabilitation benefits. I am not, therefore, entirely certain of my jurisdiction to deal with this question but I did not raise the point at the hearing or obtain argument.

Assuming I have jurisdiction, the evidence led through Mr. Barber does not support a finding that D.N.'s invoices were unreasonably high. Applying the definition of "reasonable" cited in Plows and Jevco Insurance Company,¹⁶ I find that the D.N. invoices were "not greatly less or more than might be expected" and "not absurd." I reject the suggestion that reasonableness should be equated with competitiveness alone though competitiveness might be one factor among others to consider.

I, therefore, find that the Insurer is required to pay for treatment rendered by D.N. at the rates it charged.

I was informed by the parties that the amount outstanding for treatment to July 30, 1997 at the rates charged was $5,614.38 without interest.

3. Income replacement benefits between April 16, 1997 and December 7, 1998

The Employer's Confirmation of Income form¹⁷ indicates that Ms. Nguyen started to work for Premium Uniforms as a sewing machine operator on August 19, 1994, more than two years before the accident.

On July 9, 1997, an occupational therapist attended at Premium Uniforms to conduct a Job-Site Analysis.¹⁸ Her analysis dated July 10, 1997,¹⁹ stated that Ms. Nguyen was "required to assemble garments (i.e, uniforms for restaurant and hospital workers) and operate a surger in order to sew them together." It also stated that she was "required to sew 170 garments within an 8.5 hour day." The "frequent" and "constant" strength and mobility demands of the job were recorded as follows: "handling (guiding material at high speed), below shoulder reaching, neck motion (neck flexion, rotation), sitting, twisting." The lifting and carrying demands were described as "sedentary: lifting a maximum of 10 lbs, occasionally lifting and/or carrying such articles as small tools; involves mostly sitting, but some standing and walking are occasionally necessary."

The Job-Site Analysis included a section entitled "Employer's Feedback" which reads as follows:

The employer has purchased fully adjustable wheeled swivel chairs, which would provide adequate back support and reduce the amount of twisting at the trunk.

The employer is prepared to accommodate the graduated return-to-work program. However, he did indicate a concern that the client could re-injure herself while at work (during the work-hardening period) and therefore causing a claim to be filed with the Workers' Compensation Board.

Ms. Nguyen testified that she was expected to sew and hem 200 garments a day and that this required speed, dexterity and concentration. She stated that since the accident, the required level of concentration causes headaches. Despite not having returned to work at Premium Uniforms, she knows she could not do the work because she has tried sewing (without hemming) at home and even this lighter work causes headaches and pain in her legs, right arm, both hands and back. She denies being able to sit "as long as before." She estimates that she could produce only about a quarter of her previous output at work and she believes this would result in her being fired for inefficiency. However, when asked during examination-in-chief if she had spoken to her employer since the accident, she answered first "yes" and then "no." No further questions were put to her on this topic.

On cross-examination, Ms. Nguyen stated that she had worked from 8:00 a.m. to 5:00 p.m. and arrived home around 6:00 p.m. She would sometimes work overtime by staying later or going in on the weekends. She also did sewing for her brother on the weekends before the accident but not since. She testified that her treatment sessions at D.N. took a total of 30 to 40 minutes. She stated that she gave birth to a child in October 1998 and that her mother helps her to care for the child. She admitted to having forgotten to mention the child when listing the persons with whom she lives at the beginning of her testimony.

Reports relied upon by Ms. Nguyen

Ms. Nguyen relied first on the results of the Functional Capacity Evaluation (FCE) conducted in July, 1997.²⁰ By comparing the "critical demands" of Ms. Nguyen's pre-accident job with the results of her performance in similar, simulated, tasks, the evaluators reached the conclusion that Ms. Nguyen was unable to perform her duties as a sewing machine operator.

Her performance results were, indeed, poor: 44 seconds out of 5 minutes of "sitting, prolonged, combined with repetitive upper extremity work;" 41 seconds out of 5 minutes of "seated trunk flexion;" 1 minute, 30 seconds out of 5 minutes of "reaching;" 22 seconds out of 5 minutes of "bending." However, when their testing procedures required the evaluators to indicate whether or not "heart rates recorded for the heaviest loads utilized were consistent with a maximal or near maximal effort," they answered "no."

