Neutral Citation: 1996 ONICDRG 95

OIC A-951417

ONTARIO INSURANCE COMMISSION

BETWEEN:

DAVID KOCH

Applicant

and

AXA INSURANCE (CANADA)

Insurer

DECISION

Issues:

The Applicant, David Koch, was injured in a motor vehicle accident on January 24, 1991. He applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672.¹ Weekly income benefits were terminated by the Insurer in January 1995. 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:

1. Is the Applicant entitled to ongoing weekly income benefits, under section 12(5)(b) of the Schedule after January 1995?

2. To what amount of weekly income benefit is the Applicant entitled?

3. Is the Applicant entitled to the supplementary medical and rehabilitation benefits he is claiming under section 6(1) of the Schedule?

4. Is the Insurer entitled to any repayment under section 27 of the Schedule?

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

Result:

1. The Applicant is not entitled to ongoing weekly income benefits, under section 12(5)(b) of the Schedule after January 1995.

2. In view of my decision on the first issue, it is unnecessary to determine the amount of weekly income benefit to which the Applicant might be entitled.

3. Mr. Koch is not entitled to supplementary medical and rehabilitation benefits under section 6(1) of the Schedule.

4. The Insurer is not entitled to a repayment under section 27 of the Schedule.

Hearing:

The hearing was held in North York on February 5 and 6, and April 17 and 18, 1996, before me, K. Julaine Palmer, Arbitrator.

Present at the Hearing:

Applicant:

David Koch

Applicant's

David H. Sookram

Representative:

Barrister and Solicitor

Insurer's

Geoffrey Adair

Representative:

Barrister and Solicitor

Witnesses:

W. David Koch, Allan Fryman, Laurie Koch, Dr. Angela Mailis, Dr. Michael Salsberg, Dr. Peter Watson, Dr. Shahira Khoury.

The parties filed a medical brief and 15 other exhibits at the hearing.

Evidence and Findings:

I. Causation—Is Mr. Koch's neuro-pathic condition a result of the accident of January 14, 1991?

David Koch was injured in a motor vehicle accident on January 14, 1991. He testified that he first hit his forehead on the windshield, then injured his chest, apparently in a second impact. Mr. Koch tore a prior surgical incision when his chest impacted the car's gear shift. Mr. Koch testified that after the accident, he hurt all over his body, including his back. He could not stand up straight. He was taken by ambulance to hospital and x-rayed, remained in hospital four to five hours, then requested to go home.

Mr. Koch's incisional hernia was repaired by day surgery in May 1991. He attended physiotherapy from mid-April until the end of September. Throughout June and July he continued to complain of mid- and low-back pain. During August and September Mr. Koch's musculo-skeletal symptoms were dissipating. However, he began to experience a bout of severe headaches. In the late fall, Mr. Koch awoke with a burning pain in his left leg. The left leg pain has continued and become exacerbated since that time. Mr. Koch receives treatment for this condition from Dr. A. Mailis. In an effort to alleviate his pain, Mr. Koch takes substantial amounts of medication, including morphine.

The critical issue in this case is causation. Mr. Koch has developed a neuropathy (or nerve pain) in his left leg, but the Insurer has not admitted that this results from the accident. The Insurer does not dispute that Mr. Koch has a legitimate, painful, chronic condition that interferes with his lifestyle and his ability to maintain employment. However, it says that this condition has not developed "as a result of an accident" as required to entitle Mr. Koch to benefits, according to the provisions of sections 12(1) and 12(5)(b) of the Schedule.

It is the Applicant's task in this arbitration to prove, on a balance of probabilities, or a preponderance of credible evidence, that his neuropathic leg pain results from the accident. From time to time in the arbitration, this key point seemed to be lost in the Applicant's presentation of his evidence. According to the report of the prehearing conference held at the Commission on October 24, 1995 the Insurer's concerns with respect to the cause of Mr. Koch's condition were fully explored. Yet, the Applicant's counsel did not address the causation issue in his opening statement at the hearing, except to comment that because the Insurer paid Mr. Koch benefits past the three-year limit, at some point they must have been satisfied with respect to his condition.

