Neutral Citation: 2003 ONFSCDRS 115

FSCO A02-000938

BETWEEN:

THU THI NGUYEN

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: Susan Sapin

Heard: March 31 and April 1, 2, and 3, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Albert Conforzi for Ms. Nguyen Ian D. Kirby for Allstate Insurance Company of Canada

Issues:

The Applicant, Thu Thi Nguyen, claimed she was injured in a motor vehicle accident on June 25, 2001, and was unable to return to work until October 29, 2001 as a result. She applied for statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹ Allstate did not believe that Ms. Nguyen suffered any disabling injuries in what it maintained was an extremely minor collision, and refused to pay income replacement benefits ("IRBs"), housekeeping expenses, or certain treatment expenses. 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:

Is Ms. Nguyen entitled to an income replacement benefit for the sixteen weeks from July 10 to October 29, 2001 pursuant to section 4 of the Schedule?
What is the amount of IRB to which Ms. Nguyen would be entitled pursuant to section 6 of the Schedule?
Is Ms. Nguyen entitled to housekeeping expenses of $100 per week for 27 weeks from the date of the accident pursuant to section 22 of the Schedule?
Is Ms. Nguyen entitled to a special award pursuant to subsection 282(10) of the Insurance Act, R.S.O. 1990, c.I.8?
Is Allstate entitled to repayment of $5,929.23, the amount it paid to investigate the claim?
Is either party liable to pay the arbitration expenses of the other pursuant to subsection 282(11) of the Insurance Act, R.S.O. 1990, c.I.8?

Result:

Ms. Nguyen did not suffer a substantial inability to perform the essential tasks of her employment as a result of the accident, and is not entitled to an IRB.
See 1 above.
Ms. Nguyen is not entitled to housekeeping expenses as a result of the accident.
Ms. Nguyen is not entitled to a special award.
There is no provision in the Schedule entitling Allstate to a repayment of any monies it paid to investigate Ms. Nguyen's claim.
If the parties are unable to agree on the matter of expenses, either party may request an appointment for an expenses hearing before me.

Introduction:

Allstate was suspicious of this claim from the outset. Bill Gold, the senior staff claim consultant who investigated the accident was struck by the number of discrepancies in the evidence and the unusual circumstances surrounding the accident, including Ms. Nguyen's choice of treatment providers, and did not find her explanations to be credible. An insurer's medical examination (IE) by a physiatrist six weeks after the accident, and a report commissioned from an accident reconstruction engineer, confirmed Allstate's theory that Ms. Nguyen was not disabled from her job or housework as a result of the collision. On these grounds, Allstate maintained its refusal to pay IRBs or housekeeping expenses.

Ms. Nguyen submits that Allstate's suspicions were unfounded and unfair, that its refusal to accept her claims was unreasonable, and that the conduct of its senior staff claim consultant was egregious in the circumstances. She maintains that Allstate failed in the duty of utmost good faith towards her required of first-party insurers under the statutory no-fault insurance scheme. She alleges that Allstate pre-judged her claim and "condemned her with guilt by association" because, amongst other things, she temporarily changed to a new family doctor after the accident, a practitioner Allstate associates with a high volume of motor vehicle accident cases requiring extended treatment without medical justification.

Ms. Nguyen argues that Allstate should be required to pay the maximum special award permitted as a punitive measure.

EVIDENCE AND FINDINGS:

Essential Tasks:

To be entitled to an IRB, Ms. Nguyen must establish, on a balance of probabilities, that she was substantially unable to resume the essential tasks of her employment as a result of impairments suffered in the motor vehicle accident.

Ms. Nguyen, who lives in Scarborough, worked as a parts assembler at Multimatic Manufacturing, a maker of car hinges in Concorde, north of Toronto, since December 1997. She worked the 3:00 p.m. to 11:00 p.m. shift five days a week, and overtime on Sundays. She normally drove herself to and from work.

Ms. Nguyen described her job at the hearing. She assembled the components of vehicle door hinges and placed them into a rivetting press. Once the parts were rivetted, she removed them to two bins on either side of her. Once the bins were full (weighing 20-40 pounds), a cart pump lifted them and she would push the cart pump to another area about 30 feet away, then return the empty bin to her station. She would do this about four times a day. She completed between 1200 and 1600 parts per shift.

Ms. Nguyen's description corresponds to a Worksite Assessment Report conducted by Shaun Hing, a kinesiologist with Burlington Medical Assessment Centre, in December 18, 2002, after Ms. Nguyen's subsequent and more serious November 2002 motor vehicle accident. Where they differ, I accept Mr. Hing's as more accurate. He classified the job task as "moderately light," requiring a frequent to constant level of bending, reaching, pushing and pulling motion, and frequent lifting of a maximum of ten pounds mostly at waist level. The job was done standing but Ms. Nguyen could sit if required.

Ms. Nguyen testified that she could not return to this job after the accident because of pain from injuries sustained to her left knee, left shoulder, low back and neck. She testified on examination in chief that the job was too heavy for her, and she could never return to it. She stated that when she returned to work on October 29, 2001, eighteen weeks after the accident, it was to "different duties on a different line." When pressed on cross-examination, however, she testified that she returned to a modified light-duty job.