Ms. Nguyen relied next upon the report of the physiatrist, Dr. Smith, also based on an examination conducted in July, 1997.²¹ This report clearly does not substantiate all of Ms. Nguyen's complaints. With respect to Ms. Nguyen's right thumb, Dr. Smith observed that the fracture had "clinically united," that the thumb displayed "excellent range of motion, preserved sensation and fair levels of strength" and that Ms. Nguyen "should be encouraged to use it in a normal fashion." He noted that "she performs much better on indirect examination techniques than on formal examination and therefore she appears to be displaying significant amounts of non-organic findings with regard in particular to her upper extremity." With respect to Ms. Nguyen's low backache, Dr. Smith again found that it was "not accompanied by any objective myofascial finding or complaints of pain on accessory maneuvers." With respect to Ms. Nguyen's knee complaints, Dr. Smith wrote: "there is nothing objective to find on her knee examination to account for these ongoing complaints."

The report does substantiate Ms. Nguyen's neck, shoulder and headache complaints but without identifying the accident as their cause. Dr. Smith wrote:

With respect to her cervical spine, she does have some objective findings which may support her ongoing complaints of pain in her neck and shoulders. Her posture is suboptimal with forward head and neck carried on thorax. Her shoulder girdles are protracted. She has relative weakness of the middle and inferior fibres of her trapezius which are allowing her to wing on eccentric scapular work. Her upper fibres of trapezius are overworking and are noticeably tense and have some objective spasm. This probably accounts for her complaints of pain in that area, on direct examination, and probably accounts for some of the discomfort in her neck and nuchal ridge area.

Her headaches are likely cervicogenic in origin, despite the fact that she also has them in isolation, not accompanied by, obvious neck pain.

While Dr. Smith favoured a work-hardening program or a graduated return to work for Ms. Nguyen, she did not did not find Ms. Nguyen incapable of returning to work. She wrote:

She has no obvious findings which would make one impose any type of restriction or limitation on her instrumental activities of daily living, hobbies or work. With the upper body findings as outlined in the Examination she probably would be uncomfortable with prolonged or repetitive work, but these activities would not strictly be contraindicated. I think that she likely would have some difficulty with immediately going back into her eight hour (plus) sewing job.

Next, Ms. Nguyen relies upon the opinions of Dr. B. Roy Raghunan, a psychologist. His report dated December 20, 1997²² states that she was referred by her general physician for psychological treatment of "distressing thoughts and fears associated with the MVA, nightmares, distressing dreams, and other sleep disorders and anxiety (hypervigilance, irritability, exaggerated startled response)." After conducting a battery of tests which produced elevated scores in depression and somatization of pain, Dr. Raghunan concluded:

...as suggested in the clinical literature, the emotionally distressed often unconsciously transforms the distressful state as function of pain. Hence, it would appear that Ms. Nguyen, who comes from a country that reacts to distress very differently from Western Society, may be unconsciously transferring her emotional distress into somatic complaints, in addition to the pain she has been experiencing as a result of a medical condition associated with the MVA. At this time, Ms. Nguyen complains of pain to her entire body and mostly to her neck, right thumb, back, chest (sometimes), and knees. [Emphasis in the original]

Dr. Raghunan went on to give a primary diagnosis of "Post-traumatic Stress Disorder with an Associated Feature of Anxiety" and a differential diagnosis of "Major Depression (non-psychotic) and Pain Disorder Associated with both Psychological Factors and a General Medical Condition." He believed Ms. Nguyen was "substantially disabled as a result of the trauma" of the accident and that she would require "at least twenty-four treatment sessions to return to her pre-accident status."

Finally, Ms. Nguyen relied upon a report dated January 8, 1999 based on a single examination conducted on that date by Dr. R. Zabieliauskas, a specialist in the field of Physical Medicine and Rehabilitation. Dr. Zabieliauskas identified Ms. Nguyen's "major complaint" as pain in the right thumb. The "physical examination" portion of his report reads, in its entirety, as follows:

Ms. Nguyen was able to sit quietly through the entire 55-minute interview and did not demonstrate visible evidence of significant pain.

