Neutral Citation: 2002 ONFSCDRS 105

FSCO A01-000668

BETWEEN:

WAI CHING LOK

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: David Muir

Heard: February 27, 28, March 1, April 19 and 25, 2002, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Sue Chen, Student At Law, For Ms. Lok

Ian D. Kirby for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Wai Ching Lok, was injured in a motor vehicle accident on February 12, 1999. She applied for and received certain statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Lok 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 State Farm required to pay Ms. Lok a non-earner benefit pursuant to section 12 of the Schedule?
Is State Farm required to pay Ms. Lok medical benefits for physiotherapy provided by New Tec Physiotherapy pursuant to section 14 of the Schedule?
Is State Farm required to pay Ms. Lok transportation expenses for attendance at treatment sessions provided by New Tech Physiotherapy pursuant to section 14 of the Schedule?
Is State Farm required to pay a medical benefit for prescriptions pursuant to section 14 of the Schedule?
Is State Farm required to pay interest on amounts found to be owing pursuant to section 26 of the Schedule?

Result:

State Farm is not required to pay Ms. Lok a non-earner benefit.
State Farm is required to pay Ms. Lok medical benefits for physiotherapy provided by New Tec Physiotherapy in the amount of $1,275 in addition to the amounts owing for treatments provided by New Tech Physiotherapy to May 11, 1999, pursuant to section 14 of the Schedule.
State Farm is required to pay Ms. Lok transportation expenses for attendance at the physiotherapy sessions as set out above, pursuant to section 14 of the Schedule.
State Farm is not required to pay a medical benefit to Ms. Lok for prescriptions, pursuant to section 14 of the Schedule.
State Farm is required to pay interest on the principal amount of the benefits found owing to Ms. Lok, pursuant to section 26 of the Schedule.

EVIDENCE AND ANALYSIS:

Non-earner benefit:

Ms. Lok claims a non-earner benefit pursuant to section 12 of the Schedule from August 12, 1999 to March 1, 2000. In order to be entitled to this benefit, she must establish that she is completely unable to carry on a normal life. The level of disability required for entitlement to this benefit is set out in subsection 2(4) of the Schedule which provides that a person suffers a complete inability to carry on a normal life, "where as a result of an impairment caused by an accident a person is continuously prevented from engaging in substantially all of the activities that they engaged in prior to the accident." The benefit is also not payable in the first six months after the accident.

The resolution of the dispute about Ms. Lok's entitlement to non-earner benefits turns to a significant degree on her testimony. There is little or no conclusive medical evidence supporting her claim of ongoing disability for the entire period of her claims. Unfortunately, Ms. Lok was not a very reliable historian. In several important respects her evidence was inconsistent and incompatible with the evidence of other witnesses testifying in support of her claims. For example, Ms. Lok testified that her physiotherapy treatments consisted of largely passive treatments and definitely did not include the use of machines. On the contrary, her daughter, Krista Lee, who accompanied Ms. Lok to New Tec on several occasions, gave evidence of a much more extensive program of therapy including use of weights, a treadmill, stationary bicycle, other passive and active therapies in addition to some TENS treatment. Ms. Lee's evidence is consistent with that of the physiotherapist, Ms. Lois Suet Ying Mui, who testified about the program of therapy that she provided (as set out below).

Ms. Lok denied any neck or back problems prior to the accident, however the evidence of Dr. Kevin Leung, her family doctor, was that she did complain of pain in her neck and back in the weeks immediately prior to the motor vehicle accident. He also testified that he must have considered her complaints to be serious as he prescribed Tylenol #3, which he would not normally have done because Ms. Lok had stomach problems that limited her ability to tolerate analgesics. A decoded OHIP summary for Ms. Lok was produced for the arbitration. It indicates that she attended a Dr. Grossman for a significant number of chiropractic treatments related to neck and back problems (the record indicates as many as 22 treatments in the weeks prior to the motor vehicle accident). Ms. Lok denied taking such treatment but offered no other explanation for what the OHIP summary suggested. Based on other evidence at the hearing there is some doubt that it was Ms. Lok who was treated by Dr. Grossman, nonetheless, her failure to offer any explanation for this mystery becomes part of the problem in assessing Ms. Lok's evidence.

