Neutral Citation: 2013 ONFSCDRS 118

FSCO A11-002508

BETWEEN:

BINH THI NGUYEN

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Lloyd (J. R.) Richards

Heard: October 9, 10, November 9, 2012 and February 1, 2013, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Mrs. Nguyen on her own behalf Gordon L. Robson for Economical Mutual Insurance Company

Background:

The Applicant, Mrs. Binh Thi Nguyen, was injured in a motor vehicle accident on January 27, 2003. Mrs. Nguyen received a caregiver benefit from Economical for the care of her children until August 23, 2008. Economical terminated the benefit because it claims that she no longer suffers a disability that prevents her from providing care to her children. Mrs. Nguyen seeks caregiver benefits from August 23, 2008 to February 23, 2009, the date on which her youngest child turned 16 - at which point the Schedule¹ deemed the child to be no longer a person in need of care. Mrs. Nguyen also claims a non-earner benefit commencing on February 23, 2009, because she claims that her life has completely changed, in that she no longer engages in the activities in which she engaged before the accident.

Economical claims that she does not meet the tests for disability for the caregiver and the non-earner benefits. Economical believes that Mrs. Nguyen’s claims are not credible and that other issues in her life may be causing her stress and manifesting in physical complaints. Economical has refused to reinstate Mrs. Nguyen’s benefits.

Issues:

The issues in this hearing are:

Is Mrs. Nguyen entitled to a caregiver benefit pursuant to section 13 of the Schedule at the rate of $250.00 per week from August 23, 2008 to February 23, 2009?
Is. Mrs. Nguyen entitled to a non-earner benefit pursuant to section 12 of the Schedule, at the rate of $185.00 per week from February 23, 2009 to date and ongoing?
Is. Mrs. Nguyen entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Result:

Mrs. Nguyen is not entitled to a caregiver benefit pursuant to section 13 of the Schedule at the rate of $250.00 per week from August 23, 2008 to February 23, 2009.
Mrs. Nguyen is not entitled to a non-earner benefit pursuant to section 12 of the Schedule, at the rate of $185.00 per week from February 23, 2009 to date and ongoing.
Mrs. Nguyen is not entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule.

EVIDENCE AND ANALYSIS:

It appears that Economical accepted liability for accident benefits because it paid caregiver benefits to Mrs. Nguyen for close to five and a half years after the motor vehicle accident. It terminated benefits after assessing Mrs. Nguyen in July 2008 and determining that she no longer met the test for disability.

The evidence of Mrs. Nguyen’s pre-accident medical condition shows that she rarely visited a doctor before January 27, 2003. Significantly, Mrs. Nguyen’s pre-accident medical records show only two entries where she expressed major medical concerns to her medical health practitioners. On October 2, 2002, the medical records indicate that she reported “other problems of social adjustment”. This entry appears to refer to psychological problems that Mrs. Nguyen was experiencing prior to the motor vehicle accident. On December 7 and 11, 2002, which is approximately two months prior to the motor vehicle accident, the medical records indicate that Mrs. Nguyen complained of back pain, sciatica, signs and symptoms not yet diagnosed (which refers to psychological issues), nervous system convulsions and a lack of coordination of her muscle movements.²

Starting with the motor vehicle accident date, Mrs. Nguyen visited a medical professional at least once per month up until August 14, 2008, except for the months of April 2007 and February 2008. Mrs. Nguyen’s visits to see medical health professionals after the motor vehicle accident are not determinative of whether the accident caused her impairments. However, the number of visits persuades me that Mrs. Nguyen’s impairments grew worse after the accident.

In addition to the number of post-accident visits to medical health professionals, the nature of Mrs. Nguyen’s complaints in the post-accident period also seem to have changed. Furthermore, her post-accident complaints that are similar to her pre-accident complaints seem to have become more severe.

