Neutral Citation: 1995 ONICDRG 37
A-000542
ONTARIO INSURANCE COMMISSION
BETWEEN:
VICTOR AGUILAR
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
DECISION
Issues:
The Applicant, Victor Aguilar, was injured in a motor vehicle accident on December 14, 1990. He applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 6721. Weekly income benefits were terminated by the Insurer on June 8, 1991. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is Mr. Aguilar entitled to weekly income benefits under section 12 of the Schedule, from and after June 9, 1991?
Is Mr. Aguilar's continuing lumbar back pain, bilateral leg, and buttock pain "as a result of the motor vehicle accident of December 14, 1990, within the meaning of section 12 of the Schedule?
Is Mr. Aguilar entitled to payment of supplementary medical and rehabilitation expenses related to vocational rehabilitation and retraining in computer technology under section 6 of the Schedule?
Mr. Aguilar also claims interest on any amounts owing, and his expenses incurred in the hearing.
The parties agreed that in the event that Mr. Aguilar established his entitlement to further weekly income benefits under section 12 of the Schedule, the quantum of weekly income benefit is $185.60.
Result:
Mr. Aguilar is not entitled to payment of weekly income benefits under section 12 of the Schedule, from and after June 9, 1991.
Mr. Aguilar's continuing lumbar back pain, bilateral leg, and buttock pain is not "as a result of" the motor vehicle accident of December 14, 1990, within the meaning of section 12 of the Schedule.
Mr. Aguilar is not entitled to payment of supplementary medical and rehabilitation expenses related to vocational rehabilitation and retraining in computer technology under section 6 of the Schedule.
Mr. Aguilar is entitled to his expenses incurred in respect to the arbitration.
Hearing:
The hearing was held in Toronto, Ontario, on February 16, and 17, 1994 and June 6, 1994, before me, Janice Mackintosh, arbitrator.
Present at the Hearing:
Applicant:
Victor Aguilar
Applicant's
Brent Vickar
Representative:
Barrister and Solicitor
Insurer's
James Flaherty
Representative:
Barrister and Solicitor
Insurer's
Raj Teli,
Officer:
Senior Casualty Claim Consultant
Witnesses: The Applicant, Mrs. Lilliana Aguilar, Dr. Veronica Kekosz, Dr. Gordon Hunter, Mr. Bohdan (Bob) Panczenko.
The proceedings were recorded by Ms. Petra Smith of Canadian Verbatim Reporting Services.
Exhibits:
The 21 exhibits and other documents before the arbitrator are listed in Schedule A.
Background and medical history:
Mr. Aguilar was born on April 19, 1947, in Ecuador. He received four years of technical training in high school and joined the work force at age 18. He acquired English language skills while working with American based companies in Ecuador and immigrated to Canada in 1974, when he was 27 years old. He worked for two years as a mechanic, assembling engines for a Skidoo manufacturer. He also drove a taxi part-time. In 1976, Mr. Aguilar obtained a job on the production line of Goodyear, as an assembler in tire production, while also obtaining further technical training as a welder. He began to work as a welder at Frankel Steel in 1979, and worked there until January 7, 1981, when he was involved in the first of a series of motor vehicle accidents (Exhibit 4, Tab 11 and Exhibits 14, and 19).
Mr. Aguilar was 34 when he was involved in the first accident. His primary injury was a fracture of the larynx, which required a partial laryngectomy in 1982 (Exhibit 1, Tab 2). When he was ready to rejoin the workforce in mid-1982, Mr. Aguilar testified that he did not want to return to the intense heat of welding. He decided to try white collar business and became an insurance sales agent. He also began selling automobiles in 1983. Mr. Aguilar dreamed of starting his own business, and in early 1984, he quit sales to open a fast food operation with his wife. However, while he was still negotiating for the fast food business, the second in the series of motor vehicle accidents occurred on February 16, 1984. (Exhibits 14 and 19)
Mr. Aguilar was 37 when his second accident occurred. His automobile was struck from behind and was pushed into the vehicle stopped ahead of him. He was wearing a seat-belt but was thrown violently forward and backwards, striking his forehead on the windshield and the back of his head on the seat rest. He developed severe head, neck, chest and abdominal pain as a result of this accident, due to hyperextension injuries (Exhibits 15 and 16).
Mr. Aguilar's principal complaint and treatment for this second accident centred on pain in his head, face, neck and chest areas, along with headaches (Exhibit 4, Tab 6 and Exhibit 17). He also consistently complained of back pain (Exhibits 15, 16, 17, 18 and 19). Dr. Veronica Kekosz, a physiatrist (a specialist in the treatment of injury and the rehabilitation from resultant disability), treated Mr. Aguilar for his injuries following the second accident. Four years after Mr. Aguilar's 1984 accident, she summarized his chronic pain complaint in the following manner:
Also, his entire chronic pain syndrome, i.e. his TM joints, his anterior and posterior neck, his thoracic spine and anterior chest wall and lower back have lower back [sic] have all become more painful and stiff.
