Neutral Citation: 1999 ONFSCDRS 43

FSCO A98-000318

BETWEEN:

SAM MATICHUK

Applicant

and

COMMERCIAL UNION ASSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Deena Baltman

Heard:

March 1 & 2, 1999, in Thunder Bay, Ontario.

Appearances:

Anthony J. Potestio for Mr. Matichuk

Aldo Picchetti for Commercial Union Assurance Company

Mr. Matichuk was injured in an automobile accident on November 2, 1991. He claims a variety of medical and rehabilitation benefits under section 6 of the Schedule,¹ which entitles an insured person to recover "all reasonable expenses resulting from the accident..." for specified goods and services.

Commercial Union contends that the expenses claimed result from a preexisting condition. Alternatively, it argues that they are not reasonably needed for his condition.

The issue, therefore, is whether the expenses claimed are reasonable and result from the accident.

The result is that the expenses claimed do not result from the accident, and are therefore not recoverable from Commercial Union.

Background:

Mr. Matichuk is 66 years old and lives alone in a cottage near Atikokan, Ontario. He has worked mostly in labour intensive positions, including dredging, iron ore processing, and construction. The main injury in this accident was to his low back.

The matter is complicated because Mr. Matichuk has a long history of back pain. In the late 1950's he slipped and fell down some steel stairs, injuring his lower back. Since then, he has a history of intermittent remissions and exacerbations of low back pain. In April 1988 he re-injured his back while lifting a heavy tin plate from the floor. He experienced so much pain that after several months he was forced to stop working. His orthopaedic surgeon, Dr. V. Hoffman, diagnosed L4-5 facet arthrosis and disc protrusion. Despite a lengthy course of conservative treatment, including physiotherapy and medications, his pain did not resolve.

Eventually Dr. Hoffman recommended surgery involving an L4-5 discectomy and a two-level spinal fusion at L4-5 and L5-S1. Mr. Matichuk underwent this procedure in January 1991, and was still recovering when this accident happened in November of 1991. He maintains that following the accident, he experienced an increase in back pain with intermittent episodes of leg numbness and paralysis, causing him to fall on occasion.

Mr. Matichuk returned to work in February 1992 and continued working until June 1994. During this time, he worked as an estimator, salesman, and counsellor. However, these positions require prolonged sitting and driving, which aggravated his back pain to the point where he stopped working.

At the time of this accident, Mr. Matichuk was living in his house in Kenora. In July of 1994, he moved to his cottage, near Atikokan, which he had previously used mostly for summer vacations. He explained that he did this to alleviate financial stress resulting from the accident; because he could no longer work, he needed to reduce his expenses. The cottage was fully paid, whereas his house in Kenora had a mortgage which he could no longer afford. He also stated that he preferred the lifestyle in the country.

In order to function adequately at the cottage, Mr. Matichuk purchased several devices, for which he seeks payment from Commercial Union. Because the cottage had no access road, he bought a boat for access in the summer and a snowmobile for the winter. As it strained his back to carry groceries and other items from the dock or driveway into the cottage, and he felt unsure of his balance on the rough, uneven terrain, Mr. Matichuk bought an all terrain vehicle (ATV) and a trailer to transfer items to and fro. He also bought a wood splitter because he found it difficult to chop wood with an axe. Finally, he purchased various medical devices and home fixtures in order to alleviate his back pain, including a stationary bike, a Jacuzzi, and a hand held massage unit.

Mr. Matichuk brings his claim under section 6 of the Schedule, which provides that the insurer will pay "all reasonable expenses resulting from the accident" for goods and services such as professional services, transportation to and from treatment sessions, home renovations to accommodate the needs of the insured person, and "other goods and services, whether medical or non-medical in nature, which the insured person requires because of the accident." Counsel agreed that in order for Mr. Matichuk to recover any expenses, he must prove that they are both (a) causally related to the accident and (b) reasonable. For the reasons set out below, I find that the expenses claimed do not result from the accident. I therefore did not deal with the question of whether they were reasonable.

