Neutral Citation: 2004 ONFSCDRS 24
FSCO A03-000045
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
HOANH DUC MAI
Applicant
and
ECONOMICAL MUTUAL INSURANCE COMPANY
Insurer
REASONS FOR DECISION
*Minor error (Applicant's name) corrected on July 26, 2004, in accordance with Rule 65.5 of the Dispute Resolution Practice Code and section 21.1 of the Statutory Powers Procedure Act.
Before:
David J. Evans
Heard:
June 2, 3, 4 and 5, 2003, in Guelph, Ontario; June 11 in Toronto
Appearances:
Karen Kwan Anderson for Mr. Mai
Helen Friedman for Economical Mutual Insurance Company
Issues:
The Applicant, Hoanh Due Mai, alleges that he was injured in a motor vehicle accident on May 19, 2002. 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 effective September 15, 2002. The parties were unable to resolve their disputes through mediation, and Mr. Mai 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. Mai entitled to receive a weekly income replacement benefit at the rate of $380.78 per week from September 15, 2002 and ongoing pursuant to section 4 of the Schedule?
Is Mr. Mai entitled to receive a medical benefit of $8,620 for physiotherapy and massage treatment received at New Age Recovery Systems in Hamilton, Ontario, from May to November 2002 and claimed pursuant to section 14 of the Schedule?
Is Mr. Mai entitled to payments for the cost of examinations and reports by Burlington Medical Assessment Centre in the amount of $1,223 for an in-home assessment and $1,100 for a functional capacity evaluation, both dated June 27, 2002, claimed pursuant to section 24 of the Schedule?
Is Mr. Mai entitled to payment for the cost of a report of November 5, 2002, by Dr. Roy Raghunan, psychologist, in the amount of $1,980, claimed pursuant to section 24 of the Schedule?
Is Mr. Mai entitled to payment for the cost of a report dated December 3, 2002, by Dr. P. Kominek, chiropractor, in the amount of $1,050, claimed pursuant to section 24 of the Schedule?
Is Mr. Mai entitled to payment for the cost of a disability certificate dated December 3, 2002, by Dr. Kelvin Ng, in the amount of $80, claimed pursuant to section 24 of the Schedule?
Is Economical liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Mai?
Is Economical liable to pay Mr. Mai's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mr. Mai liable to pay Economical's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mr. Mai entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Is Mr. Mai liable to pay an amount to Economical that does not exceed the amount assessed against Economical in respect of the arbitration, pursuant to subsection 282(11.2) of the Insurance Act, because he commenced an arbitration that is frivolous, vexatious or an abuse of process?2
Result:
Mr. Mai's claims are dismissed.
Economical is not required to pay a special award.
The parties may now speak to me on the matter of expenses, including Economical's claim for its filing fee.
BACKGROUND:
Mr. Mai testified that he was born in Vietnam in 1956. After high school he joined the army, and then when the Communist regime assumed power, he worked as a labourer. He escaped from Vietnam in the 1980s and spent four years in a refugee camp in South Korea before immigrating to Canada. He arrived first in Hamilton in 1990, and moved to Guelph around 1993.
Mr. Mai testified that he lives at Willow Road in Guelph with a friend, Tam Nguyen, and her family; his ex-wife and their three children — two boys aged 5 and 6 and an 18-year-old daughter3 — live in "government housing" at Sunset Road, also in Guelph. His visitation hours are on Saturdays in a public area.
Mr. Mai testified that in June 1994 he started working at Roctel Manufacturing Ltd. (Roctel) of Guelph. He liked his work as a machine operator, and his performance was "obviously satisfactory or I wouldn't be working there."
Mr. Mai testified that he worked the day before the accident of Sunday, May 19, 2002. He decided to go out that Sunday because Monday was the Victoria Day holiday. He went to Hamilton to visit a friend, Ms. Du Cao. They went to Toronto in her van and met some friends of hers. The group decided to go to a Vietnamese show. They drove in her vehicle, and he sat in the front passenger seat with his seat belt on. The accident happened around 11:00 p.m. when a car hit their van on the side. Neither the police nor an ambulance were called. (The Self Reporting Collision Report was completed by Ms. Du Thi Cao on May 20, 2002.) He stayed with Ms. Du Cao while the others left in a taxi. Eventually they returned to her home in Hamilton around 2:00 a.m., where he stayed until 7:00 a.m. before driving home to Guelph.
Mr. Mai testified that he did not suffer any back, neck or right knee pain before the accident but did afterwards. He went to see his family doctor, Dr. Kelvin Ng of Hamilton: "Since I came to Canada in 1990 my family physician is Dr. Ng."
Dr. Kelvin Ng testified that he first saw Mr. Mai on Tuesday, May 21, 2002, for the car accident related complaints of headache and painful neck, low back and right knee. Mr. Mai indicated he had no significant previous medical history.4 Dr. Ng prescribed Tylenol 2 and, since Mr. Mai said his job involved heavy lifting and bending, rest from work. Dr. Ng also wrote a note for Mr. Mai to take to Roctel and a disability certificate to give to the Insurer.
Mr. Mai testified that he delivered Dr. Ng's note to Attila Huska, his supervisor, on May 22, 2002.5 Mr. Huska asked Mr. Mai to tell him whenever he decided to return. Afterwards, about every two weeks, Dr. Ng wrote updates on Mr. Mai's condition to Roctel.
Mr. Mai testified that he heard nothing more from Roctel until about two months later, when Roctel sent him a Notice of Termination. A day or so after receiving it, he went back to Roctel and asked Mr. Huska for an explanation, but "he didn't know what was going on." Mr. Mai never returned to Roctel to ask for a job: "I did not go back but from my previous experience where I hear of people being laid off they are not let back in." Roctel offered him no modified work.
Mr. Mai testified that he "had no choice but to continue my medical appointments" with Dr. Ng, who "said not to find a job because I was not well. . . . He did not say exactly when I could go back." He has not worked since the accident but has "looked around for a lighter duty job but they all refused." (However, his testimony suggests that his job search consisted of verbally asking one garage in Guelph if they would hire him.)
Disability Claim
Mr. Mai testified that he could not return to work because "there were physical tasks involved," he had to "carry heavy physical stuff . . . I don't know how heavy," and "there weren't any light duties." He relies upon Dr. Ng's disability certificates and April 2003 report to support his disability claim for income replacement benefits (IRBs).
In his Disability Certificate of May 21, 2002, Dr. Ng simply wrote in the space for the description of the accident "Car accident," and under nature of the impairment "headache painful neck back [right] knee." He indicated no treatment for similar conditions pre-accident. Under diagnosis, Dr. Ng filled in only the primary one — "multiple injuries." He testified that this primary diagnosis included possible bony injuries, but could be any injury in more than one or two places. Under Part 4, Disability Information, when asked if the applicant sustained an impairment, he simply repeated "whiplash 2" and "multiple injuries": he did not refer to the Injury Codes in Part 7. He indicated that Mr. Mai could not return to work: "unable to do machine operator work until better." He indicated that any impairment for pre-accident care giving activities was "Not Applicable." Dr. Ng testified that he did not get details of Mr. Mai's pre-accident activities, so he only wrote "light activities as tolerated," testifying that Mr. Mai "was advised to do whatever he can do without over-stressing himself." He also ticked off pre-accident housekeeping as not applicable. Under medical restrictions he wrote "avoid heavy lifting bending," and prescribed Tylenol #2.
Dr. Ng repeated the heavy lifting restriction in his subsequent disability certificate of December 3, 2002, when he wrote "unable to do heavy work." In his April 18, 2003 report, he wrote that Mr. Mai was "still unable to do heavy lifting or bending as required by his machine operator job."
Ms. Heather Kuhnke, the adjuster for Mr. Mai's claims, testified that she found the first certificate too vague, so on June 19, 2002 she wrote to Dr. Ng asking for more details; about three months after the accident she finally received a copy of the slightly revised certificate.
She also wrote to Mr. Mai saying, among other things, that IRBs would not be payable until she received a completed Employer's Confirmation of Employment Income. Pace Law Firm did not submit a properly completed Confirmation until September 5, 2002.
By then, Ms. Kuhnke had sent Mr. Mai to an insurer's examination (IE) with Dr. Howard Weinberg, orthopaedic surgeon. Since Dr. Weinberg found Mr. Mai not disabled, Ms. Kuhnke terminated benefits. Accordingly, on September 10, 2002, she sent Mr. Mai a termination of benefits notice and a cheque for the IRBs owed up to the date of termination. Mr. Mai never requested a disability DAC: he testified that he did not remember his representative ever following up on the termination notice or ever advising him on whether or not he should be assessed.6
New Age Treatments
Mr. Mai testified that at the first post-accident visit on May 21, 2002, Dr. Ng referred him to New Age Recovery in Hamilton for physiotherapy. Mr. Mai attended at New Age the same day.
Ms. Karen Day, physiotherapist at New Age, testified that her Initial Assessment of Mr. Mai took extra time because she needed the help of the Vietnamese-speaking secretary to translate. She prepared a treatment plan for physiotherapy at an estimated cost of $4,824. On May 24, 2002, she approved a massage therapy treatment plan for $1,188.
Ms. Kuhnke sent these treatment plans to be assessed by the Wellness Rehabilitation Centre, a Med/Rehab DAC,7 on August 20, 2002. The Wellness assessors considered the treatment plans unreasonable because the treatment was too passive and the commute between Guelph and Hamilton cancelled any low back pain relief. They did not support massage therapy. They did support physiotherapy for the frequency and duration of the disputed physiotherapy plan, but at a lower cost and at a local facility supervised by a professional who speaks Vietnamese.
On September 10, 2002, Ms. Kuhnke wrote to Mr. Mai with a carbon copy to his legal representative, signifying her agreement with and readiness to pay for treatment plans satisfying the DAC's recommendations. She received no such treatment plans. Instead, Mr. Mai kept going to New Age (although never in compliance with New Age's treatment plans), and New Age prepared more of its treatment plans that were rejected by yet more DACs on the same grounds.
Mr. Mai testified that he continued seeing Dr. Ng and attending New Age. A friend drove him back and forth between Guelph and Hamilton for the treatments. Although the travel was inconvenient because of the distance, he went to New Age because of Dr. Ng's referral and he did not know of any closer clinics. He stopped going to New Age in November 2002 because the person who gave him rides could no longer do so.
Assessments
Mr. Mai attended a number of assessments for which he now seeks payment.
He seeks payment for assessments conducted by the Burlington Medical Assessment Centre. BMAC carried out a functional capacities assessment and an in-home assessment on June 27, 2002, and submitted its invoices directly to Ms. Kuhnke. Among the recommendations were that Mr. Mai receive housekeeping, attendant care and 21 hours of child care.8 Ms. Kuhnke testified that Mr. Mai never claimed for these services and that BMAC did not submit its invoices until mid-August 2002. She refused to pay them. On September 7, 2002, BMAC applied for mediation; its claims were then added to this hearing.
Mr. Mai is seeking payment for the cost of a report of November 5, 2002, by Dr. Roy Raghunan, psychologist. Dr. Raghunan also prepared a treatment plan for psychological treatment with him; Mr. Mai never claimed psychological treatment.
Mr. Mai is claiming for the expense of a report dated December 2, 2002 by Dr. Paul Kominek, chiropractor, of Optimal Medical Care Inc.9 Mr. Mai never claimed chiropractic treatments.
Complaints of Pain Inconsistent with Objective Findings
I have now sketched out Mr. Mai's claims. Since his is a soft tissue injury claim, he must be credible. In El-Saikali and Co-operators General Insurance Company10 Arbitrator Bayefsky wrote: "Credibility is important to the assessment of a claim where there is no objective evidence of impairment or where complaints of pain are inconsistent with objective findings." Although El-Saikali dealt with a chronic pain claim, I find the statement equally relevant here: there is no objective evidence of impairment and there are — as I will now set out — complaints of pain inconsistent with objective findings.
The first inconsistency appears in one of Mr. Mai's own reports. As noted above, Mr. Mai is claiming for the cost of BMAC's functional capacity evaluation. BMAC reported that "Mr. Mai gave an undetermined effort. . . . The result of lumbar extension and sit stand test were rated as unreliable due to inconsistency."
Further reports obtained by the Insurer detail other inconsistencies.
