Neutral Citation: 2000 ONFSCDRS 193

FSCO A99-000109

BETWEEN:

BAO NGOC NGUYEN

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: Fred Sampliner

Heard: June 13, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Paul Greco for Mr. Nguyen

Todd J. McCarthy for Allstate Insurance Company of Canada

Issues:

The Applicant, Bao Ngoc Nguyen, was injured in a motor vehicle accident on December 4, 1996. He applied for and received weekly disability benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule¹ until May 21, 1997. Mr. Nguyen claims ongoing disability benefits and reimbursement for three medical reports. The parties were unable to resolve their disputes through mediation, and Mr. 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:

Is Mr. Nguyen entitled to weekly disability benefits after May 21, 1997?
Is Mr. Nguyen entitled to reimbursement for three medical reports?
Is Mr. Nguyen entitled to his expenses of the arbitration process?

Result:

Mr. Nguyen is not entitled to income replacement benefits after May 21, 1997.
Mr. Nguyen is entitled to reimbursement for three medical reports.
The issue of expenses is deferred.

EVIDENCE AND ANALYSIS:

Mr. Nguyen did not appear at the hearing, and I denied his counsel's adjournment request. He was granted two previous adjournments, the most recent being peremptory to him. No evidence was produced to support his counsel's contention that Mr. Nguyen was on an emergency visit to his ill mother in Vietnam after his release from prison in the United States.

Mr. Greco did not reiterate his earlier request to withdraw as Mr. Nguyen's counsel, pursuant to Rule 9.5 of the Dispute Resolution Practice Code, and both parties agreed to proceed by submissions on the document brief, without calling witnesses. I allowed that Mr. Nguyen could apply to reopen the hearing to adduce oral evidence at any time before this written decision was rendered. Mr. Nguyen has not sought to reopen the hearing.

The Accident:

The medical report of Dr. Joseph Kwok contains the best description of Mr. Nguyen's December 4, 1996 accident. He was a thirty-seven year old front seat passenger in a car travelling approximately 40 kilometres per hour at the time it was hit on the left front side by an oncoming vehicle.

Mr. Nguyen was wearing a seat belt at the time of the collision. He consistently reported to the examining physicians that his head hit the windshield without breaking it and that his right knee struck the dash. Mr. Nguyen was dizzy following the accident, but he did not lose consciousness. He exited the vehicle unassisted.

Mr. Nguyen did not go to hospital or feel pain at the scene of the accident. His right knee, back and neck became painful several hours after the accident. He visited his family doctor the next day.

Mr. Nguyen's continuing complaints of low back and right knee pain serve as a basis for his ongoing disability claim. His neck complaints have subsided. His treatment for these soft tissue injuries consisted of massage, heat applications and active physiotherapy between December 1996 and March 1997.

While Mr. Nguyen had undergone surgery to his right knee in 1985 or 1986 following a soccer injury,² I find it healed quite well and that there is no evidence Mr. Nguyen's right knee was symptomatic prior to this accident.

Mr. Nguyen must establish on a balance of probabilities that his low back and right knee symptoms cause him to suffer a substantial inability to perform the essential tasks of his job at the time of the accident.³

The Job:

Mr. Nguyen was employed as a video salesman at the time of the accident. The best evidence of his job duties is the description contained in the occupational therapist's report from The Positive Approach commissioned by Allstate. I accept this description.

I find that Mr. Nguyen's job had two functions. Most workdays, he drove to video stores in the greater Toronto area to determine whether illegal copies of his employer's movies were present and attempted to persuade store owners to purchase legal copies. One day per week he did inventory work, which included lifting 25 to 35 pound boxes from floor to table height, labelling and repackaging tapes.

Medical Evidence:

In February 1997, the occupational therapist at The Positive Approach observed that Mr. Nguyen had full range of motion and she noted he complained of low back pain when crouching and picking up items from the floor. She speculated that Mr. Nguyen should be capable of the minimal lifting required for his job after twelve more weeks of an active exercise program.

Allstate had Dr. Michael Ford and a physiotherapist conduct a second examination in February 1997. They concluded that Mr. Nguyen suffered no objective impairment and encouraged him to exercise on his own instead of participating in a formal therapy program.

Mr. Nguyen continued to attend therapy two to three times a week at Palstan Rehabilitation Centre until mid-March 1997, approximately five weeks after the reports of Dr. Ford and The Positive Approach. However, Palstan did not issue a discharge summary nor was its report filed in evidence.

Mr. Nguyen's family doctor referred him to a neurologist. Dr. Richard Magder's April 1997 opinion was that Mr. Nguyen had no neurologic abnormality, and his sleep loss and poor concentration resulted from soft tissue injuries from the accident. He prescribed amitriptyline for Mr. Nguyen's sleep loss, but did not comment on the disability issue.

