OFFICE OF THE DIRECTOR OF ARBITRATIONS
Neutral Citation: 1997 ONICDRG 80
Appeal P96-00058
DAVID KOCH Appellant
and
AXA INSURANCE (CANADA) Respondent
Before: David R. Draper, Director's Delegate
Counsel: David H. Sookram (for David Koch) Geoffrey Adair (for AXA Insurance)
APPEAL ORDER
Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- The appeal is dismissed and the arbitration order, dated June 6, 1996, is confirmed.
- No appeal expenses are payable.
May 8, 1997
David R. Draper Director's Delegate
Date
REASONS FOR DECISION
I. NATURE OF THE APPEAL
This is an appeal by David Koch from an arbitration decision dated June 6, 1996. Although there were a number of issues raised in the arbitration, the central question was whether Mr. Koch's ongoing left leg pain resulted from his automobile accident. He submits that the arbitrator erred in concluding that he failed to establish a causal link and, therefore, was not entitled to additional benefits under Ontario Regulation 672, Statutory Accident Benefits Schedule - Accidents Before January 1, 1994 ("the Schedule").
II. BACKGROUND
Mr. Koch was injured in an automobile accident on January 14, 1991. As a result, his insurer, AXA Insurance (Canada) ("AXA"), paid him weekly income benefits under section 12 of the Schedule. These benefits were paid on the basis that Mr. Koch sustained injuries in the accident that left him substantially unable to perform the essential tasks of his pre-accident employment.
Mr. Koch's doctors initially responded to his musculo-skeletal pain, particularly in his ribs and back, and damage done to an old surgical incision from a 1988 heart bypass operation. However, the focus of his problems changed. In early November 1991, Mr. Koch first complained of problems with his left leg. This became and remained his dominant problem.
Because the diagnosis and treatment of Mr. Koch's left leg pain were not obvious, he was referred to a number of specialists. Some of these referrals were made by his treating doctors, while others were assessments arranged by AXA. The doctors eventually reached some consensus, accepted by the arbitrator, that Mr. Koch had developed a neuropathy (or nerve pain) in his left leg.
AXA continued to pay weekly income benefits. According to section 12(5)(b) of the Schedule, the eligibility test becomes stricter after 156 weeks. The insurer is not required to pay weekly income benefits after 156 weeks unless it is established that "the injury continuously prevents the insured person from engaging in any occupation or employment for which he or she is reasonably suited by education, training or experience." Mr. Koch's benefits continued beyond the 156-week mark, but were terminated in January 1995.
Mr. Koch applied for mediation, claiming that he was still unable to work and, therefore, was entitled to ongoing weekly income benefits. The mediation failed and the matter went to arbitration. By the time of the pre-hearing, it was clear that AXA's position was that Mr. Koch's ongoing problems were not caused by the accident. As the arbitrator states at page four of her decision, AXA did not dispute that Mr. Koch had a painful, chronic condition that interfered with his ability to maintain employment. It claimed, however, that this condition did not develop "as a result of an accident," as required by section 12 of the Schedule.
After examining the evidence from Mr. and Mrs. Koch and the various medical professionals, the arbitrator concluded that Mr. Koch failed to prove "on a balance of probabilities or a preponderance of credible evidence that his neuropathic condition results from the accident of January 24, 1991." (Decision, page 5)
III. THE APPEAL
A. Standard of Proof
The parties agree that the onus was on Mr. Koch to establish his entitlement to weekly income benefits, including causation, on a balance of probabilities. Mr. Koch claims that although the arbitrator stated the law correctly, she imposed a higher standard of proof on him. In particular, he points to the following sentence from page 17 of the decision:
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. [emphasis in the original]
Mr. Koch submits that the arbitrator erred in demanding "unequivocal" proof of a causal connection. I do not agree. The arbitrator did not require unequivocal evidence that Mr. Koch's neuropathic leg pain resulted from the accident. To find in Mr. Koch's favour, however, she needed credible evidence establishing that his pain "probably," or more likely than not, resulted from the automobile accident. While it may be awkward to talk about unequivocal evidence of a probability, I find no error in the arbitrator's approach.
Mr. Koch also claims that by insisting on expert evidence of causation, the arbitrator abdicated her responsibility to make findings based on all the evidence. The suggestion, as I understand it, is that she should have accepted Mr. Koch's testimony that there was a connection between his left leg pain and the accident.
The decision makes it clear that the arbitrator did not ignore Mr. Koch's testimony. At page 18, she accepts that he feels the accident is responsible for his ongoing leg pain. However, she looked to the medical evidence to decide if this link had been established on a balance of probabilities. I agree with her approach. While Mr. Koch can testify about his symptoms and the sequence of events, causation is not established simply because the problem follows the event. Medical evidence is critical in determining whether it is likely that the injuries arise from the accident. This is particularly true where the person had pre-existing medical problems, the onset of the new symptoms is delayed, and the symptoms can arise from a number of different causes.
The arbitrator was presented with a legitimate causation question. Dr. Peter Watson, the Head of Neurosurgery at the Toronto Hospital, concluded that the causal link was "unlikely." The issue was not whether Mr. Koch accepted this view, but whether there was a basis for coming to a different conclusion. Not only was the arbitrator given medical reports and records from the many doctors involved, she heard testimony from Dr. Watson, Dr. Michael Salsberg (Mr. Koch's family doctor), Dr. Shahira Khoury (a physiatrist who saw Mr. Koch on referral from Dr. Gloria Chudrow, a general practitioner) and Dr. Angela Mailis (another physiatrist who saw Mr. Koch on referral from Dr. Salsberg).