If there were any questions in the Applicant's counsel's mind as to the Insurer's viewpoint on causation at the arbitration, they should have been dispelled by the Insurer's opening statement, which condensed the Insurer's position to two issues— the first of which was the lack of a causal link between Mr. Koch's principal medical problem and the motor vehicle accident. Indeed, even in his final submissions, when asked to argue this issue specifically, the Applicant's counsel responded that he would not have thought he had to address it. Counsel for the Applicant implicitly relied on the doctrine "post hoc ergo propter hoc. "That Latin expression can be translated: a happening which follows another must be its result. In the context of this case, it means since Mr. Koch did not have this medical problem before the accident, the accident must have caused it. Unfortunately, this is not the test which the Applicant's evidence must meet.

For the reasons outlined below, I conclude that the Applicant has not proved on a balance of probabilities or a preponderance of credible evidence that his neuropathic condition results from the accident of January 24, 1991.

Since I have so decided, it is unnecessary for me to consider Mr. Koch's eligibility for benefits after 156 weeks under section 12(5), nor the question of how much in weekly income benefits Mr. Koch ought to receive. Nor will I consider his entitlement to supplementary medical and rehabilitation expenses under section 6 of the Schedule. The Insurer submitted at the close of the hearing it was not pressing the issue of repayment of benefits. It also did not argue against the Applicant receiving his expenses of the arbitration.

The Medical Evidence

In order to determine the cause of Mr. Koch's neuropathic pain, it is necessary to review in some detail the medical evidence of his symptoms following the motor vehicle accident of January 24, 1991.

Mr. Koch did not consult his family doctor immediately after the accident. Instead, according to his evidence, he was visited in his home by Dr. Howard Jacob, an acquaintance who was a friend of one of Mr. Koch's business partners. Sometime after this (on February 12, 1991 according to Mr. Koch's calendar), he attended at Dr. Gloria Chudnow's office. Dr. Chudnow was just beginning her medical practice and is the sister-in-law of a good friend of Mr. Koch. Dr. Chudnow's initial notes indicate Mr. Koch sustained injuries to his rib cage on the right side and his mid back. On examining him, Dr. Chudnow found mid thoracic and right flank tenderness, as well as right upper quadrant tenderness. An abdominal ultrasound was negative. Mr. Koch returned to Dr. Chudnow's office on February 19 and March 15, 1991. He was experiencing back and rib pain in February and back pain in March. His medications were changed and he was referred for physiotherapy. On April 11, 1991 Mr. Koch was still reporting low back pain; he was to begin physiotherapy the next week.

Dr. Chudnow also referred Mr. Koch to Dr. Shahira Khoury, a physiatrist, who examined him on April 8, 1991. Dr. Khoury testified at the hearing. Mr. Koch had previously been treated by Dr. Khoury from July to September 1990 for mild left shoulder tendinitis and left tennis elbow, which had resolved by September 1990. At her examination of April 8, 1991 Dr. Khoury noted that Mr. Koch estimated "at least 50% improvement of the mid back pain, but there has been no improvement of his right ribs pain." She noted his presenting complaints as follows:

He complained of a dull ache along the right side of the mid back area, which occasionally radiates across the opposite side, but there has been no pain down the lower back or in the legs. Sitting for more than 10 - 15 minutes and prolonged walking aggravates this pain, while lying flat seems to be a relieving factor. In the past he had intermittent mid and low back discomfort in relation to physical activities that will last only for a few days.

Dr. Khoury examined Mr. Koch and found that the alignment of his thoracic and lumbar spine was normal. She found tenderness and definite muscle guarding along the right thoracic paraspinal muscles, but lumbar movements were full and pain free. Straight leg raising and femoral stretches were negative and his neurological examination was normal. Dr. Khoury's impression was that Mr. Koch had a thoracic myofascial strain and a right rib contusion. She prescribed a physiotherapy program of progressive exercises. Mr. Koch attended regularly for physiotherapy in April and early May 1991. He attended twice in late May, twice in late June, more regularly in July (7 times) and August (8 times) and three times in late September.

