Neutral Citation: 1996 ONICDRG 84

File No.: A-005623

ONTARIO INSURANCE COMMISSION

BETWEEN:

BARBARA JUNE PICKERING

Applicant

and

LIBERTY MUTUAL FIRE INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Barbara June Pickering, was injured in a motor vehicle accident on November 2, 1990. She applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672.¹ Weekly income benefits were terminated by the Insurer on January 15, 1993, on the basis that Ms. Pickering's continuing kidney problems do not result from the accident but are the result of pre-existing conditions.

The issues in this hearing are:

1. Is Ms. Pickering entitled to payment of weekly income benefits under sections 12(1) and 12(5)(b) of the Schedule after January 15, 1993, as a result of the motor vehicle accident of November 2, 1990?

2. Is Ms. Pickering entitled to payment of supplementary medical and rehabilitation expenses under section 6(1) of the Schedule as a result of the accident?

The Applicant also claims interest on any amounts owing, and her expenses incurred in the hearing.

The Insurer has continued to pay certain supplementary medical and rehabilitation expenses pursuant to sections 6(1) and 6(7) of the Schedule, pending resolution of this dispute with Ms. Pickering. The Insurer reserves the right to seek repayment of these amounts in a subsequent proceeding. At the request of the parties, I remain seized of this issue.

Result:

1. Ms. Pickering is not entitled to payment of weekly income benefits under sections 12(1) and 12(5)(b) of the Schedule after January 15, 1993, as a result of the motor vehicle accident of November 2, 1990.

2. Ms. Pickering is not entitled to payment of supplementary medical and rehabilitation expenses under section 6(1) of the Schedule as a result of the accident.

3. The Insurer shall pay to Ms. Pickering her expenses of the hearing under the provisions of section 282(11) of the Insurance Act² in accordance with the prescribed amounts as set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990, Dispute Resolution Expenses.

Hearing:

The hearing was held in North York, Ontario, on December 6, 1994, February 28, 1995, March 1, 1995, June 1, 6, and 7, 1995 before me, Janice Mackintosh, Arbitrator. Written submissions dated June 23, and July 7, 1995 were also submitted on behalf of the parties. A telephone conference call among the parties was conducted on February 8, 1996, with follow-up correspondence dated February 26, March 13, 18, 19, 20, 26,27, April 11 and 24, 1996.

The names of those present at the hearing and a list of exhibits filed are contained in Schedule A.

Evidence and Findings:

At the time of the motor vehicle accident, Ms. Pickering was a 41-year old Registered Nurse. Seven months prior to the accident, Ms. Pickering had rej oined the workforce as a hospital staff nurse, employed through S.R.T. Med Staff - International (Toronto). This agency supplies local hospitals with registered nurses to meet their additional staffing requirements. Ms. Pickering generally worked between 30 to 40 hours each week providing a full range of nursing services and was returning home at the conclusion of her evening shift when the car accident occurred on November 2, 1990.

Ms. Pickering maintains that an external blow from the accident damaged her left kidney thereby causing extensive bleeding from within her kidney on the night of the accident. Haematuria (the presence of blood in the urine) continues to date and Ms. Pickering alleges that blood has accumulated in her left kidney and has created a breeding ground for an almost continuous series of kidney infections. She submits that the motor vehicle accident significantly exacerbated her pre-existing kidney problems and is the cause of her current disability.

The Insurer accepts that Ms. Pickering's current condition prevents her from returning to work as a staff nurse or to any work for which she is reasonably suited by education, training or experience. However, the Insurer submits that Ms. Pickering's current problems with haematuria and chronic pyelonephritis (infection of the kidney and its pelvis) would likely have occurred in any event and are more probably related to a spontaneous flare-up of her pre-existing kidney problems compounded by other pre-existing factors and conditions unrelated to the motor vehicle accident.

Pre-accident medical history:

Ms. Pickering has a long and complex medical history, with multiple health problems. Among other conditions, Ms. Pickering suffers from recurrent kidney problems dating back to the 1980s.

Dr. Gervais Harry, a urologist who testified on behalf of the Insurer, provided some general informat ion relating to the kidneys, to create a context within which to understand Ms. Pickering's medical history. Dr. Harry explained that the left and right kidneys are arranged on either side of the vertebral column and connect to the bladder by tubes called the left and right ureter. Blood enters the kidneys through the renal arteries. The kidneys filter the blood through thousands of tiny tubules, excreting an end product in the form of urine. Urine is emptied into cup-like formations within the kidney called calices (singular form "calix") which collect the urine until it flows out of the kidney through the ureters to the bladder below. Filtered blood exits the kidneys through the left and right renal veins. The kidneys also regulate the concentration of hydrogen, sodium, potassium, and phosphate within the body.

Dr. Harry explained that certain people form kidney stones through a gradual deposit of microscopic crystals from concentrated urine. A stone forms in the upper regions of the kidney and eventually drops into a calix. Stones are generally washed out of the kidney by urine. The urine empties from the calices into a central cavity called the renal pelvis and then flows through the ureter to the bladder. On occasion a stone may sit in the kidney for some time and remain entirely asymptomatic. The stone will enlarge over time by paper thin deposits of additional stone material on the periphery. Dr. Harry explained that stones usually take several years to grow to a discernable size. However, some people who are stone-formers may develop a new stone within six to 12 months. If a stone grows very large it may gradually fill the collecting cavity within the kidney, assuming the multi-branched shape of the cavity, (i.e. a multi-branched "staghorn" stone). Such a stone may eventually interfere with the collecting system and obstruct the flow of urine to the bladder. A very large or multi-branched stone does not move freely through the collecting system. However, smaller stones tend to move freely and travel with the urine through the collecting system without incident on their way down to the bladder. Smaller stones generally do not obstruct the flow of urine. Occasionally a smaller stone may move into a narrow place within the kidney, such as the ureter, where it becomes lodged or obstructive to the outflow of urine. When that occurs, sharp cramping pain (colic) results. The sharp pain continues until a combination of the flow of urine and muscle contractions within the kidney (peristalsis) move the stone to a less constricted spot, or pass the stone out of the kidney altogether. Dr. Harry observed that stones are foreign objects within the kidney and the body operates to expel them.