Ms. Kuhnke referred Mr. Mai to a psychological assessment with Dr. Donald Young, psychologist, at Merit Assessment Centres on July 22, 2002. Dr. Young noted that on one test Mr. Mai showed considerable symptom magnification with bizarre symptoms like believing others read his mind. The test of memory malingering was random, indicating Mr. Mai had no memory capacity whatsoever. Dr. Young wrote that, in contrast with his uncomplaining clinical interview and low concerns with pain or mood, Mr. Mai's "psychometric performance was marked by considerable symptom exaggeration, the endorsement of symptoms that are rare, bizarre or impossible, and a failure on validity testing."
As noted above, Ms. Kuhnke also sent Mr. Mai for an IE with Dr. Howard Weinberg. Dr. Weinberg testified that, in Mr. Mai's case, he found a number of signs suggestive of symptom magnification or functional overlay, such as a discrepancy in the straight leg raising test, aggravation by axial loading, and inappropriate pain responses. Another was his lack of grip strength: nothing in the injury made him unable to grip with his hands, yet he exhibited little power. In view of these findings Dr. Weinberg concluded that Mr. Mai had non-organic pain that was inexplicable on a physical basis, and the physical findings did not suggest significant underlying problems to cause significant disability.
In a Functional Abilities Evaluation IE of July 30, 2002, Lisa Minello, certified work capacity evaluator, noted that Mr. Mai's inconsistent low performance was not a reasonable reflection of his true maximal, functional abilities. He "demonstrated no objective signs of effort during grip testing." She found his symptom reports not reliable, and his effort inconsistent, so she concluded it was probable Mr. Mai was able to perform at a higher level than demonstrated: "[I]f there is any disability it is unable to be assessed accurately."
Ms. Kuhnke sent Mr. Mai to the Wellness Med/Rehab DAC discussed above. The authors noted: "We were unable to test the strength of his musculature, as he would not resist when asked." Although they wrote there was a possible biomechanical dysfunction of the cervical and lumbar spines from the accident, they added that "[t]he degree of dysfunction was very hard to determine due to the self-limiting behavior exhibited by the claimant."
Ms. Lisa Vogelzang, physiotherapist, who helped conduct this first Med/Rehab DAC, testified that they could not tell if Mr. Mai was weak or strong because he made no effort in the strength testing. His inconsistency in grip strength testing also suggested Mr. Mai was not trying his best. At page 5, the report notes: "Myotomes: Self limiting." Ms. Vogelzang testified that this testing of the strength of the muscular groups showed that Mr. Mai was not making an effort and there was no indication of true weakness. Although it was possible Mr. Mai was not trying because of pain, she found it difficult to believe that tests of finger or wrist resistance caused pain in the spine, so it was difficult to understand why he made no effort at the distal extremities.
As a result of a further massage therapy treatment plan dated August 28, 2002, Mr. Mai was assessed again at Wellness on October 15, 2002. With respect to strength testing, the authors wrote at page 5: "There were many times during this testing that his effort seemed inconsistent and weak."
As a result of a further New Age physiotherapy treatment plan dated September 25, 2002, Mr. Mai was assessed again at Wellness on November 21, 2002. Strength testing was "difficult to fully assess due to effort given" and "[s]ome cog wheeling noted with strength testing throughout the lower and upper extremity." Spinal passive range of motion was limited more than the active range. The Waddells signs tests were all positive, such as for overreaction and axial loading. The authors concluded that these were signs of some symptom magnification.
Mr. Mai was sent to Wellness for a psychological assessment DAC of Dr. Raghunan's treatment plan on January 10, 2003. Dr. Cheryl Gillin-Garling, psychologist, found that his invalid profile on the Minnesota Multiphasic Personality Inventory-2, although subject to cultural influences, showed "probable exaggeration or magnification of reported symptoms of psychological distress." She found no objective indication of current psychological impairment, and given Mr. Mai's minimal interest in the referral, she found it unlikely that the symptom exaggeration was any type of "cry for help."
As these reports suggest complaints of pain that are inconsistent with objective findings, Mr. Mai's credibility must be assessed in the context of the evidence. As Arbitrator Bayefsky also wrote in El-Saikali:
Exaggeration and inconsistencies in medical history will not necessarily defeat an applicant's claim, if it can be shown that the accident was a significant or material contributing factor to the applicant's disability. An applicant will not necessarily be disentitled to benefits because he or she suffered from a pre-existing condition (or "thin skull"), rendering him or her more susceptible to injury.
In my view, it is not enough that a person undergoes changes in his or her life following an accident or that the accident was the apparent trigger of those changes. An arbitrator must consider the total context of the applicant's claim, having regard to the pre-accident medical and vocational history, the nature of the accident and the course and development of the applicant's complaints. Given the subjective and illusive nature of chronic pain syndrome, I find that an applicant's credibility on these issues is vital.
Mr. Mai is not credible on these issues. Almost all the testimony of his that I have set out above regarding these issues — his pre-accident medical and vocational history, the nature of the accident and the course and development of his complaints — is contradicted by the records, by the surveillance, and even by Mr. Mai himself. Furthermore, many times during his testimony, Mr. Mai's attempts to explain away one contradiction would enmesh him in a further contradiction.
As Director's Delegate Makepeace said in confirming El-Saikali:
Not every discrepancy indicates malingering or misrepresentation. But the arbitrator must be able to rely on the insured person's evidence about the impact of the accident, absent objective evidence of impairment. The insured person must at least provide a coherent account of what happened.
A coherent account of almost all aspects of Mr. Mai's testimony is absent.
FINDINGS
Credibility
I will first discuss the contradictions in Mr. Mai's testimony.
The Accident
Mr. Mai's testimony was not consistent with other records about the accident. For instance, the Self Reporting Collision Report has him in the middle of the front passenger seat, whereas he testified that he was by the front passenger window. In the statement he gave to Todd Fox, adjuster at Custard Insurance Adjusters, he said that they arrived in Toronto around 5:00 or 6:00 p.m.; he testified that they arrived more around 7:30 or 8:00 p.m. He also told Mr. Fox that along with himself and Ms. Du Cao there were her four friends in the van (for a total of six people); the Collision Report only has five people in the van. He was confused about the genders of the other passengers: He initially testified that there were two men and two women "I would guess but I don't know exactly"; the report has all the other passengers as women. When the discrepancy was pointed out, he said: "Male, female, I do not remember exactly what genders they were. . . . I didn't know that I have to memorize their names and what sex they were, otherwise I would have done so." He testified that after the accident the police were not called (which makes sense, since Ms. Du Cao filled out a Self Reporting Collision Report); he told Ms. Day at the initial New Age assessment that the police were called.
Residence and Family Status
Mr. Mai testified that he lives at Willow Road with Tam Nguyen while his ex-wife and their children live at Sunset Road.
However, the records contain both addresses for Mr. Mai in Guelph. For instance, Dr. Kominek's clinical notes show Sunset Road as his address. Even the Commission's own records have both addresses.11 Although Mr. Mai's work records show that he initially gave the address on Willow Road, he requested an address change on February 11, 2001 to Sunset Road. Mr. Mai testified that he was planning to sponsor his parents to Canada and used Sunset Road as a permanent address for registered mail. However, he also testified that he later asked his employer to change the address again, although there is no record of that request. Furthermore, when Roctel tried to keep in contact with Mr. Mai after the accident and asked him for his correct address, he did not reply: he testified that he considered their having his correct address or telephone number irrelevant.
Other records created on Mr. Mai's behalf suggest that Mr. Mai was living with his family. The BMAC in-home assessment of June 27, 2002, was conducted at Willow Road, Mr. Mai's alleged residence. However, the kinesiologist notes at page 5 that Mr. Mai was "currently residing with his wife and children . . . in Guelph, Ontario. . . . Patient reported that he has been divorced with his ex-spouse; however, they are still living together." Mr. Mai became vehement on this point, testifying "I never tell them I lived with my wife and children, that's not true. . . . I live at [no.] Willow Road but sometimes I visit my kids, I never live there." However, in addressing one contradiction, Mr. Mai created another, as he had earlier testified that he could only visit his children in public.
Similarly, even Pace Law Firm used both addresses: when Ms. Kuhnke asked them why her letters to Mr. Mai at Willow Road came back marked "moved // unknown," they advised that he was still living at Willow Road, then that he was living at Sunset Road,12 and finally, counsel for Mr. Mai wrote on March 18, 2003, that his residence is Willow Road but his mailing address is Sunset Road.
However, I find that, if Willow Road were his residence, letters there would not have been returned marked "moved // unknown," and, if Sunset Road were only a mailing address, he would not have been videotaped apparently residing there.
This leads me to the surveillance: it shows him at Sunset Road morning, noon and night.
Mr. Mai's snow-covered car was observed at 6:44 a.m. on Friday, December 27, 2002 at Sunset Road13: the last snowfall was two days earlier, suggesting that his car had not moved since then. That afternoon, Mr. Mai was seen leaving, doing some shopping, and returning. His car was again observed at Sunset Road the next day at 6:52 a.m. and 3:35 p.m.
Mr. Mai testified that he was only staying there for a couple of days over Christmas to visit his daughter. I find his response shows how he adapted his testimony: first he says he can only see his children in public, then he suggests this was a special seasonal occasion. However, this then created a further contradiction, as Mr. Mai continued to be seen at Sunset Road long after Christmas — into January and again in March 2003.
For instance, Mr. Mai's car was there at 11:50 a.m. on Tuesday, January 7, 2003. The investigator saw him leave at 2:21 p.m. with an adult female and a child as passengers, then stopped at a school to pick up a teenage female. The group then continued to a health centre, where the others left the car. Mr. Mai testified that the passengers were his children.
Mr. Mai was again observed on January 8, 2003 going to a public school and picking up a child. In the afternoon of January 9, he was seen driving to a school with an adult female who went inside and returned with two children. They then went and picked up a teenage female from another school. I find that Mr. Mai went out with his wife, who retrieved their younger children from school, and then everybody went to pick up the teenager.
Mr. Mai was seen again on Sunday, March 23 and Monday, March 24, 2003. On the Monday, he was seen driving his teenage daughter to a day care, where she retrieved a child, then they went to a health centre while Mr. Mai waited outside, then they all drove back to Sunset Road. Mr. Mai testified that he was only "visiting" his son because he was not allowed to pick him up due to the custody situation. In light of the number of times Mr. Mai was seen at Sunset Road, I do not find that statement credible.
Again, Mr. Mai was observed driving his teenage daughter to school in the morning of March 25, driving to and from Sunset Road during the day, then returning in the afternoon after picking up his daughter. Further observations on March 26 and 27 were consistent with this pattern.
Because of the doubts raised in the documentation about his true address, the inconsistencies in his own testimony, and the strength of the surveillance evidence taken over several months, I find that Mr. Mai was living with his wife and children at Sunset Road. I find that Mr. Mai misrepresented his address and his family situation to Economical and to this tribunal.
Work
I will discuss Mr. Mai's pre-accident work history, the type and difficulty of the work, and the availability of alternative employment.
I find the work records only weakly support Mr. Mai's testimony that his work was "obviously" satisfactory. True, his initial evaluations were above average. For instance, on June 14, 1995, his overall evaluation was "definitely above average" and he was noted as a dedicated and reliable hard worker. On October 14, 1999, in his Employee Performance Review, his overall rating was good.14 However, by the summer of 2001, his work was not at that level. On August 15, 2001, the Employee Evaluation Form comments "Does just enough to get by," and the Employee Performance Evaluation form noted: "Average attendance, sometimes ask for [hours] off, because of personal problems but also volunteers for overtime when available." Mr. Mai testified that he sometimes asked for a day off when he was too tired.