She had rounding of her shoulders with poor cervical posture but fairly good alignment of the remainder of the spinal column and lower extremities. She was tender to palpation over the right muchal musculature as well as across the right trapezius and proximal right rhomboid muscles. I could not detect any significant muscle spasm. Range of motion of the neck was virtually full in all planes. She had full and pain-free range of motion of all upper extremity joints, except for pain on moving of the right thumb. The bulk, tone and strength of the upper extremities was good, except for a decrease in right hand gripping and a diminished power pinch of the right thumb. She also exhibited some tenderness to palpation over the entire right thumb.There was no evident swelling in any upper extremity joints. Sensory examination was normal in both upper extremities with brisk reflexes bilaterally.

She was tender to palpation across the lower lumbar facet joints but had good range of motion of the back in all planes with some discomfort on back extension localized to the lower lumbar zone. Straight leg raising was negative in sitting and lying with full and pain-free range of motion of all lower extremity joints. The bulk, tone and strength of the legs was good. Sensory examination to light touch was normal. Deep tendon reflexes were symmetrical throughout. The only exception to the above for the lower extremities was of tenderness in the patella-femoral compartments, particularly on the right side, with specific manoeuvres. However, there was no evidence of any swelling in either knee and no evidence of any ligamentous or meniscal instability in either knee.

There were no other contributing neuromusculoskeletal findings.

Referring specifically to the reports of Drs. Smith, Raghunan and Ross,²³ Dr. Zabieliauskas concludes that "it is difficult to envision that Ms. Nguyen will return to the volume-driven competitive sewing workforce unless all the issues outlined by the various specialties above are addressed."

The Insurer's medical reports

As indicated earlier, the Insurer required Ms. Nguyen to submit to a disability examination by Dr. Vincent in March 1997. Dr. Vincent reported the following findings to the Insurer by letter dated March 26, 1997:²⁴

Based on the history, physical examination and review of medical information, I believe that Ms. Suong Nguyen sustained a mild myofascial injury to her neck and lower back, as well as a minimally displaced avulsion fracture at the base of her thumb, as a result of her motor vehicle accident of December 8, 1996. Her headaches are likely referred from her neck pain.

This woman's presentation would suggest a significant non-organic component. She appeared to be clenching her right hand throughout the interview yet, on physical examination, there was no objective evidence of significant pathology. This woman had no appreciable instability of the MCP joint of the thumb and I could find no reason to explain her ongoing disability.

I believe this woman is capable of returning to her previous lifestyle. I could find no evidence to support any ongoing disability, given this woman's present physical examination.

In May 1998, Ms. Nguyen was examined at the Insurer's request by a second orthopaedic surgeon, Dr. Geoffrey J. Lloyd, and a psychiatrist, Dr. Michael S. Ross. At the outset of the hearing, before any evidence had been heard, counsel for Ms. Nguyen objected to the admission of the reports of these doctors on the ground that they refer to surveillance material which was not disclosed to Ms. Nguyen prior to the hearing. Counsel for the Insurer replied that he did not intend to rely upon this surveillance material and further that its disclosure had not been requested notwithstanding service of Dr. Lloyd's report months before the hearing.

I ordered immediate production of the surveillance material to Ms. Nguyen's counsel but denied his requests for the exclusion of the reports of Dr. Lloyd and Dr. Ross and for an immediate adjournment. However, I indicated that I wanted to ensure that Ms. Nguyen was given a reasonable opportunity to respond to the surveillance material and, for that purpose, I would entertain a request to adjourn the completion of the hearing after the four days originally booked. No such request was made.

The surveillance videotape²⁵ was viewed at the hearing by Ms. Nguyen and her sister, Huong Nguyen. They testified that the person shown getting in the back seat of a car was not Ms. Nguyen but her sister, Huong Nguyen. Based on this evidence, I find that the accompanying investigation report²⁶ incorrectly identifies Ms. Nguyen as the person "who walked fluidly to the Toyota, bent slightly at the waist and climbed into the back seat."