Dr. Harry testified that if a stone causes an obstruction within the collecting system, the flow of urine may be greatly reduced or eliminated. The urine within the kidney will stagnate, the calix will distend and any bacterial microbe which has entered the kidney via urine or blood will propagate, resulting in infection and possible abscess. If infection occurs, high-grade fever, pressure and general flank pain in the area of the kidney will develop within a relatively short time. The flank pain is different in nature from the sharp cramping pain of colic. If the obstruction, infection, or pain continues, medical intervention including lithotripsy (smashing of stones by shock waves) or removal of stones by incision through the kidney wall may become necessary. Dr Harry's evidence was uncontested on these points, and I accept it.

The medical record of Ms. Pickering's kidney problems begins in 1981 or 1982 (the record is unclear), when the lower pole of her right kidney was removed to permit the extraction of a large staghorn (multi-branched) kidney stone. Approximately one third of her lower right kidney was removed to facilitate the extraction. Several months later a stone which had lodged in her left ureter was surgically removed.³

In 1984, Ms. Pickering experienced colicky pain and haematuria due to the presence of stones in her left kidney. She was admitted to hospital on numerous occasions in 1984 with kidney-related problems.

In a report dated April 17, 1985, Ms. Pickering's then family physician, Dr. F. Marguerite Hill, described Ms. Pickering's kidney-related medical problems as nephrolithiasis (i.e. presence of kidney stones) recurrent haematuria and infection. However her renal function was normal at the time of the report.⁴

In 1986, Ms. Pickering's care was transferred from Dr. Hill to Dr. Lou Mason, who continues to be her family physician to date and testified at this hearing. Dr. Mason estimated that she has seen or spoken with Ms. Pickering concerning her various medical problems approximately once a week since February 1986.⁵

In February 1986, Ms. Pickering reported experiencing episodes of colicky pain of her kidneys approximately once every four to six weeks, lasting a week at a time. In March 1986, she was admitted to hospital in connection with colicky pain in her kidneys, haematuria, low grade fever, vomiting, and weakness. In April 1986 she was seen by Dr. Andrew Shum, a urologist, in connection with colicky pain in her left kidney. Ultrasound confirmed the presence of stones. Ms. Pickering continued to complain of intermittent colicky flank pain in May 1986. In June and July 1986, she complained of pain in her left flank, night sweats, and fever. In June, September and December 1986, she was treated for bladder infections. Dr. Mason explained that when an infection originates in a kidney it may pass through the ureter into the bladder resulting in bladder symptoms. However, if an infection originates in the bladder it does not commonly affect the kidney unless the infected urine backs up the ureter into the kidney.

In January 1987 Ms. Pickering had bladder infections and was investigated by cystoscopy (examination of the urinary tract by cystoscope) in an attempt to determine the cause of her frequent bladder infections. Her bladder walls appeared irritated. In October 1987, her ureter was found to be narrow and was stretched open. In November 1987 she was investigated for abnormally low potassium levels which were diagnosed as relating to a mild potassium wasting disorder due to a defect in renal (kidney) tubular function.⁶

In May 1987, Ms. Pickering took an extended medical leave of absence from her work as a nurse primarily due to severe low blood pressure in connection with low potassium levels, which resulted in lightheadedness, weakness, dizzy spells and loss of balance.⁷

In January 1988, Ms. Pickering experienced difficulty passing urine and a bladder infection. Dr. Mason suspected a narrowing of Ms. Pickering's ureter. On February 4, 1988, Ms. Pickering underwent a procedure to dilate her ureter. In an ultrasound report dated February 8, 1988 there was evidence of duplication of the collecting system of the left kidney (the left ureter was divided into two branches as it approached the kidney, as opposed to the single tube of a normal ureter), however no related abnormality of function was observed.

During 1987 and 1988, Ms. Pickering also suffered from menorrhagia characterized by excessive uterine bleeding occurring at the regular intervals of menstruation along with breakthrough bleeding, back pain, cramping, anaemia, weakness, dizziness, low blood pressure, and fainting spells. She ultimately underwent a hysterectomy in March 1988. Despite this treatment however, Ms. Pickering continued to experience low blood pressure, lightheadedness and fainting spells, which prevented her from returning to work for a further extended period. She also experienced nausea, vomiting, fevers, and chills associated with an infection of the hysterectomy surgical wound, along with night sweats and loss of energy which required her to remain in bed for much of the day.

On May 3, 1988, Ms. Pickering reported that she lost her balance and fell against a dresser which resulted in left flank pain, haematuria, nausea, vomiting, and fainting spells. Dr. Robert Richardson, a nephrologist, viewed a stone in the left kidney and some dilation of the calices which could indicate an obstruction of the urine outflow. Dr. Richardson referred Ms. Pickering to Dr. John Trachtenberg, a urologist, for possible surgery. Ms. Pickering reported to Dr. Mason that according to Dr.Trachtenberg the upper pole of her left kidney was necrotic (death of organ tissues) and there were three to four stones in her right kidney.⁸ However, ultrasound reports and x-rays taken at Toronto General Hospital in July 1988 do not support Ms. Pickering's assertion of a necrotic upper pole.⁹In June 1988, Ms. Pickering was admitted to Women's College Hospital for control of left flank pain. During the summer of 1988, several attempts at lithotripsy (crushing the stone and flushing out the stone fragments) were aborted, in one case due to a medication error, in the other case because the stone could not be visualized. Flank pain, nausea, fever, low blood pressure, and fainting spells, continued. At times Ms. Pickering reported hardly being able to move around her home or care for herself. In July 1988, she was still unable to return to her former nursing position and was evicted from her residence. However, in August 1988, she was able to find a less strenuous supervisory desk job at Central Park Lodge and was able to return to work for the first time in over a year.¹⁰

During her testimony, Ms. Pickering denied that she was off work during the period May 1987 to July 1988 due to health problems. She suggested that she left work in order to more actively pursue her studies and to take an extended vacation in Western Canada. In particular Ms. Pickering denied any significant problems involving her kidneys. However following a detailed review of Dr. Mason's clinical notes and records for that period, it became evident that Ms. Pickering had deliberately misrepresented her previous health status during her testimony.¹¹

In September 1988, Ms. Pickering was admitted to Toronto General Hospital with left flank pain. A left kidney stone was seen on x-ray. Urinary tract infection was queried. Left flank pain continued on an intermittent basis through the fall and into the winter of 1989. In May 1989 Ms. Pickering experienced night sweats, renal colic on the left side, and haematuria. She reported passing blood clots but no stones or fragments. In June she complained of constant aching in her left flank with bouts of renal colic occurring twice daily.

