Neutral Citation: 2004 ONFSCDRS 155

FSCO A03-000569, A03-000570 and A03-000571

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

THE ESTATE OF THE LATE KRZYSZTOF UTRACKI BY HIS EXECUTRIX, MARIA UTRACKI, MARIA UTRACKI IN HER PERSONAL CAPACITY, and PAWEL BUDZALEWICZ

Applicants

and

LOMBARD GENERAL INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

Lawrence Blackman

Heard:

April 26, 27, 28 and 29, 2004, in Sault Ste. Marie, Ontario

Appearances:

Ian A. Little for the Applicants

Catherine Ann Korte and Anna-Marie Musson for Lombard General Insurance Company of Canada

Issues:

The late Krzysztof Utracki was badly injured in a motor vehicle accident that took place on November 30, 2000. By Application dated December 22, 2000, Mr. Utracki applied for statutory accident benefits from Lombard General Insurance Company of Canada ("Lombard"), payable under the Schedule.¹ Mr. Utracki subsequently died on April 17, 2001 of metastatic lung cancer.

The term metastasis refers to the transfer of disease from one organ or part of the body to another organ or part of the body not directly connected with the initial source. In the case of Mr. Utracki, the cancer spread from its point of origin in his lungs through his blood stream to his liver, bones, and ultimately, to his brain.

The Applicants submit that the injuries sustained by Mr. Utracki in the November 2000 car accident adversely impacted on the investigation and/or the treatment of his cancer condition, and/or adversely impacted upon his physical and psychological ability to fight the disease, and hence, contributed to his ultimate demise. The Insurer submits that while the accident-related injuries lessened Mr. Utracki's quality of life, it did not reduce the longevity of his life or contribute to his death.

The parties were unable to mediate a resolution of their disputes regarding certain entitlement issues. Hence, the Applicants applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mrs. Maria Utracki, in her personal capacity, entitled to payment of a spousal death benefit in the amount of $25,000, pursuant to subparagraph 25(2)(1)(i) of the Schedule?

2. Is Mr. Pawel Budzalewicz entitled to payment of a death benefit in the amount of $10,000, pursuant to subparagraph 25(2)(2)(i) of the Schedule as a dependant of the late Mr. Utracki, or, in the alternative, pursuant to subparagraph 25(2)(5)(i) as a person upon whom the late Mr. Utracki was a dependant at the time of the accident?

3. Is the estate of the late Mr. Utracki, by his Executrix, Mrs. Maria Utracki, or is Mrs. Utracki in her personal capacity, entitled to payment of funeral expenses in the maximum amount of $6,000, claimed pursuant to section 26 of the Schedule?

4. Is the estate of the late Mr. Utracki, by his Executrix, Mrs. Maria Utracki, entitled to payment of $6,578 as the labour charge for the installation of a Jacuzzi claimed as a medical and/or rehabilitation expense pursuant to sections 14 and 15, respectively, of the Schedule?

5. Are the Applicants entitled to payment of their legal expenses of these proceedings, claimed pursuant to subsection 282(11) of the Insurance Act?

6. Is the Insurer entitled to payment of its legal expenses of these proceedings, claimed pursuant to subsection 282(11) of the Insurance Act?

7. Are the Applicants entitled to payment of interest on any overdue payments, claimed pursuant to subsection 46(2) of the Schedule?

Result:

1. Mrs. Maria Utracki is not entitled to payment of a spousal death benefit.

2. Mr. Pawel Budzalewicz is not entitled to payment of a death benefit either as a dependant of the late Mr. Utracki, or as a person upon whom the late Mr. Utracki was a dependant at the time of the accident.

3. Neither the estate of the late Mr. Utracki, by his Executrix, Mrs. Maria Utracki, nor Mrs. Utracki, in her personal capacity, is entitled to payment of funeral expenses.

4. The estate of the late Mr. Utracki, by his Executrix, Mrs. Maria Utracki, is not entitled to payment of the labour charge for the installation of a Jacuzzi.

5. If the parties cannot agree on the legal expenses of these proceedings, they may request an appointment for a determination of same in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, May 31, 2001).

EVIDENCE AND ANALYSIS:

1. Findings of Fact

I make the following findings of fact, based on the oral and written evidence before me:

1. Mr. Krzysztof Utracki was born on May 19, 1950. He came to Canada in approximately 1988. He and Maria Utracki (formerly Budzalewicz) became a couple in 1992.

2. Mr. Pawel Budzalewicz (Pawel) is the son of Maria Utracki. He is presently thirty years old.

3. In April 1999, Mr. Utracki was diagnosed with Stage IV non-small cell lung cancer with metastatic disease principally involving his lungs, liver and bones. Stage IV refers to the extent of disease at diagnosis whereby there is evidence of cancer in other parts of the body, in this case, outside the lungs. Stage IV is the most advanced stage of cancer. Mr. Utracki had been healthy and asymptomatic until December 1998, when he began suffering from increasing shortness of breath, weight loss, weakness, fatigue and lethargy due to the Stage IV lung cancer. Mr. Utracki had never smoked.