More importantly, I found Mr. Mai evasive in his answers about how heavy his work was, and the evidence does not support Dr. Ng's understanding that the work was "heavy." Mr. Mai testified that as a machine operator one of his responsibilities was to pick up two bolts (one per hand) to put in the machine for finishing and then to take the finished bolts out. He did this 400 or 500 times a day. Several times he testified that he did not know the weight of the parts, although he did then estimate that they were one or two kilograms per hand. In a statement taken July 5, 2002,15 he indicated that the parts weighed 2 or 3 kilograms. He also agreed with the job site analysis by Rehability Occupational Therapy Inc. conducted December 24, 2002, by Joan McKinnell, occupational therapist in Mr. Mai's absence but with the help of Mr. Huska.16Ms. McKinnell wrote that his job as a machinist mostly involved retrieving unfinished parts weighing one kilogram from a trolley, placing them on a Twin Spindle Lathe for machining, and putting the finished parts in a bin. She noted that the job had limited strength requirements:
[C]onstant combined standing and short distance walking, frequent lifting of 1 kg parts from desk to chair height, unilateral carrying of 1 kg parts, firm grasp, occasional bending/stooping, crouching, twisting/rotating, repetitive foot motion, occasional to frequent forward reaching, occasional static head positioning, neck flexion and rotation, rare simple grasp and occasional to rare fine grasp.
However, Mr. Mai was able to correctly guess the weight of the bolts when he saw Ms. Day at New Age shortly after seeing Dr. Ng. She wrote in her initial assessment that Mr. Mai lifted parts weighing "2-3 lbs. each,17 which he lifts 600 times per day."
Dr. Weinberg, the orthopaedic surgeon who conducted an IE for Economical in July 2002, testified that Mr. Mai said he was a machinist for eight and a half years up to the accident. He said the job involved standing and bending but no heavy lifting. (At the time, Dr. Weinberg had no job description other than Mr. Mai's; he later received a job site analysis that confirmed it.)
By way of contrast, Dr. Ng testified that his impression was that Mr. Mai lifted something over 30 or 50 pounds at work. He regularly asks if the job involves heavy lifting or bending and whether the patient is able to handle it, and Mr. Mai mentioned heavy lifting. He did not ask and Mr. Mai did not tell him the details of the job.18 Mr. Mai did nothing to correct Dr. Ng's views that were repeated in his later certificate and report.
I find that Mr. Mai was not being frank in his testimony, in that he knew the lifting was not heavy. He was able to estimate the reasonable weight of the parts for others. I find he tended to exaggerate the heavy aspect of his job, such as when, after being asked what part of his job required heavy lifting, he testified that it was "all physical work" and he had to "carry heavy physical stuff." In light of his testimony, I find it believable that he told Dr. Ng his job involved lifting heavy parts. In general, I prefer the evidence of Dr. Ng over that of Mr. Mai, since Dr. Ng has no personal interest in the outcome of the hearing and his testimony, unlike that of Mr. Mai, was internally consistent.
I will now turn to Mr. Mai's testimony that Roctel offered no alternative employment. The records show that is not true. Roctel wrote to Mr. Mai several times after the accident to the address at Sunset Road.19 Mr. Mai initially testified that he heard nothing from Roctel until he was advised that he was terminated at the end of June 2002. However, on May 23, 2002, Ms. Kyla Organ, ER Manager at Roctel, wrote to Mr. Mai noting that she had received a doctor's note on Tuesday, May 21, 200220 and that she had tried to telephone him but the number he had provided was incorrect. She asked him to provide his correct address and telephone number and to have an attached form completed by himself and the doctor. She concluded: "If you fail to provide this information by May 29, 2002, your employment contract will be terminated." The letter was registered, and the Canada Post tracking record shows that the letter was "successfully delivered to the customer" on May 25, 2002.
Although Mr. Mai initially testified that he did not remember receiving this letter, he later testified that he did receive it and that it was sent to the address for all the important letters he wanted to get. However, he did not contact the company. He did not give them another address after receiving the letter because, he testified, it was the correct address.21 He testified that he did not give them a different telephone number because it was the same telephone number he had all along: "At that time they had the telephone number for my ex-wife because she used to work for the same company so either way that would have been my number also. . . . [T]hey knew that was my correct address." He testified that it was possible Ms. Organ had not been able to communicate with his ex-wife if she had answered the phone because her English is poor.
As for the attached form Ms. Organ refers to, Mr. Mai testified that he did not provide Roctel with the information it sought. He said he hoped Dr. Ng had sent the note in on time. However, the next visit in Dr. Ng's records after May 21 is May 30, 2002, after the deadline Ms. Organ had set. It also contains no reference to an additional note. I find that Mr. Mai simply ignored that first letter from Roctel and never asked Dr. Ng to fill in the form Ms. Organ had sent.
Roctel continued trying to contact Mr. Mai. Francis Gobbi, General Manager at Roctel, wrote to Mr. Mai on May 31, 2002. The Canada Post records and a later letter of Mr. Gobbi's sent June 20, 2002, suggest that either this letter or the earlier letter was returned. Mr. Mai initially testified that he did not receive this letter, and then later testified he did. The letter again asks for more information, this time by Friday, June 7, 2002. Mr. Mai testified that he failed to give the information because he thought that Dr. Ng would fill out the form and that was all they needed. He thought that, because he was seeing Dr. Ng every two weeks, Dr. Ng was filling in forms to send to his employer. Dr. Ng testified that he had no record of filling in documents for Mr. Mai's employer, and although it was possible he did so, it was not his practice to regularly report to the employer: "I don't communicate on a weekly basis for any patient with the employer." Dr. Ng testified that he has an extremely busy practice that runs more along the lines of a walk-in clinic, so I find it credible that he would not be spontaneously sending in forms to an employer every two weeks. Ultimately, Mr. Mai testified that he did not know why he had not contacted his employer after dropping off the note prepared on May 21, 2002.
The letter of May 31, 2002 is also important because it suggests that Roctel was prepared to offer alternative work. Mr. Gobbi asks in it for information on what restrictions, if any, Mr. Mai had in performing his regular duties; what, if anything, was required in order to accommodate the performance of his duties, and goes on to note Mr. Mai's obligation to provide Roctel with sufficient information to assess "whether or when you are able to return to regular or modified work." [My emphasis.] Mr. Mai's own testimony suggests alternative work was available: he had seen Roctel provide injured co-workers with different jobs in different areas of the plant. I find that Roctel was prepared to offer alternative employment.
Finally, Roctel gave up. On June 20, 2002, Mr. Gobbi sent a letter confirming that Roctel considered Mr. Mai to have abandoned his job. In chief, Mr. Mai testified that this was his first contact from the employer.22 However, he contradicted himself on whether he had received the earlier letters Roctel sent. Furthermore, during the discussion of these earlier letters, Mr. Mai testified that he felt "as though I was pressured to go back even though I wasn't prepared to. . . . I thought that I had been loyal and working for 8 years and within 2 weeks of the accident they pressured me and terminated my employment." I find this testimony also suggests that Mr. Mai had received at least one of the earlier letters. I find that Mr. Mai misrepresented that Roctel failed to contact him and find that it had attempted to and had contacted him before they terminated his employment.
I find that Mr. Mai misrepresented how heavy his job was, what efforts the employer made to contact him after the accident, and the availability of alternative employment.
Family Doctor
I will start with the issue of who was his family doctor and what he told that doctor about his pre-accident health and his job.
Mr. Mai testified that Dr. Ng was his family doctor at the time of the accident. He told Economical the same thing: the transcript of Mr. Fox's July interview with Mr. Mai reads: "Q: Has [Dr. Ng] been Mr. Mai's family physician and if so, for how long? A: Roughly 7 to 8 years already."
However, Mr. Mai's testimony about his family doctor's identity evolved during the hearing. He testified that he "never really" went to any physician after moving to Guelph, did not have a regular physician, and would only go to a walk-in clinic. He did see a Dr. Ngo in Mississauga for a skin condition or the occasional headache; other complaints were more related to fatigue. He also went to see her once or twice after the accident but did not tell her about the accident: he did not think it was relevant because he was already seeing one doctor (Dr. Ng) for that. He also did not tell Dr. Ng that he had been seeing Dr. Ngo (Dr. Ng learned of Dr. Ngo only at the hearing).
However, Dr. Ng practices in Hamilton, and Mr. Mai had not seen him from the time of his 1993 move to Guelph until two days after the accident — Tuesday, May 21, 2002 (Monday, May 20 being the holiday). Rather, from May 1995 Mr. Mai had been seeing Dr. Thai Ngo in Mississauga, and Mr. Mai continued to see her after the accident without telling her of the accident. Mr. Mai testified that he could not answer why he chose to see two doctors or why he did not tell Dr. Ngo of the accident.
Dr. Ng testified that he would like to have known that Mr. Mai kept seeing Dr. Ngo: he was unaware, for instance, that a week after seeing him on June 6, 2002, Mr. Mai saw Dr. Ngo. Dr. Ng testified that Mr. Mai should have told Dr. Ngo of the accident as well. He considered it "very unusual" that on August 1, 2002, Dr. Ngo made a note of lumbago on and off and knee pain but none of Mr. Mai telling her about the accident. Dr. Ng testified that if Mr. Mai had been seeing another doctor after moving to Guelph, then he was not Mr. Mai's family doctor.
Mr. Mai testified that he went to see Dr. Ng after the accident because Dr. Ng was closer and more convenient than Dr. Ngo and Dr. Ng had his file. However, the travel time to either doctor from Guelph is virtually identical.23 Mr. Mai also needed rides to see either Dr. Ng or Dr. Ngo so Dr. Ng was no more convenient to reach. Furthermore, the person with a current file on Mr. Mai was not Dr. Ng. Dr. Ng testified that he has a busy practice like a walk-in clinic, as no appointment is needed and the patients wait until they are seen. The patient numbers assigned by the office computer exceed 20,000 now. He had not been able to locate Mr. Mai's previous file. He wrote to Ms. Kuhnke in February 2003 that based on the patient file number Mr. Mai had been seen many years earlier and then never visited his office for many years prior to the accident: "I am unable to locate his old file even in the most current old file piles." He had no recollection of his prior treatment of Mr. Mai, did not know Mr. Mai's current address, and did not know when he had moved to Guelph. I find that Mr. Mai's reasons for seeing Dr. Ng after the accident are unfounded.
Additionally, I find that the factors of language and familiarity suggest that Dr. Ngo was Mr. Mai's family doctor at the time of the accident.
Dr. Ngo — unlike Dr. Ng — communicates in Vietnamese with Mr. Mai. Mr. Mai testified that it was easy to talk with Dr. Ngo because she is Vietnamese. I find this significant because Mr. Mai's English is not good: he had a translator at the hearing, and the assessments performed by the Insurer all had an interpreter present; the physiotherapist at New Age, Ms. Karen Day, testified that Mr. Mai only understood "social niceties"; and the Med/Rehab DAC assessments consistently suggested that Mr. Mai should be supervised by a Vietnamese speaker.24
Most importantly, Dr. Ngo was familiar with Mr. Mai's treatment.
Although as I have noted Mr. Mai testified that he had no answer for why he was seeing two doctors, he also testified that his "one or two" visits to Dr. Ngo after the accident were on Saturdays because it was more convenient for him to get rides then and Dr. Ng's office was closed those days. However, a calendar for 2002 and 200325 shows that of the eight visits to Dr. Ngo from June 2002 to January 2003, only two were on Saturdays. I find this evidence refutes Mr. Mai's explanation for seeing Dr. Ngo after the accident.
I find that Dr. Ngo was Mr. Mai's family doctor because he could converse with her in Vietnamese, required no more time to be driven to see her than to see Dr. Ng, and had been seeing her regularly both before and after the accident. Even Mr. Mai eventually testified that Dr. Ngo was his family physician (although he claimed he saw her "due to the problems with my skin"). Accordingly, I find that Mr. Mai misrepresented who his family doctor was both to Economical and to this tribunal.
I will turn now to what Mr. Mai told Dr. Ng of his pre-accident health and job. Dr. Ng testified that Mr. Mai complained of accident-related headache and painful neck, low back and right knee. I note that Mr. Mai specifically testified before me that he had no pre-accident back, neck or right knee pain. Dr. Weinberg, the orthopaedic surgeon who conducted the disability IE, also testified that Mr. Mai indicated he had no prior injury or significant illness. Dr. Ng testified that he assumed Mr. Mai had been quite healthy, at least according to the information given by the patient. Accordingly, he felt the accident contributed to Mr. Mai's complaints.
However, Dr. Ng also testified that if somebody had chronic pain and was taking medication for it before the accident, then that would be significant. Dr. Ngo's pre-accident records show exactly that: Mr. Mai complained to her of lumbago and joint pain, chronic pain in the back and knees (February 2001), left leg and right arm pain, headaches, frontal headaches for which she prescribed Tylenol 2, back pain and myalgia; in January 2002 she diagnosed chronic pain of the joints and back and prescribed Voltaren and Tylenol; and on February 9, 2002, she recorded complaints of pain in the back and knees.
