Financial Services Commission of Ontario

Neutral Citation: 2011 ONFSCDRS 77 FSCO A09-000279

BETWEEN:

NAM THI NGUYEN Applicant

and

TD HOME AND AUTO INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Judith Killoran Heard: May 30, 31, June 1 and 2, 2011, at the offices of the Financial Services Commission of Ontario in Toronto. Surveillance evidence was reviewed by June 24, 2011 Appearances: Vanessa Tanner for Ms. Nguyen Petros Yannakis for TD Home and Auto Insurance Company

Issues:

The Applicant, Nam Thi Nguyen, was involved in a motor vehicle accident on December 3, 2005. She applied for statutory accident benefits from TD Home and Auto Insurance Company (“TD Home”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Nguyen applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Ms. Nguyen entitled to receive a weekly income replacement benefit of $295.50 weekly from July 22, 2006 and ongoing, pursuant to sections 4 and 5 of the Schedule?
2. Is Ms. Nguyen entitled to $100 weekly for housekeeping and home maintenance services from July 7, 2006 to December 3, 2007, pursuant to section 22 of the Schedule?
3. Is TD liable to pay Ms. Nguyen’s expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?
4. Is Ms. Nguyen liable to pay TD’s expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?
5. Is Ms. Nguyen entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?
6. Is TD liable to pay Ms. Nguyen a special award because it unreasonably withheld or delayed the payment of benefits, pursuant to subsection 282(11) of the Insurance Act?

Result:

1. Ms. Nguyen is not entitled to receive a weekly income replacement benefit of $295.50 weekly from July 22, 2006 and ongoing.
2. Ms. Nguyen is not entitled to $100 weekly for housekeeping and home maintenance services from July 7, 2006 to December 3, 2007.
3. The issue of expenses may now be addressed.
4. Ms. Nguyen is not entitled to interest as there is no overdue payment of benefits.
5. Ms. Nguyen is not entitled to a special award as TD did not unreasonably withhold or delay the payment of benefits.

BACKGROUND

Ms. Nguyen was involved in a motor vehicle accident on December 3, 2005 and visited her family doctor, Dr. B. Tran, on the Monday immediately following the Saturday accident. She described her symptoms to Dr. Tran as pains in her chest, head, back, legs and neck. Before the accident, she worked in the family dry cleaning business, Quality Discount Cleaners (“Quality”).

Ms. Nguyen has made a claim for income replacement benefits for both the 104 week and post 104 week periods following the accident. To qualify for entitlement, she must establish that she was employed at the time of the accident and, as a result of, and within 104 weeks after the accident, she suffered a substantial inability to perform the essential tasks of her employment. The entitlement test changes at 104 weeks when she must establish that, as a result of the accident, she is suffering a complete inability to engage in any employment for which she is reasonably suited by education, training or experience.

TD’s position is that Ms. Nguyen continued to work at the family dry cleaning business during the period for which she is claiming income replacement benefits. Ms. Nguyen claims that although she was often at the business, she was unable to work as she did before the accident.

EVIDENCE AND ANALYSIS:

Surveillance

Surveillance evidence was filed with me at the hearing. The parties agreed that the 4 days allocated for the hearing would be expanded with my subsequent review of the surveillance evidence. I completed my review of the surveillance evidence by June 24, 2011. The surveillance evidence spanned the following days: October 16, 17, 18, 2006, April 5, 12, 23, 24, 25, 26, 27, 2007, and March 2, 2009.²

Ms. Nguyen was not observed on October 16, 2006. However, on October 17, 2006, Ms. Nguyen can be observed behind the counter at Quality talking to an unidentified woman. She can be seen lifting her arms over her head, bending forward at the waist, and moving her head in different directions. Ms. Nguyen placed plastic wrap over clothes and raised her arms to remove clothes from the rack. She is at the front counter serving customers, folding and sorting clothes, sewing, putting customers’ names on tags and putting them inside the clothes. Also that day, she is filmed taking clothes off the rack, talking on the phone, and looking for clothes on the rack. She did not return from work to her residence until 7:32 p.m.