Many of Mrs. Nguyen’s assessors after the motor vehicle accident assessed her with whiplash, post-traumatic stress disorder, and major depressive disorder.³ With respect to her physical impairments, some assessors concluded that Mrs. Nguyen gave a self-limiting effort on assessment and so they were unable to arrive at a diagnosis of any physical impairment.⁴ Both Drs. Becker⁵ and Oshidari⁶, who assessed Mrs. Nguyen more than three years apart, concluded that Mrs. Nguyen’s impairments were related to her psychological rather than her physical condition. Drs. Hanick and Rosenblatt, who both also assessed Mrs. Nguyen more than three years apart, were of the opinion that, even though Mrs. Nguyen lived under great stress before the motor vehicle accident, her pre-accident impairments did not limit her functioning.⁷

Dr. Bail, a psychiatrist, saw Mrs. Nguyen’s case differently. He, surprisingly, concluded that Mrs. Nguyen did not suffer from any impairment.⁸ He further stated that because she had not been a truthful historian in the presentation of her pre-accident medical history and her post-accident complaints, she should not be believed. I disagree with Dr. Bail’s conclusion. He reviewed Mrs. Nguyen’s pre-accident medical records and concluded that Mrs. Nguyen was on medication for pain prior to the motor vehicle accident. He reached this conclusion because he noted that Mrs. Nguyen’s family physician’s clinical notes and records dated January 7, 2003 indicated prescriptions for Ativan, Celebrex and Tylenol #2. This date is prior to the motor vehicle accident. Dr. Pham is Mrs. Nguyen’s family physician, and in reviewing her notes I find that she wrote the entry for prescriptions on February 7, 2003 and not January 7, 2003. As Dr. Pham continued the February 7, 2003 entry and it stretched to a second page, she incorrectly stated January 7, 2003 on the second page. Dr. Pham wrote a follow-up note dated February 19, 2009 confirming that she saw Mrs. Nguyen on February 7, 2003 and prescribed the medications on that date.⁹ Mrs. Nguyen’s OHIP records confirm Dr. Pham’s provider number and only show February 7, 2003 as the date Dr. Pham provided treatment to Mrs. Nguyen.¹⁰ There is no entry date for Dr. Pham in the OHIP records for January 7, 2003. I find that Dr. Bail relied too heavily on this discrepancy and disregarded Mrs. Nguyen’s reports and presentation when he assessed her.

Mrs. Nguyen has the onus to establish an impairment related to the motor vehicle accident. In considering all the evidence, including Mrs. Nguyen’s presentation at the hearing, I find that Mrs. Nguyen has established that the motor vehicle accident materially contributed to her impairments.

However, I find that Mrs. Nguyen’s impairments as a result of the accident are primarily psychological in nature and that she has exaggerated her physical complaints to bolster her claim. One of the many assessors who examined Mrs. Nguyen, Dr. Peter Lee of Mount Sinai Hospital, emphatically concluded that Mrs. Nguyen’s injuries were physical in nature.¹¹ His report claims that the injuries to her neck and back had become chronic and resulted in considerable physical impairment and significantly impacted on her ability to do housework and care for her family. Interestingly, he found that Mrs. Nguyen demonstrated no exaggerated pain behaviour when he examined her. Many of the other assessors who assessed Mrs. Nguyen’s physical complaints generally declined to give a diagnosis or come to a conclusion based on the fact that Mrs. Nguyen often refused to complete many of the physical tests. Because of the overwhelming evidence to the contrary presented by the other assessors in this case, I disagree with Dr. Lee’s findings. Given the evidence, I find that Mrs. Nguyen has not proved that she suffers from any physical impairment related to the motor vehicle accident. However, I do find that Mrs. Nguyen has proved that she suffers from psychological impairments related to the motor vehicle accident.

I also find that the motor vehicle accident is not the sole cause of Mrs. Nguyen’s impairments. She was caring for a very sick husband in the pre-accident period and was under great stress. She had not been in the workforce for some time. However, it appears that she was functioning in caring for her husband and children. The impairments that the assessors in this case diagnosed do not appear, for the most part, to have existed prior to the motor vehicle accident. If they did exist, they certainly were not as severe as in the post-accident period.

I find that Mrs. Nguyen’s impairments became worse because of the material contribution of the motor vehicle accident. Mrs. Nguyen’s impairments were compounded by the fact that she did not receive appropriate treatment for her psychological condition after the accident. Several assessors noted that her condition was in danger of becoming chronic or had become chronic because Mrs. Nguyen was not receiving psychological care, but instead was in the care of a psychiatrist and on medications.¹² Mrs. Nguyen finally began seeing a psychologist in 2011, by which time I find that her psychological impairments had become fairly entrenched.

