Neutral Citation: 2003 ONFSCDRS 128

FSCO A02-001090

BETWEEN:

NAVIS LE TRAN

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Fred Sampliner

Heard: May 13 And 14, 2003, At The Offices Of The Financial Services Commission Of Ontario In Toronto.

Appearances:

L. Brent Vickar for Mr. Tran

Gordon L. Robson for Economical Mutual Insurance Company

Issues:

The Applicant, Navis Le Tran, was injured in a motor vehicle accident on October 20, 2001. He applied for and received statutory accident benefits from Economical Mutual Insurance Company ("Economical"), payable under the Schedule.¹ Economical terminated weekly income replacement benefits on March 8, 2002. Mr. Tran's claim for ongoing benefits was not resolved through mediation, and he 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. Tran entitled to income replacement benefits under Part II of the Schedule after March 8, 2002?

Result:

Mr. Tran is not entitled to income replacement benefits under Part II of the Schedule after March 8, 2002.

EVIDENCE AND ANALYSIS:

Mr. Tran was a 41-year-old employed machine operator at the time of the October 20, 2001 accident. His vehicle was rear-ended by another automobile while he was travelling on Highway 401, causing his car to strike the vehicle ahead of him.

Mr. Tran claims that continuing neck and back pain together with headaches and sleep loss have prevented him from resuming his pre-accident job at Transgear Manufacturing Inc. ("Transgear"). He must establish on a balance of probabilities that he suffers a substantial inability to perform the essential tasks of his job in order to qualify for income replacement benefits after March 8, 2002.²

The Job:

Mr. Tran worked on his own at Transgear, servicing two robotic machines that delivered and removed materials to four automated lathes under his care. There is no significant dispute about Mr. Tran's essential tasks, which had been modified 10 months before the accident to accommodate his left hand/wrist tendinitis.

Based on Mr. Tran's testimony and the job site analysis, I find that his essential job tasks at the time of the accident consisted of standing constantly and walking within his work area; checking the lathe calibrations; transferring and clearing materials from robots, conveyers and lathes by lifting parts weighing between 5 to 10 pounds, occasionally up to 20 pounds; using manual dexterity and hand/eye coordination to change lathe blades every hour using a screwdriver; inspecting, packaging and transferring materials using a hand truck; sweeping up the floor and removing casting chips and products that he occasionally hand-loaded into transfer bins; frequently bending, twisting and squatting to retrieve parts from the floor and also sweeping the floor; climbing a ladder approximately twice each shift to remove jammed parts from the conveyers.

This was a high-speed operation, fabricating approximately 440 parts per hour. Other than the two 10-minute rests and one 20-minute lunch break, Mr. Tran busily moved back and forth servicing the machines and cleaning during his eight-hour shift.

Mr. Tran's Evidence:

Mr. Tran testified that he felt sharp pain at the time of the collision, but his neck and back symptoms did not develop until about a week afterwards. His low back pain became periodic after four months of treatment, and he cited continuing neck pain and headaches as the reasons for his inability to resume his job at Transgear.

Mr. Tran admitted that he developed left hand/wrist tendinitis on his job, claiming the condition did not affect him post-accident. However, he was unable to explain the letters he sent to the Workplace Safety and Insurance Board ("WSIB") claiming two weeks lost wage benefits for the immediate post-accident period.

Mr. Tran also denied having back pain prior to the accident or any other health problems, except tendinitis. Yet Mr. Tran's pre-accident family physician, Dr. David Vu, shows in his clinical notes that Mr. Tran complained of low back pain fairly consistently between 1995 and late 2000, prescribing drugs for relief. Dr. Vu's records indicate that Mr. Tran experienced anxiety during the year prior to the accident, which undermines his self-characterization of his condition.

The medical reports do not indicate that Mr. Tran disclosed his pre-existing conditions (back pain and left hand/wrist tendinitis) to the various health practitioners who saw him after the accident. His assertions of good health prior to the accident are contradicted by the WSIB records and, more importantly, by his own family physician. As a result of his lack of candour, I find that Mr. Tran's evidence is not reliable.

Equally important, I was not particularly impressed with Mr. Tran's evidence. He did not explain how his accident symptoms (neck pain, headaches and sleep loss) interfered with or prevented him from performing specific duties or his overall job at Transgear.

Pre-Accident Health:

I accept that Dr. Vu's clinical notes are accurate because they offer a contemporaneous record of Mr. Tran's health. Although Mr. Tran worked full-time modified duties at the time of the accident, Dr. Vu's records establish that he suffered from low back pain, left hand/wrist tendinitis and anxiety at the time of the accident.

Analysis Post-Accident Health Evidence:

The records of Dr. Robert Chow, Mr. Tran's post-accident family physician, and those of his treating physiotherapist, establish that he developed cervical (neck) pain/stiffness with resultant headaches and sleep loss. Mr. Tran argues that the soft tissue injuries from the accident are disabling.

Comparing Dr. Vu's and Dr. Chow's pre- and post-accident family physician records, I find that Mr. Tran's cervical pain/stiffness, headaches and sleep loss are distinctly different from his pre-accident low back symptoms. Medical records do not indicate that Mr. Tran suffered headaches or sleep loss before the accident either. Consequently, I find that Mr. Tran suffered a soft tissue cervical strain with consequent headaches and sleep loss due to the accident.