I do not accept this evidence. I heard no evidence that Multimatic offered modified or light duties. In fact, Mr. Edward Percey, Multimatic's Human Resources Manager, testified that all employees are routinely rotated on the different assembly lines every three weeks to avoid monotony, and that as far as he knew, Ms. Nguyen had only changed assembly lines since 1997 for this reason. Mr. Percey was a disinterested witness who gave his evidence on factual matters in a straightforward manner. I was provided with no reason to doubt the accuracy of his testimony. I find the variation in Ms. Nguyen's testimony between examination in chief and cross-examination was an attempt on her part to equivocate.

The Collision:

There is little dispute that the collision was minor. Ms. Nguyen testified she was the left rear seat passenger in a rented red Ford Cavalier ("the red car") and did not see the accident because she was resting with her head against the door and her eyes closed at the time. As no other witness testified about the accident, I accept the police report made 20 minutes after the accident as the best evidence about what happened. I find that, as the red car travelled southbound in the curb lane on Roncesvalles Avenue, its left front bumper struck the right side front of a white Chevrolet Lumina van ("the white van"), which was attempting to turn left (south) onto Roncesvalles Avenue from a driveway on the east side of the street.

Colour photographs taken by the van driver at the scene after the vehicles came to rest show them side by side at what appears to be a 30 degree angle (approximately) to each other, noses together, with the white van slightly ahead. The angle is easy to see because of the streetcar tracks, which run parallel to the road, and is reproduced in the sketch made by the police officer in his report. The red car points slightly to the right of centre as if it had been nudged off-course.

Allstate's evidence, supported by colour photographs taken by the driver of the white van at the scene and uncontested by the Applicant, is that the damage to the white van was negligible, consisting of a one-inch long red paint scratch from the red car. Mr. Gold's testimony, corroborated by the police report, is that no injuries were reported by the occupants of the van, including the front seat passenger, who was eight-months pregnant at the time. There are no photographs of the damage to the red car. A June 29, 2001 written repair estimate states the plastic front bumper cover and metal fender required refinishing, and the left headlamp and signal lamp assemblies needed to be replaced, and shows labour costs of $256.80, and parts $919.99. I accept the evidence of Mr. Gold, who spoke to the person who assessed the damage, that the damage was minor and cosmetic in nature.

Contrary to the opinion of Alexander Cazin, the accident reconstruction engineer who prepared a report for Allstate and testified at the hearing, I do not find the angle of the cars at rest to be an optical illusion, nor do I accept his opinion that the collision was a "sideswipe-type" impact, because he based this opinion on the mistaken assumption that the white van was travelling parallel to, and faster than the red car, in an attempt to pass it when the cars collided. I find it more likely that the impact was more direct, i.e., sufficient to gently nudge the red car off a straight course. Despite a number of difficulties with Mr. Cazin's report, I accept his automotive engineering and collision investigation experience and his analysis of the forces and damage involved in the impact, based on principles of physics that have not changed since Newton discovered them, as sound. I accept his opinion that the forces of impact in this collision, even if it did not occur quite as he assumed, were extremely minor nonetheless.

However, I do not accept Mr. Cazin's conclusion that the impact could not cause injury, even though he based it on Ms. Nguyen's description of the impact and on published studies of collisions involving similar forces where no injury occurred, apparently a standard practice in the accident reconstruction field. Mr. Cazin has no medical training, and I find his conclusion is outside his area of expertise. On this point, I prefer the testimony of Dr. R. Soric, the physiatrist who examined Ms. Nguyen at Allstate's request on August 9, 2001, and Michael Drinkwater, who conducted the physiotherapy portion of the medical rehabilitation Designated Assessment Centre ("Med Rehab DAC") assessment three weeks later. These witnesses agreed that the severity of a motor vehicle collision does not invariably correlate to the degree of injury suffered by the occupants of the vehicle, and is only one of a number of factors to be considered when determining impairment.

In Ms. Nguyen's case, however, although I accept in theory that injuries such as she described could be caused by a minor collision, I find it is more likely than not that the minimal forces involved in the impact in question did not cause injuries that substantially disabled Ms. Nguyen from her job or prevented her from her housekeeping chores. I base this finding on the fact that Ms. Nguyen gave different accounts of what happened to her when the two vehicles collided.

In a statement she made to Mr. Gold on August 1, 2001, Ms. Nguyen said:

In the accident my body was thrown to the right, then back left into the side of the car. My left shoulder struck the side of the car. I do not remember if any other part of my body struck the car.

I accept Mr. Cazin's opinion that this description could not possibly be accurate, because of the scientific principle that on impact, a body will move first toward the source of impact, not away from it.

At the hearing, Ms. Nguyen testified that she heard the tires squeal and a bang, and her body was pushed forward and then back, as Mr. Be Do suddenly hit the brakes. She said she hit the other rear passengers and hit her left knee either on the seat in front of her or the side door. She did not mention hitting her shoulder and did not complain of shoulder pain when Dr. Soric examined her.