Despite her psychological impairments, Mrs. Nguyen does not meet the disability tests to qualify for further caregiver benefits or non-earner benefits.

Caregiver Benefit

Economical is liable to pay Mrs. Nguyen a caregiver benefit where she sustains an impairment as a result of an accident if at the time of the accident Mrs. Nguyen was living with a person in need of care. In addition, Mrs. Nguyen is required to have been the primary caregiver for the person in need of care and did not receive any remuneration for engaging in caregiving activities. Economical is only liable to continue paying a caregiver benefit to Mrs. Nguyen for longer than 104 weeks if, as a result of the accident, she suffers a complete inability to carry on a normal life.

Economical paid Mrs. Nguyen a caregiver benefit from the date of the accident until August 23, 2008. Mrs. Nguyen’s youngest child turned 16 years old on February 23, 2009. Mrs. Nguyen therefore claims a caregiver benefit from August 23, 2008 to February 23, 2009 for the care of her youngest child.

Based on her evidence, In 2008 Mrs. Nguyen’s primary caregiving activities for her 15 year old daughter involved driving her to school, cooking, taking her to the library and to temple. Mrs. Nguyen relies on Dr. P. Tran’s Disability Certificate, dated June 18, 2008¹³, as well as Dr. Prokofiew’s report dated September 19, 2008¹⁴, in support of her caregiver claim. Economical relies on an assessment completed by Lorak Assessments in support of its termination of Mrs. Nguyen’s benefits. Dr. P. Tran, who is a psychiatrist, diagnosed Mrs. Nguyen with a major pain disorder, chronic major depressive disorder with psychotic symptoms and determined that she suffered an inability to carry on a normal life. Dr. Tran started treating Mrs. Nguyen on July 16, 2003, which was six months after the motor vehicle accident. Despite this fact, Dr. Tran stated that prior to the motor vehicle accident Mrs. Nguyen did not have any disease, condition or injury that affected her ability to do caregiving or lead a normal life. I place little weight on Dr. Tran’s conclusions concerning Mrs. Nguyen. His Disability Certificate appears to be an attempt to buttress Mrs. Nguyen’s case, rather than a true assessment of her condition. Mrs. Nguyen’s pre-accident medical records clearly show that she had impairments that affected her ability to function.

Dr. Prokofiew, a chiropractor, in arriving at his conclusions concerning Mrs. Nguyen, stated that Mrs. Nguyen demonstrated a reliable effort in his evaluation, with ten of ten consistency measures recorded. However, in reviewing his report, it is apparent that Mrs. Nguyen did not complete many of the activities listed on Dr. Prokofiew’s assessment sheet. Mrs. Nguyen did not walk, climb stairs, balance, stop, reach, handle, sit, stand, nor push or pull a cart during Dr. Prokofiew’s assessment. Yet these are all activities that appear to be standard for the caregiver assessment. I place little weight on Dr. Prokofiew’s assessment because, taken at face value, it gives the impression that Mrs. Nguyen is completely unable to function physically. Yet Dr. Prokofiew did not address this fact, nor did he present evidence at the hearing to clarify his report.

Dr. Oshidari, as part of the Lorak Assessment team, also noted that his physical examination of Mrs. Nguyen was limited due to her participation. Mrs. Nguyen required her daughter’s assistance when she walked, and when her daughter was not available Mrs. Nguyen required holding the wall to walk. During the thirty-minute interview, Mrs. Nguyen had to change the chair on three occasions and required her daughter’s assistance to dress and undress. Mrs. Nguyen could walk on tiptoes and heels on her right side but not her left. However, during informal examination when Dr. Oshidari merely observed Mrs. Nguyen and did not tell her that she was being assessed, Mrs. Nguyen displayed more flexion of her cervical spine. When Mrs. Nguyen talked to the translator, she also displayed more rotation of her cervical spine. Dr. Oshidari noted that Mrs. Nguyen’s resistance against forward flexion of her upper extremities showed biomechanic weakness, but the weakness was also present in the sitting and lying positions, which should not be the case. Dr. Oshidari concluded that his physical examinations of Mrs. Nguyen were positive for findings which could not be explained by structural abnormality.