Dr. Khoury reassessed Mr. Koch on August 26, 1991.

He indicated an overall improvement with physiotherapy. The right chest pain is now asymptomatic, except after coughing. As for the mid back pain, he continues to be symptomatic after activities like pushing, pulling and lifting. At rest the back is mostly pain free. He had been attending physiotherapy since mid April, except for a few weeks of interruption every now and then, and it had been noted that he has a poor exercise tolerance. ... On examination, he had tenderness along the right thoracic paraspinal muscles, but the previously noted muscle guarding had resolved. The rest of the examination was unremarkable.

Since he is still improving with treatments, I recommended continued physiotherapy and reassured him that he has a good prognosis for a full recovery.

Mr. Koch returned for a follow-up visit with Dr. Khoury on October 17, 1991. She noted that she had been seeing him since April 8, 1991 for a mid back and right chest pain that resulted from the accident. She noted that 'he has made an excellent recovery, and has no further symptoms, except for slight discomfort in the upper back after prolonged standing." She also noted a new complaint of right anterior thigh pain, which he had not previously mentioned, but which he had apparently had since the accident. Dr. Khoury noted that 'there had been no associated low back symptoms." Dr. Khoury noted that Mr. Koch had stopped physiotherapy at the end of September and felt he did not require any further treatments. She believed meralgia paresthetica² to be a high possibility to account for the tingling, numbness and burning pain in Mr. Koch's right thigh.

On September 4, 1991 Mr. Koch returned to see his family doctor, Dr. Michael Salsberg. His last visit prior to the accident had been July 5, 1990 when he complained of pain in his left shoulder, which had persisted since January 1990. Dr. Salsberg testified at the hearing. Mr. Koch has been his patient since June 1985. On September 4, 1991 Mr. Koch complained to Dr. Salsberg about severe migraine headaches and a numbness and burning pain in his anterolateral right thigh which had persisted for six months. He returned to Dr. Salsberg on September 11, 12, 17 and 24, and October 2, 1991. On none of those occasions did Mr. Koch tell Dr. Salsberg that he had been injured in a motor vehicle accident on January 24, 1991. Neither did he complain about any back pain. Mr. Koch returned to Dr. Salsberg's office for a 'flu shot on October 28, 1991. Not until November 8, 1991 did he complain, as Dr. Salsberg recorded it, of "light tingling in left leg and feel warm x 3 days. Painful if puts something cold on it." Dr. Salsberg's provisional diagnosis queried left sciatica. He sent Mr. Koch for an x-ray of his lumbar spine. From that visit onward Mr. Koch's low back and left leg pain has been a source of constant complaint.

Dr. Salsberg referred Mr. Koch back to Dr. Khoury and also to Dr. Mark Bernstein. Mr. Koch first saw Dr. Bernstein on January 6, 1992 for a complaint of pain in his back and in the left leg. Dr. Bernstein is Head of the Neurosurgery Division and Associate Surgeon-in-Chief at The Toronto Hospital and Associate Professor, Department of Surgery, University of Toronto. He was not called to testify at the hearing. In his report of July 4, 1994 to the Insurer, Dr. Bernstein summarized his investigation of Mr. Koch, which included extensive imaging of his low back. He had found neither a cause nor a cure for Mr. Koch's pain. In the same report, Dr. Bernstein responded to a question about the relationship of Mr. Koch's pain to the motor vehicle accident as follows:

I cannot make any statement about cause and effect here because I do not know the etiology of his pain syndrome and therefore cannot comment on whether it might or might not have been caused by trauma......this case is shrouded in unknowns and unfortunately I cannot be more definitive in the answers I have supplied you.

Dr. Bernstein found Mr. Koch was suffering from pain that kept him from being able to concentrate and do any kind of meaningful job. He also was of the opinion that "this gentleman is an honest bona fide individual and if he were able to work he would do so."