More directly related to the substantive issues in dispute, Ms. Lok's evidence of her ongoing functional status is also at odds with the opinions of Ms. Mui whose evidence was tendered in support of her claims. For example, Ms. Mui noted in a report dated October 29, 1999 but which should have been dated December 29, 1999, that "her headache and the pain at her back, head and left pelvis had resolved completely."Accordingly, Ms. Mui discharged Ms. Lok at that point as being virtually recovered. Ms. Lok, in contrast, maintains that during this period she was prevented by her impairments from performing virtually all of her pre-accident activities. (There are other contradictions between the evidence of Ms. Lok and Ms. Mui which are canvassed below.) As a result of this kind of difficulties with Ms. Lok's evidence, I have generally preferred the evidence of others, including Ms. Mui, on most of the key issues in this case.

As regards Ms. Mui, State Farm suggested that Ms. Mui was in contravention of section 38 of the Schedule in not declaring a conflict of interest when submitting the treatment plan in issue below - the inference being that Ms. Mui's evidence was less reliable as a result. Ms. Mui responded that she did not believe that there was a conflict because Dr. Leung had approved of the plans. Based on the evidence before me it appears likely that Ms. Mui ought to have declared a conflict. I have considered this factor in assessing her evidence, but I have nonetheless accepted her evidence.

Ms. Lok is a 69-year-old woman who was seriously injured in a motor vehicle accident. She was a pedestrian crossing an intersection when she was struck by a vehicle. She was thrown in the air and apparently landed on her head. She may have lost consciousness for a short period of time. She suffered a contusion of the left parietal region with swelling and a cut, bruising on her left arm and left leg. X-Rays were taken at the hospital but nothing significant was noted at the time. She saw Dr. Leung, her family doctor, a couple of days after the accident. He was concerned about her complaints of pain in her hip and ordered further x-rays. These x-rays indicated a fracture of the pubic ramus and margin of the left acetabulum. Dr. Leung testified that he referred Ms. Lok to physiotherapy at New Tec Physiotherapy because it was in the same building as his office and he knew that there were Chinese-speaking staff there.

Dr. Leung also referred Ms. Lok to an orthopaedic surgeon, Dr. Paul Wong. Dr. Wong noted in a report dated April 8, 1999 that Ms. Lok was reporting a lot of left groin pain when she bore weight on her left side; however, she was able to ambulate independently with one cane. He reported, based on current x-rays, that the pubic fracture was united in a good position. Dr. Wong asked that he see Ms. Lok for follow-up after three months. Dr. Leung did not send her back to Dr. Wong and he agreed, when asked, that this was probably because Ms. Lok's recovery was progressing.

Prior to the accident, Ms. Lok described herself as being in reasonably good health; however, she had been receiving therapy for many years for an arthritic knee and the "trigger finger" in her right hand. X-Rays taken in mid-1998 indicated degenerative changes in her neck immediately prior to the accident. Ms. Lok did attend at Dr. Leung complaining about neck and back pain as discussed earlier.

In any event, and despite these physical problems which might be described as nagging rather than debilitating, Ms. Lok was apparently able to function and lead an active life. Prior to the accident Ms. Lok was not employed outside the home but was an active homemaker responsible for much of the care and upkeep of the family home. She lived with her husband, who is in his late 70s and two sons, both of whom are of university age. Her household duties included the usual indoor tasks of housecleaning, cooking the family meals and laundry. She also undertook the outdoor work of snow shovelling, garbage removal as well as gardening. She visited with friends and family and enjoyed playing mahjong. She also spent two to three days per week socializing with her daughter and grandson. A significant part of that time was spent babysitting her grandchild, who was one-and-a-half years of age at the time of the accident, while her daughter attended to other responsibilities, such as her school work. Ms. Lok also drove the family car from time to time.