The next major bout of kidney-related symptoms occurred in September 1989. Ms. Pickering experienced severe left flank pain, blood in her urine, and a lower-tract (bladder) infection. She was on the waiting list for another attempt at lithotripsy (crushing of stones), which was eventually performed in January 1990, by Dr. Trachtenberg. Between September 1989 and January 1990, Ms. Pickering continued to experience intermittent left kidney pain, urinary tract infection, and blood in her urine. Ms. Pickering left her job with Central Park Lodge in November 1989, and remained off work for approximately four months.

Following lithotripsy on January 18, 1990, Ms. Pickering reported to Dr. Mason that lithotripsy may have only cracked a rapidly enlarging stone in her left kidney rather than shattering it. In contrast, Dr. Trachtenberg reported excellent fragmentation of the stone in the left lower pole of Ms. Pickering's kidney.¹² Ms. Pickering began to pass stone fragments as expected. However, Dr. Mason reported that the lithotripsy procedure itself and the passing of the resultant sand (stone fragments) triggered a prolonged bout of renal colic accompanied by haematuria. Ms. Pickering was ultimately admitted to the Toronto General Hospital on February 12, 1990 and again the following week. X-Rays revealed two tiny stones (possibly fragments) remaining in the lower fold of the left kidney as well as a stone in the right kidney. A procedure to dilate her left ureter was performed. She continued to pass sludge from the fragmented stones and to experience flank pain, although with less frequency and severity.

Ms. Pickering returned to the workforce on March 25, 1990. She worked with S.R.T.-Med Staff International (Toronto) and was working with this agency at the time of her November 2, 1990 accident. In April 1990, a follow-up x-ray showed persistent gravel in the left kidney, and stones in the right kidney. On May 23, 1990, Ms. Pickering was admitted to hospital overnight in connection with renal colic and blood in her urine with a second brief episode of colicky pain, associated with possible urinary tract infection on May 29. In June 1990, she passed more gravel from her left kidney and experienced persistent colicky pain. She reported that her left ureter was obstructed. Further lithotripsy (crushing of stones) was considered along with the insertion of a stent (plastic tube) to bypass the area of obstruction. On August 27, 1990, Ms. Pickering reported continuing episodes of colic, although she stated that she had passed no further sludge after June 1990.

During September and October 1990, the two months preceding the accident of November 2, 1990, Ms. Pickering reported no complaints in connection with her kidneys. However, during this period she experienced a recurrence of earlier problems with infection in her teeth and left ear. Ms. Pickering believed she was suffering from an abscess or infection. She experienced sweats, fever, aching in her jaw and ear, and sore glands, and was prescribed antibiotics.

The Accident:

Following the conclusion of her evening shift on Friday, November 2, 1990, Ms. Pickering reported that she was driving home on the Gardiner Expressway at a speed of approximately 100 to 110 km per hour. She testified that a tire blowout caused her to lose control of her car. The car veered right and crossed three lanes of expressway from the left hand passing lane over to the right hand shoulder. Ms. Pickering testified that she successfully applied her brakes but estimated that her car hit a guardrail at approximately 100 km an hour and stopped. Ms. Pickering testified that although she was fully belted, she experienced quite a jolt. She explained that her body was thrown forward on an angle, and she hit her left shoulder and arm against the door and struck her abdomen against the steering wheel near the lower left side of her rib cage. She experienced pressure when her abdomen was struck. She then jerked back and struck the door handle on her lower left side causing a sharp pain lasting several minutes. The pain was not such that she immediately summoned help.

Ms. Pickering testified that the accident occurred at night, she was alone, the car was stopped at an awkward angle against the guardrail and Friday night traffic was speeding by. She decided to remain in the relative safety and security of her car. She waited in her car for over an hour until a passing driver called a tow truck. The towing invoice dated November 2, 1990, refers only to a flat tire.¹³ It was subsequently determined that the edge of her right front bumper was bent. Damage from the accident was restricted to her right front bumper and tire.¹⁴

Ms. Pickering arrived home around two-thirty in the morning following the accident. At home she claims she noticed blood in her urine. Ms. Pickering claims that the haematuria increased through the night, necessitating an attendance at the emergency department of the St. Joseph's Health Centre at six or seven the next morning, Saturday, November 3, 1990. Ms. Pickering alleges that she remained in the emergency ward most of the morning while an emergency cystoscopic examination (direct visual examination of urinary tract and kidney with cystoscope) was performed to determine the source of the heavy bleeding. She reports that she was informed that her bladder was not torn and that the source of the bleeding could not be located. She claims that she received two units of blood by transfusion to replace her extensive blood loss and was released. No records of this emergency room visit, blood transfusion or cystoscopy report have been found, despite the efforts of the parties and their counsel to locate them. Ms. Pickering states that within the first week after the accident she noticed significant left-sided bruising at the points of impact, including her shoulder, lower abdomen, ribs, and left flank. She claims that gross haematuria continued (presence of blood in the urine visible to the human eye) and she experienced left flank pain, prompting her to make an appointment with her long-time family physician, Dr. Lou Mason, on Wednesday November 14, 1990 (12 days after the accident). Despite these alleged difficulties, Ms. Pickering's work record established that she returned to work as a staff nurse, Sunday, November 4, 1990, the day after her early morning visit to the emergency ward. She worked significantly more hours in the first week following the accident (45 hours) than her average number of hours per week (30 to 40 hours).She worked 37.5 hours in the second week following the accident (week of November 11 to 17, 1990).¹⁵

Ms. Pickering testified that during her November 14th doctor's appointment, she informed Dr. Mason of her injuries. She claims that Dr. Mason examined the areas of her body which were hit in the accident and that the bruising to her abdomen and left flank was still evident at this time. Dr. Mason's clinical record for that date refers to several concerns of Ms. Pickering which are unrelated to the motor vehicle accident. The final notation for that visit states:

MVA 8/11 - blew tire on Gardiner & ran into guard rail - hit L [left] shoulder on wheel, & that's OK, but has been having haematuria & passed several pieces of gravel on w/e [weekend] - on Septra @ present [antibiotic related to tooth problems]

• no complaints of dysuria/freq [ burning on urination or passing urine too frequently]

Assessment: Known nephrolithiasis [condition marked by presence of renal stones]

• recent trauma with haematuria.

