November 16, 2013, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Date of Decision: August 28, 2013
Heard Before: Arbitrator Lloyd Richards
Mrs. Binh Thi Nguyen was injured in a motor vehicle accident on January 27, 2003. She was assessed with whiplash, PTSD, and major depressive disorder. She applied for and received a caregiver benefit from Economical for the care of her children until August 23, 2008 at which time Economical terminated the benefits claiming she no longer suffered a disability.
Mrs. Nguyen claimed caregiver benefits to February 23, 2009 when her youngest child turned 16. She also claimed a non-earner benefit commencing on that date as she claims her life has changed completely.
It is Economical contention that Mrs. Nguyen did not meet the tests for disability for the caregiver and non-earner benefits. Economical believes Mrs. Nguyen’s claims lack credibility. Economical ceased paying after five and a half years when an assessment in July 2008 determined that she no longer met the test for disability.
Prior to the accident in 2003, Mrs. Nguyen rarely visited the doctor. However two notes to her medical file from 2002 are noteworthy. In October of 2002 an entry appears that refers to psychological problems, and in December 7 and 11, 2002 her records show she complained of back pain, sciatica, and a not yet diagnosed psychological issues, nervous system convulsions and a lack of coordination. She was under considerable stress caring for a very ill husband and had not been in the workforce for some time.
Post-accident Mrs. Nguyen visited medical professionals monthly and her post-accident complaints changed or became more severe.
Dr. B and Dr. O who assessed her at a three year interval after the accident concluded that Mrs. Nguyen’s impairments were psychological rather than physical. Dr. H and Dr. R also assessed her at three year intervals and concluded that she lived under great stress before the accident, and that the pre-accident impairments did not limit her functioning.
The Arbitrator concluded that Mrs. Nguyen has established the accident materially contributed to her impairments. He also found that her impairments are primarily psychological, and that she exaggerated her physical complaints. Her psychological condition had become chronic as she was not receiving the appropriate care needed. Despite this fact, she does not meet the disability test to qualify for further benefits. The Arbitrator placed little weight on a Disability Certificate of Dr. PT, psychiatrist as it appeared to be an attempt to buttress the case rather than a true assessment of Mrs. Nguyen’s condition.
Mrs. Nguyen had assessments by Dr. P, chiropractor. However the Arbitrator placed little weight on his conclusions of impairment as his examination was not a complete one, nor did he appear to give evidence. Dr O noted that the findings for Mrs. Nguyen’s physical condition could not be explained by structural abnormality. He was not able to reveal any cause for her condition. Ms. S, occupational therapist, examined Mrs. Nguyen and noted that she exhibited self-limiting behavior and was not able to make conclusions about any limitation. Many assessors in this case found that her physical and psychological conditions could not be fully assessed as Mrs. Nguyen had not been fully truthful, nor put forth an honest effort.
The Arbitrator concluded his findings by noting that while Mrs. Nguyen did suffer from a psychological impairment, she was not completely unable to lead a normal life when her caregiver benefits were terminated. He also found that she did not meet the threshold test for entitlement to non-earner benefits.