(Exhibit 4, Tab 6, letter dated January 26, 1988)
Over that period, Dr. Kekosz noted numerous attempts by Mr. Aguilar to return to the workforce, all without success.
In a report dated April 11, 1989, Dr. J. Kryspin, who specializes in the treatment of chronic and intractable pain, concluded that Mr. Aguilar's chronic pain rendered him 100 per cent disabled. Dr. Kryspin considered Mr. Aguilar's prognosis to be poor and did not expect him to be able to work in the competitive labour market in the near future (Exhibit 20).
By late May 1989, the consensus of medical opinion was that Mr. Aguilar suffered from chronic pain syndrome, chronic post-traumatic stress syndrome, and a severe depressive disorder which rendered him disabled and presented serious barriers to his return to the competitive labour market in the foreseeable future (Exhibit 4, Tab 10 and Exhibits 19 and 20).
In the fall of 1989, Mr. Aguilar and his wife purchased a house with proceeds from the settlement of a lawsuit commenced in respect of his second car accident. The house had previously been used as a day care centre. This gave Mr. and Mrs. Aguilar the idea of operating a day care themselves. They opened a home day care in December 1989, caring for two or three children.
Mr. Aguilar was involved in two further motor vehicle accidents in June and September of 1990, which were not described in his testimony. However, Mr. Aguilar reported to Dr. Kekosz that these accidents were minor and did not cause him to lose time from the day care (Exhibit 1, Tab 2).
Mr. and Mrs. Aguilar had been operating their home day care for approximately one year when Mr. Aguilar was involved in a fifth motor vehicle accident on December 14, 1990. It is this accident which gives rise to the present arbitration.
Mr. Aguilar's essential tasks:
In order to receive weekly income benefits under section 12(1) of the Schedule, Mr. Aguilar must establish, on a balance of probabilities, that he suffered a substantial inability to perform the essential tasks of his occupation, as a result of the December 14, 1990 motor vehicle accident. The more stringent test under section 12(5)(b) requires Mr. Aguilar to establish that his motor vehicle accident injury continuously prevents him from engaging in any occupation or employment for which he is reasonably suited by education, training, or experience.
Mr. and Mrs. Aguilar both testified that at the time of the December 14, 1990 accident, they were providing day care for 12 or 13 children on a regular weekly basis. Their home day care was not licensed and was operated on a cash only basis, without books, records, or receipts. A flat weekly fee of $75.00 was charged for each child. No tax return was filed in respect of this income.
Mr. and Mrs. Aguilar testified that they split the duties of the day care equally between them, except that Mr. Aguilar did not change diapers or bathe the younger children. Mr. Aguilar stated that he and his wife worked five days a week from 7 a.m. to approximately 5 or 6 p.m. without breaks or rest periods. The children ranged in age from infants to pre-schoolers, with the addition, in summer, of school-aged children up to the age of ten. While the infants and toddlers often napped, the older children required constant attention and supervision.
Mrs. Aguilar greeted the incoming children and their parents, while Mr. Aguilar removed the children's outdoor clothing and boots. Every Monday he carried and stored the children's strollers, playpens, and other baby equipment supplied by the parents and used at the daycare during the week.
Mr. Aguilar testified that he and his wife shared the responsibility for preparing snacks and the midday meal. They fed the children and shared the after meal clean-up. They routinely lifted the children in and out of highchairs, strollers, and playpens, regularly took them out for walks, played with them in the enclosed backyard and cleaned up after them. At the end of the day, Mr. Aguilar engaged the children in activities while his wife washed their hands and faces and readied them for pick up by their parents. Once the children were gone, he and his wife carried out the garbage, and washed and disinfected the ceramic and wood floors, in preparation for the next day.
I do not accept Mr. Aguilar's description of his essential tasks before the December 14, 1990 accident. I find that he has overstated the physical requirements of his pre-accident tasks as well as the extent of his involvement in the "hands on" care of the children.
In late May 1989, Mr. Aguilar was found to be 100 per cent disabled by chronic pain which primarily affected his head, face, neck, chest, and cervical spine, along with headaches. His chronic pain had defeated his repeated efforts to return to work, and persisted despite the efforts of numerous medical specialists and treatment-providers over a five year period. Seven months later, Mr. Aguilar and his wife opened a day care with two or three children. Mr. Aguilar conceded that he did not experience a dramatic recovery in the seven months between late May 1989 and December 1989, but continued to suffer chronic pain. However, he did report that his chronic depression had improved with the settlement of his lawsuit, the purchase of a new home, and the promise of a new career (Exhibit 4, Tab 11).
I accept that Mr. and Mrs. Aguilar shared high hopes for the success of their day care business. They eventually planned to qualify for a licence which, Mr. Aguilar suggested, would enable them to charge higher rates and open a larger facility to care for more children (Exhibit 4, Tab 11, at page 3). However, I find that Mr. and Mrs. Aguilar's dreams for the future have obscured their memory of the actual situation at the time of the December 1990 accident.