Plan: MSU [mid-stream urine sample taken] U/S [ultra sound ordered]

Dr. Mason acknowledged that the date of the accident is incorrectly recorded in her notes as November 8 rather than November 2. Dr. Mason resisted the Insurer's suggestion that this may have been a deliberate reporting error on the part of Ms. Pickering. Dr. Mason testified that the mistake could have been her own.

A review of Dr. Mason's meticulously detailed and voluminous clinical notes and records confirms that Ms. Pickering kept in almost continuous contact with Dr. Mason by telephone and in person. Ms. Pickering routinely informed Dr. Mason of developments in her health, both large and small. Yet no mention of the alleged blow to her kidneys, the related extensive bruising to her ribs and back, or to the emergency room attendance, cystoscopy, or blood transfusion, which allegedly occurred the morning after her accident, appears in Dr. Mason's notations of the accident. In contrast to Ms. Pickering's evidence, Dr. Mason testified that she made no physical examination of Ms. Pickering's abdomen or back, as there was no indication from Ms. Pickering that one was in order. I find it unlikely that Ms. Pickering would fail to mention these events to Dr. Mason had they actually occurred and even less likely that Dr. Mason would fail to record them if they had been brought to her attention. It is equally improbable that all records of the blood transfusion and other services allegedly provided to Ms. Pickering on the morning after the accident would be lost by St. Joseph's Health Centre. I do not accept Ms. Pickering's unsupported assertion that marked bruising and extensive bleeding occurred during the night of the accident culminating in a blood transfusion the next morning. I accept the Insurer's submission that Ms. Pickering's recollection of these events is faulty or confused.

The Insurer also disputes the accuracy of Ms. Pickering's description of the motor vehicle accident and its after-effects. The Insurer submits that little, if any, trauma occurred to Ms. Pickering's left kidney during the accident. The Insurer maintains that if she braked her car across three lanes of Friday night traffic on the Gardiner Expressway as she contends, her speed would most certainly have reduced well below the 100 km per hour range she suggests. The Insurer notes that the car did not crush or bounce back from the guardrail as might have been expected with a high speed impact. Instead it rested against the guardrail with minimal physical damage. The Insurer rejects Ms. Pickering's assertion that significant bleeding began immediately after the accident. The Insurer maintains that Ms. Pickering did not make an early morning visit to St. Joseph's Health Centre on November 3, 1990 as alleged, and did not receive a transfusion of two units of blood in response to heavy blood loss. The Insurer suggests that bleeding likely occurred closer to Ms. Pickering's visit to her family doctor some 12 days after the accident and was likely triggered by a spontaneous recurrence of her long history of problems with kidney stones, and haematuria, and not as a result of the motor vehicle accident.

In cross-examination, Dr. Mason acknowledged that Ms. Pickering has a tendency to self-diagnose and to exaggerate her symptoms, which in the past has occasionally made it difficult for her to evaluate her patient's condition. However, Dr. Mason testified that she was not particularly disturbed by these tendencies and she assessed Ms. Pickering's reliability as "generally acceptable." In contrast, Dr. Mason's clinical notes and records contain numerous references to Ms. Pickering's unreliability in relaying her medical history and symptoms including several letters from Dr. Mason to specialists advising them to exercise caution in this regard.¹⁶ Several specialist reports also refer to Ms. Pickering's unreliability in connection with evaluating her medical condition.¹⁷

In my view, Dr. Mason's assessment of Ms. Pickering's reliability is coloured by her long association with her patient. Dr. Mason testified that after ten years, she has learned to recognize when Ms. Pickering is seriously ill. She is less dependent upon Ms. Pickering's reporting of symptoms and is consequently less troubled by any distortion or exaggeration in her reporting. However, as a result of my review of Dr. Mason's clinical notes and records and various medical reports concerning Ms. Pickering, I find that Ms. Pickering has a tendency to exaggerate or distort the facts to support her perception of the cause of her medical problems.

Dr. Gervais Harry, the urologist consulted by the Insurer, explained that the kidney is located in a relatively protected area of the body. For an external force to rupture or tear a kidney, the impact would likely involve broken ribs and result in intense pain and other objective signs of gross and immediate trauma which were not evident in Ms. Pickering's case. I accept his uncontroverted evidence on this point. I conclude that Ms. Pickering may have been shaken by the accident and may have bumped her abdomen against the steering wheel causing momentary pressure. I do not accept that the impact was so forceful as to lacerate Ms. Pickering's kidney or cause extensive bruising and gross haematuria immediately following the accident, as she alleges.

The urine sample taken by Dr. Mason at the first appointment following the accident confirmed the presence of blood in Ms. Pickering's urine. It is difficult to determine when the haematuria began since I have found that I cannot rely upon Ms. Pickering's testimony on this point. A review of Ms. Pickering's medical history establishes that she typically develops haematuria in conjunction with the passage of gravel or stones. On November 14, 1990, Ms. Pickering reported that she had passed several stones on the weekend. Dr. Mason's note does not specify whether the gravel was passed on the weekend of November 3 and 4, 1990, immediately following the accident or the weekend of November 10 and 11, which preceded Ms. Pickering's Wednesday, November 14, 1990 appointment. Since Dr. Mason was under the impression that the accident occurred on November 8, 1990, it seems more likely that the reference in her notes was to the weekend of November 10 and 11, rather than one weekend earlier. I conclude that on this occasion the haematuria likely began closer to the weekend of November 10 and 11, 1990 (some eight days after the accident). Ms. Pickering's medical history contains numerous examples of the spontaneous onset of haematuria and colic associated with the presence of kidney stones, accompanied by low potassium levels, low blood pressure, nausea, fever, weakness, fainting spells with resultant disability, followed by periods of relative stability. Given this history, I find it more probable that Ms. Pickering's post-accident haematuria and colic arose from a spontaneous recurrence of her pre-existing kidney problems, than from the impact of the accident.