Dr. Bernstein referred Mr. Koch to Dr. Ronald R. Tasker, who examined Mr. Koch on November 22, 1993. Dr. Tasker, also a neurosurgeon, examined all Mr. Koch's films and reviewed Dr. Bernstein's file but 'the only diagnosis [he] could come up with is neuropathic pain of unknown origin without any apparent evidence of psychopathology." Dr. Tasker conducted a dorsal column stimulation of Mr. Koch on January 21, 1994, apparently to no avail.

Dr. Angela Mailis, physiatrist, the Director of the Pain Investigation Unit, Toronto Western Hospital and Head of its Division of Physical Medicine and Rehabilitation, Department of Medicine, examined Mr. Koch on June 21, 1994. Dr. Mailis testified at the hearing. Her impressive curriculum vitae was filed as an exhibit to these proceedings. The Insurer had no objection to Dr. Mailis providing expert testimony at the arbitration. Dr. Mailis recorded Mr. Koch's report of the history of the accident in her report of June 21, 1994 to Dr. Salsberg as follows:

He almost immediately experienced pain in his back and he could not stand up straight. He had physiotherapy for several months for upper and lower back pain and he seemed to have been progressing with no leg problems. However, he recalls some gradual onset of burning, tingling problems in the left leg and this became almost of acute onset by the fall of 1991. One morning he woke up with severe burning of the whole left leg which was on fire.

Dr. Mailis recorded her impression as follows:

My thorough neurological examination indicates that this man has a definite neuropathic pain syndrome with all the hallmarks of sensory abnormalities relating to touch, evoked pain, deep pain and cold hyperalgesia. It is unclear to me why he went onto developing this clear cut neuropathic pain syndrome.

Dr. Mailis admitted Mr. Koch to the Pain Investigation Unit on July 4, 1994 for more testing. She subsequently wrote to the Insurer in response to several letters she had received. Dr. Mailis obtained the notes of Dr. Chudnow 'in order to inform [herself] better" and consulted with Dr. Baker, Mr. Koch's psychiatrist. Dr. Mailis summarized her view of Mr. Koch's case in five points. Two of these points are important for our purposes:

2. It is also quite clear that he sustained back pain in the aforementioned accident for which he was never completely free for a number of months but he improved considerably with physiotherapy. (I should indicate to you that I was able to review the files of Dr. Chudnow who saw the patient immediately after the motor vehicle accident and followed properly thereafter once a month for back pain. It is indeed Dr. Salsberg that makes mention of the original of left leg tingling, warmth and painful with cold hyperalgesia dated October 28, 1991. At least this is the first time that the onset of this pain is documented.³

....4. None of us is clearly able to document the type of nerve or nerve root structure that was responsible for the onset of this pain sometime in the Fall of 1991. ...While neither myself or anybody else has a definite explanation for the neuropathic pain in the left leg and multiple hypotheses have been put forward I only know from studying the files that were forwarded to me that Mr. Koch had continued to have back pain even if he had improved substantially at one point prior to the appearance of the leg pain and the leg pain came later.

At the hearing Dr. Mailis was not asked her professional, expert opinion about the cause of Mr. Koch's neuropathic pain. She did explain what neuropathic pain is and that it and its associated sensory abnormality can spread from the initial site of an injury and the territory of a particular nerve. Dr. Mailis testified that less than 1% of neuropathic pain is of "spontaneous" origin, or originates without any particular reason. She also testified that it is not uncommon for a time lag of days to years to occur between a major event and the development of neuropathic pain. She testified that 5.5% of sufferers of neuropathic pain take more than 3 years to develop the pain from the time of the injury. This is not the rule; it is rare, but not unknown. Dr. Mailis did not provide the name of the new book which she cited as the source of this information. Dr. Mailis admitted that trauma was only one of several possible causes of neuropathic pain. However, in cross-examination she indicated that it was "clear" to her that "it" (presumably, the motor vehicle accident) was "the inciting event." She stated that she felt "very comfortable" with that etiology even with the evidence she had herself and if she had evidence of radiating pain into the leg between the time of the accident and the fall of 1991, it would make her even more convinced. It was not Dr. Mailis' impression that Mr. Koch had completely recovered from his back pain by the summer of 1991.

