Neutral Citation: 2002 ONFSCDRS 128

FSCO A98-000021

BETWEEN:

EVTIM VIDENOV Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA Insurer

REASONS FOR DECISION

Before: Fred Sampliner

Heard: February 25, March 25, 26, 27 and April 12, 2002, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Ivo Videnov for Mr. Evtim Videnov Derek Greenside for Royal & SunAlliance Insurance Company of Canada

The Applicant, Evtim Videnov, was injured in a motor vehicle accident on April 12, 1994. He applied for and received a weekly income replacement benefit from Royal & SunAlliance Insurance Company of Canada ("Royal") until August 22, 1994.¹ Mr. Videnov seeks income replacement benefits at the agreed $185 per week rate until September 28, 1996, together with payment for proposed treatment. These issues were not resolved through mediation, and Mr. Videnov applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Procedural Issues:

Mr. Evtim Videnov resides in Sofia, Bulgaria. He left Canada in 1998, and has been unable to obtain authorization to re-enter this country since that time.

At the commencement of the proceedings, Mr. Videnov asked for an adjournment to allow him more time to obtain immigration authorization to re-enter Canada and for additional time to prepare for the hearing. He presented no realistic time frame within which he might be able to return to Canada and this arbitration has been pending for over four years. I denied his request on the basis that Mr. Videnov has had adequate time to prepare his case and that there is little likelihood he will be able to re-enter Canada at any time soon.

Mr. Videnov requested adding his claim for a Loss of Earning Capacity Benefit as an issue at the hearing. However, he has not established his prerequisite entitlement to at least 104 weeks of income replacement benefits,² which is the issue in this hearing, nor has he undergone the required assessment of his earning capacity pursuant to Part VI of the Schedule. Accordingly, I find that this issue is premature and denied his request to add it to this arbitration.

Mr. Videnov further requested that his claim for prescription drug expenses be added as an issue. However, the issue has not been mediated as required by subsection 281(2) of the Insurance Act, listed in Mr. Videnov's application for arbitration, set out by the arbitrator as an issue at the prehearing, or agreed upon by Royal as a new issue. I refused Mr. Videnov's request to join his claim for prescription drug expenses in the arbitration hearing.

Over Royal's objection, I agreed with Mr. Videnov that it is necessary to hear his testimony by teleconference since he cannot come to Canada. For the reasons and with the procedural safeguards set out in the attached letter, I heard Mr. Videnov's testimony by teleconference through a qualified interpreter in the presence of an official who could identify him and administer an oath at the Canadian Consulate in Sofia, Bulgaria.

Issues:

The issues in this hearing are:

Is Mr. Videnov entitled to income replacement benefits from August 22, 1994 until September 28, 1996 under Part II of the Schedule?
Is Mr. Videnov entitled to treatment recommended by the Cranial Cervical Rehabilitation Institute under sections 40 or 36 of the Schedule?
Is Mr. Videnov or Royal entitled to their expenses of the arbitration?

Result:

Mr. Videnov is entitled to income replacement benefits of $185 per week from August 22, 1994 until December 1, 1994 under Part II of the Schedule, together with interest under section 68 of the Schedule.
Mr. Videnov is not entitled to funding of treatment at the Cranial Cervical Rehabilitation Institute under sections 40 or 36 of the Schedule.
Expenses are not decided at this time.

EVIDENCE AND ANALYSIS:

The Accident:

On April 12, 1994, Mr. Videnov was in his car at a gas station. He removed his seat belt and was preparing to get out of his car when a truck hit the front end of his vehicle, causing approximately $1,000 damage. Mr. Videnov exited his car and briefly spoke to the other driver.

Mr. Videnov maintains the accident resulted in chronic headaches, depression, anxiety, pain in his neck, back and extremities, and that these symptoms prevent the resumption of his pre-accident duties as a snowplow operator. Mr. Videnov claims that as a result of the accident he suffered a substantial inability to perform the essential tasks of this job through September 28, 1996,³ and is therefore entitled to a weekly income replacement benefit under Part II of the Schedule.⁴ Mr. Videnov was involved in a second motor vehicle accident on October 18, 1996, that is not the subject of this arbitration.