Mr. Mai testified that the chronic pain in February 2001 was more fatigue due to his work, that Dr. Ngo did not refer him to a specialist for chronic pain, and that he did not tell Dr. Ng of these problems because he thought he was healed. However, Dr. Ng testified that it "definitely" would have been helpful to know that history of the pre-accident diagnosis. He also testified that the information he learned at the hearing would modify his report of a non-contributory medical history. Mr. Mai himself testified that it would have been helpful for Dr. Ng to know this history and that Dr. Ng would have filled in the disability certificates differently had he treated him for similar conditions before the accident.
I find that in this last comment Mr. Mai answered the question why he did not tell Dr. Ng of his pre-accident complaints to Dr. Ngo or tell Dr. Ngo of the accident: he did not want the disability certificates to reflect his pre-accident problems.
In light of the above, Mr. Mai testified that Dr. Ng was ignorant of his pre-accident history and of what his job involved. I find that Dr. Ng's ignorance arose through Mr. Mai's actions. Accordingly, I find that Mr. Mai's actions directly affect the weight I should give to Dr. Ng's certificates and report.
A further example of Mr. Mai's pre-accident complaints is his attempt to hide his condition from his employer. Mr. Mai testified that he did not want his employer to know of his pain complaints before the accident because "my job is important to me and if I show these conditions I will be limited where they will want me to work the next shift." He would ask for time off to get medications to make himself better. He testified that if he showed up with pain problems they would make him do a different job, and he was worried that might happen to him.
I find that Mr. Mai misrepresented his pre-accident health. I find Dr. Ngo's notes show that she recorded complaints before the accident that are in the same areas and of the same type as those Mr. Mai claim arose from the accident. I find it significant that he reported similar complaints to her after the accident, yet did not tell her of the accident. I find it significant that he did not call Dr. Ngo to testify. I find it significant that he did not tell Dr. Ng or Economical or his own employer of his pre-accident pain problems that affected his work and made him ask for time off to self-medicate. In this context, I also find it significant that Mr. Mai initially refused permission to Economical to obtain his pre-accident medical records. Accordingly, I find that Mr. Mai engaged in a deliberate process of subterfuge that had the goal and effect of supporting his claims. I find that Mr. Mai has no credibility on the issues of his pre-accident health and the impact of the accident on his health.
New Age
I will now consider contradictions about Mr. Mai's attendance at New Age.
Mr. Mai testified that Dr. Ng referred him to New Age. However, Dr. Ng was adamant that he did not refer Mr. Mai to physiotherapy, and testified that the first time he found out about the physiotherapy was on May 30, 2002, when Mr. Mai told him. He testified that he had no idea where Mr. Mai went or who referred him to physiotherapy. His notes confirm this, as the first reference appears on May 30, 2002, with the word "physio" circled. Ms. Day cannot assist: she testified that she first met Mr. Mai on the first assessment date, May 21, 2002, and did not know if anybody referred him. She testified that physiotherapists do not require physician referrals, and Mr. Mai did not discuss with her how he chose that clinic. I find that Mr. Mai appeared at New Age's doorstep through some agency other than Dr. Ng's recommendation.
Mr. Mai also told Ms. Day some inaccuracies. I have mentioned above that at the initial assessment Mr. Mai told her the police were called; they were not. At the first re-evaluation four months later he stated he had an MRI or a CAT scan a month earlier; Mr. Mai had not had any such scans. He stated he was taking Tylenol 3; he had never taken it.
Mr. Mai contradicted himself on why he stopped going to New Age. At first he testified that he stopped because he had no ride. Then he testified that perhaps financial issues prevented his going, but he had also testified that he had no knowledge of financial issues or what was owing to New Age.
New Age's notes and records provide another example of Mr. Mai's contradictions. Mr. Mai had not been compliant and had not improved over the many months of treatment. Ms. Day wrote in her September 2002 re-evaluation that "obviously [the treatment] has not been effective" and testified that the notes showed no change and no progress noted. Mr. Mai was also non-compliant with the recommendations for frequency of treatment. The penultimate entry for November 11, 2002, reads "not compliant [with] regards to progressing" and "doesn't push himself [faking/failing] ROM." The parties dispute the last two words. Ms. Day testified that they mean his range of motion (ROM) was decreasing and not increasing and that the kinesiologist told her that the word was "failing" and not "faking."
Ms. Vogelzang, the physiotherapist at the Med/Rehab DAC assessment of August 20, 2002, was referred to that entry. The first line suggested to her that although Mr. Mai was advised to increase his level of activity, he demonstrated that he was not doing it or not doing it correctly. "[D]oesn't push himself meant that he was apprehensive and would not push himself into anything remotely uncomfortable because he would not go to his true range. As for the last two words, Ms. Vogelzang testified that range of motion is not a test that one can "fail," so the only logical reading of the disputed word is "faking." In that case, Mr. Mai was displaying less range than he had available. She agreed that a possible explanation of Mr. Mai self-limiting his range of motion was to prolong the impression of disability.
I agree. I find that in this context "failing" makes no sense, and "faking" makes perfect sense. I find that the treater considered that Mr. Mai was faking his range of motion.
Conclusion on Credibility
I have set out in detail over the previous 15 or so pages contradictions both major and minor. I find that Mr. Mai's responses to the questions at issue have been by turns false, misleading and contradictory. Accordingly, I find Mr. Mai not credible.
Disability: IRB claim
Pursuant to s. 4 of the Schedule, Economical shall pay an income replacement benefit to Mr. Mai if he sustained an impairment as a result of the accident and if, as a result of and within 104 weeks after the accident, he suffered a substantial inability to perform the essential tasks of his employment.
Economical submitted that Tuesday, May 21, 2002, was a very busy day for somebody allegedly so impaired: Mr. Mai travelled from Guelph to Pace Law Firm in Etobicoke to obtain a blank disability certificate,26 went to Hamilton to see Dr. Ng and be assessed by Ms. Day, and returned to Guelph to deliver Dr. Ng's note to the employer.27
Mr. Mai submitted that he was disabled in the accident and entitled to income replacement benefits. In support of his IRB claim, he relies on the disability certificates and testimony of Dr. Ng.
Dr. Kelvin Ng testified that he has been a general practitioner since 1978, practising in Hamilton since 1985. He sees about 60 patients a day from noon until about 9:30 p.m. Only a small percentage relate to car accidents. He spent about 20 minutes with Mr. Mai on that first visit, as he had not seen him in a long time. Most visits otherwise lasted about 9 minutes on average. He advised him to take Tylenol 2 twice a day as needed, rest, and not do what he understood was a heavy job as a machine operator. He testified that about the only detail he asked about the job was if it involved heavy lifting or bending, as sometimes an operator may just push a button, but "[t]hat's not what he told me."
The major positive finding in his notes was tenderness and reduced range of motion in the neck and lower back, and the minor finding was tenderness in the right knee.
Dr. Ng testified that he completed the initial disability certificate of May 21, 2002. He does not keep such certificates in his office, so Mr. Mai or his legal representative must have brought it.28He assessed a Whiplash-Associated Disorder (WAD) grade II, although he is not familiar with the WAD Quebec guidelines.29
Dr. Ng testified that he understood a WAD II was some sprain of the neck muscles but no radiological finding or bony trauma.30 He was referred to the guideline's recommendation after six weeks: "If unresolved, obtain specialized advice." Dr. Ng testified that he did not do so.
Dr. Ng ordered X-rays in July 2002 because of Mr. Mai's persisting pain. The major finding was loss of lordosis (the normal curve of the back), which he testified can be caused by muscle stiffening. There was also some very common C5 disc narrowing.
Dr. Ng testified that the notation of painful back and neck did not change in his subsequent entries, as through to the end of 2002 Mr. Mai's condition was clinically stable, with some depression and insomnia. He tried Naprosyn, then Norflax and Elavil. He noted that it seems Mr. Mai got fired because he wrote on December 3, 2002 "no job available."31
As noted above, Dr. Ng's original disability certificate is vague. I also find that Dr. Ngo — unlike Dr. Ng — would have filled in the part dealing with treatment for similar conditions pre-accident, instead of leaving it blank.
On June 19, 2002, Ms. Kuhnke wrote to Dr. Ng, asking him to complete the certificate by providing more details, such as details of the "multiple injuries." Ms. Kuhnke eventually received a modified version of that first certificate in August 2002. Dr. Ng testified that the revised certificate is more specific than just multiple injuries, as it tells which body parts are involved. I do not find that to be much more specific.
Dr. Ng prepared a new, second disability certificate on December 3, 2002, apparently at the request of Mr. Mai or his counsel. Dr. Ng testified that it was little changed from the first certificate, except that now under primary diagnosis he could rule out a fracture since he had the X-ray to look at and was surer about writing "soft tissue injury." I find that Dr. Ng's second certificate provides no additional information or specifics about Mr. Mai's alleged disability.
The last entry is for March 18, 2003, and Dr. Ng prepared a report dated April 18, 2003 based on his records up to that point. He wrote that although Mr. Mai was improving, he was "still unable to do heavy lifting or bending as required by his machine operator job." However, he was "able to return to modified light work as tolerated if such opportunities exist at his workplace." I find this report a very weak support for Mr. Mai's disability case, since modified work duties did exist at Roctel. I find that suggests that Mr. Mai could have returned to work at Roctel, if he had taken any steps to seek the lighter duties on offer.
In that regard, I note Mr. Mai did not attempt to return to work, did not seek lighter work, did not provide the information the employer requested, and inaccurately testified that no modified work was available. I find that Mr. Mai showed no motivation to return to work. This leads me to the additional finding that it was more Mr. Mai's lack of motivation to return to work rather than any impairment that prevented him from returning to Roctel Manufacturing.
In support of its position, Economical relied on the IE report of Dr. Weinberg dated July 29, 2002.32
Dr. Weinberg testified that Mr. Mai indicated no prior injury or significant illness. Mr. Mai told him he was experiencing pain in the lower back and neck. The back pain was intermittent, aggravated by bending or sudden movements and relieved by medications or sitting. He said his neck pain was aggravated by turning his head. Regarding any return to work, Mr. Mai was concerned about bending to pick up material, but not about the material's weight.
Dr. Weinberg concluded that Mr. Mai had non-organic pain that was not explainable on a physical basis. For instance, straight-leg raising was 90 degrees on each side while seated but limited to 45 degrees on each side while supine. He testified that the discrepancy suggested symptom magnification, as there was no solid physical basis for it. Similarly, on the axial loading test, Dr. Weinberg wrote that Mr. Mai's back pain was "aggravated by downward pressure on his shoulders." Dr. Weinberg testified that this positive test also showed a non-physiologic pain response. As the physical findings did not suggest significant underlying problems to cause disability, Dr. Weinberg concluded that Mr. Mai was able to return to his job.
Dr. Weinberg testified that, in preparing his report, he looked at the Functional Abilities Evaluation (FAE) of Ms. Lisa Minello, certified kinesiologist, dated July 30, 2002, received after his assessment. However, as the report indicated that Mr. Mai gave an inconsistent and low effort, he did not consider it a reliable reflection of his functional abilities, so he could not use it as a measure of his ability.
Dr. Weinberg subsequently received the Job Site Analysis conducted December 24, 2002 by Joan McKinnell. On January 24, 2003, he then wrote in an addendum that the "requirements are similar to the description as given by Mr. Mai. The job is not physically demanding and is classified as 'limited' in terms of physical demand." Accordingly, he did not change his opinion on disability set out in the July 29, 2002 report.
Dr. Weinberg testified that he would consider a pre-accident diagnosis of chronic pain significant, especially if it were in the same area the claimant complains of post-accident, as it makes it more difficult to attribute the ongoing pain to the accident itself. I find the fact that Mr. Mai had pre-existing chronic pain further strengthens Dr. Weinberg's conclusions.