Mrs. Aguilar provided a list of 12 mothers and their children for whom she stated they provided day care (Exhibit 6). The list contains first names and telephone numbers, but no last names or addresses. Mr. and Mrs. Aguilar were unable to provide additional information concerning the mothers and the children and could locate only one of the mothers listed, for this hearing. They did not provide the specific names or the number of children they cared for from week to week in the 12 months between December 1989 and the December 14, 1990 accident.
I do not accept that Mr. and Mrs. Aguilar were looking after as many children as they claim, in December 1990. Mr. Aguilar testified that children came and went, and the number of children they cared for fluctuated. They cared for more children in the summer than in the winter because, in addition to infants and toddlers, they took in school aged children. He also testified that the maximum number of children they cared for at any time on a regular weekly basis was 12 or 13.
I find that the 12 children listed in Exhibit 6 likely included every child they had ever provided care to, throughout the operation of the day care, and does not reflect the actual number of children cared for in the four weeks preceding the December 1990 accident.
I find it highly unlikely that Mr. and Mrs. Aguilar, if both were in the best of health, could have cared for 12 or 13 infants and pre-schoolers as they claimed, preparing formulas and meals, feeding them, diapering them, regularly taking them out for walks, and involving them in the play activities described. It becomes even more improbable when I consider that Mr. Aguilar was suffering disabling chronic pain. I conclude that the actual number of children cared for within their home, at any one time, was likely far fewer than the 12 or 13 claimed.
Mrs. Aguilar appeared more familiar with the children's names and identities in her testimony and it was she who greeted the parents and children upon their arrival and bade them farewell on their departure. I conclude that Mrs. Aguilar was the primary care giver, while Mr. Aguilar assisted, when and however he could. No parents were called to corroborate the evidence of Mr. and Mrs. Aguilar regarding their activities in the day care.
I find that Mr. Aguilar's responsibilities included supervising the older children in the enclosed backyard while Mrs. Aguilar diapered and readied the younger children for their naps. He could drive, do errands, and assist with meal preparation and feeding. He undoubtedly lifted children from time to time, as his chronic neck and shoulder pain would allow. He could hold the children's hands while out on walks, and probably push a stroller. I find that these activities were relatively light, with the emphasis on maturity and judgement over physical strength. Nonetheless, Mr. Aguilar's work at the day care was likely the most demanding activity he had been engaged in, in the six years since his 1984 accident. I conclude that Mr. Aguilar's participation in the day care represented a significant milestone for him, and the level of his participation has become exaggerated in his mind, and in that of his wife.
The December 14, 1990 accident:
Mr. Aguilar was 43 years of age at the time of his fifth accident. He was driving 25 to 30 kilometres an hour, when a van suddenly exited from the parking lot of a shopping mall. He turned the steering wheel and applied pressure to both the clutch and the brake in order to stop, but hit the rear quarter panel of the van with the left front portion of his car. He was wearing a lap and shoulder seat-belt, but was thrown forward and then back into his seat. The damage to Mr. Aguilar's car was $2,000. Two other vehicles were involved in the accident, and police were called, but an ambulance was not required. Mr. Aguilar immediately felt pain in his left hip but returned home without medical assistance.
Mr. Aguilar received no medical assistance until approximately one week after the accident, when he states that due to the unavailability of his regular family doctor, he contacted the Doctors' Replacement Service. There is no record of this visit. Approximately four weeks after the accident, Mr. Aguilar contacted the Doctors' Replacement Service again. On Friday January 11, 1991, Dr. Harvey O. Fong visited Mr. Aguilar's home and made a tentative diagnosis of urinary tract infection. Dr. Fong reported that Mr. Aguilar did not mention the occurrence of a motor vehicle accident on that visit (Exhibit 4, tab 2).
On January 14, 1991, Mr. Aguilar attended at the emergency department of the Wellesley Hospital complaining of "left flank pain x 4 weeks - increasing over past few days now radiates to left groin + leg" (Exhibit 4, Tab 1). He also complained of difficulty ambulating, difficulty voiding, painful urination and thick cloudy urine. He reported that he had not been able to leave the house in the past three weeks except for this hospital visit.
The emergency report records Mr. Aguilar's history of left sided kidney inflammation caused by bacterial infection (pyelonephritis). Mr. Aguilar testified that at that time he believed his back pain was due to a recurrence of his previous kidney problems. No mention of the motor vehicle accident appears in the emergency room report dated January 14, 1991 (Exhibit 4, Tab 1).
Urological investigations were conducted at Wellesley Hospital but were found to be normal. On January 18, 1991, the hospital's out-patient history sheet noted that Mr. Aguilar was discharged with a diagnosis of musculo-skeletal back pain. (Exhibit 4, Tab 1)
On January 22, 1991, Mr. Aguilar was assessed by Dr. Kenneth J. Logue, who became his family physician. Mr. Aguilar's complaints at that time included left hip pain and low back pain of approximately four weeks duration, worsening over that time. Mr. Aguilar reported that his back pain had progressed to the point where he was unable to work or walk any distance. This is the first occasion where it is noted that Mr. Aguilar related his pain to the motor vehicle accident of December 14, 1990.