On October 18, 2006, Ms. Nguyen arrived at Quality with her husband at 8:07 a.m. and Ms. Nguyen exited the car to the workplace. I observed her sorting clothes, wrapping clothes in plastic, hanging clothes on racks, removing clothes from racks, answering the telephone, dealing with customers, taking orders, and doing alterations. She was sitting, standing, eating, talking and bending throughout the day with no signs of impairment. Surveillance ended at 4:15 p.m. when a parked vehicle obstructed the investigator’s view.

Surveillance was also conducted over a 7-day period on April 5, 12, 23, 24, 25, 26, 27, 2007.

I observed Ms. Nguyen demonstrating a wide range of movement in her head and neck, back, hands, arms and shoulders. She was seen bending forward from the waist and raising her arms above her head. Also, she appeared to be in good spirits while performing her duties. I observed her smiling and laughing. She showed no physical impairment or restriction in mobility. She was present at either Quality Discount Cleaners or Cleo’s Drycleaners on all seven days of surveillance. She started her days as early as 8:00 a.m. and remained at work sometimes as late as 8:00 p.m. She could be seen attending briefly at a third cleaning business, Sun Cleaners, where it seemed that clothing is picked up in the morning and dropped off in the evening. Ms. Nguyen also was observed driving a motor vehicle, attending at a private residence and a grocery store where she shopped.

Medical Evidence

Dr. San Bui, Ms. Nguyen’s treating chiropractor, was qualified as an expert and testified to the following. He works at the Pain Rehabilitation Clinic and saw Ms. Nguyen 42 times from January 13, 2006 to November 8, 2006. He found, through palpation, spasms in the back of her neck, low back and verified clinically that she had been injured from the accident. He tested her for range of motion and administered tests to lift certain weights. He found Ms. Nguyen to be straightforward and honest while doing her best. Dr. Bui completed 2 disability certificates dated April 25, 2006 and June 16, 2006 respectively.³

Dr. Bui found that Ms. Nguyen was substantially disabled for 12 weeks or more and incapable of resuming her housekeeping chores. He relied on interviewing her and performing objective testing. For the second disability certificate, he found the same issues where the headaches were primary, back pain and mid and low back pain were secondary. He found that she was not able to return to modified work due to pain, restricted range of motion, and difficulties with concentration.

Dr. Bui’s second disability certificate offers no prognosis for the duration of Ms. Nguyen’s substantial disability to resume her work or do housekeeping. Her task limitations were not listed on the forms. Dr. Bui was not informed that Ms. Nguyen returned to the dry cleaning business. He was not aware that Ms. Nguyen indicated in her intake form that she took one week off after the accident and had returned to work.

Dr. Tran referred Ms. Nguyen to Dr. Gordon Ko, a physiatrist, who conducted three days of assessment on February 26, March 21 and June 11, 2007. In his report of June 12, 2007, he concluded that Ms. Nguyen was capable of performing the tasks of her employment and resuming her housekeeping and home maintenance tasks.⁴

Dr. Joseph Wong, a physiatrist, examined Ms. Nguyen on December 18, 2007, which was after the 104 week period. He reported that Ms. Nguyen suffered from a substantial inability to perform her pre-accident employment and her pre-accident housekeeping and home maintenance activities.⁵ I prefer Dr. Ko’s report to that of Dr. Wong. Dr. Ko conducted a more comprehensive assessment and was not as dependent on Ms. Nguyen’s self-reporting. Dr. Joseph Kwok’s report of October 31, 2008 states that Ms. Nguyen continues to suffer from an inability to return to her pre-accident employment and her housekeeping tasks. This conclusion is based on Ms. Nguyen’s self-reporting that she has been unable to return to her pre-accident employment.