Although I accept that perhaps, in the heat of the moment, Ms. Nguyen could not be expected to accurately register (or later remember) such details as which direction her body moved first, or what part of her body hit what part of the car, I find it odd that her different description at the hearing accorded with a new theory, advanced for the first time in closing argument, that she was injured not by the impact itself, but by the forward and backward motion caused by Mr. Do's sudden braking. I find it to be more than coincidence that this new, alternative mechanism of injury, made after Mr. Cazin's report was made available, conveniently sidesteps his conclusion that Ms. Nguyen's first description was not accurate, and her reported injuries therefore inconsistent with both the mechanism and force of the minor impact.

This was just one of a number of examples of the changing nature of Ms. Nguyen's evidence that led me to conclude that she was not a reliable witness.

Credibility:

I found very little of Ms. Nguyen's evidence about the accident, her injuries and her inability to work or do housework, to be believable. Some of her testimony directly contradicted previous statements, or was contradicted by more reliable, objective evidence presented at the hearing. Ms. Nguyen was consistently vague on many details, frequently responded to questions by claiming she could not remember, or suddenly remembered facts after repeated questioning. This occurred not only with details of little consequence, but also on important points where her credibility was key.

There could be many reasons for this. Her inability to remember the last names, addresses or telephone numbers of her friend Mr. Do, or her friend Van, who she visited the day of the accident, or how she decided on $100 per week as the appropriate amount to claim for housekeeping expenses, may simply have been due to an unwillingness to implicate others in this proceeding. Ms. Nguyen appeared depressed at the hearing, and wept at certain points in her testimony. Some of the discrepancies in her evidence could be attributed to confusion and poor memory due to depression, or stressors unrelated to the accident, or perhaps she is simply a person who does not pay much attention to detail, or is easily confused. If there were cultural factors that might explain the unreliability of her evidence, I heard no evidence about them. Although Ms. Nguyen gave her evidence through a Vietnamese interpreter, this did not appear to present any difficulties that would in any way account for the nature of Ms. Nguyen's testimony.

I was particularly troubled by the many implausible explanations provided by Ms. Nguyen throughout her testimony as a whole, and the changing nature of her evidence, which I find displayed a tendency on her part to improvise answers to questions as the need arose, as if to fill in gaps in her story. At some points where Ms. Nguyen's evidence flowed more freely, she appeared to have been coached, as in her testimony about her housekeeping claim.

I find, therefore, that, regardless of the reason and whether intentional or not, and even after making considerable allowance for the vicissitudes of individual human nature, Ms. Nguyen's evidence was simply not reliable.

Events Leading Up to the Accident:

Ms. Nguyen's account of the events leading up to the accident illustrate the many problems presented by her testimony. The week before her car accident, Ms. Nguyen was off sick with acute bronchitis.² She had booked the following week, July 3-8, as vacation.³ On the Monday of the accident, she did not go to work but went to see her family doctor at the time, Dr. Nahn, at his office on Bathurst Street near the Bloor subway line. She testified that she wanted to ask him for a prescription for cough medicine. She testified that she took the subway to his office because she felt too ill to drive. She obtained her prescription and left Dr. Nahn's office about 2:00 p.m.

Then, without prior arrangement, Ms. Nguyen went to visit a friend with whom she used to work, "Van," who lived on Jamieson Avenue in Toronto's west-end Parkdale neighbourhood, taking a bus and a streetcar to get there despite the fact that she was feeling too ill that day either to go to work or drive herself to her doctor's office. She had not seen Van for some time. She found Van in the building laundromat. They did not go up to Van's apartment because Van was afraid someone would take her clothes out of the machines. It was a hot summer day.

On her way home to Scarborough later that afternoon, Ms. Nguyen was waiting at the corner of Jamieson Avenue and King Street for the eastbound streetcar to the Yonge subway line when an old friend, Mr. Be Do, travelling northbound on Jamieson from Lakeshore Boulevard, pulled up in the red car, and offered her a lift. She asked for a ride to the subway. Ms. Nguyen stated there were three other passengers in the car, none of whom she knew. Mr. Do invited her to go camping or fishing with the group, but she declined because she was sick and just wanted to go home. Mr. Do told her they were going to Loblaws for supplies. Ms. Nguyen testified that they did not go to Loblaws, nor did they stop anywhere else.

When the accident happened at 6 p.m., the parties agreed that Mr. Do and his passengers were travelling southbound on Roncesvalles Avenue in the opposite direction to, and at least several blocks away from, both the nearest subway station (at the intersection of Dundas Street West and Bloor Street) and the only Loblaws in the area, located just south of the subway. From the time he picked up Ms. Nguyen, then, until the accident, it appears Mr. Do simply drove around in an extended counterclockwise circle. Ms. Nguyen was unable to provide an explanation for this when asked for one on cross-examination.

I did not find this story to be plausible. I do not accept that a person too ill to go to work or even drive a car would travel miles out of her way on public transportation in the middle of a hot summer day, without prior arrangement, to visit a friend she had not seen in some time, and whose address and phone number she told Mr. Gold she could not remember when he interviewed her shortly thereafter on August 1, 2001. This behaviour does not accord with common sense or ordinary experience.

Ms. Nguyen related these events to Mr. Gold when he interviewed her at the office of her legal representative in the presence of a Vietnamese interpreter. Mr. Gold took down Ms. Nguyen's statement in writing. At the hearing, Ms. Nguyen confirmed that the interpreter read the statement back to her, and that she signed it. As she did not at that time, nor at any time later, advise Mr. Gold or anyone else that any part of her statement was inaccurate, I accept that it was the version of events she intended to give at that time.