Nowhere in her four reports or her clinical notes does Dr. Mailis express the opinion that the motor vehicle accident of January 24, 1991 caused the neuropathic pain of which Mr. Koch complains. It is clear from reading her reports that this was not the primary focus of her investigation: she was concerned with helping Mr. Koch control his pain and resume a more productive life. She primarily addressed the issue of Mr. Koch's employability. However, at the arbitration, causation was the principal question. Had Dr. Mailis been asked her opinion on this question at the hearing, or had she explained her position in a written report, then I would have been able to weigh her reasons for believing that the accident caused the problem against the evidence of the other experts. In her earliest report of June 21, 1994 to Dr. Salsberg she leaves the clear impression that she is "unclear" why Mr. Koch developed a neuropathic pain syndrome. This view is repeated in the report of January 25, 1995 to the Insurer, in the passage quoted above.

Dr. Peter Watson, neurologist, examined Mr. Koch on July 15, 1994 at the Insurer's request. Dr. Watson also testified at the hearing. He is an Assistant Professor, Department of Medicine, University of Toronto and a staff neurologist at Etobicoke General Hospital. He has a special interest in chronic pain problems, especially nerve pain. For twelve years he was associated with the Smythe Pain Clinic, of the Toronto General Hospital. Like Dr. Mailis, Dr. Watson has written numerous articles on nerve pain and has lectured on that subject; he also reviews articles for publication in medical journals. Dr. Watson took a history from Mr. Koch, part of which he recorded as follows:

His pain problem after the accident was low back pain which he had constantly in the moderate to severe range for several hours a day. He continued through the late summer spending a lot of time resting and unable to exert himself or do much in the way of physical activity and then in early September or October he awoke one morning with an extremely severe pain in his left leg. The previous pain never subsided after the accident and has continued unchanged until the present. This new pain was a severe burning pain in his left buttock, down the posterior thigh and calf involving the entire foot and eventually the entire left lower leg. This pain has continued to the present.

Dr. Watson gave his opinion as follows:

By his history related to me, he states that he has always had back pain and it has never gone away since the time of the accident. This is in disagreement with Dr. Urovitz's letter which indicates that he was much better (see actual wording) by the time his leg pain came on. The onset of this is variably recorded. Dr. Urovitz's note records it as mid-September, one of Dr. Bernstein's letter (sic) places it in early November, with me he related he thought it was September or October, but at any rate it is by this history at least seven months in onset after the accident, perhaps even longer. The leg pain is overwhelmingly his major problem. To my mind it is clearly neuropathic pain, that is pain due to nerve injury. The cause of this is obscure. The long latency between the date of the accident and the onset of the pain, to me, makes it unlikely that is related to the accident. As neuropathic pain is, it has been notoriously intractable to the ministrations of a variety of physicians. There are some alternate possibilities that might be entertained as to the cause of it. One possibility is that it might be due to a nerve infarction. This could be related to vascular disease. He is known to have a mild type of diabetes, and he is a heavy smoker. He also has in the past used alcohol to some extent which may makes nerves vulnerable in a nutritional sort of way to injury. We know also that he has vascular disease because of his history of heart disease.

Dr. Watson was clear in his evidence that Mr. Koch's pain prevents him from working in his previous occupation. There was no question in his mind that Mr. Koch was suffering from severe nerve injury pain. He acknowledged that it was possible that the nerve injury was caused by the accident, but he felt this was unlikely and probably not, on balance, related to it. Dr. Watson put the time lag between a hypothetical accident and the onset of causally related neuropathic pain at a maximum of three to four weeks. He was unaware of the medical literature, referred to by Dr. Mailis, which indicated that less than 1% of neuropathic injuries have a spontaneous origin. He was also not familiar with any data which indicated that 5.5% of patients with neuropathic pain take more than three years to develop the pain after a known major event.