The arbitrator found that Dr. Watson addressed the causation question most directly and, in essence, preferred his opinion. The decision reflects a thorough review of the medical evidence and, therefore, I find no reason to interfere with her assessment. As stated in many previous decisions, my role on appeal is not to second-guess the arbitrator's assessment of the evidence. The question is whether the arbitrator erred by misinterpreting the evidence, or making findings unsupported by the evidence. I find no such error here.
B. Onset of Left Leg Pain
One of the key factual issues was the onset of Mr. Koch's left leg pain. In his report, Dr. Watson referred to his understanding that it did not start until at least seven months after the accident. Mr. Koch claims that the arbitrator erred in ignoring his testimony that he had left leg pain much earlier, undermining the basis of Dr. Watson's opinion. In Mr. Koch's submission, the arbitrator confused the onset of the left leg pain with the date that he finally told his doctors about the problem.
According to his lawyer, Mr. Koch testified that his left leg pain developed shortly after the accident, but he self-medicated and did not mention it to any of his doctors until it became a serious problem. The difficulty is that this was not the evidence. Mr. Koch did not claim that his left leg pain started shortly after the accident. In response to questions from his own lawyer, he said that his earliest recollection of left leg pain was in "the summer of 1991." (Transcript, page 90) During his cross-examination, he was even less clear, conceding that he was uncertain when the leg problem started. (Transcript, page 215)
Accepting Mr. Koch's testimony at its highest, therefore, there was still a significant delay in the onset of his left leg pain. The period in dispute was relatively short - from the "summer of 1991" to November 8, 1991, when Mr. Koch mentioned left leg "tingling" and pain to Dr. Salsberg. The arbitrator narrowed the dispute even further. Relying on the testimony of Mr. and Mrs. Koch, she expressed a willingness to accept that the leg pain had become "noticeably persistent" by the end of September 1991." (Decision, page 17, emphasis added)
In my view, however, the critical point is that the arbitrator did not need to make a precise finding about when Mr. Koch's left leg pain started because the expert opinions did not turn on whether it started as early as June, or as late as November 1991. The arbitrator described the testimony of the two main experts, Dr. Watson and Dr. Mailis, as follows:
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. (p. 10)
He [Dr. Watson] 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. (p.13)
This reflects a considerable divergence of opinion. Dr. Watson seems to question a causal connection where the neuropathic pain starts more than three or four weeks after the accident, while Dr. Mailis appears willing to accept delays of more than three years. It was the arbitrator's job to listen to the views of these experts and evaluate their testimony along with the other evidence. I am satisfied that is what she did here. The fact that Mr. Koch feels she should have preferred the opinion of Dr. Mailis, while understandable, is not a sufficient reason for me to interfere.
C. "Guesswork" by Dr. Watson
Mr. Koch argued that the arbitrator should not have relied on the opinion of Dr. Watson because he conceded during cross-examination that his opinion was simply "guesswork." AXA denied that Dr. Watson made such a dramatic concession, arguing that if he had, it is unlikely that the arbitrator would have relied on his evidence.
Without a transcript of Dr. Watson's testimony, I cannot be certain what he said at the hearing. However, based on his reports, it seems much more likely that he acknowledged that identifying the cause of Mr. Koch's neuropathy was difficult. The other doctors agreed that isolating the cause of neuropathic pain is hard. Dr. Watson may even have agreed that his opinion involved a certain amount of "guesswork." I am not persuaded, however, that he conceded that his opinion was simply "guesswork" uninformed by his knowledge and experience, or that it was any more speculative than the opinions of the other doctors.
D. Post Hoc Ergo Hoc
Mr. Koch's lawyer objected to the arbitrator's statement that he relied on the doctrine "post hoc ergo hoc," claiming that he never used that expression. Counsel for AXA had a different recollection. In my view, it does not matter whether the term was used. The arbitrator states that Mr. Koch's lawyer "implicitly" relied on this doctrine by arguing that because Mr. Koch did not have leg pain before the accident, the accident must have caused it. I find no indication that this observation was wrong. Indeed, the appeal submissions included a similar argument.
This submission would have more strength in a case where the insurer presented no alternative explanation for the person's disability. In this case, however, Dr. Watson provided other possible causes that led him to the opinion that it was unlikely that the automobile accident was the cause of Mr. Koch's ongoing problems. The arbitrator accepted his opinion, as she was entitled to do.
IV. APPEAL EXPENSES
Mr. Koch submits that his appeal was not frivolous or vexatious and, therefore, he should be awarded his appeal expenses. As established in previous decisions, however, that is not the test at the appeal level.1 Appeal expenses do not strictly follow the cause, but have been routinely denied where the appeal simply challenges the arbitrator's assessment of the evidence.
This case was somewhat unusual because of its focus on causation. I am not persuaded, however, that Mr. Koch's appeal raised any issues of sufficient novelty or importance that AXA should be required to pay his appeal expenses in addition to his arbitration expenses. Essentially, it challenged the arbitrator's assessment of the evidence, particularly the expert evidence.
AXA argued that Mr. Koch should be ordered to pay an award of $500 under section 282(11.2). I do not agree that the appeal that the appeal was "frivolous, vexatious or an abuse of process," as required by this section. Therefore, no award is payable.
May 8, 1997
David R. Draper Director's Delegate
Date