Royal concedes that Mr. Videnov was involved in the April 1994 accident, but argues there is little difference between his pre-accident and post-accident symptoms. The Insurer further maintains that Mr. Videnov could have resumed working the following winter.

Pre-Accident Health:

Mr. Videnov's claim that he was in fairly good health prior to the accident is supported by the testimony of his son, Mr. Ivo Videnov. The Applicant admitted that he had some migraine headaches before the accident, but denied he suffered back and neck pain. He said his health did not interfere with his ability to work.

The evidence of Dr. Alex M. Alexander, Mr. Videnov's family physician from 1991 until 1996, contradicts the evidence of Mr. Videnov and his son. Dr. Alexander read through his clinical notes because his handwriting is not very legible. He met approximately once a month with Mr. Videnov during the years before the accident.

Dr. Alexander testified that preceding this accident, Mr. Videnov had chronic neck pain, was diagnosed with osteoarthritis of the cervical spine, complained about low back pain, chest pain and fatigue, depression and anxiety with periodic sleeplessness and headaches. He regularly took prescription medication before the accident (including Tylenol 3) to alleviate anxiety, muscle spasms and inflammation of his neck.

Mr. Videnov had other pre-accident health concerns according to Dr. Alexander's notes. Mr. Videnov suffered gastric upset, many infections, and was anxious and depressed about his precarious immigration status, intra-family disputes and his lack of money to support himself and his wife.

The evidence does not support Mr. Videnov's assertion that his family doctor's notes incorrectly set out his pre-accident health. On the contrary, Mr. Videnov's admission that he took some of the prescribed medication and his failure to offer any realistic explanation why his doctor would falsify the records undermine his allegation.

Moreover, Dr. Alexander's notes have the hallmarks of authenticity in that the dates are sometimes mechanically time-stamped and other times hand-written, the entries are consecutive and without gaps, the entry dates correspond with tests and referrals to other health professionals, and there is no evidence of alteration. I find that Dr. Alexander's entries were made at or around the time of the dates recorded therein, that they were made in the normal course of his examinations, accurately setting forth Mr. Videnov's complaints and health problems.

Dr. Ratka Timarac testified that she became Mr. Videnov's family physician in August 1996, but she has no personal knowledge of his pre-accident health. After examining Dr. Alexander's clinical notes at the hearing for the first time, she agreed that Mr. Videnov had chronic neck and back pain prior to the April 1994 accident, explaining she was not in as good a position as Dr. Alexander to give an opinion concerning the cause of his symptoms because she did not treat him at that time.

Dr. Alexander's evidence is impartial. His regular meetings with Mr. Videnov as his primary physician during the years before the accident afforded him an excellent opportunity to know his patient. I accept that Dr. Alexander's notes are the best evidence of Mr. Videnov's pre-accident health.

I do not accept Mr. Videnov and his son's evidence that he was in good health when the records of his own family physician show he had a multitude of chronic health problems. This conflict in the Videnovs' evidence also causes me to find that they are not accurate historians, and I do not rely on their evidence. Based on Dr. Alexander's evidence, I find that Mr. Videnov suffered from headaches, neck pain, periodic back pain, fatigue, sleep loss, anxiety and depression before the accident.

Dr. Alexander's notes also contradict the testimony of Mr. Videnov and his son that his health did not adversely affect his ability to work prior to the accident. Dr. Alexander's notes indicate that in February 1994 Mr. Videnov complained that he was depressed and exhausted from clearing snow until 3 a.m.

Dr. M. B. Weber is a neurologist who examined Mr. Videnov in the fall of 1994, and reported that Mr. Videnov said that before the accident he was periodically struggling to cope with headaches. His headaches occurred one to five times a month, each lasting one or two hours when treated with medication.