Dr. Abbas Azadian, a psychiatrist, was qualified as an expert witness. He assessed Ms. Nguyen on October 21, 2008. His diagnosis was that she suffered from major depression and chronic pain, based on her symptoms which included feeling worried, helpless, seeing no future and suffering from anxiety and disrupted sleep. She also experienced problems with memory and concentration. He found that his observations of her were consistent with her test results. He noted that she suffered from headaches, chronic pain in her chest, low back, arms and head as well as her knees and neck. In his opinion, she needed aggressive treatment with medication and psychotherapy. He did not believe that she could return to what she did before, such as standing up, serving customers mixed with some bending and lifting. His prognosis for her was poor due to the severity of her symptoms which had become chronic in nature. Due to her low level of English and education, he did not think she could qualify for another occupation.

On cross-examination, Dr. Azadian agreed that there is no absolute precision in the use of the Beck Depression Inventory and the accuracy of his tests rely on the truthfulness of the patient. Dr. Azadian saw Ms. Nguyen 3 years after the motor vehicle accident and relied on Ms. Nguyen’s self reporting as he had no continuity of symptoms to rely on. I found Dr. Azadian to be a compelling and impressive witness. However, Dr. Azadian did not view the surveillance evidence and was not informed that Ms. Nguyen had returned to work. He examined Ms. Nguyen 1 year after the 104 week period and 3 years after the accident and the accuracy of his testing depended on the truthfulness of his patient. For example, Ms. Nguyen informed him that she had not returned to work.

Dr. James Kirk Houston, an orthopaedic surgeon, was qualified as an expert witness. He assessed Ms. Nguyen on June 8, 2006.⁶ Dr. Houston’s sub-specialty is dealing with chronic pain and he testified to the following. His understanding was that, before the accident, Ms. Nguyen worked full-time at the family dry cleaning business greeting customers, doing alterations, standing and sitting. Ms. Nguyen had no muscle spasms in her back with no restrictions on the function of her joints. She was able to bend laterally, walk on her tip toes and heels, sit at the edge of the table, with reflexes present at the knees and ankles. She demonstrated a full range of motion in her major joints with no organic pathology to account for her reports of pain. He concluded that Ms. Nguyen was capable of returning to her pre-accident work and housework.

Psychological assessments dated December 12, 2008 and February 2, 2009 respectively, from Dr. Wendy Campbell concluded that as it was 3-years post accident, it was difficult to determine that any psychological difficulties which Ms. Nguyen was experiencing could be directly and solely attributable to the accident.⁷ Dr. Campbell suggested that Ms. Nguyen exhibited a pattern of symptom exaggeration/magnification as well as possible symptom fabrication in her clinical presentation. For that reason, it was not reasonable to propose psychological treatment on the basis of her self-report alone. Although Ms. Nguyen consistently maintained with both Dr. Campbell and other medical assessors that she has been unable to resume her pre-accident tasks of employment, this was not consistent with the investigative surveillance reports which in Dr. Campbell’s opinion, provide substantive evidence that Ms. Nguyen has resumed working on what appears to be a full-time unmodified basis.

Income Replacement Benefits

Ms. Nguyen testified to the following at the hearing. Her work at Quality involved altering clothing, ironing, providing customer service and packaging. She worked approximately 8 hours a day and usually went home at 4 p.m. to cook dinner. She used the press machine to iron clothes. She would sit to make alterations and stand up to serve customers. There was a room at the store which was used for rest breaks for everyone, including greeting friends and relatives.

After the accident, Ms. Nguyen found that she could not do alterations for more than 10-15 minutes at a time. Before the accident, Ms. Nguyen lifted bags of clothes and did the packaging. After the accident, her husband and children did the packaging. She testified that Maria Nguyen (no relation) was hired in December 2005 to do the pressing and alterations, some of which Maria did at home.

Ms. Nguyen went to the drycleaners most days because from that location she had transportation to her care providers. She continued to go to the store because she could rest, talk to her children and the days were shorter as a result. She was no longer paid as an employee after the accident.