Ms. Nguyen claimed she was one of four passengers in the red car. The contemporaneous police report lists the names of the occupants of the white van, but identifies only the driver of the red car, Mr. Do. The report makes no mention of Ms. Nguyen, nor of any injuries to any of the occupants listed. This is troubling, because Ms. Nguyen told Mr. Gold on August 1 that after the accident she waited for the police, who asked her if she was injured and did paperwork, and then she took a taxi to the subway and went home. At the hearing, she testified that she waited a long time but did not see the police coming, so she "took off" because it was getting dark and she wanted to go home. She denied that she previously told Mr. Gold she had waited for the police, suggesting this was a "miscommunication." However, when Ms. Nguyen told her psychiatrist, Dr. San Nguyen, in October 2001 about the accident, she said the police came and asked her if she wanted to go to the hospital, but she was so tired she decided to take a taxi home instead.

Neither version accords with other known facts or common sense. If Ms. Nguyen indeed waited until it was dark before leaving, she would have seen the police officer when he arrived at 6:20 p.m., and it would be reasonable to expect that she would have identified herself as a passenger of the red car. I cannot think of a reason why she would choose not to do so. If she left before the officer arrived, it would not have been dark, as she claimed.⁴ Given Mr. Gold's evidence below, I find Ms. Nguyen most likely changed her story about waiting for the police at the hearing, after she became aware that the police report did not mention her presence at the accident scene.

The discrepancies in the evidence raised serious doubt about whether Ms. Nguyen was even in the car when the accident occurred. Mr. Gold testified that he spoke by phone to the driver of the white van, who told him there were three, not four, passengers in the red car, all of whom literally fled the scene immediately after the accident. Mr. Gold stated that, as often happens, the van driver was reluctant to become involved and declined to provide a written statement or appear as a witness. Mr. Gold believed this person to be very credible nonetheless. Although I have no reason to doubt Mr. Gold's testimony on this point, the van driver's evidence is hearsay.

Allstate's submission that Ms. Nguyen was not in the car when the accident took place was made for the first time in its closing argument on the final day of arbitration. Ms. Nguyen did not have the opportunity to test the van driver's evidence by cross-examination, nor to present evidence to refute the new allegation that she was not in the car. Consequently, and as a matter of procedural fairness, I accept Ms. Nguyen's testimony that she was in the car as she claims, notwithstanding that she presented not a single piece of independent evidence to corroborate this fact.⁵

Motivation:

Ms. Nguyen argued very strongly at the hearing that it was unreasonable for Allstate to suggest that her claims were without merit, because, as a well-paid worker with an excellent work history and a secure job, she had no financial or other incentive to remain off work, other than a genuine and substantial inability to do her job. Although she had a previous history of motor vehicle accident-related back and knee injury, she had not been off work for similar complaints in the six months before the accident, and went back to work as soon as she was able, eighteen weeks after the accident.

This is true in part. The OHIP summary indicates there were no visits to medical practitioners for back or knee injuries in the months before the June accident. However, I find the evidence as a whole suggests Ms. Nguyen was not always up to her job for various reasons, was not particularly motivated to attend when she felt unwell, often worked despite pain and discomfort, and would have stayed home had she been able to afford it. Although this is perfectly understandable, and something with which it is easy to sympathise, I find the evidence below belies her assertion that she had little incentive to be absent from work.

Ms. Nguyen had several motor vehicle accidents prior to June 25, 2001, but could not remember how many, and twice stated, when asked directly, that she could not recall if she had injured her left knee in particular. She acknowledged that she made claims for statutory accident benefits in each case. Clinical notes of Dr. San Nguyen, psychiatrist, show visits for supportive therapy and medication after one of the motor vehicle accidents, in which she injured her left knee, from December 1997 to May 1999, a significant period of time. The notes indicate Ms. Nguyen complained consistently of significant knee and back pain, frequent headaches, poor sleep, depression and stressors unrelated to the accident, throughout this entire seventeen-month period. She visited her family physician monthly for prescriptions for pain relievers.⁶

I note that in May 1999, Ms. Nguyen told Dr. Nguyen that her back and knee still hurt but that she was afraid of losing her job if she took time off.

Ms. Nguyen returned to Dr. Nguyen two years later in October 2001, stating that she had been fine until June, when she was off work due to flu (for which she said she received two weeks of short-term disability benefits from her employer),⁷ and then was involved in the car accident at issue in this case. Dr. Nguyen prescribed several drugs for depression. Ms. Nguyen told him that she wanted to return to work because she was bored at home and because of financial difficulty, but that her back still hurt and she did not feel well enough to return to her job. She did go back to work on October 29, however, and I find it significant that Dr. Nguyen's November 23 note states he encouraged her to continue working despite her complaints. His long experience with his patient did not persuade him she was unable to, or should not, work.

Dr. Nguyen last saw his patient on March 4, 2002. She complained of pain and swelling in both hands, badly burned in a previous work accident, but told him she could not take time off because she was afraid of being laid off. Again, he went to the trouble of noting that she inquired about re-opening a previous Workplace Safety and Insurance Board claim because of her hands.