Dr. Logue noted "quite dramatic" clinical findings on his initial assessment of Mr. Aguilar. In his report dated October 7, 1993, he states (Exhibit 4, Tab 7):
He was in very obvious distress and was unable to walk more than a few steps and required assistance from his wife. His lumbar spine was markedly rigid and he had marked paraspinal lumbar muscle spasm. There was, however, no evidence of nerve root, irritation or radiculopathy.
Dr. Logue prescribed analgesics, muscle relaxants, chiropractic treatment, and physiotherapy, and noted that lumbar x-rays were taken.
Substantial inability to perform his essential tasks
The Aguilars testified that following the accident, they tried to keep the day care going. Initially Mr. Aguilar could do very little. In response, the Aguilars testified that they reduced the number of children at the day care, and kept only the older ones.
Over the next few months following the accident, Dr. Logue noted a slow but steady improvement in Mr. Aguilar's condition. In his report dated October 7, 1993, Dr. Logue states (Exhibit 4, Tab 7):
My examination on March 5, 1991 indicates that he described a 75% improvement subjectively. He was continuing with physiotherapy three days a week and had decreased his Tylenol #2 medication considerably. His course continued to improve throughout the summer, but beginning in July 1991 and extending through the fall of 1991, he unfortunately began to have episodes of severe lower back pain with radiation into his right buttock and hip.
A similar progression was noted by Dr. Kekosz in her report dated June 3, 1991 (Ex 4, Tab 6):
Since Victor [Aguilar] was last seen [March 1991], he has almost full resolution of his left leg pain. However, since mid April, he has noted the onset of right leg pain with radiculopathic symptoms to the level of the knee... There has been no weakness or giving way of the leg.
Victor is now trying to do more work around the Day Care. He is no longer taking any medications other than Tylenol Extra Strength.
I do think he is suffering from primarily an SI joint dysfunction and a myofascial pain syndrome which will resolve within the next few weeks.
On May 22, 1991, Mr. Aguilar provided the Insurer with a written statement which stated in part, (Exhibit 8):
The children we have are all preschoolers who stay 8-10 hours a day. I have some problems to lift the children into high chairs. I also take them outside and I manage alright when I take them out. I am able to cut the grass but anything when I have to bend down gives me problems.
On June 4, 1991, Dr. D'Angelo, an orthopaedic specialist retained by the Insurer, noted (Exhibit 4, Tab 4, page 2):
He felt pain in the left hip and left iliac crest region following the accident. He reports today that this has completely resolved since about March of 1991. He feels however that the discomfort on that side has moved over to the right side and now involves his right flank and right leg. There are no neurological symptoms associated with this such as numbness, tingling or weakness in the legs.
At the time of the accident his employment and leisure activities involved helping his wife with a Day Care Business....
He continued to work in the Day Care Business following the accident and for approximately two weeks he carried out the full duties of the job. Near the end of December in 1990 he stopped the job because of left flank pain. He did not return to the full duties of the job until about April 1, 1991. Since that time, he has been performing the full duties of the Day Care Business.
Allstate paid weekly income benefits to Mr. Aguilar from December 21, 1990. The Insurer terminated weekly income benefits on June 8, 1991 (24 weeks) on the basis of Dr. D'Angelo's report.
At the hearing, Mr. Aguilar denied that he had returned to his full duties at the day care in the spring of 1991, as reported by Dr. D'Angelo. Mr. Aguilar maintained that, despite the improvement noted by his doctors, his back pain continued to prevent him from performing the physically demanding activities around the day care as he described them. Although I recognize that Mr. Aguilar was not completely free of back pain in the spring and summer of 1991, I find that he had substantially resumed his essential tasks in the day care, as I have determined them to be - ie. of a light and supervisory nature.
Mr. Aguilar's condition after June 8, 1991:
Unfortunately, Mr. Aguilar's condition did not "resolve within the next few weeks" as predicted by Dr. Kekosz in her report dated June 3, 1991 (Ex 4, Tab 6). A year later, Dr. Kekosz reported:
He did continued [sic] chiropractic treatment until the end of the summer of 1991 but then discontinued when there was some improvement. Since then he has had a slow deterioration in the lower back pain.
It appears that Victor is getting some nerve root irritation at the SI nerve root.
(June 12, 1992, Exhibit 4, Tab 7,)
Mr. and Mrs. Aguilar agreed that they finally closed the day care when they were unable to find older children to fill vacancies. At that point, Mrs. Aguilar was no longer able to care for young children, in addition to caring for Mr. Aguilar, as his condition deteriorated.