I prefer the conclusions of Dr. Weinberg over those of Dr. Ng. Dr. Ng reached his conclusions without knowing the earlier complaints of chronic pain to Dr. Ngo. Thus, he could provide no evidence on whether or not Mr. Mai actually suffered an impairment. He also had a misunderstanding about the nature of Mr. Mai's job, thinking that Mr. Mai had to lift heavy weights. He therefore could provide no accurate evidence on whether any impairment, if there was one arising from the accident, disabled Mr. Mai from his job. I accept the submission of Economical that Dr. Ng's assessments were those of an uncritical family practitioner who had a limited time to assess Mr. Mai, had to talk with him without an interpreter present, did not make a detailed examination of Mr. Mai, and had no knowledge of the pre-existing problems. By way of contrast, Dr. Weinberg had the assistance of an interpreter, did conduct a more detailed exam, and had a correct job description.
A number of other IEs obtained by Economical concluded that Mr. Mai was not disabled.
On July 30, 2002, Ms. Lisa Minello, certified kinesiologist, carried out a functional abilities evaluation IE (FAE), as noted above.33 She found Mr. Mai's effort inconsistent and low throughout minimal testing. I find particularly significant the following:
Mr. Mai stated that he could not perform any lifting, carrying, pushing/pulling, walking, climbing, balancing, range of motion, repetitive reaching, stooping, crouching, and bending tests. He was also unable to continue or complete dexterity testing.
This forms a telling contrast with the Activity Rating Chart in the BMAC functional capacity evaluation report at page 6. It shows Mr. Mai's "perceptions regarding his ability to function" on a 10 point scale for "listed activities over an 8-hour day, where 0 indicates no ability and 10 indicates ability to perform a full 8 hours." It shows that he rated himself at 7 for carrying, walking, climbing, balancing, and stooping/bending. Even for kneeling, crouching, and crawling, he rated himself a 3, lifting 10 pounds 4, pushing/pulling 5, reaching, sitting and standing 6, handling 8, and fingering and feeling 10. I find that this chart confirms the inconsistency found by Ms. Minello34 and that Mr. Mai was not as disabled as he presented himself to her.
On July 11, 2002, Atul Kaur, occupational therapist, carried out an in-home assessment IE.35Although Mr. Kaur did not consider Mr. Mai's ability to return to work, I find it instructive. Mr. Mai indicated he was "performing all of his self-care and most of his household and home maintenance." Mr. Kaur recommended no housekeeping assistance. He did recommend various aides and devices and one in-home follow-up session as soon as possible for education on proper body mechanics and the use of assistive devices. Although Ms. Kuhnke wrote to Mr. Mai on July 26, 2002, approving these recommendations, Mr. Mai never claimed them. I find this a typical example of Mr. Mai's lack of interest in actually recovering or doing anything to make himself better.
Mr. Mai seeks payment for the psychological report of Dr. Raghunan dated November 5, 2002. No Vietnamese translator was present, about which Mr. Mai said: "At that time there was no interpreter to assist, so anything I could answer, I gave my response." In the report, Dr. Raghunan concludes that Mr. Mai "continues to be substantially disabled as a result of his trauma" arising from the accident. However, I place no weight on this report. As discussed below, in my dismissal of the claim for payment of the report, it had no value and shows considerable ignorance about Mr. Mai.36
By way of contrast, the psychological assessment conducted by Dr. Young of Merit Assessment Centres on July 22, 2002 had a Vietnamese-speaking interpreter present. Dr. Young concluded that the mild depressive symptoms did not support a diagnosis of major depressive disorder. Mr. Mai endorsed many daily problems (sore throats, poor posture, a lack of job experience), but few were accident-related. I have already referred to the bizarre symptoms Mr. Mai showed. Dr. Young concluded that while Mr. Mai may have suffered a degree of emotional upset from his accident, he did not find "consistent or compelling evidence that he is any way impaired or disabled psychologically." He could not assess Mr. Mai's physical status, "which, by his admission, is his main reason for not returning to work." I prefer the report of Dr. Young over that of Dr. Raghunan because I place no weight on the latter's report. I also note that the psychological DAC found no basis for treatment, reinforcing my finding that there is no psychological disability preventing Mr. Mai from working: if he did not even need psychological treatment, he could not be psychologically disabled from working.
Mr. Mai seeks payment for the cost of an assessment on December 2, 2002 (report dated December 3, 2002), by Dr. P. Kominek, chiropractor. Again, as with all the reports prepared on Mr. Mai's behalf, no translator was present. Mr. Mai was referred there by Pace Law Firm. I place little weight on the report. It contains several inaccuracies. Dr. Kominek writes: "Mr. Mai says that since his accident he has been hospitalized for shortness of breath that he relates to his neck pain." Indeed, Mr. Mai was hospitalized in early June 2002, but not for neck pain. He was seen in Dr. Ng's office June 6, 2002 for a sore throat and fever and was treated for an infection of the throat. Dr. Ng testified that he specifically advised Mr. Mai to go to the hospital right away if he had a problem with swallowing, which I find explains Mr. Mai's June 10, 2002 admission to Guelph General Hospital. Dr. Kominek writes that Mr. Mai was unable to return to work "because he says that his job requires repetitive heavy lifting duties. . . ." This is inaccurate because the lifting was not heavy. He also writes that Mr. Mai was "recently released from employment at Roctel Manufacturing." This is also inaccurate because Mr. Mai had been fired in June 2002. He writes that Mr. Mai stated his "friends must call him and visit him at his residence because he is in too much discomfort to leave the house." That same month and over the following months Mr. Mai was videotaped driving around, dropping off and picking up his children, shopping, going to a car repair shop and bending over and crouching to show the problems with his car, and otherwise carrying on unimpeded. I find this shows that Mr. Mai grossly exaggerated his "disability" to Dr. Kominek. Finally, Mr. Mai did not tell Dr. Kominek that he had been diagnosed with chronic pain in the relevant areas before the accident. Based on these inaccuracies, I place no weight on Dr. Kominek's conclusion that Mr. Mai is suffering from a mild to moderate level of impairment.
I find the reliable medical evidence shows Mr. Mai was not disabled. I find that Dr. Ng founded his conclusion on disability based on Mr. Mai's subjective complaints, which are not credible. Therefore, I find that Dr. Ng's conclusion is unfounded. The same applies to the other reports upon which Mr. Mai relies.
Accordingly, I find that Mr. Mai does not meet the test for disability under s. 4 of the Schedule because he has not proven that he suffered a disability as a result of the accident or, if he did, that it prevented him from working. Accordingly, I find he is not entitled to income replacement benefits.
New Age treatments
Mr. Mai seeks a medical benefit of $8,620 for physiotherapy and massage treatment received at New Age Recovery Systems in Hamilton, Ontario, from May to November 2002. New Age issued a total of four treatment plans, two for massage therapy and two for physiotherapy. As set out below, the first massage therapy and physiotherapy treatment plans were assessed at a Med/Rehab DAC together; the other treatment plans were assessed separately.
The DACs uniformly rejected the treatment plans.
Subsection 14(1) provides that an insurer shall pay an insured person who sustains an impairment as a result of an accident a medical benefit.
I find that Mr. Mai's lack of credibility makes it impossible to determine if Mr. Mai suffered an impairment as a result of the accident. Due to his lack of credibility, I place no weight on his evidence on this point. Mr. Mai did not reveal to Dr. Ng or his other assessors or treatment providers the extent of his pre-accident problems, so they could not assess whether or not he suffered an impairment as a result of the accident in the form of either an aggravation of the pre-existing problems or a new impairment. The only person who could have given reliable evidence on any impairment resulting from the accident was Dr. Ngo — who never even heard of the accident. Accordingly, my first ground for rejecting this claim is that I find there is no reliable evidence that Mr. Mai sustained an impairment as a result of an accident.
Even if Mr. Mai sustained an impairment as a result of the accident, s. 14(2) requires that the medical benefit shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for the medical services claimed. If the expenses are not reasonable and necessary they are not payable. Economical did pay for the first six weeks of physiotherapy treatment as required under s. 38(16) of the Schedule. It refused to pay the rest of the treatments after the various Med/Rehab DACs concurred that the expenses claimed were not reasonable and necessary. It was prepared to pay for the treatments the DACs did recommend, but Mr. Mai never submitted treatment plans in relation to those recommendations.
Background to the treatment
The witnesses about the treatment, aside from Mr. Mai, were Ms. Day and Ms. Lisa Vogelzang, physiotherapist at the first Med/Rehab DAC.
Ms. Day testified that she has worked as a registered physiotherapist since 1975 except for two years from 1999 to 2001. She has worked at New Age Recovery Systems Ltd. in Hamilton since April 2001. In her initial assessment of Mr. Mai on May 21, 2002, Ms. Day noted that Mr. Mai had reduced cervical range of motion and lumbar flexion. She diagnosed a WAD Grade II lumbar strain with right sciatica. She planned treatments to be daily for the initial week or two and then three times a week for six to eight weeks, as set out in her treatment plan of that day. The $4,824 cost was based on $149 per treatment.
Ms. Day testified that she signed off for a second treatment plan dated May 24, 2002 for massage therapy prepared by New Age's registered massage therapist. She could only give her belief on how he arrived at the estimated cost for that treatment plan.
The two initial treatment plans for physiotherapy and massage therapy were assessed by Ms. Lisa Vogelzang, physiotherapist, and Dr. John Cochrane, chiropractor, at the Wellness Rehabilitation Centre Med/Rehab DAC on August 20, 2002.37 The assessors rejected massage therapy; as for the physiotherapy, they concluded that Mr. Mai "would benefit from an active program for the frequency and duration outlined in the disputed physiotherapy plan ... but the cost should not exceed $3060" and the "Active Program should occur at a local facility supervised by a professional who speaks his language and is able to communicate the hurt vs. harm principles."
On September 10, 2002, Ms. Kuhnke wrote to Mr. Mai, copied to Pace Law Firm, agreeing with the DAC's recommendations for local active treatment in his language, and enclosing blank treatment plans for the local facility. Mr. Mai never submitted them.
The next New Age treatment plan was that of August 28, 2002 for more massage therapy. It was assessed at the Wellness Centre on October 15, 2002. The massage therapy was again rejected "because one half hour massage is too brief to be of benefit for the claimant's impairments and all therapeutic gains are nullified with the long drive to and from Hamilton from his home in Guelph."
Ms. Day testified that she re-evaluated Mr. Mai on September 25, 2002. Ms. Day testified that Mr. Mai had not really progressed. For instance, the note for July 2, after 6 or 7 treatments, reads: "Progress is slow." She testified that if Mr. Mai had been compliant, he would have had 34 treatments by mid July. She testified that in soft tissue injury cases patients usually progress slowly for the first 6 to 8 weeks, so she hopes for 50 percent improvement by two months. Patients who progress go on to strengthening. Mr. Mai had not completed the proposed number of treatments from the first treatment plan, so she had not expected great changes. She prepared the second physiotherapy treatment plan of September 25, 2002 based on her re-evaluation of Mr. Mai that day.
Ms. Day's second treatment plan was assessed at Wellness on November 21, 2002 by a physician and physiotherapist. They did not support it "because he has reached maximum therapeutic benefit with a formal program." They recommended "more follow-up with his family doctor (who speaks his language)38 so that he is encouraged to exercise more vigorously (hurt does not equal harm principle)." They assumed that since his physiotherapist does not speak Vietnamese, an "integral part of treatment" — the explanation of hurt versus harm — had not occurred. They recommended one follow-up visit with a physiotherapist (accompanied by an interpreter) to set up an independent home program. Ms. Kuhnke approved that DAC on November 29, 2002; Mr. Mai never submitted a treatment plan based on that DAC.
Mr. Mai still did not improve, as shown in the notes. Ms. Day testified that the penultimate note of November 11, 200239 reads: "Proceed as before -> not compliant [with] regards to progressing -> doesn't push himself [failing/faking] ROM." She testified that the second comment means Mr. Mai was non-compliant in following the strengthening program recommended in the second treatment plan. I have already discussed the last two words of that entry and found that the treatment provider concluded Mr. Mai was faking his range of motion.
Economical submitted that several aspects show that the treatment was not reasonable and necessary. It relies on all the DAC findings that Mr. Mai needed more active treatment by a Vietnamese speaker, delivered locally, as the Hamilton-Guelph commute vitiated any relief provided by the treatment because of Mr. Mai's bad back. It submits that even Mr. Mai and Ms. Day considered the DAC recommendations valid, once they were pointed out to them at the hearing.