The January 2002 report of the Designated Assessment Centre (DAC) assigned to evaluate Mr. Tran's treatment needs and the March 2002 report of Economical's examining neurologist both sanction his proposed further physiotherapy treatment plan based upon his continuing mild cervical/lumbar spine symptoms and headaches. This evidence establishes that Mr. Tran's accident-related symptoms persisted until the time his benefits were terminated.

The second medical/rehabilitation DAC in June 2002, his physiotherapist's records and Dr. Chow's evidence from that spring characterize Mr. Tran's cervical symptoms as moderate. Based on this evidence, I find that Mr. Tran's cervical pain and mobility limitation were moderate at the time when Economical ceased payments in March 2002.

Dr. Chow stated in May 2002 that Mr. Tran suffered "a certain degree of inability." His vague reference fails to address the specific job limitations caused by the cervical problem, headaches and any consequential sleep loss. More importantly, Dr. Chow's conclusion of work readiness at that time undermines the fundamental basis for Mr. Tran's disability claim. Dr. Chow's opinion does not support Mr. Tran's disability claim.

Dr. Joseph Wong, a physiatrist, conducted an examination in March 2003. He reported that Mr. Tran said he experienced periodic headaches lasting several hours, and neck pain on rotation that radiated pain to both his shoulder blades when holding his head down too long. His infrequent low back pain had subsided, but Mr. Tran's sleep was interrupted two or three times a night. Dr. Wong concluded that Mr. Tran suffers serious and permanent injuries from the accident.

In his report, Dr. Wong does not give supporting reasons why the injuries are serious and permanent, nor does he provide an opinion that Mr. Tran suffers a substantial inability to do his essential job tasks. In fact, Dr. Wong agrees with the earlier opinions of the other health practitioners who qualified Mr. Tran's injuries as mild or moderate, which undermines his conclusion that the injuries are serious and permanent.

Dr. Wong also erroneously assumes in his report that Mr. Tran performed heavy lifting. More importantly, Dr. Wong does not explain why he finds that the mild or moderate conditions constitute serious and permanent injuries. Without addressing the correct disability test, I can give his opinion little weight.

The January 2002 report of the functional abilities evaluation requested by Economical concludes that Mr. Tran's moderate difficulties do not impede his work activities so long as he avoids twisting. Mr. Tran's heart rate during the tests indicated he was not over-stressed and he showed consistent efforts.

Ms. Lori Braga, the kinesiologist who performed the functional tests, testified that although Mr. Tran's grip strength was decreased from norms, it was adequate to perform the job tasks set out in the work-site evaluation. He demonstrated the ability to periodically lift and carry up to 22 pounds, but Ms. Braga admitted that Mr. Tran complained of pain. Ms. Braga's findings that Mr. Tran's left lateral flexion and left rotation of his cervical area were limited is consistent with that of Dr. Chow and the treating physiotherapist.

I find the January 2002 tests are accurate and reliable indicators of Mr. Tran's abilities at that time because he showed consistent effort over repeated trials that were designed to duplicate the functional aspects of his job. I rely on the functional abilities evaluation and evidence of Ms. Braga.

Conclusion:

I accept that as a consequence of this accident Mr. Tran continued to suffer mild neck pain, moderate loss of left cervical flexion and rotation, with periodic headaches and some sleep loss until his benefits were terminated. It is his burden to establish on a balance of probabilities that the resulting disability either created or materially contributed to a substantial inability to perform his essential job tasks at Transgear.³

I find that Mr. Tran's pre-existing moderate or mild low back pain and left arm/wrist tendinitis were not particularly symptomatic in the spring of 2002. I rely on Mr. Tran's treating physiotherapist's opinion that his low back pain was mild and nearly healed at the time his benefits were terminated. I also rely on the functional tests which indicate that he did not complain about left wrist/arm pain and demonstrated adequate grip strength.

Mr. Tran asks me to rely on Dr. Wong's and Dr. Chow's opinions, when neither offer an explanation or give an opinion that he suffered a substantial inability to perform his essential job tasks at Transgear. All of the health care practitioners characterize Mr. Tran's accident injuries as mild or moderate, but I cannot accept his symptoms as sufficient to support his disability claim without tying them more specifically to the job tasks.

Mr. Tran did tell the health practitioners that he felt unable to hold his head in one position for long because of the cervical problem. While his evidence is consistent with the experts' general characterization of his condition, it is clear that he quickly moved from one task to another, and therefore did not hold a position for long. I am not persuaded that Mr. Tran's cervical condition results in his inability to perform any of his tasks at Transgear.

Neither can I assume from Mr. Tran's headaches and sleep loss that he cannot do his job tasks without more specific evidence from health care practitioners concerning the severity of the symptoms and its effect on his ability to perform his job tasks. While Ms. Braga's evidence confirms that Mr. Tran should avoid twisting, which I can accept is part of many of his job tasks, neither he nor his experts discussed how this limitation affects his tasks.

Mr. Tran's evidence is not compelling or reliable, and his experts do not support his disability claim. I find that after March 8, 2002 Mr. Tran did not suffer a substantial inability to perform the essential tasks of his pre-accident employment as a result of his accident injuries. Therefore, I find that Mr. Tran is not entitled to further income replacement benefits under Part II of the Schedule.

EXPENSES:

The parties can apply for an assessment of expenses if they cannot agree on entitlement or amounts, providing they comply with procedures under Rule 79 of the Dispute Resolution Practice Code (4th ed., May 31, 2001).

August 28, 2003

Fred Sampliner Arbitrator

Date