Dr. Logue and Dr. Kekosz agree that Mr. Aguilar's back pain gradually increased through the fall of 1991 and winter of 1992. In her report dated December 1, 1992, Dr. Kekosz noted that Mr. Aguilar had been able to take some computer courses and to look for work (Exhibit 4, Tab, 6). However by February 19, 1993, she reported to Dr. Logue that Mr. Aguilar's "critical status has deteriorated with respect to the pain" and he was unable to sleep, stand, walk, or sit, for more than a few minutes at a time, due to severe pain radiating to both buttocks but with more pain and weakness in the right lower extremity (Exhibit 4, Tab 7).
Dr. Kekosz arranged for a CT scan of Mr. Aguilar's lumbar spine. The radiologist report dated 93/02/12 states (Exhibit 4, Tab 9):
There is marked concentric bulging of the disc at the L4-5 level, associated with hypertrophic changes in the facet joints producing a degenerative segmental spinal stenosis at this level.
There are minor osteoarthritic changes in the facet joints at L5-S1 but no intraspinal soft tissue abnormality is seen at this level.
Dr. Kekosz referred Mr. Aguilar to Dr. Ezra A. Silverstein, an orthopaedic surgeon, who performed a successful posterior decompression at the L4/L5 level on May 20, 1993 (Exhibit 10 and Exhibit 4, Tab 7, Dr. Silverstein's note dated May 11, 1993).
Dr. Logue and Dr. Kekosz report that Mr. Aguilar's recovery from surgery has been slow. In July 1993, Dr. Kekosz noted gradual improvement in his overall functioning. She reported that he was able to sit, stand, and walk for longer periods. In August 1993, Dr. Kekosz reported that Mr. Aguilar still had difficulty with back pain, but was off narcotics and his referred leg pain had improved quite substantially (Exhibit 4, Tab 6).
However, Mr. Aguilar testified that eight months after his back surgery and more than three years after his 1990 accident, the pain in his back, legs and buttocks has improved very little. He complained that in addition to his pre-existing pain which affected his head, face, neck, chest and cervical spine, he is now further limited by pain in the lower part of his body - his whole body aches.
Dr. Kekosz concluded that Mr. Aguilar's problems with pain after his 1984 accident were largely of a psychiatric and psychological nature, rather than organic in origin. She conceded that following back surgery in May 1993, which relieved the compression at L4-L5, Mr. Aguilar's continuing pain is, in part, related to psychological factors (transcript page 62, line 4).
Dr. Kekosz testified that Mr. Aguilar's back pain prevents him from resuming the full range of physical responsibilities of a day care provider, particularly the requirement of repeated bending and lifting (transcript page 62 line 23). In addition, she opined that his current lumbar back pain would likely preclude him from performing any job that required extended periods of standing or sitting (transcript at page 17, line 8).
Causal relationship between present condition and December 1990 motor vehicle accident:
In order to qualify for payment of weekly income benefits under section 12 of the Schedule, Mr. Aguilar must establish that his physical, psychological or mental injury is "as a result of the December 1990 accident.
Mr. Aguilar submits that the gradual deterioration of his function after June 9, 1991, which ultimately led to surgery in May 1993, was "as a result of a marked bulging of the disc at the L4/L5 segment of his lumbar spine. Mr. Aguilar submitted that the bulging disc most likely resulted from the motor vehicle accident of December 1990. He maintains that but for the 1990 accident, he would not be experiencing the lumbar back, leg, and hip pain he suffers today.
The Insurer states that Mr. Aguilar's increasing pain and gradual deterioration of function after June 9, 1991 was not "as a result of" the December 1990 accident but rather was as a result of progressive deterioration of the Applicant's spine and degenerative disc disease, which began well before the motor vehicle accident, and continued to worsen after the motor vehicle accident. The Insurer submits that Mr. Aguilar's back pain would likely have occurred irrespective of the December 1990 accident.
The CT scan showed that on February 12, 1993, Mr. Aguilar had spinal stenosis and a marked bulging of the disc at the L4/L5 level of his spine. The CT scan does not establish the cause of either the spinal stenosis or the bulging disc, nor when these conditions began to occur.
Medical experts, consulted by the parties, provided various opinions concerning the cause of Mr. Aguilar's spinal stenosis and bulging disc and their connection, if any, to the December 1990 motor vehicle accident.
Dr. Gordon Hunter, an orthopaedic specialist retained by the Insurer, explained that spinal stenosis is a narrowing of the spinal canal or the smaller canals above and below the vertebral bodies (intervertebral foramina), which is caused by encroachment of bone upon the canal space. Dr. Hunter testified that spinal stenosis reduces the room in the spinal canal where the spinal cord runs through it, or reduces the room in the smaller canals where the nerve root exits from the spinal cord. All experts agreed that a person with spinal stenosis is at much greater risk of compression of the spinal cord or nerve roots by such things as fractured vertebrae or bulging intervertebral discs (Exhibit 4, Tab 7, Dr. Silverstein's consultation note dated May 11, 1993). Intervertebral discs consist of tough gelatinous material bound by thick fibrous tissue which are located between the vertebral bodies (bones) of the lumbar spine.