4. Accompanying Mr. Utracki's primary diagnosis of extensive lung cancer of an adeno-carcinoma type were the complications of disseminated intravascular coagulation ("DIC"). DIC is a coagulation disorder wherein the body's clotting mechanism is fooled into recognizing cancer cells as injury to the vascular supply and starts the coagulation process; the clotting factors and the platelets (disk-shaped structures found in the blood which are important for their role in blood coagulation) are consumed, resulting in the paradoxical situation of bleeding.

5. At the time of his cancer diagnosis, Mr. Utracki was living in Wawa, Ontario, and was driving a transport truck which he had purchased in May 1998. The transport truck was operated under a general partnership known as Lena's Transport, and transported General Motors automobile parts from Canada into the United States. At the time of his diagnosis, Mr. Utracki was living with Maria and Pawel. Maria was working as a dispatch employee for CRWX Inc., the company for whom Mr. Utracki was driving his transport truck. Succinctly, General Motors paid CRWX, which in turn paid Lena's Transport as an independent contractor and Maria Utracki as an employee.

6. Mr. Utracki's cancer treatment was provided in Wawa, under the supervision of his oncology specialists in Sault Ste. Marie (oncology being the study of tumours), namely Dr. S. Spadafora or Dr. P.L.D. Walde (depending on who was available at the time of his visits), who would order chemotherapy depending on the patient's prior response.

7. I accept the oral evidence of Dr. Walde that the prognosis for non-small lung cancer Stage IV disease is very poor; if untreated, there is, on average, a six to ten month survival rate; two-year survival is around 5%. If treated, the one-year survival rate is approximately 40%. Dr. N. Iscoe, an oncologist retained by Lombard, testified that he would have given Mr. Utracki a few weeks to live in April 1999 based on the extent of his disability and that his clotting disorder is generally not easy to control and was causing life-threatening problems at that time on its own. I accept the evidence of Dr. Iscoe that 50% of patients who present with advanced disease such as Mr. Utracki are deceased within one year despite whatever therapy is offered and two-year survival rate is usually lower than 20%. I also accept the evidence of Maria Utracki that the doctors told her that they did not expect Mr. Utracki to live very long.

8. As a result of his cancer disease, Mr. Utracki stopped working. The family had significant financial concerns as a result of Mr. Utracki's disability, specifically regarding keeping up payments on the transport truck as well as other expenses.

9. Pawel was chosen to take over Mr. Utracki's trucking duties because, as a family member, there was greater flexibility regarding paying him exactly on time. CRWX continued to pay Lena's Transport, which in turn, paid Pawel through the latter's own company, P.M. Express. Mrs. Utracki testified, and I so find, that the monies paid Pawel by Lena's Transport were wages for his employment services. P.M. Express' invoices showed the Mississauga, Ontario address of Pawel's girlfriend.

10. Following his diagnosis, Mr. Utracki was started on a chemotherapy regime of Cisplatinum, Vinorelbine and an Infusional 5-FU. Mr. Utracki had an excellent response and, as Dr. Walde testified, went from being barely able to move without being short of breath, in a lot of back pain (treated with escalating doses of morphine) and needing considerable assistance, to being essentially asymptomatic, fully up and about, with only some back stiffness and off of all of his painkillers.

11. I accept Dr. Iscoe's evidence that Mr. Utracki's response was remarkable. I accept the statement of the Insurer medical examiner, Dr. G. Cantlie, an internist and haematologist, that Mr. Utracki's satisfactory overall course was "a tribute to his own constitution and to the dedication of his oncologists." In his report dated May 16, 2001, Dr. Cantlie stated that "[i]n regimens similar to that employed in the present case, partial remissions are seen in about 30% of cases initially treated."

12. Mrs. Utracki testified that after April 1999 her husband was boating and that after July 1999 he was doing work around the house, helping friends, and working on her son's car. I accept that Mrs. Utracki understood Dr. Walde to have said that he did not know what happened, that sometimes the cancer just disappears. I also accept Mrs. Utracki's evidence that to understand the physicians you would have to be a medical doctor, and that she did not understand them.

13. I also accept the evidence of Dr. Iscoe that one cannot correlate function to longevity and that at some point Mr. Utracki's symptoms would have intervened. I also accept Dr. Iscoe's evidence that in Mr. Utracki's case, in 1999, he had advanced cancer, which means that the cancer had reached a stage where a cure was not possible, that is, he would die of the disease or die with it if he were to die of something else. Although treatment could be beneficial, all regimes were palliative and Mr. Utracki could not beat this disease and would not lead a long life.