Mr. Nguyen was examined at a Designated Assessment Centre (DAC) in May 1997, which resulted in the termination of Mr. Nguyen's benefits. Mr. Nguyen reported to Dr. Joseph Kwok, the orthopaedic specialist, that he experienced dizziness once or twice a week and that he was forgetful and anxious about driving. Mr. Nguyen complained that he suffered low back pain when standing, walking or sitting for more than 30 minutes, and his right knee became painful after walking more than 15 minutes, climbing stairs or squatting.

Dr. Kwok found no objective physical instability or derangement in Mr. Nguyen's right knee. His examination revealed mild tenderness in the joint, which he said was due in part to the accident.

Dr. Kwok's physical examination indicated that Mr. Nguyen's back was quite functional. There was no muscle spasm or evidence of nerve irritation, and flexion, extension and walking gait were normal. There was full range of hip motion as well, although Mr. Nguyen's low back muscles were tender, and he complained of back pain on performing the straight leg raise test.

In September 1998, Mr. Nguyen obtained the report of Dr. Michael Kliman, an orthopaedic surgeon whose opinion states he was not capable of heavy or repetitive lifting. Dr. Kliman reported that Mr. Nguyen had mild difficulty squatting and getting on and off the examining table due to low back pain, and also had back pain at the extremes of flexion and extension. No muscle spasm was evident, and Mr. Nguyen performed a full straight leg test.

Dr. Kliman does not address Mr. Nguyen's actual pre-accident job duties, lifting moderate weight objects periodically. Therefore I give his opinion little weight.

In March 1999, Dr. Joseph Wong, a physiatrist, found more significant limitations than previous experts had attributed to the accident. Mr. Nguyen's low back flexion and extension were limited, and his muscles were moderately stiff and tender. He thought that the x-ray of Mr. Nguyen's right knee, taken approximately a week after the accident, showed degeneration that indicated the joint was more likely to pain after reinjury.

Dr. Wong found Mr. Nguyen's decreased muscle strength and reflexes attributable to the soft tissue injuries, concluding he could not drive for too long, carry heavy boxes or do a lot of lifting or bending. The report of Dr. Wong's interview with Mr. Nguyen indicates he was still driving, grocery shopping and moving furniture, albeit with pain.

Dr. Wong did not address Mr. Nguyen's actual pre-accident job duties either, nor does he explain how he arrived at his conclusion that Mr. Nguyen could not drive for extended periods or perform heavier activities. There is no indication he conducted tests to determine Mr. Nguyen's lifting capacity or driving ability, and his conclusion contradicts Mr. Nguyen's statements about his post-accident activities. I am unable to accept Dr. Wong's opinion.

Analysis:

Mr. Nguyen's experts state he cannot lift heavy boxes or conduct repetitive lifting. However, they do not address his actual job duties, lifting medium weight boxes 25-35 pounds periodically one day per week. Although I accept that Mr. Nguyen experiences pain to some degree in his knee and low back, there is no reliable evidence, such as functional testing, to indicate he was unable to periodically squat and lift the boxes, the most physically challenging portion of his job.

I find that Mr. Nguyen has not established that he suffered a substantial inability to perform the essential tasks of video sales, and he is not entitled to weekly disability benefits after May 21, 1997 under Part II of the Schedule.

Medical Reports:

Mr. Nguyen seeks reimbursement for Dr. Kliman's September 28, 1998 report ($695.98), his November 2, 1998 supplement ($107), and for Dr. Wong's March 19, 1999 report ($963). Dr. Wong's statement for his report is filed in evidence. There is no evidence filed concerning the amount of Dr. Kliman's reports, but this is probably an oversight.

Allstate made no submissions concerning these expenses. Mr. Nguyen's counsel submitted that they fall within section 43 of the Schedule, which deals with examinations at Designated Assessment Centres (DACs).

There is no evidence that either of these physicians conducted their examinations as a DAC. I find these reports are properly characterized as examinations under section 24 of the Schedule, which covers the reasonable costs of assessments and reports incurred by the insured person for the purpose of establishing entitlement to benefits under the Schedule.

Mr. Nguyen sustained a legitimate injury in this accident and sought to use these medical reports to attempt to establish his entitlement to further weekly disability benefits, as section 24 allows. I find the three accounts to be reasonable, and under section 24 of the Schedule Mr. Nguyen is entitled to reimbursement for the costs of Dr. Kliman's reports provided he produces the bills to Allstate. I find that he is also entitled to $963 reimbursement for Dr. Wong's report under section 24.

EXPENSES:

The parties may request an assessment of expenses if they cannot agree on this issue.

October 24, 2000

Fred Sampliner

Arbitrator

Date