Other records filed also make reference to the sudden onset of pain in Mr. Koch's left leg. The physiotherapist's notes of December 6, 1991 record that three weeks earlier "insidiously patient woke up in the morning with a extremely acute back pain and a left leg numbness."

The report of Dr. E.P. Urovitz, Orthopaedic Surgeon, who assessed Mr. Koch on May 7, 1992 at the request of the Insurer was filed. Dr. Urovitz took a thorough history from Mr. Koch and performed a physical examination of him; he also reviewed his x-rays, CAT and MRI scans. Dr. Urovitz concluded that 'This is a most unusual and complex case. Clinically this man's presentation is consistent with a causalgia syndrome. I do believe that there is an organic basis for this problem..." Dr. Urovitz found Mr. Koch "disabled from being able to perform any occupation on a full time basis." The receipt of this report, Dr. Salsberg testified, gave him the clue to refer Mr. Koch to Dr. Mailis for treatment. Dr. Urovitz expressed no opinion in his report about a causal link between the motor vehicle accident and Mr. Koch's disability. However, he was writing the report in response to a request from the automobile insurer, and I think it is reasonable to infer from the comprehensiveness of the examination and the tone of his report that Dr. Urovitz believed the two to be related. Unfortunately, however, neither party asked him to clarify any opinion he might have on this issue or summoned him to the hearing to testify. Accordingly, I am left with an inference only on this critical issue.

The Evidence of the Applicant and His Wife

Mr. Koch testified that he believed he first mentioned the pain in his left leg to Dr. Khoury, although he was not certain. He testified he felt this pain throughout the summer of 1991, at varying times. He claimed to have mentioned it both to his wife and to John Giovanetti, a rehabilitation caseworker. However, in cross-examination, Mr. Koch admitted that he could not "place during that time period was it summer or was it fall" when he spoke to Mr. Giovanetti about a problem with his left leg. Mr. Koch testified that he treated himself "I think it would have been a couple of months" using over-the-counter preparations, progressing from a strong-smelling cream to an odourless rub. Sometimes he would ask his wife to rub the back of his left leg. Mr. Koch said he did not mention this "minor"pain to his doctors because he hoped that the pain would go away on its own. Only when it became very painful, with the intensity of a migraine headache, did he mention the pain. Mr. Koch testified that previously, when he had angina, he endured that pain for six months before he sought medical attention, hoping it would go away on its own.

A letter from John Giovanetti, employment consultant, of Total Rehabilitation Management Inc., dated July 12, 1991 was filed as an exhibit to the arbitration. This letter was entitled "Initial Rehabilitation Assessment" and was directed to the Insurer. Mr. Giovanetti wrote, under the heading "Disability" as follows:

Mr. Koch's current disability which includes constant pain in the mid to lower back area is said to be a direct result of this motor vehicle accident. Mr. Koch also noted that he is depressed at not being productive.

Mr. Giovanetti reviewed a report of Dr. Khoury, completed June 13, 1991, which indicated she believed Mr. Koch would return to work or normal activities within six to eight weeks, unless he experienced acute exacerbation of his pain. Mr. Giovanetti estimated, then, that the anticipated date of Mr. Koch's return to work would be mid-August, 1991. Mr. Giovanetti was not called to testify at the hearing. No explanation was proffered as to his failure to testify. I draw no adverse inference from this lack of testimony, but note that it leaves me with only the testimony of the Applicant and his wife about any pain in Mr. Koch's left buttock and thigh, prior to the incident in early November 1991.