I find that by August 12, 1999, six months after the accident, Ms. Lok was no longer continuously prevented from engaging in substantially all of her pre-accident activities. Her injuries from the accident were serious, but after six months, she was on the way to recovery. She had been in a wheelchair in the weeks immediately after the accident, but by March she was up on crutches and by May her physiotherapist was teaching her how to walk with a cane. By early April, Dr. Wong reported that Ms. Lok was already walking with a cane.

Ms. Sylvia Cheng, an occupational therapist retained by State Farm, reported that Ms. Lok was able to ambulate without much assistance, climb the stairs, prepare simple meals and perform some of her housekeeping chores by August 10, 1999. Ms. Lok denies that she was able to do these things, however, she also testified that by October 1999, she was 70 per cent recovered. More significantly, Ms. Cheng's evidence is supported by that of Ms. Mui, who testified that by August Ms. Lok could walk indoors without a cane using the support of furniture and walls to get around. Ms. Mui further testified that by August, Ms. Lok could walk outdoors for 30 minutes without a break. By September, according to Ms. Mui, Ms. Lok was able to walk indoors without aids of any kind. I find as well, based on other evidence, that by September 1999, Ms. Lok could and did socialise with friends and family although she was likely still limited in her ability to travel outside of the home.

In response to questions based on this kind of evidence Ms. Lok offered that she was only able to resume her pre-accident activities when she had completely recovered. This, she said, was only one and one-half years after the accident. This statement of the time it took her to recover following the accident was not related by Ms. Lok to any event or other time marker — her response, repeated on several occasions, was mechanical and lacked the ring of truth. I also note that Ms. Lok seems to have equated recovery with the absence of pain.

Pain is not equivalent to disability and Ms. Lok's equating of pain with inability to function may provide an explanation for the difference between her perceived level of function and the opinion of others, including her treatment provider, Ms. Mui. Ms. Lee testified about her mother's ability to function in a similar vein. When asked when her mother was able to resume her pre-accident activities she responded with a similarly mechanical response of "one and one-half years "post-accident. She was not able to assist in respect of Ms. Cheng's testimony about Ms. Lok's level of function in August 1999 because she was not present during those later visits.

As a result of procedural rulings made at the outset of the hearing, Dr. Leung was only able to give limited opinion evidence on Ms. Lok's functional abilities during the relevant time periods. He did testify that in his view, Ms. Lok would be unable to this day, to perform the heavy tasks of snow shovelling and other outdoor work.

Ms. Lok relied upon two reports of Dr. Joseph Wong. These reports was commissioned by Ms. Lok's representatives. In the first report dated May 22, 2001, Dr. Wong reported that Ms. Lok was able to perform most of her activities of daily living, albeit with some difficulty, but that she had sustained some "serious and permanent impairments of an important physical function," without clarifying what that function was. He further indicated that she had difficulty with prolonged standing, walking, lifting and bending. In a subsequent clarification dated January 29, 2002, Dr. Wong offered the opinion that the impairments sustained by Ms. Lok "are sufficient to construe a complete inability to carry on the tasks of daily living."

Based on the evidence of Ms. Cheng and Ms. Mui, which I prefer over the evidence of Ms. Lok and her daughter, Ms. Lee, I find that Ms. Lok was not continuously prevented_from performing substantially all of her pre-accident activities by August 12, 1999. I find that the only pre-accident activities that she could be said to be prevented from performing after mid-August were some of the tasks associated with the caregiving of her grandson and likely as well, based on the evidence of Dr. Leung, her heavier outdoor gardening and maintenance work, such as snow shovelling. I also accept Ms. Lok's evidence that she is reluctant to drive the car now, although she has driven on several occasions since the accident. In coming to this conclusion I have given no weight to the reports of Dr. J. Wong. I find that his conclusions, as set out in the second report dated January 29, 2002, are not supported by his other findings as contained in the May 2001 report and are entirely inconsistent with the other evidence offered by Ms. Lok.