Ms. Nguyen claimed her life changed dramatically after the accident in that she no longer attended barbecues, played badminton or drove her car, except for short distances. She complained that she feels sad much of the time, has headaches and some neck and back pain for which she continues to seek treatment. She cannot sleep very well and during the days, she is tired and takes naps. The days are long and she watches the clock, wishing that her husband would be home soon.

Ms. Nguyen worked continuously at Quality from 1999 to the time of the accident. Initially, she did not receive any regular payments but shared any profit with her husband. She was very vague about payment arrangements and said they were not “calculated”. There were many years when she worked at Quality and did not report any income. After 2003, she filed income tax returns reporting income. She confirmed that she is a director of Quality. Ms. Nguyen stated that her husband allowed her to take money from the business as she needed it. She signed her own cheques and those of other employees.

On cross-examination, Ms. Nguyen testified about another dry cleaning business called Cleo’s Drycleaners (“Cleo’s”). Her brother was not making a profit at Cleo’s Drycleaners and gave the store to her in April 2005. Ms. Nguyen was contradictory in her evidence about Cleo’s. Initially, she claimed she worked only at Quality and eventually gave Cleo’s to one of her sons-in-law, after losing money at the business. On cross-examination, she admitted she worked providing customer service at Cleo’s after the accident. However, she could not do alterations or operate the press, which was too heavy, and she had to avoid too much standing and sitting. Cleo’s was open 12 hours a day from 7:30 a.m. to 7 p.m. Many people worked there and they were paid minimum wage. Employees only showed up when they were called in.

Ms. Nguyen stated that her name is Nam but some people call her “Maria” by mistake and she does not object because it is a beautiful name. She was also contradictory in her testimony about the “other” Maria, Ms. Maria Nguyen. At first, she claimed Maria replaced her in the store and later she stated that Maria does not work in the store but takes some clothing home for alterations.

Mr. Tri Minh Truong, Ms. Nguyen’s husband, testified to the following. He married his wife in 1977 and came to Canada with her and their 4 children in 1991. He speaks a little English but he does not write English. He is the owner of Quality and the business has 3 employees. In 2005, he had 2 employees with his wife helping out. Before the accident, her duties were customer service, including taking orders and doing alterations. She helped in whatever way she could. She worked 7 to 8 hours a day before the accident and was a good employee. She is no longer an employee of Quality. According to him, the store is close to her doctor’s office and she comes to the store so that he can drive her to her medical appointments. She sits at the store and often lies down and rests. She writes some cheques and phones people but she does not work at the store. He would never leave his wife alone to run the store.

Ms. Nguyen’s husband stated that she does not own or work at other businesses. He claimed she does not work anymore. He stated that his wife’s name is “Maria”. Although he said that there were 3 employees at Quality after the accident, he was not certain of their last names.

Maria Thi Thanh Thao Nguyen testified that she worked at Quality and started before Christmas in 2005. Maria testified that, at first, she did not work regularly, only when needed and at no specific times. She was paid in cash and often took work home. She did not switch from a part-time employee to full-time until 2009. She stated that her job duties were customer service, alterations, ironing and using the press machine. She sees Ms. Nguyen at Quality Discount Cleaners not daily but she often comes with her husband and children. Ms. Nguyen would walk around at work, rest in the basement room and have lunch with her.

I did not find either Ms. Nguyen or her husband to be credible witnesses. They were extremely vague and contradictory about many details. This extended even to Ms. Nguyen’s name.

The applicant denied her name was Maria but her husband said her name was Maria. At first, Ms. Nguyen denied working at Cleo’s and later she admitted working there. Her husband denied that she owned or operated other businesses. In the surveillance evidence, there is no car in the vicinity of Quality although Ms. Nguyen’s husband testified that he never left his wife alone in the store. The surveillance and Maria Nguyen’s testimony contradicted the couple’s claim that Maria Nguyen worked full-time at Quality as a replacement for Ms. Nguyen, immediately following the accident. Also, there was no proof that Maria Thi Nguyen worked for Quality. Ms. Nguyen’s husband struggled to remember Maria Nguyen’s name and job duties. She was not visible on the surveillance working in the store and she was not listed as an employee in Quality’s payroll records.⁸