Neither Dr. Mason nor Dr. Harry supported Ms. Pickering's assertion of gross renal trauma or rupture at the time of the accident.¹⁸ However, Dr. Mason proposed that the impact of Ms. Pickering's body against the steering wheel likely shifted previously asymptomatic stones present in Ms. Pickering's left kidney into a position where they traumatized the kidney. It is Dr. Mason's view that the accident significantly exacerbated Ms. Pickering's pre-existing kidney problem.

Dr. Mason suggested that kidney stones are crystal-like formations which, upon impact, could become embedded in the inside flesh of the kidney causing initial irritation and bleeding. Dr. Mason stated that an imbedded stone could then act as a breeding ground for infection which may result in further irritation, bleeding and scarring inside the kidney. Dr. Mason opined that Ms. Pickering's current problems relate primarily to chronic bacterial infections of her left kidney, which appear resistant to treatment by antibiotics.¹⁹

Dr. Harry, the specialist consulted by the Insurer, rejected Dr. Mason's theory that the impact of Ms. Pickering's body against the steering wheel likely shifted a previously asymptomatic stone and imbedded it into the body of her left kidney. Dr. Harry agreed that stones were present in Ms. Pickering's left kidney at the time of the accident but pointed out that they were likely quite small. My review of numerous reports visualizing small stone fragments and gravel in Ms. Pickering's left kidney following the earlier lithotripsy procedure in January 1990, and a small stone immediately following the November 2, 1990 accident, supports Dr. Harry's opinion that any stone or stones present in Ms. Pickering's kidney at the time of the accident were likely quite small.²⁰ Dr. Harry also agreed that small stones may shift or move relatively freely within the kidney's collecting system, on their way to the ureter, with or without any external provocation, such as a jolt of the body. However, Dr. Harry stated that it is virtually unknown in his experience, or in his review of applicable medical authorities, for a relatively small stone to become imbedded into the inside body of the kidney in the manner suggested by Dr. Mason. Dr. Harry went on to explain that with sufficient impact, a large multi-branched staghorn stone could possibly lacerate the wall of a kidney and become embedded. However Dr. Harry observed that if that occurred, he would expect immediate severe bleeding accompanied by intense pain, due to the force of the impact required to imbed a large stone. I accept Dr. Harry's specialized knowledge and greater expertise on these specific technical points over the more general knowledge of Dr. Mason.

Ms. Pickering's condition gradually deteriorated following her November 14, 1990 visit to Dr. Mason. Dr. Mason noted complaints of renal colic in her clinical notes dated November 21 and December 10, 1990 but Ms. Pickering was also pre-occupied with other unrelated problems. In the third and fourth weeks following her accident (November 18 to November 30), Ms. Pickering worked an average of 30 hours a week. On December 18, she complained that her stones were bad and the blood in her urine had become more pronounced. For the first time Ms. Pickering speculated whether she had lacerated her kidney. An ultrasound taken December 18, 1990 showed no obstruction. No indication of laceration or other trauma was reported. By December 24, 1990, Ms. Pickering's colic pain was somewhat better.

On January 9, 1991, Ms. Pickering informed Dr. Mason that she fell twice due to low blood pressure, purportedly without injury. She complained that her colic pain had become bad again and her urine was grossly bloody. Ms. Pickering reported to Dr. Mason on January 18, 1991, 45 days after her accident, that she suffered a urinary haemorrhage, believed to be related to a kidney stone, which once again necessitated her attendance at the emergency department of St. Joseph's Health Centre.²¹ Ms. Pickering subsequently amended her testimony to suggest that she may have attended the emergency department of the Toronto General Hospital in connection with her urinary haemorrhage.²² As before, Ms. Pickering claims that she was transfused with two units of blood and an emergency cystoscopy was performed. She maintains that blood was observed flowing down the left ureter from the kidney. However, once again no records of the emergency room treatment, blood transfusion or cystoscopy report could be found, despite the efforts of counsel. A CT scan of Ms. Pickering's pelvis and abdomen conducted 11 days later [ January 29, 1991] showed several small densities consistent with small stones, in the lower left kidney and no other abnormalities.

Ms. Pickering continued to work up to 30 hours a week until February 11, 1991 when she was admitted to Toronto General Hospital and remained there for three weeks. At that time a left percutaneous nephrolithotomy was performed (i.e. removal of kidney stones by incision through the left kidney). A stent (plastic tube) was also inserted to take urine around the narrow part of the left ureter. Ms. Pickering related that the surgical team had trouble getting the stent into the left ureter as it was scarred and twisted. Dr. Trachtenberg reported he removed two pieces of stones and cleared blood clots using a scope to look directly inside the left kidney. He observed no other stones.²³

Unfortunately Ms. Pickering had a complicated post-operative course, with bleeding around the outside of the kidney forming a blood clot. A CAT scan of Ms. Pickering's abdomen showed blood clotted inside the kidney and she experienced gross haematuria. Ms. Pickering speculated that the surgeons may have left a scrubber/ instrument/etc. in her.²⁴ She was discharged from hospital on March 1, 1991. An ultrasound of March 19, 1991 visualized a very small stone remaining in the left kidney and a fluid collection in the midpole of the kidney, however no obstruction was observed in the collecting system itself. Dr. Mason was concerned that the collection of stagnant fluid could result in infection and she began to treat Ms. Pickering with antibiotics. Ms. Pickering returned to work on an intermittent basis in April 1991, however she was later re-admitted to hospital with left pyelonephritis (ie inflammation of the kidney and its pelvis due to bacterial infection).