Dr. Oshidari was unable to come to a specific diagnosis considering the assessment failed to reveal any organic cause for her presentation. From a physical point of view, Dr. Oshidari was not able to put any restrictions on Mrs. Nguyen. He stated that if there were any restrictions, they were due to Mrs. Nguyen’s emotional condition or other factors outside of his expertise.

Because of what she considered to be Mrs. Nguyen’s self-limiting performance during the Lorak in- home assessment and the functional abilities evaluation, occupational therapist Joan Saunders also concluded that she could not make a determination of Mrs. Nguyen’s functional impairments. Consequently, Ms. Saunders deferred her opinion to Dr. Bail’s psychiatry report.

I have already discussed Dr. Bail’s opinion. I do not assign great weight to his opinion as I find that he did not fairly assess Mrs. Nguyen. His report was profoundly impacted by his belief that Mrs. Nguyen was not truthful about taking medications prior to the motor vehicle accident. In fact, Mrs. Nguyen’s family doctor had made an error which led Dr. Bail to reach the conclusion that he did.

Many of the assessors who assessed Mrs. Nguyen for physical impairments could not come to a conclusion because of what they termed her self-limiting behaviour on assessments. However, based on the evidence I have already found that Mrs. Nguyen suffered psychological impairments related to the motor vehicle accident. It is these impairments that I must consider in determining whether Mrs. Nguyen could perform caregiving functions for her daughter for the claimed period.

One of the issues related to the chronicity of Mrs. Nguyen’s complaints was the fact that she was not in a psychotherapy program but instead was being treated by a psychiatrist and with medication. However, by the time Economical had terminated Mrs. Nguyen’s caregiver benefit she had been in the Hong Fook program. The program provides supportive counseling and addresses health concerns with self-care, nutrition and exercise techniques. Hong Fook’s records specifically note that as of June 2008 Mrs. Nguyen had reported that her physical and mental health status had improved as had her family’s relationship and social connection. By July 2008 they had closed her file and would not reopen it until 2011.

With respect to Mrs. Nguyen’s claim for a caregiver benefit, I find that she was not completely unable to lead a normal life at the time her benefits were terminated. Mrs. Nguyen presented evidence that she was afraid to drive. However, her daughter’s school was apparently close enough for her to walk her daughter there. Mrs. Nguyen did not demonstrate that she was physically or emotionally incapable of accompanying her daughter to school, the library or to temple.

At the time her benefits were terminated, Mrs. Nguyen was no longer in her supportive counselling program because her treatment providers closed her file based on her improvement. She has not presented evidence that she was housebound or physically or mentally unable to interact with her daughter. I find that Mrs. Nguyen is not entitled to caregiver benefits from August 23, 2008 to February 23, 2009.

Non-Earner Benefit

The Schedule makes provision for the payment of a non-earner benefit when an insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after an accident. In specific cases an insured person is also entitled to a non-earner benefit where he or she formerly received a caregiver benefit, and the dependent person is no longer in need of care. The Schedule states that a person suffers a complete inability to carry on a normal life as a result of an accident if, and only if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

In considering all the evidence, including Mrs. Nguyen’s presentation at the hearing, I find that Mrs. Nguyen has established that the motor vehicle accident materially contributed to her impairments. However, I also find that Mrs. Nguyen has not presented sufficient evidence to persuade me that she is continuously prevented from engaging in substantially all of her pre-accident activities.

The threshold test for entitlement to a non-earner benefit is particularly strict and requires a significant degree of impairment and a marked, measurable impact on levels of function and consequent ability of the insured person to continue in her pre-accident activities.¹⁵

The factors that should be considered when determining entitlement to a non-earner benefit are neatly articulated in Heath and Economical Mutual Insurance Company¹⁶ and I paraphrase them here:

Start the analysis by comparing a claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.
The analysis requires more than taking a snap-shot of a claimant’s life in the timeframe immediately preceding the accident.
All of a claimant’s pre-accident activities should be considered when determining whether a claimant is able to engage in “substantially all” of her pre-accident activities.
Greater weight may be assigned to those activities which the claimant identifies as being important to her pre-accident life.
A claimant must establish that the changes amount to her being continuously prevented from engaging in substantially all of her pre-accident activities.
“Engaging in” activities means more than isolated post-accident attempts to perform activities that a claimant was able to perform before the accident. The manner in which the activity is performed and the quality of the post-accident performance must be considered.
Where pain is a primary factor, one must consider whether the pain practically prevents an individual from engaging in pre-accident activities.