DAC recommendations
Important aspects of the recommendations were for "local," "active" treatments conducted by someone speaking Vietnamese. For instance, the second DAC of October 15, 2002 (dealing with the second massage therapy treatment plan) wrote:
[Mr. Mai] remarked that the clinic in Hamilton had a receptionist that spoke his language and interpreted for him, otherwise all the practitioners couldn't speak to him with his limited understanding of English. He would travel forty-five minutes each direction for what he recounts as "brief" care with massage therapy and his active exercise program. When he returned to Guelph, by his own admission, he had no positive relief from his symptoms.
Regarding location, Mr. Mai testified that the clinic "was inconvenient due to the distance" but he did not look for a closer clinic because "from the initial appointment with Dr. Ng, he referred me to this clinic, and ever since I just followed up with him and didn't bother changing." Ms. Day testified that she did not know where Mr. Mai lived when she first met him and had "no thoughts" about Mr. Mai commuting from Guelph for the treatment, once she learned his address. However, she knew the Hamilton-Guelph trip takes about 45 to 60 minutes and noted in her initial assessment that Mr. Mai, after sitting for that period in the waiting area before the initial assessment, had "poor posture in the sitting and standing position and was uncomfortable, changing positions often throughout the interview." She agreed "absolutely" that in terms of his physical comfort it would have been better for Mr. Mai not to make that trip and that it made more sense to get treatment in Guelph, but "he had the choice." It did not occur to her and she did not suggest to him that he might want to seek local treatment.
Ms. Vogelzang testified that the DAC team noted Mr. Mai's low sitting tolerance: after 40 minutes of sitting he had increased pain and difficulty getting out of a chair. Accordingly, they found that there was no point to the drive between Guelph and Hamilton, as he would suffer more just getting there and then suffer again coming back, and whatever problems he had were not specialized enough to require leaving town.40
Mr. Mai testified that he was uncomfortable sitting, that the round trip for treatment took about an hour and 40 minutes, and that local treatment by a Vietnamese-speaking treater was preferable. He testified that he agreed with the DAC recommendations for him to attend a local facility, as the drive was physically hard for him and it would have been better to have treatment closer to home. He did not know why he did not follow the DAC recommendations: "You're correct, they had advised for me to go to a local area rather than to go from Guelph to Hamilton, you're right." He did not recall discussing them with Ms. Day, Dr. Ng, or his representatives, as "otherwise I would have done what they asked me to do." He did not recall the legal assistant at Pace Law Firm, Mr. Nguyen, who speaks Vietnamese, telling him that the Insurer would have paid for the prescribed treatment.
Mr. Mai submitted that the DAC breached its guidelines that prohibit recommending specific providers. Ms. Vogelzang testified that she and Dr. Cochrane had not recommended any specific provider, just that the provider should be local for Mr. Mai. She understood assessors can make recommendations regarding a provider's location or skill level. She testified that although a person can choose where to go for treatment, it was not reasonable for Mr. Mai to go to Hamilton: the treatment was no more beneficial than treatment in Guelph and the trip may have had a negative impact on his recovery. I find that the DAC did not breach the guideline.
Regarding the type of treatment, Mr. Mai's own treatment providers and assessors suggested the treatment should be more active. Ms. Day wrote at the September reassessment that "obviously [the treatment] has not been effective" and testified that the notes showed no change and no progress noted. She and Dr. Kominek both recommended more active treatment.
Ms. Vogelzang testified that a more active program would allay Mr. Mai's fear of pain by proving to him that he was not harming himself, and would make him more functional. She and Dr. Cochrane, the chiropractor, thought that the sessions should be one-on-one.
As for language, counsel for Mr. Mai submitted that Mr. Mai often testified in English and only used Vietnamese because he felt uncomfortable. However, most of the testimony was translated. The records also show that Mr. Mai was not particularly fluent in English. He testified that part of his good relationship with Dr. Ngo arose "because she is Vietnamese." Dr. Kominek wrote that due to the lack of an interpreter "frequent clarification of questions and answers was necessary throughout the assessment." When asked when he needed the translator's help during the initial assessment with Ms. Day, Mr. Mai responded: "She basically helped me the whole time." Ms. Day testified that Mr. Mai only understood "social niceties." It is true that Ms. Day testified that she did not use the translator at the re-evaluation because by then Mr. Mai felt comfortable with her and she had "got used to his little bit of English by that time." However, Mr. Mai testified that during his second assessment with Ms. Day there was an interpreter present and his "answers were in Vietnamese then." I find that counsel overstated Mr. Mai's facility in English.
Ms. Vogelzang testified that there was perhaps a lack of communication between Mr. Mai and the practitioners and perhaps he would be more encouraged to pursue an active program if somebody could speak to him in his own language. His need for an interpreter for the entire DAC meant to her that he had difficulty understanding without an interpreter.41 She was confident that the chances of finding a Vietnamese therapist in Guelph with the necessary skill set were high.42
Mr. Mai agreed that it would have been better to be treated by somebody who spoke Vietnamese. Ms. Day also agreed with the recommendation for local treatment by a Vietnamese-speaking professional.
I find that Mr. Mai would have had an easier time communicating with a Vietnamese-speaking treater, as recommended by the DACs. I find that the treatment should have been local, as the travel removed any beneficial effect of the treatment. I find that the treatment should have been active. Accordingly, I find that the treatment recommended by the DACs was sensible, a proposition with which even Mr. Mai and Ms. Day agreed, and I find that the DACs were correct in finding New Age's treatments not reasonable and necessary on those grounds.
The next ground on which Economical submits that the New Age treatment is not reasonable and necessary is that the treatment was poorly documented and provided in a vacuum without considering Mr. Mai's needs or the DAC recommendations.
Ethical Guidelines, Documentation and Follow-Up
Economical submitted that New Age's treatment was unreasonable because it failed to meet physiotherapists' guidelines for documentation and follow-up.
For instance, Ms. Day's initial assessment contains no discussion of Mr. Mai's pre-accident status. Ms. Vogelzang testified that as a member of the Canadian Physiotherapy Association, Orthopaedic and Sports Divisions, she is familiar with its Code of Ethics and Rules of Conduct. Rule 543 under Responsibilities to the Client requires physiotherapists to do a good physical exam, to try to identify problems as best they can, and to link the treatments to the problems that need to be considered. They must also try to understand the personality of the client and their culture and family situation, in order to understand factors beyond the physical that may affect treatment or recovery. One principle is that claimants cannot be rehabilitated beyond their pre-accident status and cannot expect treatment for the accident will fix their ongoing problems. Thus, Ms. Vogelzang testified, before preparing a treatment plan the physiotherapist should know of pre-accident back and joint pain, headaches and fatigue in order to distinguish pre-existing problems from new accident-related ones.
With respect to documentation, Ms. Day testified that she is familiar with the Code of Ethics. Item 9 under Responsibilities to the Client provides that the physiotherapist shall document "explanation to the client, progress notes and discharge summary." Ms. Day testified that she did not necessarily mark down any explanations to Mr. Mai: for instance, any discussions with him about non-compliance are undocumented. She did not write a discharge summary because for unknown reasons Mr. Mai stopped coming.
Ms. Day testified that, although the treatment notes lack Mr. Mai's name, they are his. Ms. Vogelzang testified that the notes should clearly indicate the patient and the treating and auxiliary practitioners: without that, the source of the notes and the decisions regarding progress are unknown.
Ms. Day testified that the staff kinesiologist created the handwritten log notes from May 23 to November 27, 2002, but she herself did not know who did what to Mr. Mai because she made no personal notes about his treatment. Her only personal notes were for her assessment and reassessment.
Ms. Vogelzang testified that items 11 and 12 under Responsibilities to the Client of the Code of Ethics provide that while physiotherapists may, with the client's consent, delegate specific aspects of the client's care to a competent person, the physiotherapist remains responsible for all duties delegated to personnel under their supervision. Ms. Vogelzang testified that people who assist — like kinesiologists — can chart, but the responsible physiotherapist is expected to assess and document the progress regularly. As to the notes themselves, Ms. Vogelzang considered that they lacked objective documentation. She noted the many entries of "No change. [Proceed] As before." It surprised her that there were so many of these entries and that the assessments only contained non-specific indications of poor range of motion.
With respect to follow-up, Ms. Day testified that she did not read the DAC recommendations during the treatment period: "They really mean nothing to me." She did not discuss them with Mr. Mai and had no idea if anybody at New Age told Mr. Mai he would have to pay for unapproved services.
Ms. Vogelzang testified that a treater who receives a DAC is obligated to discuss it with the client and the resulting course of treatment. She was surprised that Mr. Mai did not change his treatment and that the physiotherapist did not assist him in attempting to implement the DAC recommendations.
As noted above, Ms. Day had "no thoughts" about Mr. Mai commuting from Guelph for the treatment. Ms. Vogelzang testified that the Code of Ethics meant the physiotherapist should have discussed the issue of the trip back and forth, as it affected Mr. Mai's clinical condition.44
Ms. Day testified that she had no idea if anybody at New Age ever discussed Mr. Mai's funding status with him or told him he would have to pay about $8,600 for unapproved services. Ms. Vogelzang testified that funding would have to be discussed if the DAC considered the treatment plan unreasonable,45 as how the treater tailors a program is done closely with the client, and one big factor is the fee structure. Here, Mr. Mai should have had the opportunity to know that he could be liable for the ongoing treatment, especially where the insurer would have been obligated to provide local treatment.
Ms. Day testified that she is familiar with Chart 2 of the WAD Guideline. Chart 2, the WAD Case Management Guide, states that at three weeks: "If unresolved, reassess." The Guide states at six weeks: "If unresolved, obtain specialized advice." Ms. Day testified that, despite the Guide, she waited to reassess at the end of the treatment plan (in other words, about four times as long as recommended in the Guide). Ms. Vogelzang testified that Ms. Day's reassessment report three months after starting treatment was a long time to go between assessments, especially when there was no improvement. If the pain is unchanged it means the treatment is not directed appropriately or is not addressing the problem, meaning it was necessary to change the treatment. She testified that possible explanations for the many entries showing no change were that Mr. Mai had not been educated to know that it is good to progress by adding weights, that his particular problem had not been identified, or that he was simply self-limiting.
I found the testimony of Ms. Vogelzang consistent and convincing. I found the testimony of Ms. Day showed a remarkable apathy towards Mr. Mai's well-being, both financial and physical. I find that New Age's treatment was not reasonable and necessary because it failed to properly supervise Mr. Mai's recovery, failed to properly document his treatments, failed to consider Mr. Mai's geographical and financial situation in providing the treatment, and failed to properly reassess him within a reasonable time frame. Accordingly, the claims for the treatments at New Age are denied on this basis as well.
A further ground on which Economical submits that the New Age treatment is not reasonable and necessary is that Mr. Mai himself had little interest in the treatment because he did not improve, did not push himself, failed to comply, and eventually simply abandoned the treatment.
Lack of interest by Mr. Mai
Ms. Day testified that Mr. Mai was non-compliant: by early July he had attended barely more than once a week on average. She did not discuss with him why his attendance was poor, although she did discuss with him that it was slowing his progress: "Compliance is entirely up to the patient. It's not my job to run them down, just to treat them when they're there."
I find that the notes show Mr. Mai's lack of interest in the treatment plans. He did not progress: Of the 40 attendances from May 23 to November 27, 2002, I count 33 containing some variation of either or both of the phrases "no change"and "proceed as before." He did not comply, as shown in the notes:
May 27: "P[atien]t is very hesitant to perform exercises."
May 30: Mr. Mai was "unable to complete ex[ercise] today [because] of time."
June 19: "Compliance is problematic, but progress is not obvious."
July 2: "Progress is slow. P[atien]t is still well guarded, slow & deliberate. Exhibits acute [pain] symptoms."
August 9: patient "may be limiting some ex[ercise]."
August 21: Mr. Mai "is not progressing" and "[s]till demonstrates acute [pain] characteristics."
November 11: Mr. Mai was "not compliant [with] regards to progressing."
I find that these records show a lack of interest by Mr. Mai in the treatments or in improving as a result of them. I find Mr. Mai's sporadic attendance and lack of effort means that he was not interested in recovering from his accident-related injuries (which, as I have found, he did not have). I draw the adverse inference that, instead of seeking treatment to recover from his disability, Mr. Mai sought treatment simply to prove his disability. That does not make the treatment reasonable and necessary. The claims for the treatments at New Age are denied on this basis as well.