Dr. Roland Wong, the orthopaedic surgeon who examined Ms. Nguyen at Dr. R. Beharry's request in November 2001 and June 2002, noted in his June report that "She is rather unhappy that her claim was not recognized for extended periods of time following the accident." I will deal with Dr. Wong's report as it relates to Ms. Nguyen's level of disability further on (he found her fit for modified work), but I note at this point that I find it unusual that Dr. Wong would choose to include such a comment in his report, and it is reasonable to infer that he did so because he considered it significant.

These comments, plus the fact that Ms. Nguyen was unwell the week before the accident, felt too ill to work the day of the accident (but not too ill to travel miles from home on public transportation to visit a friend who was not expecting her and might not even have been at home), and had already booked vacation time for the week after the accident, suggest to me that it was more likely than not that Ms. Nguyen hoped for some paid time off work as a result of the accident, for reasons other than injuries suffered in the accident.

Medical Evidence:

Ms. Nguyen presented little objective evidence in support of her claim. Because, overall, I did not find her to be a reliable witness, I was reluctant to accept at face value medical opinions based mostly on her subjective complaints.

This is true of the disability certificate provided by Dr. Beharry. Dr. Beharry described Ms. Nguyen's impairment as musculoskeletal pain/strain to the lower back, neck and left shoulder; left knee pain and contusion; headaches; and diagnosed Whiplash Associated Disorder ("WAD") 2. Dr. Beharry stated that Ms. Nguyen's musculoskeletal pains prevented her from carrying on substantially all of her normal pre-accident activities, including housekeeping, due to difficulty with heavy chores. He referred her to Super Rehab Inc. for therapy. Ms. Nguyen testified that although this facility was quite far from her home,⁸ she attended because it provided transportation to and from treatment sessions. This presumably included transportation from Dr. Beharry's office, as she went directly from there to Super Rehab.

Although Dr. Beharry's clinical notes and records, largely illegible, indicate he continued to see Ms. Nguyen until October 28, 2002, he did not provide any further assessments or reports on behalf of his patient.

Dr. Beharry was not Ms. Nguyen's regular family doctor, and there is no evidence he was aware of her previous motor vehicle accidents with injuries similar to those she claimed to have suffered on June 25, or that he knew much, if anything, about her actual job duties. Ms. Nguyen testified that she could not remember the reason she did not visit her own doctor the day after the accident. She stated she remembered a "friend" had given her a business card for Dr. Beharry, and she went to see him because her friend told her Dr. Beharry had a walk-in clinic, and she did not need an appointment. This friend, it turns out, was the very same Van whom Ms. Nguyen had visited the day of the accident, a fact Ms. Nguyen did not remember when asked who had referred her at the hearing. Ms. Nguyen stopped seeing Dr. Beharry after she went back to work, and returned to a previous family doctor, Dr. S. Talangbayan, after her subsequent motor vehicle accident on November 13, 2002. She said this was because she felt Dr. Beharry's "process" was too slow.

Carl Hildebrand, a chiropractor at Super Rehab, prepared a Treatment Plan dated June 27, 2001 recommending six to eight weeks of chiropractic treatment, massage, acupuncture and active rehabilitation, with a complete recovery, no disability and a return to work and activities of normal life expected by the end. His one-page letter to Allstate dated July 11, 2001 described his June 26 assessment of Ms. Nguyen, concurred with Dr. Beharry's diagnosis of a WAD 2 injury, and cited "objective" findings of decreased range of motion in the left knee, neck and low back, myofascial strain to left knee ligaments and postural muscles of neck and low back, and multiple-site facet irritation of the cervical and lumbar spine.

As no clinical notes or other medical records or information from Super Rehab were provided either to Allstate or at the hearing to support these statements, I was unable to determine if the findings were in fact objective and not subjective, or to evaluate the reliability of this medical evidence on its face. As noted above, I did not find Ms. Nguyen's assessment of her abilities to be reliable, and I reject medical evidence based on subj ective findings as similarly unreliable.

Dr. Soric examined Ms. Nguyen on August 9, 2001 at Mr. Gold's request. She prepared a report and testified at the hearing. Dr. Soric found a startling discrepancy between Ms. Nguyen's complaints and her physical exam, which was completely normal with full range of motion of the neck, back and knee, and no evidence of muscle spasm. Although she noted that Ms. Nguyen complained to her of severe pain along the back of her neck, upper and lower back, often extending into both buttocks and along the back of her legs, tingling and numbness of the left foot, and left knee pain (but no history of restricted movement of that joint), Dr. Soric noted that Ms. Nguyen did not complain of pain in those areas during the examination.

Dr. Soric further noted that Ms. Nguyen did not complain to her of shoulder pain, as she did to other assessors. She recorded that Ms. Nguyen complained of a gradually worsening depression, and testified that Ms. Nguyen appeared depressed to her. Dr. Soric stated she had no reason to doubt Ms. Nguyen's credibility. Ms. Nguyen told Dr. Soric that her rehabilitation up to that point had consisted of passive modalities, but no exercise, contrary to Super Rehab's Treatment Plan.⁹

Dr. Soric concluded that Ms. Nguyen did not require further medical treatment and was not disabled from her job. As she asked specifically, and was told, that Ms. Nguyen was managing her household tasks, Dr. Soric concluded no housekeeping assistance was required.