This was the beginning of Ms. Pickering's long series of kidney infections accompanied by symptoms of severe flank pain, haematuria, nausea, vomiting, fever, chills, night sweats, and weakness. She also continues to suffer from low blood pressure, fainting spells, and low potassium levels. On May 30, 1991, Dr. Michael Robinette observed multiple stone fragments in the region of her lower left kidney, the largest of the stone fragments measuring three mm in diameter. In June 1991, a renal ultrasound visualized at least four renal stones in the lower pole of the left kidney. A retrograde pyelogram was performed on August 16, 1991 with results showing clots in the bladder and clear liquid flowing from the ureters of both kidneys into the bladder. Ms. Pickering continued to work reduced hours until December 1991. She has not been able to return to work since that date.²⁵

Ms. Pickering has undergone two further treatments with lithotripsy (i.e. crushing stones by shockwaves) in February and March 1992, and a lower-pole partial left nephrectomy (ie removal of the lower left pole of the kidney) in July 1992, to extract any remaining stones or gravel from her left kidney. Following this surgery, Ms. Pickering enjoyed approximately two months of respite from her symptoms. However in September 1992 her infection, fever, haematuria, and severe back pain returned. No further stones have been observed in Ms. Pickering's left kidney since the July 1992 surgery, however she has experienced no significant abatement of her symptoms. Recurrent kidney infections have led to scarring and permanent damage to Ms. Pickering's left kidney.

Ms. Pickering testified that her biggest problems at present are the ongoing haematuria and chronic kidney infections which cause disabling pain, primarily in her left flank and nausea, vomiting, fever, night sweats, chills, weakness, low blood pressure, dizziness, and fainting spells. She is required to spend much of her day resting in bed and at times she experiences difficulty in caring for herself. At the time of the hearing, Ms. Pickering's condition was being treated by high dosages of morphine for pain control, and a progression of antibiotics for control of infection, taken four times daily, intravenously, through a portable catheter apparatus implanted in her arm.

Dr. Mason's prognosis is very guarded. She concludes that Ms. Pickering has suffered permanent damage to her left kidney as a result of uncontrollable kidney infections. Dr. Mason anticipates that surgical removal of more of Ms. Pickering's left kidney may be required. Ms. Pickering already has reduced function of her right kidney. This combination of factors could potentially lead to a life on kidney dialysis for Ms. Pickering.²⁶

None of the many specialists who have treated Ms. Pickering in the years following her accident have been able to establish with certainty the specific source of her continuing haematuria, the cause of her pain, or the reason for the unrelenting series of infections.

Causation Analysis:

Ms. Pickering acknowledges that she bears the burden of proving the causal connection between her present condition and the accident of November 2, 1990.²⁷The evidence adduced clearly establishes that her difficulties with haematuria, colic, left flank pain, kidney stones, fever, low potassium levels, low blood pressure, fainting and infection, which were present on an intermittent basis before the accident, have intensified and have become virtually continuous since the accident. Ms. Pickering relies heavily upon the temporal connection between her accident and the recurrence of haematuria and colic following the accident. Counsel points out that Ms. Pickering was symptom-free in the two months preceding the accident but began her downward spiral sometime prior to her November 14, 1990 visit to Dr. Mason. Counsel submits that where medical or scientific experts cannot arrive at a definite conclusion concerning the cause of Ms. Pickering's present symptoms, evidence of marked deterioration after an accident is sufficient to support an inference, based on common sense, that the accident significantly aggravated her pre-existing condition. Counsel invites me to conclude that her present condition is more likely the result of the accident than a combination of pre-existing factors, as alleged by the Insurer. The Applicant relies heavily upon the decision of Senior Arbitrator Naylor, as she then was, in Eleanor B. Rodway and Royal Insurance Compan²⁸ in support of her contention.

In Rodway, the applicant suffered right-handed focal dystonia (writer's cramp) soon after a motor vehicle accident. Medical experts could not agree on the specific cause of this condition. Ms. Rodway claimed that the onset of symptoms was the result of her accident rather than simply a matter of coincidence. Senior Arbitrator Naylor agreed. Senior Arbitrator Naylor concluded that an adjudicator is not required to determine causation on the basis of scientific or medical certainty and is entitled to rely upon common sense in finding a "probable connection" between the accident and the applicant's subsequent disability. In drawing an inference of causation based on common sense, Senior Arbitrator Naylor relied upon several factors including: "a very strong temporal connection between the accident and the onset of [Ms. Rodway's] symptoms"; the fact that prior to the accident, Ms. Rodway had worked all her life and had never experienced a problem with her right hand or writing before; as well as an absence of expert evidence rejecting the probability of a connection between the accident and the emergence of Ms. Rodway's condition.

Ms. Pickering's situation differs from that of Ms. Rodway in several important respects. Ms. Pickering attempted to establish a strong temporal connection between her accident and the onset of her symptoms by testifying that she suffered gross haematuria following a direct forceful impact to her kidney in the accident, which necessitated a transfusion of two units of blood. She also testified to the onset of extensive bruising following the accident. For reasons previously set out, I did not accept Ms. Pickering's evidence on these points.

Ms. Pickering's current problem with kidney infections did not begin until March or April 1991, approximately four months after the accident. Infection occurred subsequent to the removal of two small stone fragments by a small incision through the kidney (percutaneous nephrolithotomy) performed by Dr. Trachtenberg in mid-February 1991. Unfortunately Ms. Pickering's post-operative course following this procedure was complicated. There was extensive bleeding both within and around the outside of the kidney. Prior to the accident, Ms. Pickering had experienced haematuria and prolonged bouts of colic in connection with the less invasive procedure of lithotripsy conducted in January 1990. It is likely that the surgical procedure itself contributed to Ms. Pickering's continuing difficulties.

