Neutral Citation: 1997 ONICDRG 98

OIC A-011825

ONTARIO INSURANCE COMMISSION

BETWEEN:

OSMAN AKKAS

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, Osman Akkas, was injured in a motor vehicle accident on March 15, 1994. He applied for "other disability benefits" pursuant to section 19 of the Schedule¹ on the basis that he had suffered a partial or complete inability to carry on a normal life. The Insurer took the position that his medical problems predated the motor vehicle accident and that he had not suffered a partial or complete inability to carry on a normal life. The parties were unable to resolve their dispute through mediation, and Mr. Akkas applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mr. Akkas entitled to other disability benefits, pursuant to section 19 of the Schedule, and, if so, for what period of time?

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

Result:

1. Mr. Akkas is entitled to other disability benefits from March 22, 1994 to December 15, 1994, together with applicable interest pursuant to section 68 of the Schedule.

I may be spoken to with regard to the question of expenses.

Hearing:

The hearing was held in Windsor, Ontario, on January 24, 1996, April 15, 1997 and May 21, 1997, before me, M. Guy Jones, Arbitrator.

Present at the Hearing:

Applicant:

Osman Akkas

Mr. Akkas' Representative:

Stephen Harvey

Barrister and Solicitor

Allstate's Representative:

Brock T. Howie

Barrister and Solicitor

Allstate's Officer:

Don Grey

Barrister and Solicitor

Interpreter:

Niyriye Unlu

Court Reporter:

Sharon Sharpe

E. Beryl MacMillan

Witnesses:

Mr. Osman Akkas

Dr. I.G.H. Peer

Dr. L. A. Strausz

Ms. L. Mathers

Dr. R. Wilson

Dr. M. R. Trozzi

Exhibits:

A total of 13 exhibits were filed at the hearing.

Facts:

The Applicant, Mr. Osman Akkas, is seventy years of age and retired. He was involved in a motor vehicle accident on March 15, 1994. He was a passenger in a car that sustained substantial property damage. While other passengers in the car were taken to the hospital and treated, Mr. Akkas was not. Subsequent to the accident, Mr. Akkas claims that he developed problems with various parts of his body, including his neck, chest, shoulders, back, and thigh, all of which he attributed to the motor vehicle accident. In addition, he developed significant heart problems and increased breathing problems, which he also attributed to the motor vehicle accident. All of the above-noted problems have continued, and indeed, increased since the time of the accident.

Mr. Akkas claims that as a result of the accident he has suffered a complete or partial inability to carry on a normal life. The Insurer, Allstate Insurance Company of Canada, on the other hand, has taken the position that Mr. Akkas was suffering from very significant medical problems prior to the accident, and that any disability that he now has is as a result of the natural progression of those medical problems.

Findings and Analysis:

Mr. Akkas is claiming "other disability benefits" pursuant to s.19(1)(a) of the Schedule, which states:

(1) An insured person who sustains an impairment as a result of an accident is entitled to a weekly disability benefit if the insured person, as a result of and within two years of the accident, suffers a partial or complete inability to carry on a normal life and,

(a) the insured person never met the qualifications for a benefit under subsection 7(1), 15(1) or 18(1), or under Part VI, in respect of the accident;

One must then look at sections 2 and 3 respectively, of the Schedule in order to determine what constitutes a partial and a complete inability to carry on a normal life. The sections state:

2. For the purpose of this Regulation, a person suffers a partial inability to carry on a normal life as a result of an accident if, and only if, as a result of the accident, the person suffers an impairment that results in a substantial inability to engage in,

(a) personal care activities in which the person ordinarily engaged before the accident;

(b) mobility activities in which the person ordinarily engaged before the accident;

(c) household activities in which the person ordinarily engaged before the accident;

(d) activities in which the person ordinarily engaged before the accident that require the exercise of cognitive powers;

(e) activities in which the person ordinarily engaged before the accident that require the ability to control emotions or behaviour; or

(f) activities in which the person ordinarily engaged before the accident that require communication abilities.

3. For the purpose of this Regulation, a person suffers a complete inability to carry on a normal life as a result of an accident if, and only if, as a result of the accident, the person suffers an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

In order to determine if Mr Akkas suffered a complete or partial inability to carry on a normal life as a result of the motor vehicle accident, it is first necessary to determine what his pre-accident activities were and compare them with his post-accident activities.