Dr. Soric agreed it made no sense medically, considering the course of soft tissue injuries, that the therapist who conducted the massage and acupuncture portions of the Med Rehab DAC ten days later found Ms. Nguyen to be "in worse shape" than she herself did. I agree with Dr. Soric's opinion that her findings on examination agreed with those of the other two DAC assessors. I accept her explanation that range of motion findings within "normal" limits are meaningless unless it is known whether the reference is to anatomical or functional range of motion, because a person can have a functional, pain-free range of motion that is less than the anatomical or maximum possible range. As Mr. Drinkwater confirmed, even uninjured persons in the normal population will experience discomfort in the end ranges of motion.

I reject Ms. Nguyen's argument that I should discount Dr. Soric's opinion that she was not substantially disabled from her job because Dr. Soric did not have, and did not recommend, a Functional Capacity Evaluation (FCE) or worksite assessment. I accept Dr. Soric's explanation that she did not feel the need for an assessment or FCE was indicated, because her physical examination of Ms. Nguyen was completely within normal limits, and, had it not been, she would have recommended an FCE.

Although Dr. Soric's report was brief, I found it and her evidence to be to the point, objective, thorough and even-handed, and I have no reason not to believe her examination of Ms. Nguyen was equally so. I accept her conclusions. I note that although Ms. Nguyen disputed Dr. Soric's report, she did not exercise her right to request a Disability DAC assessment under section 37 of the Schedule. Neither did she obtain further medical evidence to refute the report from her treating physicians until November 23, 2001, the date of Dr. Wong's first report.

Ms. Nguyen submitted that the Med Rehab DAC assessment conducted at the end of August 2001, two months after the accident, by a chiropractor, physiotherapist, massage therapist and acupuncturist supported her claims that she was injured in the accident. I do not agree.

The DAC concluded that only 6 weeks of chiropractic treatment, active rehabilitation and massage were reasonable and necessary post-accident, and that no further treatment was required because Ms. Nguyen was "near full recovery." This was a consensus opinion, despite the different findings of the assessors. (The chiropractor noted significant pain behaviours and inconsistent presentation, the massage therapist/acupuncturist found some evidence of myofascial pain, and the physiotherapist, Mr. Drinkwater, found full range of motion and only isolated tenderness in the lumbar spine.)

Mr. Drinkwater testified at the hearing as an expert in physiotherapy at Allstate's request. He testified that his findings of tenderness were not clinically significant and would be found in the "normal population." He stated that, as a DAC assessor, he felt he had an obligation to take patients at face value and give them the benefit of the doubt. He stated that although Ms. Nguyen's description of the accident was vague, he must accept that an accident occurred, subject to proof of the contrary, which he did not have. For that reason, and because of Ms. Nguyen's subjective complaints, the assessors responded "yes" to the referral question, "Could injury have been caused by minor collision?"

In light of Mr. Drinkwater's testimony and the evidence as a whole, I find the answer "yes" to this question does not go so far as to mean the injuries occurred to the extent claimed by Ms. Nguyen. The Med Rehab DAC report does not, in my opinion, lend any more credibility to her subjective complaints or claims than I have already found and, because it did not deal with the question of disability, the report does not assist in determining whether she was substantially disabled from her job or her housework as a result of the accident.

Ms. Nguyen submitted two reports by Dr. Wong, the orthopaedic surgeon who saw her in November 2001 and June 2002. I gave little weight to Dr. Wong's opinion in determining whether Ms. Nguyen was substantially disabled from the essential tasks of her employment, for several reasons. Firstly, his opinion that she was "relatively free of lower back pain prior to the motor vehicle accident except for an incident in 1996 when off work for a short period of time" is inaccurate.

Secondly, Dr. Wong's negative findings were, in my opinion, minimal (a 25% reduction in cervical range of motion and tenderness on palpation of the upper trapezius muscles and left L4S1 area). He found full range of motion in the shoulder, spine and legs. Where he found signs of pain, they were subjective.

Thirdly, Dr. Wong first saw Ms. Nguyen after she had already returned to work. She told him she had returned to modified work. Dr. Wong recommended she continue this modified work, avoiding heavy lifting and repetitive bending. As noted above, I found no evidence she returned to modified duties or that her pre-accident work involved heavy lifting. Furthermore, there is no evidence Dr. Wong knew what her pre-accident job duties, or her "modified work," were.

And finally, although Dr. Wong felt that a February 2002 computed tomography scan showing degenerative features in the lumbar spine confirmed Ms. Nguyen's complaints, her difficulty with prolonged sitting and standing, repetitive bending and lifting, and the need for modified work, there is no evidence these findings were related to the June 25 accident. In this respect I prefer the evidence of Mr. Drinkwater, who testified that the disc bulge, stenosis and other features evident in the scan were degenerative, congenital and were neither clinically significant nor accident-related.