Dr. Kekosz suggested that Mr. Aguilar's spinal stenosis and bulging disc was limited to the L4/L5 segment of his spine and was the result of specific trauma to that segment experienced during the December 1990 motor vehicle accident. Dr. Kekosz stated that Mr. Aguilar's lumbar pain first appeared after the December 1990 accident as a result of the impact of that accident upon Mr. Aguilar's spine. She opined that the impact likely caused the L4/L5 disc to significantly bulge into the canal where the nerve root exits from the spinal cord. The bulging disc pressed on Mr. Aguilar's nerve root thereby creating a painful compression from December 1990, until addressed by surgery in 1993. Dr. Kekosz believed that this compression was the principal source of Mr. Aguilar's fluctuating low back and buttock pain, alternating referred pain in both legs, and leg weakness. In theory, surgical decompression at the L4-L5 level should have significantly relieved Mr. Aguilar's referred pain. However, Dr. Kekosz testified that unfortunately, Mr. Aguilar falls into that minority of people who are not relieved of pain following successful corrective back surgery (transcript page 62, line 14).
Dr. Hunter reviewed Mr. Aguilar's x-rays, CT scan, and the myelogram obtained in April 1993, shortly before Mr. Aguilar's back surgery, along with their accompanying reports. Dr. Hunter stated that these diagnostic tests revealed numerous degenerative changes throughout Mr. Aguilar's lumbar spine, including obvious disc herniation (protrusion of fibrous discs) at the L2/L3 and L3/L4 levels, in addition to the L4/L5 segment (G.H. transcript p. 15, 19, 20 line 14 to p. 22 and 23 line 18). Dr. Hunter testified that the widespread nature of Mr. Aguilar's disc protrusion is more indicative of a disease process ie. lumbar disc disease, rather than trauma-induced injury to a specific section of the spine from an accident. Dr. Hunter noted that lumbar disc disease is often associated with cervical disc disease (G.H. Transcript at p. 22 line 10). I note that Mr. Aguilar was diagnosed as suffering degenerative disease of the cervical spine (early facet degeneration, small posterior osteophytes), as well as cervical disc degeneration in the area of the 4th and 5th cervical vertebra, as early as March 31, 1984 (Exhibits 16 and 17).
Dr. Kekosz ultimately accepted that the December 1990 accident could not have caused the numerous degenerative changes found throughout Mr. Aguilar's lumbar spine, and that such changes likely existed, to some degree, prior to the motor vehicle accident (V.K. transcript page 64, 70, 72, 76, and 78).
Dr. Hunter proposed that Mr. Aguilar's initial severe left sided flank pain was likely due to myofascial soft tissue injuries suffered in the December 1990 accident, which gradually healed through the spring and summer of 1991. Dr. Hunter suggested that the onset of right sided lumbar pain in the late summer and fall of 1991 and the progressive deterioration of Mr. Aguilar's condition over the next two years was more likely due to degenerative lumbar disc disease, than the accident of December 1990. Dr. Hunter testified that Mr. Aguilar likely suffered a continuous gradual bulging of the disc into a canal which was already compromised by spinal stenosis. This slowly compressed the nerve root, giving rise to the increasing complaints of severe leg pain and ultimately the reduction in function and leg weakness observed by Dr. Kekosz in February 1993. These symptoms were addressed by surgical decompression in May 1993, more than two years after the December 1990 accident.
Dr. D'Angelo, an orthopaedic surgeon, prepared two reports for the Insurer dated June 4, 1991 and January 13, 1994, respectively. I place less weight upon Dr. D'Angelo's initial report as it was based on erroneous information. In his second report Dr. D'Angelo stated:
The CT scan showed bulging of the disc and not a frank herniation which is what is usually expected with sudden trauma or sudden onset of pain. Bulging usually occurs gradually and is a result of slow degeneration of a disc and not a sudden traumatic event.
(Exhibit 4, Tab 4, page 3)
Dr. D'Angelo also shared Dr. Hunter's view that Mr. Aguilar's abnormal disc pre-existed the December 1990 motor vehicle accident.
I prefer the opinion of Dr. Hunter to that of Dr. Kekosz as to the primary cause of Mr. Aguilar's lumbar pain and increasing dysfunction after June 9, 1991. I find that the profile of Mr. Aguilar's back pain is more consistent with a progressive, degenerative, disease process affecting several segments of the spine, than with the sudden onset and continuation of symptoms arising from traumatic injury to a specific area of the spine. Furthermore, Mr. Aguilar maintains that he has experienced minimal relief of the pain in his back, legs, and hips, despite corrective surgery in May 1993. This supports Dr. Hunter's view that Mr. Aguilar's current pain is likely due to the continuing progression of lumbar disc disease, beginning well before the accident, coupled with Mr. Aguilar's previously demonstrated tendency to become pain-focused, rather than a single trauma induced compression at the L4/L5 level, which Dr. Kekosz expected would have been somewhat relieved by surgical decompression.