The final ground on which Economical submits that the New Age treatment is not reasonable and necessary is that the amount of treatment is essentially undocumented and that, based on Mr. Mai's testimony, New Age charged for more treatment than it provided.
Overcharging
With respect to New Age's invoices, Ms. Day testified that she has never reviewed them and gave no testimony on them. The kinesiologist treated Mr. Mai. When asked what treatment Mr. Mai received on May 23, 2002, Ms. Day replied: "I have no idea." She did not sign time sheets but simply marked a calendar to docket her work, and then gave the administration her hours. I find this lack of evidence provides weak support for the amounts being claimed.
Ms. Vogelzang testified that work units are paid based on one-on-one treatment with the practitioner. From what Mr. Mai told her, it was not clear to her that he received that kind of treatment. Furthermore, the pay rate for work units is based on a physiotherapist's treatment; personal trainers or kinesiologists receive less. I find that, even if Mr. Mai attended for the number of hours New Age claims, it overcharged because of the lack of evidence that Mr. Mai received one-on-one therapy from a physiotherapist.
Furthermore, the Insurer disputed the time New Age invoiced for treating Mr. Mai, based on information from Mr. Mai himself. Thus, at the first DAC, Mr. Mai reported to the assessors that he spent about 30 to 40 minutes in the clinic, whereas most of the invoices from New Age were for longer periods than that.
Mr. Mai repeated these allegations in his testimony. For instance, when counsel pointed out that New Age recorded 1.5 hours of treatment for May 24, he testified: "No, that's impossible." The record was similar for May 27, and when asked if he was there that long, he responded:
No. Whether or not the waiting time they bill for, that is possible, but therapy — maximum is 45 minutes. Collectively all the therapy was 35 to 45 minutes everything. Waiting time maybe. For example if I get there earlier, I wait in the reception area. If therapy asks me to go in, otherwise I wait.
This is one area where I am inclined to accept Mr. Mai's testimony because it is against his interest, because it was one of the few areas of testimony where Mr. Mai became animated without being defensive, and because he was consistent in his reports of the time spent at New Age when discussing his treatment with the DACs. For instance, at the August 20, 2002, Med/Rehab DAC, he reported to the assessors spending 30 minutes per visit in the New Age clinic, and although the individual times when added up total 40 minutes,46 that is still within the range of time to which he testified. Similarly, he informed the assessors at the October 15, 2002 Med/Rehab DAC that he travelled to Hamilton "for what he recounts as 'brief care with massage therapy and his active exercise program." I also accept the submission of the Insurer that there was no reason for Mr. Mai to understate the treatment he was receiving if he wanted to have Economical believe that he was significantly impaired.
Accordingly, I accept Mr. Mai's testimony that his treatments lasted a maximum of 45 minutes when he attended at New Age. The summary of New Age invoices47 show that of 36 attendances invoiced, only 4 were up to 45 minutes, and the rest were invoiced from 1 to 2.5 hours. I find that treatment was not reasonable because it was not being delivered.
Conclusion
Mr. Mai submitted that it was his "choice" where to go for treatment. However, I do not find that argument convincing in this case. I have found that Dr. Ng did not refer Mr. Mai to New Age. I do not know how Mr. Mai came to choose New Age, but I find that the "choice" appears to have been made for reasons other than treatment to lessen any accident-related symptoms. Both Mr. Mai and Ms. Day testified that the DAC recommendations were sensible. I find that driving a total of an hour and 40 minutes for 45 minutes of treatment was not, especially where the ride back destroyed whatever was achieved during the treatment. I also find that Mr. Mai's own lack of effort and interest in the treatment meant that it was not reasonable and necessary. I find that New Age overcharged for the treatment because it failed to prove the length of time of the treatments or that they were provided by a physiotherapist. Accordingly, the claim for the treatments at New Age is denied.
Section 24 claims
Subsection 24(1) of the Schedule provided that48 the insurer shall pay "for all reasonable expenses" incurred by Mr. Mai "for the purpose of this Regulation" in obtaining the kinds of examinations and reports he claims under this heading.
Since I have found that Mr. Mai has not proven he suffered a disability in the accident, assessments of his disabilities are not for the purpose of the Schedule and are denied on that basis.
Furthermore, arbitration and appeal decisions have now made it clear that s. 24 does not grant a free-standing entitlement forcing the insurer to fund assessments obtained by an insured that are not related to a claimed benefit.49 I find that the reports claimed fall into that category.
In some cases the invoices went directly from the assessor to the Insurer without the involvement of Mr. Mai or his representatives and in the absence of a direct billing agreement. Thus, I find that BMAC is not entitled to payment simply on the basis that it directly billed Economical. As was stated in Tanzos, direct billing is at the option of the insurer and is only about payment. Dispute resolution is for disputes between insured persons and insurers and is not meant to serve the needs of creditors such as BMAC who wish to collect on their accounts.
Furthermore, as was stated in Smith, s. 24 creates the potential for assessor-driven claims like BMAC's, where the insured person has little involvement in the litigation process beyond signing an open-ended authorization. Mr. Mai did sign such an open-ended authorization.
The authorizations were signed on June 16, 2002. BMAC had Mr. Mai sign forms authorizing its personnel "to act on my behalf to collect any outstanding amounts owing" and "irrevocably" authorizing and directing his insurer "to pay all benefits for services and payable under the policy or claim directly to [BMAC] and not to me directly or to me and Burlington jointly." Mr. Mai testified that although he signed, he did not remember if anybody explained it thoroughly: "I don't know why I was responsible for their billings." He testified that it was also not explained to him that he gave them authority to start mediation and even arbitration proceedings on his behalf for which he could be liable in costs.
I find that this claim was assessor-driven. Ms. Kuhnke wrote to BMAC on August 23, 2002, asking for the purpose of the evaluations and the identity of the referral source. She also noted that since there was no agreement for direct billing, "the insured must apply for the benefit directly. . . ." [Bold in original.] Ms. Kuhnke testified that, other than the current proceedings in which it was agreed to add BMAC's claims, Mr. Mai never applied to be paid for these assessments. It was BMAC that applied for mediation of its assessments on September 7, 2002, with an application that was not signed by Mr. Mai.
As was stated in Smith, s. 24 "does not contemplate stand-alone assessments initiated by service providers without reference to treatment needs or claims for other benefits."
I find that the BMAC assessments are free-standing. There is no evidence as to their origin and the reports have no referral source. Mr. Mai did not even remember attending their facility for the FCE. There is no referral letter in the BMAC file. Dr. Ng's clinical notes and records contain no referral by him to BMAC, none of their reports, and no reference that he used them in his treatment. Dr. Ngo's records have no reference because she does not know about the accident. New Age's records contain no referral and no reference that the reports were ever seen or used by New Age in its treatment. Ms. Day gave no evidence that the reports were ever used in her treatment plans.
I find that the reports were not provided to Economical to help it adjust the file in determining Mr. Mai's treatment needs or assessing his claims for other benefits. Mr. Mai did not advise Economical of the reports in a timely fashion: although he knew that the assessments had been conducted and that Economical was planning its own identical assessments, he said nothing of the BMAC assessments when he was interviewed on July 5, 2002. Ms. Kuhnke testified that she had no contact from BMAC or from Mr. Mai before receiving the assessments in August 2002.
I find that the assessments do not relate to a claimed benefit. Thus, despite the recommendations in the In-Home Assessment report, Ms. Kuhnke testified that Mr. Mai never claimed benefits for housekeeping, attendant care or child care. Similarly, although the report claims Mr. Mai stated he was not able to drive after the accident, Mr. Mai never made transportation claims.50
In assessing reasonableness, it is appropriate to consider the ultimate opinion's value.51The In-Home Assessment appears to be a re-writing of a master template. For instance, the Table of Contents refers to "The Elevator," but there was no discussion of an elevator in the report. At page 6, it notes that Mr. Mai "feels her neck and shoulder are not as stiff as before," [emphasis added] and at page 10 notes that the noise level is "quite." In any event, the reports are essentially valueless because of the contradictions between Mr. Mai's testimony and what was assessed. The In-Home Assessment was carried out at Willow Road, but it states that Mr. Mai was "currently residing with his wife and children" and went on to recommend 21 hours of child care per week. However, Mr. Mai was adamant that his wife and children never lived there at Willow Road, and he had testified that he only saw his children for a few hours on Saturdays. If Mr. Mai was not living with his children, the report is based on incorrect family assumptions. If, as I have found, Mr. Mai lived with his family on Sunset Road, the assessment was not carried out at Mr. Mai's home, and so is based on incorrect geographical assumptions. Either way, the reports ultimately have no value.
I find that the claims for BMAC's assessments are not for the purpose of the Schedule because they are free-standing claims pursued by BMAC for its own interests and without reference to a claimed benefit and are also valueless. The claims are therefore denied.
I find that the report of Dr. Kominek is also not for the purpose of the Schedule. Mr. Mai never received chiropractic services and he never claimed them from Economical. The claim for the cost of Dr. Kominek's report is denied.
Similarly, I find that the report of Dr. Raghunan bears no reference to a claimed benefit and that the referral was not for the purpose of treatment recommended by any family physician. Mr. Mai did not seek and never claimed psychological services. Although the report was copied to Dr. Ng, and Dr. Cheryl Gillin-Garling (the psychologist who carried out the psychological DAC) stated that Mr. Mai reported that "he does not know who referred him to Dr. Raghunan for psychological assessment," Mr. Mai testified that "Joseph Nguyen sent me" because "he explained to me I should see a psychologist to find out what's happened to me and he would write a report." He testified that neither Dr. Ng nor Dr. Ngo suggested he see a psychologist: "I never suggested or asked for it. Only when they [referring to his counsel] told me did I go." Accordingly, I find Dr. Raghunan's report had little value to those treating Mr. Mai.
Furthermore, I find that Dr. Raghunan's psychological report had little value to Mr. Mai himself. Mr. Mai had great difficulty recalling this psychological assessment: "Basically the assessment that Dr. Raghunan conducted that day was the same as other assessments. I lay down and I performed specific tasks then I explained to him what was hurting." [My emphasis] As for Dr. Raghunan's recommendations, Mr. Mai testified that "he talked a lot. I don't recall what he said."
I find that this psychological report has little intrinsic value. When Mr. Mai finally remembered this assessment, he confirmed that it was done without an interpreter. I find this to be a fatal flaw, as it calls into question the validity of Mr. Mai's responses, especially since Dr. Raghunan relied entirely on Mr. Mai's verbal descriptions: Mr. Mai testified that there was no testing, and Dr. Raghunan just asked a series of questions while he ticked off boxes. He testified: "He had a series of questions or tests and he was the one filling out the forms as he was asking questions. . . . I don't remember filling out any forms or test forms."
Furthermore, Dr. Raghunan did not review the medical documentation, such as Dr. Young's assessment, and relied solely on the verbal history by Mr. Mai. As I have detailed above, Mr. Mai's recollection is unreliable. The report is based on Mr. Mai's allegedly disturbing memories of the incident. However, Mr. Mai had a limited memory of the accident for, as noted above, his descriptions do not match the collision report. Dr. Raghunan says Mr. Mai is now vigilant and afraid, but Mr. Mai testified that he started to drive soon after the accident, he was not nervous, purchased two other vehicles since the accident, was a regular passenger in vehicles, and purposely chose to travel by car to Hamilton and Mississauga. I find that the incident was not as traumatic as Dr. Raghunan says and that his findings are baseless as the accident did not have the claimed effect on Mr. Mai.
The social history set out by Dr. Raghunan again shows incorrect premises. He states that, after fleeing Vietnam, Mr. Mai's "emotional and physical health was reportedly good, as he did not feel threatened by the war" and that Mr. Mai was not in active combat in any military or naval operation. Mr. Mai testified that he did fight in the war, that it was a hardship living under the regime, and that it was stressful running away from the Communists.
Dr. Raghunan wrote that after finishing the equivalent of Grade 11 in 1970, Mr. Mai apprenticed as an automobile mechanic and then as a fisherman. Mr. Mai testified that he only worked as a labourer after finishing high school and after his army service.
Mr. Mai described himself to Dr. Raghunan as "a very healthy, strong and happy person," but the medical evidence shows otherwise: he had pain complaints, chronic pain, saw Dr. Ngo once a month, had a significant skin disorder, and had fatigue problems requiring him to take time off work.