Housekeeping Expenses:

I find this claim to be totally without merit. Ms. Nguyen lives in a two-bedroom apartment with her boyfriend and her daughter Goldlynn, who was 20-years-old at the time of the accident and who attended school while working part time. Ms. Nguyen stated that she did all the housekeeping prior to the accident and that she had to "beg" her daughter to help her with grocery shopping, cleaning and cooking because her accident injuries prevented her from doing these tasks. Ms. Nguyen was extremely vague about how much her daughter helped out after the accident.

Ms. Nguyen testified that she told her daughter she would pay her $100 per week for her help. When asked how she happened to come up with the precise figure of $100 per week, Ms. Nguyen stated it came "out of my head." When shown the invoices for $100 per week listing the chores allegedly performed by Goldlynn and signed by her daughter and submitted to Allstate, Ms. Nguyen testified that she could not remember where the forms came from. When asked directly if the forms could have been provided by her legal representative at the time, IMC and Associates, Ms. Nguyen said she could not remember.

Goldlynn Nguyen also testified. It was plain to see she was a reluctant witness, and, from her evidence, a reluctant housekeeper as well. The evidence of a close family member can be crucial in corroborating an insured person's evidence about the disabling effects of accident injuries. Unfortunately, the younger Ms. Nguyen's evidence was not persuasive. She appeared to know very little about her mother, despite the fact that they shared the same apartment. She did not know what shift her mother worked or that she had had previous motor vehicle accidents. She stated that after the accident, she was very busy with her work, school and boyfriend, and that she took on responsibility for groceries, laundry, washing dishes, taking out the garbage, cleaning spills and mess, caring for the family pet, vacuuming pet fur and cleaning bathrooms. She stated she did not keep track of how long she spent on these chores, or how often she did them, only that she cleaned up when asked or "when it was dirty." She could not remember for how long after the accident she had to help out.

Goldlynn testified that her mother asked her to write down what she did. She listed her chores on the top portion of the invoices and signed them. However, she stated that she did not fill out the bottom portions of the invoices, which identify the dates the services were provided by month, in the amount of $400 per month. These were completed by someone else. Nor did she send the invoices to Allstate. Neither she nor her mother knew who filled out the bottom portions.

I find the only sensible conclusion to be drawn from the evidence of mother and daughter is that it was Ms. Nguyen's legal representative who suggested to her that she claim the maximum of $100 per week for housekeeping expenses allowed under section 22 of the Schedule, and that the claim was put forward by the legal representative on behalf of Ms. Nguyen without reference to the amount of assistance actually required, in the hope that Allstate would simply pay it. I find this to be not only unprofessional, but dishonest.

In light of this evidence, the lack of reliable medical evidence to support the actual extent of any impairment, and the inability of either witness to quantify the assistance provided in any meaningful way, I find that Ms. Nguyen has not established, on a balance of probabilities, that she is entitled to any amount for housekeeping expenses.

Special Award:

Section 282 of the Insurance Act requires an arbitrator to make a special award of up to 50 per cent of the amount of a benefit found to be owing where the payment of a benefit to an insured person is unreasonably delayed or withheld. As Ms. Nguyen did not establish, on a balance of probabilities, that she is entitled to benefits, I have no authority to consider a special award.

In the event I have erred on the issue of entitlement, however, I find that Allstate did not unreasonably delay or withhold the benefits in dispute in this arbitration, and Ms. Nguyen is not entitled to a special award.

Ms. Nguyen cited egregious file-handling and improper conduct by Mr. Gold, Allstate's senior staff claim consultant, and improper termination procedures as grounds for a special award.

Allstate's File-Handling

Mr. Gold is an experienced adjuster. He has worked for Allstate for more than eighteen years, the last nine-and-a-half dealing with accident benefits claims. He has developed considerable acumen in his 40 years in the insurance industry. Although not medically trained, he testified that he does have a certificate in benefits administration. I find he is entitled to rely on his knowledge, experience and judgment in determining whether he should pay IRBs or housekeeping expenses, neither of which is a "pay pending dispute" benefit, solely on the basis of an initial Disability Certificate and Treatment Plan, or if he should investigate further, which includes exercising his right under the Schedule to require an insured person to be examined by a medical practitioner of the Insurer's choosing before making his decision.

In normal circumstances, and in order to avoid unnecessary delay and expense, such an investigation should first include contacting the treating physician or treatment provider for clarification. However, in the particular and unique circumstances of this case, I find Mr. Gold had reasonable grounds to question the reliability of the medical evidence provided to him by Dr. Beharry and Super Rehab and to refuse to accept their opinions at face value.

Mr. Gold was absolutely candid in his testimony about his reasons for refusing to pay IRBs on the strength of Dr. Beharry's opinion. He testified that in his ten years of experience with Dr. Beharry, whom he considered to be an "accident doctor" who accepted motor vehicle accident patients "off the street" in his walk-in clinic, he had come to have little faith in his disability certificates. Similarly, he did not consider treatment plans from Super Rehab, to which Dr. Beharry regularly referred patients, to be reliable indicators of whether proposed treatment was necessary or reasonable. He stated that in his experience, Super Rehab invariably treated patients after Allstate refused to pay, and continued to treat them until the outcome of DAC assessments. He stated that DAC assessors often determined Super Rehab's treatments to be unnecessary. This knowledge, together with the results of his investigation up to that point, his interview with Ms. Nguyen, and the fact that Dr. Beharry was not her regular family doctor and had been referred to her by her friend Van possibly mere hours before the accident, persuaded Mr. Gold that he should investigate further before determining if IRBs or housekeeping expenses were payable in the particular circumstances of Ms. Nguyen's claim.