I find that Ms. Nguyen is not entitled to the income replacement benefits which she has claimed. My finding is based on the totality of the evidence. Neither Ms. Nguyen nor her husband were credible witnesses. Their testimony was riddled with contradictions and inconsistencies. The surveillance evidence demonstrates that Ms. Nguyen could perform the essential tasks of her employment, which she performed during the period for which she was seeking benefits. This is supported by the medical evidence of Dr. Houston, and Dr. Ko. I prefer their medical evidence to that of Dr. Bui and Dr. Azadian, who were unaware of Ms. Nguyen’s return to work and relied on the veracity of her self-reporting.

Housekeeping and Home Maintenance Benefits

Ms. Nguyen claims housekeeping expenses of $100 weekly from July 7, 2006 to December 3, 2007. To prove entitlement, she must establish that she has sustained an impairment from the accident that resulted in a substantial inability to perform the housekeeping and home maintenance services that she normally performed before the accident.

Ms. Nguyen testified at the hearing to the following. She came to Canada from Viet Nam in 1991. Her health before the accident was good, she worked hard and she was very happy. She socialized often, took no medications and rarely went to the doctor. She attended concerts, parties, picnics, played badminton and loved to cook.

Ms. Nguyen lived in a 4-bedroom house. Before she was involved in the accident, she was capable of cleaning the entire house on her own. Ms. Nguyen claimed that she could not do any housecleaning after the accident. She hired someone to help with the housework and if he were busy, she hired someone else.

Ms. Nguyen swept using a broom but could not sweep for long periods of time because it caused headaches and dizziness. Before the accident, she claimed that she took care of the yard work while her husband helped out. She also claimed she shovelled the snow while her husband helped out sometimes.

Ms. Nguyen did not remember the in-home assessment with Sarah Tran on May 31, 2006. Her neck, shoulder, and knee pain were diminished by the middle of 2006. Headaches were her main problem after the accident.

Mr. Truong, Ms. Nguyen’s husband, testified to the following. Their two adult children who also work outside the home did not help with the cleaning, cooking, and laundry before the accident. They did their own laundry but did not help much with housekeeping chores. He helped his wife with the heavier chores such as the yard work and shovelling the driveway. She cleaned up around the house and did the cooking. He noticed that after the accident his wife suffered from chest pains and headaches. She often closed her eyes, did not talk and was sad.

Cuong Son Nguyen testified to the following. His parents were best friends of Ms. Nguyen. In December 2005, he was living with Mrs. Nguyen as he was working for one of her children’s stores and required transportation to work. After the accident, he swept the floor, washed the windows, took out the garbage and cut the grass. He moved furniture around and helped with house cleaning and maintenance. In the winter, he shovelled the snow. Usually, he was paid $100 each time he came to the house. He claimed he continues to do this. Before the accident, he cleaned up after himself, did his laundry and cleaned his own room. He has no record of the work he did but he did whatever was needed. He lived in Ms. Nguyen’s house for only a few months and then he moved to Mississauga. He stated that he drove from Mississauga when she called for him to help around the house.

On May 24, 2006, a functional capacity evaluation was conducted at TD’s request by Karen Lee, a physiotherapist, and Dalia Wassef, a kinesiologist. They concluded that, based on their testing, Ms. Nguyen was able to resume her housekeeping duties.⁹

Ms. Tran, an occupational therapist, was qualified as an expert witness and testified to the following. She conducted an in-home assessment of Ms. Nguyen. Initially, the assessment was scheduled for May 19, 2006 but Ms. Nguyen was not home. Her son stated she was at a doctor’s appointment and gave Ms. Tran the phone number for Quality. When Ms. Tran phoned, Ms. Nguyen drove a vehicle to her home and said she was not aware of the assessment. As Ms. Tran did not want to conduct an assessment in the circumstances, she rescheduled for May 31, 2006. At the rescheduled assessment, Ms. Nguyen stated that her nephew moved in after the accident to help with the housekeeping and someone else helped with the housekeeping as of mid-May. She stated that she lived with her husband, 17 year old daughter and 15 year old son. Ms. Tran reviewed the disability certificates from Dr. Bui which stated that headaches were Ms. Nguyen’s primary complaint with other complaints of mid chest and low back pain together with bilateral neck, shoulder and knee pains, which have subsided significantly.¹⁰