At the hearing, Mr. Akkas portrayed himself as a fairly active man immediately prior to the accident. He testified that he would walk five miles or so per day, help take care of the house, would dress and care for himself, make his own breakfast, watch television, take out the garbage, babysit his grandchildren, go shopping, visit friends, etc. In addition, he would visit the mosque regularly and pray at least five times a day, which involved kneeling on the floor.

In contrast to this very active pre-accident lifestyle, Mr. Akkas testified that there is now very little that he can do. He testified that since the accident he is only able to walk extremely short distances and even that with great difficulty. He needs assistance cleaning himself and is unable to help with the house cleaning or babysitting. He seldom socializes and does not go to the mosque as often as before and no longer kneels down to pray. For a period of time after the accident, he was forced to crawl up the stairs to his second floor bedroom, although he can now walk up the stairs, though very slowly and with great difficulty.

While Mr. Akkas portrayed a vast difference between his pre-accident and post-accident activities, I am not convinced that Mr. Akkas was as active before the accident as he indicated. In terms of his pre-accident health, Mr. Akkas indicated that he was essentially in good health. He acknowledged that he had had a heart attack in 1978, but he was not having significant ongoing heart problems prior to the motor vehicle accident. He also acknowledged that he had had some minor breathing problems before the accident, but these were under control with medication. In addition, he conceded that he had had some problems with his spine prior to 1994, but these were not causing him any difficulties at the time of the accident.

A review of Mr. Akkas' pre-accident medical records reveals that he had, in fact, significant medical problems which lead me to conclude that he was not as active as he claimed at the hearing. Mr. Akkas was seen by Dr. I.G.H. Peer, a specialist in internal medicine, as far back as 1990 when he was admitted to the Windsor Western Hospital suffering from severe shortness of breath. Dr. Peer diagnosed emphysema, chronic lung disease, degenerative arthritis, reflux esophagitis, and severe kyphoscoliosis (curvature of the spine). Dr. Peer prescribed digoxin and nitroglycerin for his heart condition.

On March 1, 1994, two weeks prior to the motor vehicle accident, Mr. Akkas came under the care of Dr. L.A. Strausz, a family physician, who has continued to see Mr. Akkas since that date. Dr. Strausz's clinical notes of an examination of Mr. Akkas two weeks before the accident reveal a hectic heart rate and a number of other medical problems which had been found by Dr. Peer in his earlier examination.

Some further assistance regarding Mr. Akkas' pre-accident health and activity level can be obtained from a review of a disability questionnaire filled out on April 20, 1994 by Ms. Lynn Mathers, then an adjuster with Allstate Insurance Company. Ms. Mathers interviewed Mr. Akkas on that date with the assistance of Mr. Akkas' daughter and son-in-law. While Ms. Mathers was somewhat vague about the circumstances of the interview, and exactly which questions were answered by Mr. Akkas as opposed to his family members on his behalf, I am satisfied that the form gave a generally accurate picture of his pre-accident activities.²

From this and the above-noted medical information, I conclude that at the time of the accident Mr. Akkas was able to take care of himself largely unassisted, but he was not able to, at the time of the accident, take part in house cleaning activities or babysitting. He was able to walk short distances before the accident, requiring assistance for anything more than short distances. I find that he was unable to walk five miles per day before the accident. He could walk upstairs slowly before the accident. He did go to the mosque and pray regularly before the accident and did some limited socializing.

In contrast to this, I find that Mr. Akkas has not been as active since the motor vehicle accident. He is unable to lift his arms sufficiently to wash his hair and now requires assistance. He is only able to walk very short distances, and even this only with extreme difficulty. He now requires assistance to go upstairs. For a period of time after the accident, he had to crawl up the stairs in his house to get to his bedroom. While he occasionally goes to the mosque, he does not kneel to pray as he previously did.

In light of the above, I find that Mr. Akkas did suffer a substantial inability to engage in personal care activities and mobility activities within the meaning of sections 2(a) and (b) of the Schedule.

The question remains, however, whether this resulted from the motor vehicle accident, or simply a natural progression of his pre-accident medical condition. This is by no means an easy question to answer as there was conflicting medical evidence presented on the point.