Dr. Raghunan says that although Mr. Mai mourned the death of an older daughter from cardiac failure in 1996 and the death of his father, he had "no abnormal bereavement, as he believed that they were natural events." He went on to note: "His divorce brought peace to his wife, children and himself." However, Mr. Mai testified that these events are difficult for him to this day, as shown in this exchange during cross-examination:
So you have been divorced 4 or 5 years now? Yes.
Was it a difficult time for you? Yes.
And because of the divorce you have limited access to your kids? Yes
And is that difficult for you? Yes it is. Again as I am concerned I don't see the relevance again, with my history and my divorce.
I ll get to it and it’s relevant in the big picture. I don't like to be asked about it.
Is that because it’s uncomfortable for you? The reason I don't want to talk about it is the outcome. When I sponsored my kids over, they died, and that's part of the reason for divorce.
So you had two children who died? One daughter died.
That must have been very hard for you? That's why I don't want to go back to that time. It still bothers you today? Yes. I don't want to talk about that.
I find that Dr. Raghunan was not aware of the impact of these events on Mr. Mai.
Finally, arbitrators have placed little value on Dr. Raghunan’s reports. For example, in Pham,52Dr. Raghunan was noted to require an interpreter to communicate with his Vietnamese patients; in this case, Dr. Raghunan did not even have an interpreter for his assessment of Mr. Mai. His descriptions of Mrs. Pham's claim that she "suffered from intrusive thoughts, memories and nightmares about the accident" appear to have been imported verbatim into his very similar comments that Mr. Mai "does not have control of the intrusive and distressing memories of the accident."
The senior arbitrator in Pham was also troubled by "Dr. Raghunan's tendency to explain away the inconsistencies and anomalies in Mrs. Pham’s behaviour and presentation by relying on cultural stereotypes and generalizations about southeast Asian people." In that vein, Dr. Raghunan wrote that Mr. Mai, "who came twelve years ago from a country that reacts to distress very differently from Western Society, may be unconsciously transferring his emotional distress into somatic complaints. . . ." [Emphasis in the original.]
Similarly, in Persaud,53 the arbitrator found that Dr. Raghunan "tended to generalize and did not look at the specifics of Mrs. Persaud's circumstances. . . . [H]e did not review any clinical notes, records or reports." The arbitrator placed little weight on Dr. Raghunan's conclusions because he failed to consider an important aspect of the insured's life. Similarly, Dr. Raghunan in this case did not review the medical records and he misunderstood the importance of the bereavement and divorce in Mr. Mai’s life.
In another case, Suong Nguyen,54 the arbitrator quoted the opinion of another doctor that Dr. Raghunan’s report did not refer to relevant documentation and ultimately did not accept Dr. Raghunan's opinions "because they do not take into consideration the opinions of other doctors and they appear to be founded upon cultural stereotypes." In Van Thanh Truong,55 the arbitrator found Dr. Raghunan’s report not reasonable and necessary because Dr. Raghunan did not demonstrate a high degree of expertise and drew conclusions that were "highly questionable given the evidence. . . ."56
I find that those failings apply in this case as well.
Accordingly, I find that Dr. Raghunan’s report had little value to Mr. Mai or to those treating him, had little intrinsic value, and had the characteristics for which other arbitrators have found Dr. Raghunan’s reports to be of little value. I find the report was not made for the purpose of the Schedule and was not a reasonable and necessary expense. The claim for the cost of Dr. Raghunan's report is denied.
As for Dr. Ng's second disability certificate, I find that it added no useful information to what was set out in his first. Even Dr. Ng testified that the second certificate was little changed from the first. I find that if it is payable at all, it would be as an expense of the hearing.
Since I have dismissed all of Mr. Mai's claims, no special award is payable.
EXPENSES:
The parties asked me to reserve on the issue of expenses. In its Response, Economical stated that its "claim for costs includes reimbursement to it of all filing fees . . ." but did not specifically refer to s. 282(11.2) (as it then read). The pre-hearing letter did not refer to this claim. The claim was repeated at the end of the Insurer's submissions. Since Economical included this claim in its overall claim for its expenses, I will consider it as part of determining the expenses of the hearing if the parties cannot agree on expenses.
February 25, 2004
David J. Evans Arbitrator
Date
Neutral Citation: 2004 ONFSCDRS 24
FSCO A03-000045
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
HOANH DUC MAI
Applicant
and
ECONOMICAL MUTUAL INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Mr. Mai's claims are dismissed.
The parties may now speak to me on the issue of expenses, including Economical's filing fee.
February 25, 2004
David J. Evans Arbitrator
Date
The clinical diagnosis is established by taking a history and conducting a physical and functional examination. The identification of the client's problems and the physiotherapeutic management is based on this diagnosis in conjunction with an understanding of pertinent biopsychosocial factors. The rule does not restrict the expansion of the scope of physiotherapy practice.
Footnotes
- The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98, 114/00 and 482/01.
- Since the hearing, that subsection has been repealed and the current s. 282(11.2) deals with the liability of a representative for costs (S.O. 2002, c. 22, s. 127).
- Another daughter died of heart failure in 1996.
- Recorded on Exhibit 8, reverse page of the May 21, 2002 note.
- However, Ms. Kyla Organ, ER Manager at Roctel, wrote to Mr. Mai on May 23, 2002, that Roctel received the doctor's note "on Tuesday May 21, 2002."
- The termination notice informs insureds of the right to require a disability assessment (DAC) by giving the insurer written notice and a disability certificate from a health practitioner before the termination date (s. 37(3)2). If notified within 14 days, the insurer has to keep paying benefits until the DAC (s. 37(3)3).
- Section 38 provides for assessment of medical and rehabilitation benefits.
- Mr. Mai testified that he does not live with his children and only sees them on weekends for a few hours.
- Dr. Kominek notes in his report: "Pace Law Firm referred Mr. Mai to Optimal Medical Care Inc. . . ."
- (FSCO A99-000059, November 21, 2001), upheld (FSCO P01-00059, March 13, 2003)
- Mediator's report: Willow Road; Application for Arbitration: Sunset Road.
- Pace Law Firm's letters of December 12, 2002 and January 7, 2003.
- All the observations showed his car at Sunset Road, so I will not keep repeating that.
- Mr. Mai "is a dependable employee. Always shows up for work on time and completes his tasks on time."
- Taken by Todd Fox, Custard Insurance Adjusters, on July 5, 2002, with a Vietnamese translator present.
- Mr. Mai testified that Attila Huska, as his superior, knew his job and could describe it to Ms. McKinnell and show her exactly what he did. He testified that it would not have made any difference to its description if he had been present during the assessment, and he agreed with the assessment.
- The estimate of 2 to 3 pounds would be within the range of a kilogram, the "unit of mass, equivalent to the international standard kept at Sevres near Paris (approx. 2.205 lb.)." Katherine Barber, ed., The Canadian Oxford Dictionary (Toronto: Oxford University Press, 1998), s.v. "kilogram."
- Mr. Mai testified that Dr. Ng asked him what he was doing at work and he explained his position.
- This is understandable, since that was the address Mr. Mai had given the company, and I am not convinced that Mr. Mai ever asked Roctel to change his address back to Willow Road.
- Mr. Mai testified that he did not deliver the note until the Wednesday, May 22, 2002.
- Which contradicts his testimony that he had asked Roctel to "correct" the address back to Willow after he had given them the Sunset address.
- Although Mr. Mai knew he was fired in June, he said nothing to Dr. Ng until the following December. Dr. Ng's clinical note for December 3, 2002 says, "got fired no job available." He told Dr. Kominek the same thing.
- Mapquest search: Exhibit 6.
- The Wellness Med/Rehab DAC of August 20, 2002 recommended Mr. Mai be supervised by a professional who speaks his language. The Wellness Med/Rehab DAC of October 15, 2002 reiterated the earlier DAC recommendations.
- Provided by Economical during submissions and added as Exhibit 24.
- Monday being the holiday, the law office was presumably closed.
- As noted above, Ms. Organ of Roctel wrote that Mr. Mai delivered Dr. Ng's note that day.
- Ms. Kuhnke testified that she had not sent out the disability certificate: the accident happened on a Sunday, the Monday was a holiday, and the certificate was prepared on the Tuesday. Since the certificate bore a stamp from Pace Law Firm, she assumed the firm provided the certificate.
- See the Guideline published by the Financial Services Commission of Ontario, Guideline on the Management of Claims Involving Whiplash-Associated Disorders: "Whiplash-associated disorder (WAD) is the term adopted by the Quebec Task Force to describe the clinical entities associated with the energy transfer and the injury" arising from whiplash, "an acceleration-deceleration mechanism of energy transfer to the neck which may result from rear-end or side impact. . . ."
- The Guideline describes WAD II as "Neck complaint AND Musculoskeletal sign(s) including decreased range of motion and point tenderness."
- In fact, Mr. Mai's employment had been terminated in June 2002 for abandoning his job.
- The report shows that Mr. Mai was accompanied by an interpreter.
- A Vietnamese interpreter was present.
- She did not have the opportunity to review BMAC's assessments: Ms. Kuhnke did not receive them until the middle of August 2002, after the Insurer's FAE and in-home assessments were conducted.
- A Vietnamese-speaking interpreter was present for the assessment.
- Dr. Cheryl Gillin-Garling, psychologist at the Wellness Rehabilitation Centre, who performed the psychological assessment DAC, concluded that Dr. Raghunan's recommendations for treatment were unreasonable because of the lack of documented impairment and the unreasonable travel requirements.
- Ms. Vogelzang did not know why a massage therapist was not included on the team. She testified that although one might have been helpful, it was not necessary as massage therapy has to be approved by a physician or a chiropractor, not a massage therapist.
- Since Dr. Ng does not speak Vietnamese, this suggests that Mr. Mai was talking about Dr. Ngo with the assessors.
- The last entry for Mr. Mai in the clinical notes and records is November 27, 2002.
- Although Ms. Vogelzang gave Mr. Mai the benefit of the doubt and assumed that the low back pain arose because of the accident, I have found no correlation between it and the accident. If Mr. Mai had ever submitted the treatment plans forwarded by Ms. Kuhnke, I would not have ordered Economical to fund them.
- Ms. Vogelzang testified that, although not so indicated, an interpreter was present at the DAC.
- Mr. Mai never tried to find a local Vietnamese therapist.
- That Rule reads in part:
- Premise 7 provides that physiotherapists shall not treat clients when the clinical condition indicates that the continuation of physiotherapy is contraindicated.
- Item 4 under Responsibilities to Society reads: "Where a direct fee is charged, physiotherapists shall inform clients, in advance, of the fee which will be commensurate with the service provided."
- Massage therapy 20 minutes; stretching 15 minutes; treadmill 5 minutes.
- Provided by Economical during submissions; marked as Exhibit 25.
- Since amended by O. Reg. 281/03, but the amendments do not apply in this case.
- See: Tanzos and State Farm Mutual Automobile Insurance Company, (FSCO P01-00017, October 22, 2002); Smith and Citadel General Assurance Company, (FSCO P01-00034, August 20, 2002); Nunes and St. Paul Fire & Marine Insurance, (FSCO P01-00037, April 24, 2002), judicial review hearing scheduled for April 8, 2004. Also Fenech and State Farm Mutual Automobile Insurance Company, (FSCO P01-00040, February 5, 2003), decided under s. 57 of the SABS-1994, the predecessor to s. 24.
- Mr. Mai only testified that he does not like to drive long distances, like to Hamilton.
- Tsimidis and Liberty Mutual Insurance Company, (FSCO P99-00013, August 28, 2000)
- Pham and Allstate Insurance Company of Canada, (FSCO A-007463, June 30, 1995)
- Persaud and Markel Insurance Company, (OIC A96-000261, September 20, 1996)
- Nguyen and Allstate Insurance Company of Canada, (FSCO A97-001778, March 11, 1999)
- Truong and Lumbermens Mutual Casualty Company/Kemper Canada, (FSCO A01-001455, January 24, 2003)
- See also Owusu and Non-Marine Underwriters, Mbrs. of Lloyd's, (FSCO A02-000499, April 2, 2003) for another example of Dr. Raghunan's reports being given little weight.