At the conclusion of his report to the Insurer dated August 21, 1998,²⁷ Dr. Lloyd wrote:

After this part of the report had been completed, I reviewed surveillance material which consisted of a text and a brief videotape. The text of the surveillance does identify activities which required this patient to use right upper limb in a normal manner and the brief video surveillance did show her carrying a bag with her right hand and moving much more quickly than she portrayed when I saw her. I really cannot identify any justification for this patient to have such a protracted period of disability from a musculoskeletal perspective.

Counsel for the Insurer invited me to ignore this paragraph of Dr. Lloyd's report and rely upon the rest. I decline to do this. Dr. Lloyd was not called as a witness. I will not speculate about the precise order in which he may have carried out his examination, viewed the video, read the investigation report and drafted different parts of his medical report; nor will I speculate about how this order or the identification error contained in the investigation report may have affected his ultimate opinion. I find Dr. Lloyd's medical report of no value from an adjudicative point of view and I attach no weight to any part of it. I make the same finding with respect to Dr. Lloyd's second brief report dated September 21, 1998.²⁸

I do not have the same concerns about Dr. Ross's report dated December 18, 1998.²⁹ I acknowledge that a surveillance videotape could, in certain circumstances, influence a psychiatric as much as an orthopaedic assessment and Dr. Ross does refer to and repeat Dr. Lloyd's description of the contents of the surveillance videotape. But it is clear from another part of his report that Dr. Ross drew no adverse inference from this surveillance or indeed for any other reason. He wrote:

Given the medicolegal context and the potential for external reward in the form of financial gain and/or work avoidance, one might consider that Ms. Nguyen's presentation is in keeping with many of the criteria suggested in DSM-IV for a diagnosis of Malingering (V65.2).Malingering is not a mental disorder. It neither causes psychiatric disability nor requires treatment. From a psychiatric standpoint, this diagnosis is best made in an active fashion, given the degree to which it calls the individual's credibility and honesty into question. With that consideration in mind, it is noted that Ms Nguyen made no active attempt to conceal her generally good spirits, as were frequently demonstrated in the course of this evaluation. She made no attempt to dramatise or even demonstrate pain behaviours. There was nothing in her presentation which suggested prevarication. Thus, while it is noted that full consideration of Ms Nguyen's presentation requires examination of the possibility of feigned illness, it is viewed that Ms Nguyen was a credible informant whose presentation is considered bona fide.

Nor did Dr. Ross have only Dr. Lloyd's orthopaedic opinion regarding the discrepancy between Ms. Nguyen's complaints and objective, physical findings. Dr. Ross's report referred to both Dr. Vincent's and Dr. Grosfield's opinions to the same effect.

After performing a psychiatric assessment, Dr. Ross expressed the following opinion:

Ms Nguyen voiced psychological complaints, largely in relation to residual pain, several months following the accident. Her symptoms were insufficient to denote mental illness per se and they did not give rise to disability.

This evaluation noted a few minor psychological complaints. Objectively, their nature and/or degree did not warrant specific psychiatric diagnosis per se and they did not give rise to any significant limitation. There was no reasonable indication of any emotional, psychological or psychiatric injury related to the accident. Ms Nguyen does not suffer from mental disorder or psychiatric disability.

Further, Dr. Ross specifically rejected Dr. Raghunan's primary and differential diagnoses. After noting that Dr. Raghunan's report does not refer to "relevant documentation," Dr. Ross wrote:

The current evaluation found that Ms Nguyen's history and current complaints were not in keeping with a diagnosis of any Anxiety, Mood or Stress Disorder. Simply put, Ms Nguyen provided a history which was consistent with that obtained by Dr. Notkin and out of keeping with the psychological report. Further, the nature of the symptoms she reported is not at all what one might expect to find in an individual who warranted a diagnosis of Posttraumatic Stress Disorder. She does not. Similarly, there was no suggestion that Ms Nguyen suffered from sufficient symptoms and/or symptom intensity to warrant a diagnosis of Major Depressive Disorder at any point in time.

Since Dr. Ross found no psychological or psychiatric disability, he concluded that no psychological or psychiatric treatment was required. He nevertheless observed: "...there is not contraindication to such treatment should Ms. Nguyen wish to have it" and that "she will likely benefit."