Dr. Weber also reported that Mr. Videnov said he sometimes had to stop what he was doing because of his headaches This evidence confirms Dr. Alexander's record of his troubles on the job, and on this I am persuaded that Mr. Videnov's pre-accident symptoms were serious enough to intermittently interfere with his working at the time of the accident.

Causation:

It is well-established law that an Applicant must prove on a balance of probabilities that the accident significantly or materially contributed to the health conditions which cause his or her disability.⁵ Royal contends that there is little difference between Mr. Videnov's pre-accident and post-accident health, and the accident is not the cause of his disability.

Mr. Videnov testified he did not hit his head on anything during the accident, but briefly lost consciousness before getting out of his car. I do not accept Mr. Videnov's evidence that he lost consciousness because he is not a reliable historian and it is not noted in Dr. Alexander's records.

Dr. Weber interprets the results from Mr. Videnov's 1994/95 brain mapping, EEG test and SPECT scan to indicate he has restricted blood flow in his brain, which serves as a physical basis to explain Mr. Videnov's symptoms. He accepts Mr. Videnov's description of his pre-accident headaches as less frequent, intense, widespread and therefore less debilitating than those after the accident, with the opinion that the diagnostic tests serve as a reliable basis to substantiate that the accident caused his increased headaches, reduced memory, irritability, depression and personality changes. Dr. Weber's opinion is that Mr. Videnov's vascular brain abnormality may result from the direct head trauma in the accident or from his whiplash injury.

However, there are no comparable pre-accident diagnostic tests to firmly establish whether blood circulation in Mr. Videnov's brain was different before the accident, and the strength of Dr. Weber's opinion regarding the cause of this deterioration is weakened by his use of the words "could" and "may," indicating he is unsure of his conclusion. Therefore, I do not accept Dr. Weber's opinion.

Dr. A. Daniel Costa, a psychiatrist retained by Royal, disagrees with Dr. Weber's conclusion that Mr. Videnov suffered either a traumatic brain injury as a result of the accident or that the whiplash created or significantly contributed to his neurological deterioration. In April 1996, Dr. Costa reviewed Mr. Videnov's history, conducted tests and interviewed him.

At the hearing, Dr. Costa agreed that Mr. Videnov suffers clinically significant depression and memory impairments, but contrary to Dr. Weber, he holds that Mr. Videnov did not sustain a traumatic brain injury because there is little evidence he hit his head or lost consciousness in the accident. I accept Dr. Costa's conclusion that, based on current medical literature and evidence here, the diagnostic tests are insufficient to support that Mr. Videnov suffered a traumatic brain injury in the accident. I find that Mr. Videnov did not sustain a traumatic brain injury on April 12, 1994, and that the accident did not physiologically cause or significantly contribute to his neurologic deterioration.

Dr. Ratka Timarac, Mr. Videnov's family physician after he left Dr. Alexander's care, testified that he became totally disabled after his second motor vehicle accident on October 18, 1996. However, her opinion does not assist Mr. Videnov's claim because she neither relates a particular portion of his condition to his first accident nor does she address the question of his disability.

Dr. Timarac did not see Mr. Videnov until well over two years after the accident, and her deference to Dr. Alexander's opinion is therefore understandable. I do not rely on her opinion Dr. Alexander initially reported that Mr. Videnov's neck pain, insomnia, depression and anxiety were tied to the April 1994 accident. In September 1994, he supported Mr. Videnov's decision to stop his physiotherapy because he thought his patient had too much pain at the early stage of recovery, but he did not certify his patient's disability after his initial claim.

Dr. Alexander did not read his post-accident clinical records at the hearing, but the legible entries show that Mr. Videnov initially complained of severe neck pain, and was given a prescription for muscle relaxants in addition to his pre-accident medications. He agreed that Mr. Videnov was far more anxious after the accident than previously.