Determining Mrs. Nguyen’s pre-accident activities in this case has proved difficult. Her own evidence consisted of her reading a prepared statement into the record with the help of an interpreter. That prepared statement did not address her pre and post-accident activities. The evidence regarding Mrs. Nguyen’s life, both pre and post-accident was instead contained in her self reports to the various assessors who have examined her. Her evidence is not particularly thorough. However, given the circumstances of this case and how Mrs. Nguyen presented her evidence and arguments, it will have to suffice.

While under cross-examination in this hearing, Mrs. Nguyen stated that her children never walked alone to school, she either drove them or walked with them. By 2008, Mrs. Nguyen’s 15 year old child was the only person in the household who needed driving to school, or to be accompanied to temple or the library.

In addressing Mrs. Nguyen’s pre and post-accident activities, Dr. Bail’s report notes that Mrs. Nguyen has been unemployed since 2001. Her pre-accident tasks involved taking care of her husband who was quite ill, as well as taking care of her children.¹⁷ Mrs. Nguyen reported that after the accident she no longer has close friends. In her free time she watches television, listens to the radio, reads newspapers and magazines and goes for walks. She reported that headaches and decreased concentration since the accident have interfered with her ability to drive. However, she is able to get around as a passenger and use public transportation.

Mrs. Nguyen reported to the psychologist at Canadian Memorial Chiropractic College that prior to the motor vehicle accident she was responsible for all the household chores, including cooking, cleaning for her husband and three children and taking them to and from school. Her recreational activities revolved primarily around taking her daughters to theatre, swimming or the library. She also reported enjoying socializing with friends and family, and going out to eat and shop with her children.

Mrs. Nguyen reported that after the accident she has had difficulty with headaches, dizziness and urinary incontinence. Mrs. Nguyen stated that she has resumed some household chores, but that she is limited because of fatigue. She can no longer do heavier household tasks, take her children out and has ceased driving because of her incontinence and headaches. In addition, driving is not possible because of her low confidence and fear.

Dr. Becker’s assessment team concluded that Mrs. Nguyen meets the definition of disability under the complete inability test on both a medical and a psychological basis in that she suffers a complete inability to carry on a normal life as a result of the accident. Mrs. Nguyen had not driven since the accident and described a fear of driving. Not being able to drive her children to school, she expressed safety concerns for them as she had never allowed them to go to school by themselves prior to the accident. Mrs. Nguyen also reported being unable to drive her children to swimming or other activities.

Dr. Rosenblatt completed the psychiatric assessment for Dr. Becker’s Designated Assessment Centre. Mrs. Nguyen stated to Dr. Rosenblatt that prior to the accident her marriage was fine, with some arguments. Since the accident the number of arguments increased and she does virtually nothing with her husband and feels she cannot even take care of herself. Mrs. Nguyen reported that she used to go to temple, shopping, and visiting friends. However, at the assessment she stated she had ended all contact with friends and had lost interest in socializing. She reported not going to unfamiliar places and not being involved in any recreational activities. On good days, she reported walking around the house to see if she could do chores. She spent most of her bad days lying down. Mrs. Nguyen also reported auditory hallucinations.

What makes Mrs. Nguyen’s case difficult to determine is that while I find that she does have a psychological impairment, I also find that her physical impairments may not be as great as she has presented. Many assessors in this case found that they could not diagnose her physically because she displayed lack of effort during testing. In addition, a number of the assessors who assessed her psychological condition concluded that she has not been a completely truthful historian. She claimed on a number of occasions to have no significant pre-accident medical conditions, when her pre-accident records clearly show that she was impaired both physically and psychologically.