Analysis and Findings:

I am not satisfied, on a balance of probabilities, that Ms. Nguyen's accident-related injuries prevented her from returning to work after April 16, 1997.

To begin with, her own testimony and the other evidence submitted on her behalf creates substantial doubt about Ms. Nguyen's motivation to return to work. If she explored her employer's apparent willingness to accommodate a gradual return to work, why did she not so testify? If the birth of her child in October 1998, and the pregnancy that preceded it, had no effect on her motivation to return to work, why did she forget to testify about it? If she made a sustained effort to carry out the simulated tasks during the FCE, why did her heart rates not reflect this? If all her physical complaints were genuine, why does Dr. Smith's report refer to "non-organic findings" and discrepancies between findings on formal examination and indirect examination?

In addition, the medical evidence as a whole does not establish that Ms. Nguyen's accident-related injuries resulted in her suffering from a "substantial inability to perform the essential tasks"³⁰ of her employment. I accept Dr. Smith's opinion that there was no physical disability which prevented Ms. Nguyen from returning to work and Dr. Ross's opinion that there was no psychological or psychiatric disability which prevented her from returning to work. I do not rely upon the FCE results because I am not satisfied that they reflect Ms. Nguyen's true abilities and I do not accept Dr. Raghunan's opinions because they do not take into consideration the opinions of other doctors and they appear to be founded upon cultural stereotypes.³¹ I do not agree with Dr. Zabieliauskas's conclusion that Ms. Nguyen could not return to work without the treatment recommended by Dr. Smith and Dr. Ross; Dr. Smith may have recommended work-hardening and Dr. Ross may have said that Ms. Nguyen would likely benefit from psychological or psychiatric treatment but they also specifically stated that Ms. Nguyen could return to work without such treatments. Dr. Zabieliauskas's own findings were minimal.

Of course, the Insurer's choice of April 16, 1997 as the termination date was based on Dr. Vincent's report, not the reports of the various doctors just referred to. But, based on the balance of the medical evidence submitted, Dr. Vincent's opinion about Ms. Nguyen's physical capabilities was vindicated by subsequent assessments. He was not qualified to comment on Ms. Nguyen's "non-organic" problems but Dr. Ross was and, in Dr. Ross's opinion, Ms. Nguyen's psychological complaints after the accident "did not give rise to disability." I, therefore, conclude that Ms. Nguyen is not entitled to income replacement benefits after April 16, 1997.

My finding that Ms. Nguyen was able to return to work after April 16, 1997 may appear to contradict my earlier finding that she remained entitled to treatment at D.N. until July 30, 1997. Indeed, I heard no evidence about whether it would have even been physically possible for Ms. Nguyen to have returned to work on April 16, 1997 while continuing her treatment at D.N. until July 30, 1997.

But this contradiction never actually arose. Ms. Nguyen did not, in fact, return to work on April 16, 1997 despite my finding that she was physically able to do so. She did, in fact, continue to receive treatment at D.N. until July 30, 1997, the date the DAC report stating she no longer required such treatment was issued. I have based my findings on the evidence about what actually took place. I do not, therefore, perceive my findings as contradictory.

Special Award:

Counsel for Ms. Nguyen submitted four grounds for requesting a special award, two of which relate to the reports of Dr. Lloyd. These reports were submitted by the Insurer on the issue of income replacement benefits. Since I both entirely disregarded Dr. Lloyd's reports in dealing with this issue and then denied Ms. Nguyen's claim for further income replacement benefits, there can be no basis for a claim for a special award in connection with Dr. Lloyd's reports.

The other two grounds relate to what counsel called Ms. Nguyen's "exposure" to pay the difference between what D.N. billed the Insurer for her treatment and what the Insurer actually paid. The "pay direct" form,³² on its face, did not remove D.N.'s right to look to Ms. Nguyen to recover its shortfall. But despite this potential "exposure," the evidence did not suggest that Ms. Nguyen suffered any withholding or delay in the receipt of D.N.'s services as a result of the Insurer's refusal to pay its invoices in full. I, therefore, find no basis for a special award in this regard either.