Mr. Koch testified repeatedly that he believed he had mentioned his left leg pain to Mr. Giovanetti as well as Dr. Khoury. However, Dr. Khoury explicitly noted in her examination of April 8, 1991 that Mr. Koch had no pain in his lower back or down the legs. Further, by the time she wrote a progress note on October 17, 199, recording complaints of right anterior thigh pain, she again notes an absence of low back pain. Dr. Khoury testified a pelvic ultrasound, which was normal, had already been ordered by Dr. Salsberg to rule out meralgia paresthetica. At the October examination Mr. Koch's straight leg raising test was normal, denoting no sign of a pinched nerve in his back. On her examination of December 2, 1991, Dr. Khoury noted that the symptoms had existed for 3 to 4 weeks, "acute pain," and "no previous similar history." Dr. Khoury testified that Mr. Koch had not mentioned any low back pain to her before December 2, 1991.

Mrs. Koch testified that in March and April 1991 her husband complained of pain in his chest, his rib area and his back and lower back. She believed he had a short period in the summer of 1991 "where his stress level had been down and he was...relaxing a bit....and then he started experiencing terrible migraines. And then he started complaining again about his back." Mrs. Koch testified that her husband had earlier complained about pain in his left buttock in the spring. She believed that the left leg problem did start "with tingling and a burning, radiating sensation." Mrs. Koch testified that even if Dr. Salsberg's notes put the first mention of the pain to him by Mr. Koch at October 28, 1991 [actually November 8, 1991], that it was still her recollection that her husband complained to her about noticing the left leg pain as a persistent problem about the end of September 1991.

Dr. Salsberg's clinical notes date Mr. Koch's first complaints to him of migraine headaches at September 4, 1991. His notes indicate "severe migraines lately. Had Demeral (sic) injection yesterday." The first note of left leg "tingling" and pain is November 8, 1991. This sequence of events of migraine headaches followed by the left leg problem accords with Mrs. Koch's recollection of the progress of her husband's complaints in 1991. I note that Dr. Salsberg saw Mr. Koch regularly each week, at least once, during September and the first week of October 1991 and recorded no complaint of left leg pain. There follows a gap of 3½ weeks, until October 28, 1991 when Mr. Koch attended for a 'flu shot.

During October 1991 Mr. Koch had no physiotherapy. He saw Dr. Khoury on October 17, 1991. It appears that he did not report any left leg pain on that visit.

I should state that I believe that both Dr. Salsberg and Dr. Khoury are careful note-takers. Obviously, it is not possible to record every comment a patient makes, on each visit, in detail. However, with respect to Dr. Khoury, especially, it was her function to examine in detail Mr. Koch's musculo-skeletal complaints and in her oral evidence she was emphatic that Mr. Koch had never mentioned a pain in his left leg or buttock to her before his attendance on December 2, 1991. Dr. Salsberg admitted considering the possibility that Mr. Koch had complained on September 4, 1991 not about his right thigh, but about his left. However, he testified that he did not believe that he had erred in his records. I accept Dr. Salsberg's evidence that Mr. Koch did not report a left leg problem to him until November 8, 1991 and that when this persisted to November 22, 1991, he referred Mr. Koch back to Dr. Khoury.

Conclusion

In this arbitration, I must decide based on the evidence before me, whether or not, on a balance of probabilities, Mr. Koch's nerve pain results from the accident of January 24, 1991. This pain appears to have become noticeably persistent, at the earliest, about the end of September 1991, or at least by November 5, 1991, if Dr. Salsberg's note of November 8, 1991 is accurate. ("Light tingling in left leg and feel warm x 3 days. Painful if puts something cold on it.") The reports of several experts who considered the origin or cause of this pain call it a "a most unusual and complex case,"⁴ a "case shrouded in unknowns,"⁵ of "unknown origin"⁶, or of "spontaneous" precipitation⁷. No expert testified or reported in writing, in anything even approaching an unequivocal fashion, that Mr. Koch's neuropathic leg pain probably has its origin in an injury he suffered in the motor vehicle accident of January 24, 1991. Dr. Mailis' evidence came closest, in a portion of the hearing for which no transcript is available, and so I must rely only on my notes and my memory of her testimony. Unfortunately, none of Dr. Mailis' reports are very helpful on this particular issue.