The injuries which Mr. Akkas alleges he suffered in the accident can be categorized roughly in soft tissue injuries to the neck, shoulders, chest and back as well as heart/lung problems.

Dr. L.A. Strausz, Mr. Akkas' family doctor, testified on behalf of Mr. Akkas. He took the position that Mr. Akkas had suffered soft tissue injury to his neck, shoulders, chest and back as a result of the accident. The muscle damage done also tended to make breathing very difficult according to Dr. Strausz. Dr. Strausz was also of the opinion that the stress caused by the accident aggravated his heart condition so that he developed atrial fibrillation (irregular rapid heart beat). Atrial fibrillation can cause shortness of breath and weakness.

Dr. I.G.H. Peer, an expert in internal medicine, also testified on behalf of Mr. Akkas. As indicated above, Dr. Peer saw Mr. Akkas in 1990 and then again after the motor vehicle accident, commencing on June 19, 1994. On that date, Dr. Peer noted that Mr. Akkas was suffering from severe shortness of breath due to emphysema and chronic lung disease. He indicated that Mr. Akkas' condition was worse than it had been in 1990. Dr. Peer saw Mr. Akkas again in May 10, 1996 at which time he noted that Mr. Akkas had developed atrial fibrillation. Dr. Peer expressed the opinion that the soft tissue injuries and related pain as well as the stress of the motor vehicle accident caused the atrial fibrillation, to which Mr. Akkas was susceptible because of his pre-existing condition.

The final medical witness for Mr. Akkas was Dr. Mark Trozzi, a general practitioner and emergency room physician. While Dr. Trozzi had not examined Mr. Akkas, he reviewed most, but not all, of Mr. Akkas' medical documentation. Dr. Trozzi was of the view that Mr. Akkas already had poor heart function before the accident and that the motor vehicle accident significantly contributed to his heart problems, and shortness of breath, thus disabling him from performing his normal activities. Like Dr. Peer, he was of the opinion that the anxiety and stress of the motor vehicle accident contributed to the development of the atrial fibrillation. Dr. Trozzi expressed the opinion that the motor vehicle accident was probably 10 to 70 per cent responsible for the atrial fibrillation suffered by Mr. Akkas.

While I was impressed with the evidence given by the above-noted doctors, with regard to the heart and lung problems, I prefer the evidence given by Dr. Robert Wilson, an expert in internal medicine, who testified on behalf of the Insurer. While Dr. Wilson saw Mr. Akkas on only one occasion, on November 15, 1995, he clearly had taken a very thorough history and reviewed all the medical documentation in detail. Dr. Wilson accepted that Mr. Akkas is very limited in his functional capacity at this time; however, in his view, the heart and related problems were not caused by the motor vehicle accident. Noting that Mr. Akkas had pre-existing severe kyphoscoliosis, hypertension, and arteriosclerotic heart disease, Dr. Wilson was of the view that the severe shortage of breath was a result of the above-noted pre-existing medical conditions and not related to the motor vehicle accident. Dr. Wilson also noted, and I accept, that Mr. Akkas has a number of classic risk factors for the development of atrial fibrillation, including hypertension, cardiomegaly and severe pulmonary disease. In addition, Mr. Akkas suffered from esophageal reflux before the accident, which has also been associated with atrial fibrillation.

In concluding that Mr. Akkas' atrial fibrillation and associated symptoms were not caused by the accident, I am mindful of the fact that the first such attack was not noted until approximately two years after the accident and, accordingly, it was more likely caused by the natural progression of Mr. Akkas' pre-existing condition. My finding in this regard is reinforced by the fact that Mr. Akkas does not seem to have been initially severely traumatized by the accident. Unlike his fellow passengers, he did not seek treatment at the hospital and did not see his family doctor until approximately three weeks after the accident. If the accident had caused such stress and anxiety to the point of causing the problems outlined by Dr. Strausz, Dr. Peer and Dr. Trozzi, I would have thought that the stress and anxiety would have been more immediate and severe.