I find Mr. Gold's suspicions and subsequent investigation to be perfectly reasonable in the circumstances. An insurer's duty of good faith towards its insureds does not extend to the suspension of disbelief.

Mr. Gold promptly arranged for an IE. I find it was reasonable for him to rely on Dr. Soric's conclusion that Ms. Nguyen was not substantially disabled from her pre-accident work and did not require housekeeping assistance. It was also reasonable, given the minor nature of the collision and what he had been told about the accident itself, to commission a report from an expert in accident reconstruction. I note the cost of these investigations was also reasonable.

Improper Termination:

When Super Rehab submitted its Treatment Plans to Allstate, Allstate had not yet received an Application for Benefits from Ms. Nguyen. It refused to fund the treatment, partly for this reason,¹⁰ but mostly because, as stated by Mr. Gold in his July 20, 2001 letter to Ms. Nguyen's legal representative, Allstate was "not satisfied that injury could have been caused by this extremely minor collision" and was conducting an investigation in that respect. The letter further requested that Ms. Nguyen attend an IE with Dr. Soric regarding her IRB and treatment claims.¹¹

Mr. Gold's letter went on to state that Allstate would stop payment of weekly benefits effective August 12, 2001 and, in the event payment had not commenced "because we may not have received an application for benefits and may not have completed our investigation by that date," benefits would not be paid beyond that date unless Ms. Nguyen requested a Disability DAC. Ms. Nguyen did not request the Disability DAC despite being provided with the forms to do so.

I find this letter to be absolutely clear and candid about Allstate's reasons for refusing to pay IRBs, and I do not find it in violation of the Schedule. These are not grounds for a special award.

Improper Reliance on Treatment Plan:

Ms. Nguyen submitted that Mr. Gold's July 20, 2001 letter purported to terminate benefits on the basis of a Treatment Plan that he refused to approve, a practice which earned Mr. Gold a special award from Arbitrator Muir in Hen van Do and Allstate Insurance Company of Canada (FSCO A01-000200, February 18, 2002). That case involved a head-on collision in which the applicant's vehicle was written-off, a different set of facts entirely. Arbitrator Muir found that Mr. Gold's decision to terminate weekly IRBs on the basis of a prognosis in a rejected treatment plan was entirely inappropriate, a principle with which I agree. A special award would be appropriate in this case, to the extent that Mr. Gold relied on Super Rehab's Treatment Plan to deny benefits. However, on the basis of Mr. Gold's testimony and a review of the July 20 letter as a whole, I find the real reason Mr. Gold refused to pay IRBs was that he was not willing to accept the medical evidence presented by Ms. Nguyen, including the Treatment Plan, as proof that she was entitled to IRBs or housekeeping expenses, without further investigation, because he did not believe the minor collision could have caused injury. As I found this conduct to be entirely appropriate, I would not impose a special award.

Unprofessional Comments:

Ms. Nguyen testified that as Mr. Gold entered the boardroom at the offices of her legal representative to interview her on August 1, 2001, he said something to the effect of "Let's see what games these people are playing." She testified that when Mr. Gold interviewed her three and a half months later at her lawyer's offices, he made the exact same comment. She was absolutely adamant on this point, and very upset while testifying. She said she was upset at the time as well, and that the comment made her feel like a criminal. She argued that these comments show Mr. Gold was not prepared to take her claims seriously. Mr. Gold denied making the comments.

Ms. Nguyen testified that she remembered little else about the interviews. Apart from the presence of a Vietnamese interpreter on each occasion, there were no other witnesses to the conversation. Ms. Nguyen's legal representatives were not present at either interview. She did not object to the alleged comments at the time.

I find it very difficult to believe Ms. Nguyen's account. If the comments were as upsetting as she made out, it does not make sense to me that she did not tell any of her legal representatives about them. If she had, I find it surprising they allowed her to be interviewed a second time by Mr. Gold without one of them present.

Most of Mr. Gold's testimony was given on cross-examination, where he answered difficult and challenging questions with equanimity in a straightforward and candid manner even when the answers were against his own interest. He was not above admitting mistakes (such as Allstate's failure to pay for Dr. Beharry's Disability Certificate). In weighing his testimony against that of Ms. Nguyen, which I found wanting in many respects, as set out in my decision, I cannot accept her account of his comment as accurate. I find no evidence that Mr. Gold acted improperly with regards to Ms. Nguyen's claim or that the benefits at issue in this arbitration were unreasonably withheld as a result of any improper or unreasonable conduct on his part.

EXPENSES:

Both parties claim their expenses of the arbitration. Although I found that Allstate was justified in refusing Ms. Nguyen's claims, I find she was entitled to challenge Allstate's reasons and its decision-making process, and she should not be unduly penalised for doing so by being required to pay Allstate's expenses simply because she was unsuccessful. In my view, each party should bear its own expenses of this proceeding. If the parties are unable to agree on the matter of expenses, either party may make an appointment for an expenses hearing before me.

July 28, 2003

Susan Sapin Arbitrator

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