Dr. Mason and Dr. Harry agreed that Ms. Pickering's ongoing problem with infection is not a direct result of the accident. However, Dr. Mason suggested that the infection was facilitated by an imbedded stone which acted as a nidus for infection. Dr. Harry does not accept that a stone became imbedded in this manner. Further, the various imaging and diagnostic tests performed on Ms. Pickering following the accident tended variously to refer to a stone, multiple small stones, gravel or fragments which were generally located in the lower pole of the left kidney, but were not always visible, were not always in the same number and were not always in the same place. This supports Dr. Harry's view that there was movement of the stones, with no permanently imbedded stone restricting the flow of urine or acting as a nidus for infection.

Dr. Harry agreed with Dr. Mason that a small stone could be shifted into a narrow area within the collecting system such as the ureter and cause a full or partial obstruction, with resultant colic, reduced urine flow, infection, fever and haematuria. However, Dr. Harry noted that infection would develop relatively quickly if an obstruction occurred as a result of the jolt received in the accident of November 2, 1990. An ultrasound taken on November 19, 1990 showed no change in the left kidney from an earlier ultrasound taken in May 1988. A urine sample taken on November 14, 1990 showed no evidence of infection. A follow-up ultrasound taken December 18, 1990, also showed no evidence of obstruction or reduction of urine flow. Ms. Pickering's problems with kidney infections did not appear until the end of March or beginning of April 1991, approximately four months after the accident Dr. Harry stated that it would not take up to four months for the symptoms of infection to present themselves if the infection were related to the accident.

Most of the specialists who treated Ms. Pickering during her post-accident care no longer consider that the small stones in her left kidney are, or ever were, the cause of her continuing haematuria, colic, flank pain and series of infections.²⁹ No stones have been visualized in Ms. Pickering's left kidney since July 1992, following the removal of the lower pole of her left kidney, along with any remaining stones or gravel. Yet Ms. Pickering continues to experience even more intense symptoms.

Dr. Harry points to a number of factors which could account for Ms. Pickering's propensity to develop kidney infection. These include: her marked tendency to form stones which could attract infection, the recurrent narrowing of her left ureter and the double collecting system of her left ureter which could slow down the action of peristalsis and interfere with the emptying of urine, thereby creating an atmosphere for infection within the kidney. I note that Ms. Pickering has a history of developing infections including: kidney and bladder infections, infections in response to surgical procedures such as her hysterectomy, and recent infections in connection with tooth extractions. I find it more likely that Ms. Pickering developed infection in her kidney as a result of pre-existing factors or as a response to the surgical procedure of nephrolithotomy and its aftermath than from the speculative possibility that a kidney stone became imbedded in the wall of her kidney during the accident.

The burden of proving the causal connection between the accident and her continuing symptoms rests on Ms. Pickering. Director's Delegate David Draper commented upon an applicant's burden of proof in the appeal decision Bruna Pisani and Simcoe & Erie General Insurance Company and Canadian General Insurance Company.³⁰ In that case the Director's Delegate observed:

...Ms. Pisani does not have to show that the injury was caused solely by the accident.However, she must establish on a balance of probabilities that she was injured as a result of the accident. This requires more than some contribution.

I accept and adopt this description of the burden of proof. Ontario High Court Justice Osler J. also commented upon the burden of proof in his decision Rothwell et al. V. Raes et al.³¹ as follows:

It is important to remember that the plaintiffs must prove their case and in medical and scientific matters it is not sufficient to show that a cause and effect sequence is theoretically possible. For the plaintiffs to discharge their onus, they must show, on the balance of probability that a cause and effect relationship does exist.

The Court of Appeal³² agreed with Osler J. that the standard of proof of causation was not met simply by demonstrating a possibility of some causal connection. For the reasons set out above, I find that Ms. Pickering has failed to discharge her burden of proof.

Expenses:

The Applicant seeks an award of the expenses she 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 Part 6 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990, Dispute Resolution Expenses.

I am satisfied that Ms. Pickering truly believes that the recurrence of her kidney problems so close to the occurence of her motor vehicle accident was not a coincidence. Her view that these two events were inextricably linked together was shared by her long time family physician. It was therefore reasonable for Ms. Pickering to proceed to a hearing to determine her entitlement to benefits. I award Ms. Pickering her expenses of this hearing.

Order:

1. Ms. Pickering is not entitled to payment of weekly income benefits under sections 12(1) and 12(5)(b) of the Schedule after January 15, 1993, as a result of the motor vehicle accident of November 2, 1990. Her application for payment of further weekly income benefits is dismissed.

2. Ms. Pickering is not entitled to payment of supplementary medical and rehabilitation expenses under section 6(1) of the Schedule as a result of the accident. Her application for payment of further supplementary medical and rehabilitation expenses is dismissed.

3. The Insurer shall pay to Ms. Pickering her expenses of the hearing under the provisions of section 282(11) of the Insurance Act in accordance with the prescribed amounts as set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990, Dispute Resolution Expenses.

May 24, 1996

Janice Mackintosh

Senior Arbitrator (Acting)

Date

Schedule A

Present at the Hearing:

Applicant:

Barbara J. Pickering

Applicant's Representative:

Michael J. Henry

Barrister and Solicitor

On December 6, 1994, June 1, 6, and 7, 1995

Paul Dollack

Barrister and Solicitor

On February 28 and March 1, 1995

Insurer's Representative:

Khalid Baksh

Barrister and Solicitor

Insurer's Officer:

John McLean

Witnesses:

Barbara June Pickering

Dr. Lou E. Mason

Dr. Gervais Angelo Harry

Exhibits:

Day II of hearing:

Exhibit 1:

Barbara Pickering's resume setting out work experience

Exhibit 2:

Photo of damage to car with description of damage

Day III of hearing:

Exhibit 3:

Curriculum vitae of Dr. Mason

Exhibit 4:

Report of Dr. Mason dated February 19-20, 1994

Exhibit 5:

Anatomy of the kidney provided by Dr. Mason

Day IV of hearing:

Exhibit 6:

Diagrams of kidney (a), (b), and (c)

Exhibit 7:

Medical report of Dr. G. Harry dated September 2, 1993

Exhibit 8:

Medical report of Dr. G. Harry dated April 19, 1995

Exhibit 9:

Medical report of Dr. G. Harry dated April 25, 1995

Day V of hearing:

Exhibit 10:

Medical report of Dr. Mason dated June 4, 1995

Day VI of hearing:

Exhibit 11:

Towing invoice dated November 2, 1990

Exhibit 12:

Reports of Dr. Mason (a) July 20, 1992; (b) November 11, 1992; (c) April 30, 1993; (d) June 16, 1993

Exhibit 13:

Radiology report of Women's College Hospital dated July 26, 1991

Exhibit 14:

Radiology report of Scarborough General Hospital dated July 7, 1992

Exhibit 15:

Operative report of Dr. Marcuzzi dated May 31, 1993

Exhibit 16:

Report of Dr. Tobe dated March 28, 1995

Exhibit 17:

Report of Dr. Moss dated March 13, 1995

Exhibit 18:

T.G.H. Operative Note dated February 13, 1991

Exhibit 19:

S.R.T. Med-Staff International letter dated August 16, 1994 to Thomson, Rogers with attached schedule

Exhibit 20:

Three bound volumes of St. Joseph's Hospital records containing 19 tabs (submitted with written submissions)

Exhibit 21:

Seven bound volumes of clinical notes and records of Dr. Lou Mason (submitted with written submissions)

Other documents before the arbitrator:

Report of Mediator, August 19, 1993

Application for Arbitration, February 9, 1994

Response by Insurer, March 8, 1994

Pre-hearing letter, April 28, 1994

Associated with all of this is a rather interesting and somewhat bizarre personality...I'm never sure whether to believe her about her problems. I have tended only to treat those things that are objectively verifiable. She understands that this is my approach. (Dr. Mason's clinical notes and records, volume 3.)

In a letter dated May 16, 1987, Dr. Heather Morris reported to Dr. Mason in connection with Ms. Pickering's ongoing gynaecological problems as follows:

Barbara Pickering is well known to me and I must confess I have problems believing her story and particularly believing that she takes her medication as prescribed. . .

My problem is trying to ascertain the truth with this lady. (Dr. Mason's clinical notes and records, vol. 3.)

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule —Accidents Before January 1, 1994. In this decision, the term 'Schedule" will be used to refer to Regulation 672.
2. 2R.S.O. 1990, c.I.8, as amended
3. 3Exhibits 4, 7 and 12a
4. 4Medical report of Dr. F.M. Hill dated April 17, 1985, clinical notes and records of Dr. Mason, volume 3 of seven volumes
5. 5Volume 3 of seven volumes of Dr. Mason's clinical notes and records
6. 6Exhibits 4 and 10
7. 7Letter dated September 17, 1987 from Dr. Mason to John Marshall, barrister and solicitor, volume 2, clinical notes and records
8. 8Dr. Mason's clinical notes and records, volume 1 at entry dated June 8, 1988
9. 9Volume 4 of Dr. Mason's clinical notes and records
10. 10Exhibit 10
11. 11Exhibit 10
12. 12Report dated February 1, 1990 from Dr. Trachtenberg to Dr. Mason
13. 13Exhibit 11
14. 14Exhibit 2
15. 15Exhibit 19
16. 16Dr. Mason's clinical note dated March 2, 1988 refers to Dr. Robert Gall's concerns regarding the reliability of Ms. Pickering's medical history report ing, and related difficulties in evaluat ing her condition; Dr. Mason's clinical note dated September 12, 1990, describes similar concerns of Dr. Symington and notes a fabrication by Ms. Pickering concerning the alleged lancing of her tooth by Dr. Mason. Dr. Mason's referral letter to Dr. Andrew Shum dated October 26, 1988, a referral letter to Dr. Susan Stafford dated December 13, 1988, and a referral letter to Dr. K.N. Jeejeebhoy dated June 27, 1989, advise the specialists that Ms. Pickering "can be an unreliable historian at times."(Dr. Mason's clinical notes and records, volume 3.)
17. 17Dr. Sheldon Mintz wrote a letter dated November 26, 1985 introducing Barbara Pickering to Dr. Mason as a new patient. After setting out Ms. Pickering's numerous health problems, Dr. Mintz states:
18. 18Report of Dr. Mason to Liberty Mutual dated July 31, 1991
19. 19Exhibit 4 and medical report from Dr. Mason to Insurer, dated July 20, 1992 from clinical notes and records, volume 2 of seven volumes
20. 20At the November 14, 1990 appointment Dr. Mason also ordered an ultrasound. The ultrasound report dated November 19, 1990 showed little change from a previous ultrasound examination conducted in May 1988 (ATR Laboratories ultrasound imaging report of Dr. Rahmani dated November 19, 1990). Some scattered small stones were observed in the right kidney. "The left kidney appears to have a small calculus [stone] in its lower pole which was seen on the previous ultrasound. Certainly there has been no interval development of hydronephrosis since the last ultrasound." [hydronephrosis is a distention of the pelvis and calices of the kidney with urine, as a result of obstruction of the flow through the ureter].
21. 21The first emergency room visit to St Joseph's Health Centre allegedly occurred the day after the accident on November 3, 1990. Clinical notes and records of Dr. Mason, volume 1, entry dated January 23, 1991.
22. 22Letter from Thomson, Rogers dated April 11, 1996
23. 23T.G.H. operative note dated 13/02/91 prepared by Dr. T. Alphin for Dr. Trachtenberg
24. 24Clinical note of Dr. Mason dated April 8, 1991
25. 25Exhibit 19
26. 26Exhibits 4 and 16
27. 27Farrell v. Snell S.C.R. August 1990, 72 D.L.R. (Th) at page 289
28. 28June 12, 1995, OIC File No. A-007593
29. 29Dr. Michael A.S. Jewett, reports dated October 23, 1991 and January 29, 1992, volume 4 of seven volumes of Dr. Mason's clinical notes and records
30. 30Appeal File Nos. P-0003929 & P-005693, issued December 11, 1995.
31. 3166 O.R. (2d) at page 504
32. 32Rothwell v. Raes, Ontario Judgments: 1990 CanLII 6610 (ON CA), [1990] O.J. No. 2298, Action no.768/88)