1. The Law on Contributory Causation:

The Insurer argues that any benefits required by Mr. Matichuk do not result from the accident, but instead arise from his preexisting back condition. It suggests that the accident was a minor event which, at most, aggravated his condition temporarily.

Mr. Matichuk concedes that he had back problems before, but argues that this accident materially contributed to his need for these aids, making them recoverable. He states that he does not have to show that he needs these aids solely because of the accident, relying on the decision of the Ontario Court of Appeal in Alderson et al v. Callaghan et al.² In that case the plaintiff claimed that she suffered serious brain damage in a car accident. The defendant argued that the plaintiff sustained only a mild concussion in the accident, and that her brain damage was caused by post-accident assaults and her preexisting psychological and emotional condition. The Court of Appeal held that if the plaintiffs overall condition resulted from the cumulative effect of the injuries from the accident, the subsequent beating, and her preexisting condition, she would nonetheless be entitled to full compensation provided that, on a balance of probabilities, the injuries from the car accident "materially contributed to her overall condition."

Numerous cases at the Commission have reasoned similarly, finding that the contribution of the accident must be "significant" or "material."³

I accept that the principles set out in Alderson and in previous Commission cases govern here. The question, then, is whether this accident materially contributed to Mr. Matichuk's need for assistive devices.

2. Did this accident materially contribute to the Applicant's need for assistive devices?

Mr. Matichuk claims that he needs various devices because he has problems lifting, bending, and twisting, and because he cannot sit, stand or walk for prolonged periods. The Insurer argues that Mr. Matichuk would have suffered all those restrictions, and therefore needed the same devices, even without this accident. It suggests that the accident made no material contribution to his needs.

A review of the records demonstrates that even before this accident happened, Mr. Matichuk was significantly limited in his physical functions. In 1989 he advised Dr. Hoffman that he suffered from back pain "almost continuously as a chronic dull ache." He complained of difficulties with sitting, standing, and kneeling and climbing. He also had surgery on his left knee and foot. He was forced to withdraw from the workforce on several occasions and sought more sedentary, part-time work. Eventually he was awarded a permanent partial disability pension by the Workers' Compensation Board ("WCB").

As noted above, Mr. Matichuk underwent a discectomy and double fusion in January 1991. Although he recovered well from the surgery and noticed less pain, he was left with many of the same physical restrictions. In June 1991 his family physician, Dr. W. Loewen, advised the WCB that he did not expect a complete recovery and that Mr. Matichuk "will be permanently restricted in lifting, bending and twisting." Later reports note that he cannot sit or maintain one position. On October 29, 1991, only three days before this accident, Dr. Loewen noted the same restrictions, and added that Mr. Matichuk was experiencing cramps and numbness in his legs.

Mr. Matichuk suggests that although he was limited before, this accident aggravated his condition, with the cumulative effect creating a need for the benefits claimed. There are two difficulties with this argument. First, the accident itself was relatively minor. Mr. Matichuk was driving a Toyota land cruiser, which he described as a heavy, sturdy vehicle. He was approaching a Canadian Tire store and had stopped for traffic to clear when he was hit from behind by a jeep. Although he immediately felt pain in his back and hips, he promptly got out of the car, inspected it for damage — noted as "very little" — and then moved it out of traffic. He soon drove himself to the hospital where, after x-rays proved normal, he was released with analgesics.

Second, the accident seemed to have little effect on his overall condition. When he next saw Dr. Loewen, four days after the accident, he advised that he was "getting more flexible and feeling good about physio." Dr. Loewen noted that he "had minor MVA last week-end but no serious sequelae." The next two visits, on November 27, 1991, and December 11, 1991, contain no reference to the accident. His reports of December 18, 1991, January 14, 1992, and January 24, 1992, suggest that Mr. Matichuk's complaints of right leg numbness and persistent back pain arise from his degenerative disc disease and lumbar fusion. None of them refers to the accident.