I understand why the Applicant and his wife, and perhaps even Dr. Salsberg (according to his report of January 25, 1996⁸) believe that the accident is the cause of Mr. Koch's neuropathic pain. This accident was a major event in Mr. Koch's life and the neuropathic condition follows it in time. It is natural to connect events which follow each other in time, even though it may be a logical fallacy. However, I can be guided only by the evidence in this case: evidence that I heard in oral testimony and which was filed as exhibits.

Like everyone connected to this case, I have sympathy for Mr. Koch, who suffers from a painful condition, which appears intractable to treatment. All adjudicators who must make difficult decisions that will seriously affect the parties before them consider and reconsider the evidence. Ultimately I must weigh the evidence and make a decision based on that. I cannot determine the issue based upon the theory that a happening which follows another must be its result (post hoc ergo propter hoc). Where the evidence of causal connection between the accident and the disabling medical condition is insufficient, unclear, or speculative then the Applicant's case must fail. In Mr. Koch's case I find insufficient evidence to make a finding that the motor vehicle accident of January 24, 1991 caused the neuropathic condition which disables him.The Applicant has not met the burden of proof which is incumbent upon him.

I am not called upon to diagnose Mr. Koch's condition or to say why this neuropathic pain has been visited upon him. His personal medical history discloses evidence of vascular disease and diabetes, both of which can lead to neuropathic conditions. The evidence which I received does not point to the car accident as the likely cause of his problem. It only points to the accident as one of the possible causes. In answering the question, is it more likely than not that Mr. Koch's neuropathic condition was caused by the car accident, I have come to the conclusion that the evidence does not support an affirmative answer.

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 F of the Dispute Resolution Practice Code—1995 Release and in Ontario Regulation 664, R.R.O. 1990, Dispute Resolution Expenses.

In the Ralph McCormick and Economical Mutual Insurance Company case, October 2, 1991, O.I.C.A-000139, Sr. 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 main, in the appeal decision in Vito Luigi Calogero and The Co-Operators General Insurance Company, February 13, 1992, O.I.C. P-000251.

The Applicant is entitled to his expenses as set out in Schedule F of the Dispute Resolution Practice Code -1995 Release. In the event that the parties cannot agree as to the total amount of expenses, a party may apply for assessment of the expenses through the Office of the Registrar.

Order:

1. The Applicant is not entitled to benefits under section 6 or section 12(5)(b) of the Schedule.

2. The Applicant is entitled to his expenses incurred in respect to the arbitration.

3. The Insurer is not entitled to a repayment under section 27 of the Schedule.

June 6, 1996

K. Julaine Palmer

Arbitrator

Date

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. 2Meralgia paresthetica is a disease characterized by paresthesia, pain and numbness in the thigh, in the area supplied by the lateral femoral cutaneous nerve, which has become entrapped by the inguinal ligament.
3. 3Arbitrator's note: the date should be November 8, 1991 according to Dr. Salsberg's testimony and original notes. The discrepancy and confusion is explained by a poor date-stamp impression for November 8, 1991 and the brevity of the October 28, 1991 note.
4. 4Exhibit 1.12, Dr. E.P. Urovitz, report of May 7, 1992.
5. 5Exhibit 1.5, Dr. Mark Bernstein, report of July 4, 1994: "I do not know the etiology of his pain syndrome... case shrouded in unknowns."
6. 6Exhibit 1.5, Dr. Ronald R. Tasker, report of examination of November 22, 1993.
7. 7Exhibit 1.11, Dr. Shahira Khoury, report of December 2, 1991.
8. 8Dr. Salsberg expressed the opinion, in his report of January 25, 1996 that "David Koch has developed a neuropathic pain syndrome in his left leg as the result of a motor vehicle accident on January 24, 1991." He maintained at the hearing that with a low back injury one could expect pain in the leg after the trauma. He agreed that he had not personally seen a case of injury to the mid back which later developed into leg pain. Dr. Salsberg agreed that as a neurologist, Dr. Peter Watson would have received more training in the area of nerve injury than he himself had received. He agreed that a local stroke (or nerve infarction) could cause neuropathic pain.