Ms. Nguyen told Ms. Tran that before the accident, her nephew and children helped her a little with housework and her husband and son helped with outdoor maintenance. According to Ms. Tran, Ms. Nguyen demonstrated within normal limits for range of motion and muscle strength testing. Her neck, back, shoulders and hips demonstrated a full range of movements. She also demonstrated something characterized as giving way on tests which is not a normal reaction and could be evidence of a self-limiting behaviour. She also displayed no difficulty with a 20-minute mobility test which was continuous standing and walking. She had no difficulty with 90 minutes of sitting, she was independent on the stairs, and able to kneel, squat and stand on one leg. Ms. Nguyen claimed that after the accident, her nephew, Quan Dinh, moved in with her family to help with daily housekeeping. She paid him $150-$200 per week. As of May, he obtained a job outside the home and currently helps in the evening. Ms. Nguyen reported hiring a cleaning lady named Avie for 5 hours a week at $80.

Ms. Tran observed that Ms. Nguyen could stoop and reach for bed care. She seemed proficient in the kitchen, capable of accessing different areas. She swept up, used the dish pan and emptied waste in the garbage. She was able to scoop washing detergent, do laundry and hang clothes. She simulated scrubbing the bathroom with no facial expressions or physical signs of pain or difficulty. Although her grip strength was reduced, she was functional and able to perform all housekeeping tasks. Ms. Tran concluded that Ms. Nguyen did not suffer from a substantial inability to perform the housekeeping tasks she engaged in before the accident.

I find that Ms. Nguyen is not entitled to the housekeeping and home maintenance benefits which she has claimed. I prefer the findings of Ms. Tran to the evidence of Ms. Nguyen and her witnesses. It was evident from Ms. Tran’s findings that Ms. Nguyen no longer required housekeeping assistance. Also, Ms. Nguyen’s evidence and that of her witnesses was confusing and contradictory about the nature of any housekeeping assistance which might have been provided and the amount of compensation which might have been paid.

Special Award

Counsel raised for the first time, in final submissions, a claim for a special award. She requested the maximum special award of 50% plus interest. As I have found Ms. Nguyen is not entitled to the benefits sought, there is no issue that TD unreasonably withheld or delayed the payment of benefits.

EXPENSES:

The parties are encouraged to resolve the issue of expenses. If they are unable to do so, they may request an expense hearing before me under the Dispute Resolution Practice Code.

September 12, 2011

Judith Killoran Arbitrator

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Ms. Nguyen is not entitled to receive a weekly income replacement benefit of $295.50 weekly from July 22, 2006 and ongoing.
2. Ms. Nguyen is not entitled to $100 weekly for housekeeping and home maintenance services from July 7, 2006 to December 3, 2007.
3. The issue of expenses may now be addressed.
4. Ms. Nguyen is not entitled to interest as there is no overdue payment of benefits.
5. Ms. Nguyen is not entitled to a special award as TD did not unreasonably withhold or delay the payment of benefits.

September 12, 2011

Judith Killoran Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Exhibits 3, 4 and 5 – Surveillance tapes for 2006, 2007 and 2009
3. 3Exhibit 1, Tabs 4 and 5
4. 4Exhibit 2, Tab 23
5. 5Exhibit 1, Tab 10
6. 6Exhibit 2, Tabs 12 and 20, Orthopaedic Assessment Report and Addendum
7. 7Exhibit 7
8. 8Exhibit 2, Tab 46 – Payroll Records 2004-2008
9. 9Exhibit 2, Tab 10
10. 10Exhibit 2, Tabs 9 and 11