Expenses:

The issue of expenses and an issue regarding an amount alleged to be owing by Ms. Nguyen to the Insurer were deferred until all other issues in dispute were decided. These issues may now be addressed if necessary.

March 11, 1999

David Leitch Arbitrator

Date

Neutral Citation: 1999 ONFSCDRS 40

FSCO A97-001778

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

SUONG NGUYEN

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Allstate shall pay for the treatment Ms. Nguyen received from D.N. Physiotherapy between March 27 and July 30, 1997.

2. Allstate shall pay for treatment at the rates charged. The parties agree that the amount outstanding for treatment to July 30, 1997 at the rates charged was $5,614.38 without interest.

3. Ms. Nguyen is not entitled to income replacement benefits from April 17, 1997 to December 7, 1998.

4. Allstate shall pay interest on the amounts owing under this decision in accordance with the Schedule.

5. The issue of expenses in relation to this arbitration proceeding may now be spoken to if necessary.

6. The issue of whether the Insurer is entitled to an order for an amount it alleges Ms. Nguyen agreed to pay in respect of missed medical appointments may now be spoken to if necessary.

March 11, 1999

David Leitch Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96 and 551/96.
2. 2Medical record of Applicant at Toronto East General Hospital, Exhibit 1, Tab 5.
3. 3Medical record of applicant at Toronto East General Hospital, Exhibit 5, Tab 4.
4. 4Treatment plan of D.N. Physiotherapy dated December 7, 1996, Exhibit 5, Tab 5.
5. 5Dr. C .M. Vincent's report dated March 26, 1997, Exhibit 1, Tab 6.
6. 6Treatment plan of D.N. Physiotherapy, Exhibit 5, Tab 17.
7. 7Canadian Rehabilitation Institute DAC report dated July 29, 1997, Exhibit 1, Tab 13.
8. 8Functional Capacity Evaluation report dated July 18, 1997, Exhibit 1, Tab 10.
9. 9Dr. R.E. Smith's report dated July 23, 1997, Exhibit 1, Tab 12.
10. 10Section 14(1) of the Schedule.
11. 11even though their reports predate his.
12. 12The original DAC reports, entered into evidence as Exhibit 10, bear a date-received stamp showing July 31, 1997.
13. 13Letter of Mr. Brad Barber to D.N. Physiotheraphy dated March 5, 1997, Exhibit 8a.
14. 14Allstate's Explanation of Benefits payable, Exhibit 5, Tab 13.
15. 15Payment Direction & Authorization dated December 11, 1997, Exhibit 5, Tab 9.
16. 16(OIC A-000175 and OIC A-000588, January 16, 1992)
17. 17Employer's confirmation of income, Exhibit 5, Tab 8.
18. 18The evidence did not establish who requested this analysis be conducted beyond the fact that it was not the Insurer.
19. 19Job-Site analysis of occupational therapist, Wanda Does, Exhibit 5, Tab 25.
20. 20Functional Capacity Evaluation Report, July 18, 1997, Exhibit 1, Tab 10.
21. 21Report of Dr. R.E. Smith on July 23, 1997, Exhibit 1, Tab 12.
22. 22Psychological report of Dr. B. Roy Raghunan dated December 20, 1997, Exhibit 1, Tab 16.
23. 23Dr. Ross's report is described below.
24. 24Supra, note #5.
25. 25Videotape, Exhibit 6.
26. 26Investigation Report, Exhibit 7.
27. 27Supra, note #22.
28. 28Letter of Dr. Geoffrey Lloyd dated September 21, 1998, Exhibit 1, Tab 18.
29. 29Letter of Dr. Ross dated December 18, 1998, Exhibit 1, Tab 19.
30. 30The words of section 5(1) of the Schedule.
31. 31Pham and Allstate Insurance Company of Canada, (OIC A-007463, June 30, 1995) and Persaud and MarkelInsurance Company of Canada, (OIC A95-000261, September 20, 1996)
32. 32Correspondence of D.N. Physiotherapy to Allstate dated March 7, 1997, Exhibit 5, Tab 9.