Dr. Alexander is the health professional who is most likely to know Mr. Videnov's character and condition through his lengthy professional treatment and review of specialists' reports, giving him a deeper understanding of his patient. I am also impressed by Dr. Alexander's balanced impartial testimony, leading me to rely on his expert opinion. On Dr. Alexander's evidence that Mr. Videnov suffered increased neck pain and was much more anxious after the accident, I am persuaded that Mr. Videnov's neck pain, anxiety and headaches were significantly exacerbated as a result of the accident.

Disability Analysis:

Mr. Videnov must establish, on a balance of probabilities, that his increased neck pain, anxiety and headaches caused him to suffer a substantial inability to conduct the duties of his pre-accident employment as a snow plow operator.⁶ The only evidence of Mr. Videnov's job duties is his testimony that he drove the truck and shovelled snow occasionally. I find that Mr. Videnov's job duties consisted of mainly driving a truck and that he occasionally shovelled snow.

Dr. Alexander's notes show that the frequency of Mr. Videnov's complaints about neck pain and stiffness continued through the latter part of 1994. His opinion that Mr. Videnov's recovery was prolonged due to pre-existing factors (economic pressures from lack of income support, immigration and family problems) is not rebutted by any other expert, and I accept it. However, it is the evidence that Mr. Videnov was having a difficult time working at the time of the accident together with Dr. Alexander's evidence of his increased neck pain, headaches and anxiety which convinces me that he could not concentrate on driving the truck in a safe manner so long as these symptoms continued at the level he experienced during the first three months following the accident.

Dr. Alexander's clinical records show that Mr. Videnov's physical symptoms decreased by early 1995, and his headache complaints, anxiety, depression and insomnia do not appear materially different relative to the pre-accident period. His records are consistent with his opinion that Mr. Videnov should have been able to drive and resume his snow plowing the next winter season so long as there was no significant manual labour.

Mr. Videnov did not shovel snow frequently, and he offered no expert opinion that he suffered a substantial inability to perform the essential tasks of his snow plowing job as a result of this accident after Dr. Alexander said he could resume his job in December 1994. I am not prepared to rely on Mr. Videnov and his son's opinions that he continued to be disabled over the medical experts because neither have professional training in this area, analytical experience or impartiality. Relying on Dr. Alexander, I find that as a result of the accident Mr. Videnov suffered a substantial inability to perform the essential tasks of his snow plow job until December 1, 1994, and that he is entitled to income replacement benefits during that period at the agreed $185 per week rate.

Proposed Treatment Expenses:

Dr. Timarac referred Mr. Videnov to the Cranio-Cervical Rehabilitation Institute (CCRI) for evaluation of his disability and treatment needs arising from the injuries he received in the subsequent October 18, 1996 motor vehicle accident. The multidisciplinary team found that Mr. Videnov suffered from multiple psychiatric conditions and CCRI recommended intensive care for treatment of his symptoms, but it did not provide any services or advise it could do so.

There is no evidence that Mr. Videnov has undergone psychological treatment for injuries or symptoms from this accident. CCRI did not propose a plan recommending specific treatment modalities, length of treatment or anticipated costs for either the 1994 or 1998 accident, nor is there evidence that Mr. Videnov has incurred any treatment expenses either.

Mr. Videnov's failure to introduce a specific proposal or incurred expenses for psychological treatment from this accident leaves me with no evidence upon which I might determine a reasonable or necessary course of treatment.⁷ I find that Mr. Videnov is not entitled to reimbursement or funding of medical and rehabilitation treatment expenses at this time.

EXPENSES:

Mr. Videnov was partially successful in establishing his claim, and I am disposed to grant him his expenses of the arbitration process. The parties may request an expense hearing if they cannot agree on entitlement or amounts, but they should adhere to the procedures set out in the Dispute Resolution Practice Code before contacting the caseworker to reconvene.

August 20, 2002

Fred Sampliner Arbitrator

Date

ARBITRATION ORDER