In considering all of Mrs. Nguyen’s pre-accident activities, I find that she was very involved in her children’s lives. She walked or drove them to school and took them to the theatre, temple, swimming or the library. She completed household chores, including cooking and cleaning. She enjoyed socializing with friends and family, although I am not clear about the social activities in which she engaged. She went to temple and out to eat with her children.

In the post-accident period, I find that Mrs. Nguyen watches television, listens to the radio, reads newspapers and magazines and goes for walks. She has a limited ability to drive because of headaches, low confidence and fear. I do not find that Mrs. Nguyen’s urinary incontinence is related to the accident. Most of the assessors in this case, if not all, did not find that there was a connection between her urinary incontinence and the motor vehicle accident. In any case, I have no evidence that urinary incontinence would be a barrier to driving or taking public transportation. I also find that Mrs. Nguyen no longer does heavier household tasks, but can engage in lighter housekeeping. I make no findings on Mrs. Nguyen’s social life with her friends in the pre and post-accident period as she presented no evidence on the types of activities she engaged in with her friends and what she is now prevented from doing.

In assessing which pre-accident activities were the most important to Mrs. Nguyen, I find that her focus on her children and her husband’s illness in the pre-accident period left her socially isolated. In my view, the most important activities in her life involved taking care of and interacting with her children. Dr. Kelly at Riverfront Medical Services noted that in the post-accident period, Mrs. Nguyen reported that she could not transport her children to activities and experienced a fear of public transportation because she is easily fatigued and constantly dizzy. I do note, however, that Dr. Becker’s assessment stated that Mrs. Nguyen’s clinical exam was not reliable with respect to sensory and motor function. With children no longer in need of caregiving, the question is whether Mrs. Nguyen is continuously prevented from engaging in activities with her children in which she would have engaged in the pre-accident period. I have already found that Mrs. Nguyen suffers from psychological impairments related to the motor vehicle accident. However, I also find that Mrs. Nguyen is not as physically impaired as she presented to the medical practitioners who assessed her. Physically she can do more than she presents. In this case, she has not presented strong enough evidence that persuades me that she is continuously prevented from engaging in all of her pre-accident activities, particularly activities with her children. I accept the fact that she no longer drives. However, this does not mean that she cannot socialize with her children or with her friends. She has not convincingly demonstrated that she cannot take public transit or be a passenger in an automobile. Her children live with her and she did not present evidence that she is housebound.

Mrs. Nguyen’s records at the Hong Fook Mental Health Association show her to be an active participant.¹⁸ The Hong Fook records specifically note that as of June 2008 Mrs. Nguyen had reported that her physical and mental health status had improved as had her family’s relationship and social connection. Consequently, Hong Fook closed Mrs. Nguyen’s file in July 2008.

In February 2011 Mrs. Nguyen again contacted Hong Fook and stated that she was in distress. When a Hong Fook worker met with Mrs. Nguyen she expressed feelings of stress because of her legal issues. She stated that a lawyer who took on her motor vehicle accident case had caused her great stress and that the lawyer was dishonest. She stated that she had no hope of gaining back her physical and mental health. Mrs. Nguyen was readmitted to the Hong Fook program and has remained in it since February 2011.

In considering this evidence in its totality, even with Mrs. Nguyen’s re-admittance to the Hong Fook program, I find that Mrs. Nguyen is not continuously prevented from engaging in all her pre-accident activities. She has not presented evidence that her re-admittance to the Hong Fook program is in any way related to the motor vehicle accident or that her condition has deteriorated such that she cannot continuously engage in all her pre-accident activities.

I find that Mrs. Nguyen was able to engage in activities with her children prior to 2008 and that she was functioning at a high enough level in 2008 that the Hong Fook program closed her file. Mrs. Nguyen has not presented evidence demonstrating that she is continuously prevented from engaging in activities with her family, specifically her children, and her friends, which, I find are the most important activities in her life.

EXPENSES:

The parties made no submissions on expenses. They are encouraged to resolve the issue. If they are unable to do so, they may schedule an expense hearing before me according to the provisions of Rule 79 of the Dispute Resolution Practice Code.

August 28, 2013

Lloyd (J.R.) Richards Arbitrator

Date

Financial Services Commission of Ontario