Mr. Matichuk pointed to Dr. Hoffman's report of July 2, 1992, which states that following the accident his back "became extremely stiff and he had to stop his exercise program for about 2 weeks." This comment appears to be based solely on information provided by Mr. Matichuk, and is contradicted by the records of the Kenora Physiotherapy and Sports Centre ("the Centre"), where Mr. Matichuk performed his "exercises." The Centre's clinical note of November 28 indicates that Mr. Matichuk missed physiotherapy for the previous few weeks because he was "ill with flu." The Centre also noted that he was "doing fairly well" and that the residual pain following his surgery was "unchanged with accident."

Mr. Matichuk also relied on Dr. Hoffman's report of April 22, 1994, where he states "I suspect he did sustain damage to his fusion in his motor vehicle accident," and to Dr. Loewen's report of March 30, 1995, which states that the accident "resulted in exacerbation of pain and possibly disruption of the fusion," as well as Dr. Loewen's report of October 13, 1994 which states: "Discectomy + 2 level fusion in Jan 1991 but symptoms recurred after MVA in Nov. 91 & have persisted since with likely failed fusion." [my emphasis throughout]

However, none of these suspicions bore out. Spinal x-rays performed in June 1995 showed that the fusion was "rock solid and well consolidated." The x-ray report noted multilevel degenerative disc disease and spur formation. And the MRI performed in June 1997, at Dr. Hoffman's request (presumably because of his concerns about a failed fusion), concluded that Mr. Matichuk's fusion was "solid."

Mr. Matichuk adduced no lay evidence to corroborate his belief that this accident materially contributed to his condition. Nor is there a reliable medical opinion to support him. Dr. Loewen, for one, was inconsistent; he attributed Mr. Matichuk's limitations to either this accident or his previous work-related injury, depending on whether he was writing to Commercial Union or the WCB. For example, on January 8, 1994, Dr. Loewen reported to Commercial Union that there had been a reduction in Mr. Matichuk's sitting, walking and driving tolerances since the accident. He also stated that since the accident Mr. Matichuk had experienced increased back pain and intermittent episodes where his legs become numb and give way, causing him to fall on occasion. By contrast, in his report of June 23, 1994 to the WBC, Dr. Loewen advised that Mr. Matichuk's condition had deteriorated to the point where work was impossible, but made no reference to this accident. Because he shifted blame according to which provider he was addressing, I give little weight to Dr. Loewen's opinion.

Furthermore, none of the assessors specify that Mr. Matichuk requires these devices because of the accident. Dr. Loewen, Dr. Giles (Mr. Matichuk's GP since he moved to Atikokan), and Mr. Brian Pontello, an occupational therapist, agree that Mr. Matichuk requires numerous assistive/safety devices, but do not state that they are needed primarily because of the car accident. Nor do their reports discuss to what extent Mr. Matichuk's limitations result from his accident, rather than from his preexisting work-related injuries.

For all these reasons, I conclude that Mr. Matichuk has not established that this accident materially contributed to his need for assistive devices. I find that any contribution by this accident to his condition was likely minimal.

Like his doctors, I sympathize with Mr. Matichuk's plight. He suffers from a painful back condition that limits many of his activities. Despite this, he remains a motivated man who, to his credit, has made numerous attempts to find suitable employment. He performed volunteer work in his community even while struggling with his own medical condition. He has devised several innovative techniques to carry out his household tasks. Many of the devices he seeks are sensible for someone in his medical condition. However, the wording of the Schedule does not permit me to grant benefits unless the expenses claimed result from the accident. For the reasons set out above, in this case I find they do not.

EXPENSES:

The question of expenses was deferred until all other issues in dispute were decided. Although Mr. Matichuk was not successful in his claim, I am hopeful that, given my comments above, the parties can resolve this issue fairly. I should be spoken to only if necessary.

March 19, 1999

Deena Baltman Arbitrator

Date