Counsel for Mr. Aguilar submitted that the causal connection required by section 12 is satisfied if the December 1990 accident made any contribution whatsoever to Mr. Aguilar's current condition by, for example, causing an already bulging disc to bulge further. It is an accepted principle before the Commission that the accident need not be the sole or exclusive cause of the resulting injury. However, an applicant must prove that the accident made a significant or material contribution to the disability claimed2.
In his report dated January 13, 1994, Dr. D'Angelo concludes:
In general, it is reasonable to say that the motor vehicle accident exacerbated a pre-existing condition. The motor vehicle accident had the effect of causing symptoms earlier than they may have otherwise occurred naturally.
Dr. Kekosz, Dr. Hunter and Dr. D'Angelo agree that the fifth motor vehicle accident likely made some contribution to the chronic pain in Mr. Aguilar's low back, hips and legs, however they differ as to the degree and significance of this contribution to Mr. Aguilar's current condition.
Dr. Hunter explained that the type of widespread herniation experienced by Mr. Aguilar at L2/L3, L3/L4, and L4/L5 can be entirely asymptomatic, or can become symptomatic over time, as the result of general wear and tear on the spine. Dr. Hunter suggested that Mr. Aguilar's complaints of lumbar back pain, documented since 1984, have increased and persisted as a result of the accumulated wear and tear on his spine. Dr. Hunter suggested that all five motor vehicle accidents, as well as Mr. Aguilar's return to activity in December 1989, following a five year hiatus, likely contributed to the wear and tear on his spine.
Once an individual has been injured and painful symptoms are present, it is very difficult to apportion residual pain between the progression of the pre-existing degenerative disc disease alone and any additional damage caused by a motor vehicle accident. Counsel for the Insurer submitted that the force of the accident is a relevant factor to consider in weighing the contribution made by the accident. In the month following the motor vehicle accident of December 1990, it did not occur to Mr. Aguilar to relate his symptoms and complaints to the motor vehicle accident. I find that Mr. Aguilar's December 1990 accident was a relatively minor one. Mr. Aguilar now maintains that as a result of this relatively minor accident, it is unlikely that he will be able to return to gainful employment in the foreseeable future.
I find that at the time of the December 1990 accident, Mr. Aguilar probably had a significant weakness of the spine which would have likely caused him pain and disability irrespective of the motor vehicle accident. I accept that the 1990 accident affected Mr. Aguilar's condition to some extent, however, the evidence persuades me, on the balance of probabilities, that the numerous other factors referred to in Dr. Hunter's testimony far outweigh the contribution made by the December 1990 accident. Section 12 of the Schedule is intended to compensate employed persons who establish substantial disability, regardless of the presence of negligence or fault. However, the Schedule is intended to compensate only those whose injuries arise as a result of motor vehicle accidents and not as a result of disease. I accept Dr. Hunter's view that Mr. Aguilar's continuing low back pain and bilateral leg and hip pain after June 9, 1991, is more likely related to a disease process rather than to trauma caused by the December 1990 accident. Mr. Aguilar is therefore not entitled to weekly income benefits after June 9, 1991.
In view of my findings on this point, it is not necessary for me to consider whether Mr. Aguilar satisfies the more stringent test of disability for post-156 week benefits under section 12(5)(b) of the Schedule.
Supplementary medical and rehabilitation benefits:
Mr. Aguilar seeks further treatment and rehabilitation for his current condition, including vocational rehabilitation and retraining in computer technology, as outlined in the report of Dr. Kekosz dated July 21, 1993. (Exhibit 4, Tab 5, page 4). Section 6 of the Schedule provides that an applicant who sustains physical, psychological or mental injury "as a result of" an accident, is entitled to payment of all reasonable expenses that are necessary for an applicant's treatment or rehabilitation from those injuries. Both counsel submitted that the determination of causality, under section 12 of the Schedule, is binding upon the determination of causality under section 6. I conclude that Mr. Aguilar's current condition, and any rehabilitation needs flowing from that condition, are the result of a degenerative disease process and not as a result of the December 1990 accident. Accordingly, Mr. Aguilar is not entitled to payment of expenses related to his vocational rehabilitation and retraining in computer technology.
Expenses:
The Applicant seeks an award of the expenses he has incurred in this arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:
The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.
The prescribed expenses and amounts are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990, Dispute Resolution Expenses.
In Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139, Arbitrator Susan Naylor made the following comments about expenses, with which I agree:
The discretion to award expenses should be exercised, having regard to the intent and purpose of the legislative scheme. The arbitration process has been established under the Insurance Act, as amended, in order to facilitate applicants' access to relatively inexpensive, speedy and informal adjudication of disputes regarding no-fault benefits. The discretion to award expenses should be exercised in accordance with this objective, having regard to the individual circumstances of each case.
Accordingly, it is appropriate to award an applicant his or her expenses, unless, in the circumstances of the particular case, it is determined that the application for appointment of an arbitrator was manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings.