I also note and accept Dr. Wilson's view that any relationship with the stress causing atrial fibrillation is medically speculative at this point in time. While I accept that in some cases medical speculation may be accepted by an arbitrator, in this particular case the medical theory presented by Mr. Akkas' witnesses is too speculative to be accepted, on a balance of probabilities. It is more likely, in my view, that the heart and associated problems were simply the result of the natural progression of Mr. Akkas' pre-existing condition.

While Mr. Akkas' heart and associated problems were not related to the motor vehicle accident, I am of the view that Mr. Akkas did suffer soft tissue injuries in his neck, shoulders, and low back. Dr. Strausz, who saw Mr. Akkas approximately three weeks after the motor vehicle accident noted that Mr. Akkas was suffering pain in his neck, shoulders and low back. There are continuous references to the soft tissue injuries until at least December 15, 1994, after which the heart and associated problems seem to dominate the clinical notes. In addition, I note that the Health Practitioners Certificate filled by Dr. Strausz on April 16, 1994 states that Mr. Akkas was suffering from soft tissue injuries to his neck, shoulders and low back and that he was incapacitated by this.

I am further reinforced in my view that Mr. Akkas was initially disabled by the soft tissue injuries by reviewing the "Essential Daily Tasks" form filled out by Ms. Mathers upon interviewing Mr. Akkas on April 20, 1994. An examination of the results set out in that form suggests that Mr. Akkas was suffering a partial inability to carry out the essential tasks of his daily living, especially in the personal tasks and mobility tasks. This combined with Dr. Strausz's notes and testimony satisfy me that the soft tissue injuries were in fact caused by the motor vehicle accident.

I come to this conclusion despite the reports filed by Dr. George Koppert, an orthopaedic surgeon retained by the Insurer, who examined Mr. Akkas on December 20, 1995. A considerable period of time was spent at the hearing attempting to determine when Mr. Akkas first complained of the soft tissue injuries and the extent of these problems. Dr. Koppert expressed the view that Mr. Akkas complained of the soft tissue problems far too late for them to be caused by the motor vehicle accident. Having observed Mr. Akkas at the hearing, I believe that it is fair to say that he was less than a perfect historian and gave conflicting evidence as to when he first noticed the injuries to his neck, shoulders and low back.

I accept Dr. Koeppert's view that in order to be related to the motor vehicle accident, Mr. Akkas should have developed the soft tissue injuries within 48 to 72 hours after the accident. While Mr. Akkas did not actually see a doctor for approximately three weeks after the accident for the soft tissue injuries, I accept Mr. Akkas' testimony at the hearing that he noticed these symptoms immediately after the accident, and certainly within 72 hours of the accident.

Accordingly, I find that Mr. Akkas did suffer a partial inability to carry on a normal life as a result of the motor vehicle accident. The question then is how long this disability remained. This is particularly difficult in light of the heart and related problems that also disabled Mr. Akkas as time progressed after the accident.

I accept Dr. Koeppert's evidence that Mr. Akkas was not suffering disabling soft tissue injuries when he saw him in December 1995. On the other hand, Mr. Akkas was still complaining of soft tissue injuries to Dr. Strausz on December 15, 1994. I find that Mr. Akkas' soft tissue injuries resulted in a partial inability to carry on a normal life up to December 15, 1994. Thereafter, his disability was caused, not by his soft tissue injuries, but by his progressive heart and lung problems.

Some evidence was led as to Mr. Akkas' failure to follow Dr. Strausz's medical advice. Certainly, Dr. Strausz, in late November 1994, encouraged Mr. Akkas to be more mobile in order to improve his low back pains. In light of Mr. Akkas' overall condition, however, I am not convinced on the evidence, that Mr. Akkas' failure to be more mobile at that time significantly contributed to Mr. Akkas' inability to carry on a normal life, at least until the end of 1994. Accordingly, any failure by Mr. Akkas to mitigate his damages did not substantially affect his recovery during the period for which benefits are being awarded.

Expenses:

If the parties are unable to agree on the issue of expenses, I may be spoken to.

Order:

1. Mr. Akkas is entitled to "other disability benefits" pursuant to section 19 of the Schedule from March 22, 1994 until December 15, 1994, together with applicable interest.

June 12, 1997

Guy Jones Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents after December 31, 1993, and before November 1, 1996, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94.
2. 2See Exhibit 7.