Medical Benefits:

Ms. Lok also advances a claim for physiotherapy provided by New Tec and associated transportation expenses. The parties agreed that the issue of transportation expenses rose or fell with the claim for physiotherapy expenses.

Ms. Lok was referred to New Tec by her family doctor, Dr. Leung. He did not direct any particular modalities or duration of treatment, leaving those questions to the physiotherapist, Ms. Mui.

Dr. Leung was not kept informed of the progress of the treatments provided by New Tec. In approving the New Tec treatment plans he relied on the expertise of Ms. Mui. In September 1999 he thought that the treatment had stopped (it had not) and provided some treatments for Ms. Lok's complaints of neck, back and hip pain as well as asking New Tec to resume treating Ms. Lok. In Dr. Leung's view, Ms. Lok's problem was pain and not function as such. He agreed that the fracture was in a non-weight bearing area of the pelvis but felt that Ms. Lok would experience pain if the left pelvis was placed under weight.

The DAC concluded that the treatment plans before it were not reasonable or necessary. The DAC assessors were critical of what they understood from Ms. Lok, to have been the exclusively passive nature of the treatments provided by New Tec. However, Ms. Mui testified that while the initial treatments provided to Ms. Lok were largely passive, she began to move her to more active therapies as appropriate. The evidence taken as a whole indicates that significant active modalities were being employed by the time of the DAC and were increased as time passed. According to Ms. Mui, whose evidence in this regard I accept, Ms. Lok began stretching exercises and other resistant or weight-bearing modalities in March 1999, within a few weeks of the accident. Later, in May, Ms. Lok was trained to walk with a quad cane; in June she was using a recumbent bicycle; in July she was using weights, five pounds on her ankles and three for her arms.

Ms. Susan Wagar, the physiotherapist who participated in the DAC, gave evidence at the hearing. When asked whether the more active exercise program described by Ms. Mui had changed her view of the reasonableness or necessity of the treatment provided by New Tec, she testified that the new set of facts, if true, only strengthened her view that the treatment was not reasonable or necessary as of the date of her assessment. Ms. Wagar testified, based in part on the New Tec progress reports, that there was no objective evidence of improvement in Ms. Lok's condition and level of function after the DAC assessment, notwithstanding extensive treatments in June, July and August. Ms. Wagar also stated, in response to questions in cross-examination, that while pain relief was a legitimate concern of a patient, the Schedule does not refer to pain but to level of function when determining the reasonableness or necessity of treatment.

Despite Ms. Wagar's view that there was no objective indication of improvement in Ms. Lok's condition, there is other evidence which indicates that her level of function did improve during the months of June, July and August. Ms. Cheng reported on May 17 that Ms. Lok was unable to perform most of her homemaking tasks and still needed assistance with some self-care tasks such as hair washing. Ms. Cheng also reported that Ms. Lok was only able to stand for 10 minutes. By August 10, Ms. Cheng reported that Ms. Lok was able to perform all of her self-care and many of her household tasks. She was also observed standing for 30 to 45 minutes at a time while performing various functional tasks. As a result of these observations, Ms. Cheng recommended the termination of Ms. Lok's housekeeping assistance.

I find that any treatment provided to the date of the DAC physiotherapy assessment ought to be paid for by State Farm. The assessments occurred between May 4 and May 11 and the report was compiled on May 27. The DAC concluded that passive treatments were no longer doing Ms. Lok any good and should be discontinued. I have accepted the evidence of Ms. Mui, corroborated to some degree by Ms. Lok's daughter, that she was engaged in active therapies well before the DAC assessment was conducted. I also accept the evidence of Ms. Cheng that Ms. Lok did suffer some substantial disabilities in May 1999.