The Director of Arbitrations approved this statement of the principles guiding an award of expenses in the appeal decision in Vito Luigi Calogero and The Co-Operators General Insurance Company, February 13, 1992, OIC File No. P-000251.
In view of the difficulty and uncertainty of the medical issues involved in this case, I conclude that Mr. Aguilar is entitled to his expenses as set out in Schedule 1 of the Dispute Resolution Practice Code. In the event that the parties cannot agree as to the total amount of expenses, I remain seized of this matter and a party may apply for assessment of the expenses before me.
Order:
Mr. Aguilar is not entitled to weekly income benefits under section 12 of the Schedule, from and after June 9, 1991.
Mr. Aguilar's continuing lumbar back pain, bilateral leg, and buttock pain is not "as a result of" the motor vehicle accident of December 14, 1990, within the meaning of section 12 of the Schedule.
Mr. Aguilar is not entitled to payment of supplementary medical and rehabilitation expenses related to vocational rehabilitation and retraining in computer technology under section 6 of the Schedule.
Mr. Aguilar is entitled to his expenses incurred in respect to the arbitration.
April 20, 1995
Janice Mackintosh
Arbitrator
Date
SCHEDULE A
Exhibits:
Exhibit 1
Applicant's Medical Brief
Tab 1 Reports of Dr. Kenneth Logue, dated October 7, 1993 and February 1, 1994
Tab 2 Dr. Veronica Kekosz - Report dated July 21, 1993, Curriculum Vitae, prescriptions
Tab 3 Report of The Orthopaedic Therapy Clinic, dated January 19, 1994, Curriculum Vitae of Maureen Dwight
Tab 4 Report of Dr. J.L. Price, dated January 26, 1994, Curriculum Vitae of Dr. Price
Tab 5 Report of Dr. G. D'Angelo, dated January 13, 1994
Exhibit 2
Investigation notes (4 pages), prepared by Mr. Panczenko
Exhibit 3
Videotape, July 18, 1991
Exhibit 4
Insurer's Medical Brief
Tab 1 Wellesley Hospital records, emergency report, dated January 14, 1991
Tab 2 Report of Dr. Harvey O. Fong, dated February 22, 1991
Tab 3 Letters and invoices of Davisville-Yonge Chiropractic Clinic, dated May 14 and June 11, 1991
Tab 4 Reports of Dr. G. D'Angelo, dated June 4, 1991 and January 13, 1994
Tab 5 Report of Dr. V. Kekosz, dated July 21, 1993
Tab 6 Clinical notes and records of Dr. V. Kekosz
Tab 7 Report of Dr. K. Logue, dated October 7, 1993, with clinical notes and records attached
Tab 8 Pharmacy prescriptions for therapy treatment:
Mount Sinai Hospital - for physiotherapy treatment, dated May 25, 1993; Dr. Kekosz - for physiotherapy treatment, dated August 31, 1993; Dr. Kekosz - for elastic sacral support, dated August 31, 1993; Dr. Kekosz - for physiotherapy treatment, dated August 31, 1993.
Tab 9 Radiology report from Sunnybrook Health Science Centre re spinal stenosis
Tab 10 Report of Dr. C. Willy Galarraga, covering letter dated January 19, 1994 enclosing transcript of report, dated May 25, 1989
Tab 11 Report of Dr. J. Price, dated January 26, 1994
Tab 12 Report of Dr. G. Hunter, dated January 21, 1994
Exhibit 5
Application for Accident Benefits, dated February 21, 1991
Exhibit 6
List of children in day care
Exhibit 7
Statement of Victor Aguilar, dated January 30, 1991
Exhibit 8
Statement of Victor Aguilar, dated May 22, 1991
Exhibit 9
Summons to Witness and Affidavit of Service upon Lily Edu'Fokuo
Exhibit 10
Operative Report of Dr. Silverstein, dated May 20, 1993
Exhibit 11
Curriculum Vitae of Dr. Hunter
Exhibit 12
Report of Dr. Hunter, dated January 21, 1994
Exhibit 13
Curriculum Vitae of Dr. Logue
Exhibit 14
Forensic Accountant's report of May 25, 1989
Exhibit 15
Report of Dr. Ruth Moses, dated August 17, 1984
Exhibit 16
Report of Dr. P. Sauret, dated November 19, 1985
Exhibit 17
Report of Dr. J.B. Gosevitz, dated May 2, 1986, with clinical notes attached
Exhibit 18
Report of Dr. C.H. Tator, dated February 26, 1986
Exhibit 19
Report of Dr. D. Silver, dated May 26, 1989
Exhibit 20
Report of Dr. J. Kryspin, dated April 11, 1989
Exhibit 21
Day care regulations (to be filed by Insurer following hearing) - not filed
Documents before the arbitrator
Report of Mediator, dated October 1, 1991
Application for Appointment of an Arbitrator, dated August 30, 1993
Response by Insurer, dated September 28, 1993
Pre-hearing letter, dated November 9, 1993