Despite Ms. Wagar's view of the Schedule, I also find, consistent with the view of many arbitrators, that pain relief is a legitimate rehabilitative goal compensable under the Schedule. See for example Amoa-Williams and Allstate Insurance Company (FSCO A97-001864, July 21, 1999) and the case cited therein. I find that the DAC assessment discounted the utility of pain relief and that in this case, pain relief was a legitimate rehabilitative goal for its own sake. I also find that there is evidence to indicate that Ms. Lok's pain in her left hip was interfering with her level of function and that further physiotherapy would have been reasonable and necessary in order to assist Ms. Lok in recovering her pre-accident level of function.

I find, because of Ms. Lok's age, the nature of her injuries, her documented reports of pain, as well as the evidence of Dr. Leung and the reports of Dr. P. Wong and Ms. Cheng, that the treatment provided to her up to the time of the DAC physiotherapy assessment (May 11, 1999) was reasonable and necessary. I also find that further therapy beyond May 11, would have been reasonable and necessary to assist Ms. Lok in dealing with her pain and related functional limitations.

Given the expectations of the parties, reflected in the manner that the evidence was presented on the physiotherapy issues, it is to some degree speculative to determine what treatment might have been reasonable and necessary beyond May 11. However, this is how I arrived at my conclusions about appropriate further treatment beyond May 11, 1999. As indicated above, I find, based primarily on the evidence of Ms. Cheng, that in mid-May 1999, Ms. Lok was still seriously disabled. I find that this was largely because of the pain she experienced in her left hip which limited her ability to stand and ambulate. I also find that the physiotherapy treatments provided by New Tec helped her in managing that pain and in increasing her level of function. However, I also find that Ms. Mui underestimated Ms. Lok's pace of recovery — for example, while Dr. P. Wong reports that Ms. Lok could ambulate with a cane by early April, Ms. Mui only integrated the cane into Ms. Lok's program after that time. I also find, based on the evidence of Dr. Leung, that Ms. Lok was the kind of patient who would attend therapy for its social aspects in addition to any treatment benefits it might have provided, and that to some degree this increased her appetite for physiotherapy. Ms. Mui testified that she began reducing the passive therapies administered to Ms. Lok in a significant way in early July. I find that this marks an end of Ms. Lok's need for significant supervision in a treatment program and that, after this time, she ought to have been able to be self-directed in her physical rehabilitation. This conclusion is supported again by Ms. Cheng's evidence of a marked improvement in Ms. Lok's level of function by early August 1999.

I find, based on the evidence of Ms. Mui, that Ms. Lok would have required passive therapies sufficient to allow her to participate in an active exercise program, which over time could be largely self-directed. The active portion of the treatment would have required minimal supervision. The treatment would have been largely directed to reducing her hip pain and accordingly reducing the most significant limitation on her level of function.

I find that, considering all of these factors, a further 6 weeks of treatment beyond May 11 of a maximum of 3 sessions per week for 3 weeks and two sessions for the final 3 weeks would have been reasonable. This course of treatment would have included 5 sessions to provide Ms. Lok instruction in a self-directed program of stretching, strengthening and endurance exercises, as recommended by the DAC. The treatment plan envisaged here is not substantially different in character from the treatment which was provided by New Tec. Accordingly, I also find that the reasonable cost of such a program would be $85 per hour, the same amount which New Tec charged for its program. Accordingly, I find that State Farm ought to pay $1,275 for further treatments beyond the cost of treatment provided by New Tec to May 11, 1999. If the parties are unable to resolve the charges for treatments to May 11, they may raise the matter with the arbitrator.

Prescriptions:

No evidence was led in support of such a claim and accordingly I find that Ms. Lok is not entitled to this expense.

EXPENSES:

The parties asked that the question of expenses be left to be resolved following the resolution of the substantive issues in dispute. They may speak to the issue of expenses if unable to resolve it themselves.

July 4, 2002

David Muir Arbitrator

Date