14. I accept Dr. Iscoe's evidence that for those diagnosed with Stage IV disease, those still alive at five years will be minuscule; that medication, which specifically in the case of blood-born metastases are delivered through the blood stream, may be temporarily effective but are never curative. I further accept the evidence of Dr. Iscoe that Mr. Utracki could not have been within that minuscule percentage of patients that survive this disease, but that predicting life expectancy is a "mug's game;" medicine knows what the numbers are, but predicting in any one individual is fraught with difficulties - but there are reasonable ranges and limits.

15. I find the evidence of the treating specialist, Dr. Walde, essentially consistent with that of Dr. Iscoe, specifically that widespread cancer disease is not curable and that all regimes are palliative, that if the patient becomes asymptomatic or is very well controlled, then a natural tendency is to hold off and then reinstitute treatment when there are signs of progression.

16. Notwithstanding that he was still asymptomatic, a CT scan conducted in February 2000 showed progression, that is a worsening, of Mr. Utracki's lung cancer, namely that the tumour was progressing with an enlarging mass in the left lung field and there were small nodules in the other lung field as well. Dr. Spadafora reinstituted chemotherapy with two of three drugs, dropping the Cisplatinum. A further CT scan conducted in May 2000 showed evidence of further slight progression of Mr. Utracki's cancer condition. Dr. Walde reinstituted the Cisplatinum.

17. In the summer of 1999, during the course of renovating their basement, the Utracki household purchased a Jacuzzi, in addition to putting up new walls and installing a new floor. I accept Pawel's evidence that before the car accident, Mr. Utracki's assistance in the renovation was basically supervisory, notwithstanding a post-accident Activities of Normal Life form dated April 6, 2001 (completed by N.R.C.S. Inc., disability management consultants retained by Lombard) which states that pre-accident, Mr. Utracki was doing carpentry and refinishing his basement. Pawel's evidence is consistent with a contemporaneous June 19, 2000 Symptoms/Side Effects Assessment done by the Community Cancer Program, which indicated that Mr. Utracki was able to do light work but tired easily and had shortness of breath with normal activity, although he had no pain and was eating normally. It is also consistent with the contemporaneous pre-accident Attending Physician's Statements of Continuing Disability of Dr. E. Kirby²that Mr. Utracki was totally disabled from performing any occupation or light work and that it was unlikely that he would ever work again. At the time of the November 2000 car accident, the Jacuzzi had not yet been installed.

18. An October 23, 2000 Chemotherapy Outreach Patient Assessment Form indicated that Mr. Utracki was generally feeling well. An October 25, 2000 chest CT scan with contrast, however, showed further slight progression. More significantly, a CT scan with contrast of the head the same day showed, for the first time, a midbrain lesion. I accept Dr. Iscoe's opinion that Mr. Utracki's cancer was progressing prior to the November 30, 2000 car accident.

19. Mr. Utracki's chemotherapy was temporarily suspended in early November 2000 due to rectal pain with haemorrhoidal bleeding. Fatigue and lethargy was also noted. Upon resolution of the rectal pain and bleeding, the prior chemotherapy regime (Cisplatinum, Vinorelbine and Infusional 5-FU) was reinstituted by Dr. Spadafora on or about November 28, 2000. Dr. Walde notes in a December 9, 2000 clinical entry that Mr. Utracki was feeling fine and was asymptomatic when he had his November 30, 2000 car accident.

20. I accept Pawel's evidence that at the time of the November 2000 car accident he was living both in Wawa with Mr. and Mrs. Utracki and in Toronto at his uncle's house. I also accept Pawel's evidence that he did not really contribute to the household expenses in Wawa, other than some grocery shopping.

21. At the time of the November 30, 2000 motor vehicle accident, Mr. Utracki was alone in his vehicle, driving to pick up a skidoo which he intended to use that winter. The police accident report indicates that Mr. Utracki was driving properly and that the other driver failed to yield the right of way on Highway 17. Mr. Utracki had to be quickly extracted from the vehicle due to flames. Mr. Utracki had no recollection of the events following his removal from his vehicle. As a result of the car accident, Mr. Utracki's vehicle was demolished and he sustained, amongst other injuries, a facial laceration, a haematoma to the forehead, a fracture of his (dominant) right wrist and a dislocated left hip. That night, Mr. Utracki, under general anaesthetic, had his dislocated left hip reduced (which means restored to the normal place) in a closed manner (i.e. the manipulative reduction of a fracture without incision). The attempt to reduce his wrist was unsuccessful. On December 1, 2000, Mr. Utracki underwent further surgery, again under general anaesthesia, to reduce the wrist fracture with multiple K-wires.

22. I accept the evidence that Mr. Utracki had a session of chemotherapy a day or two before the car accident, that is, on or about November 28, 2000.

23. At the time of the car accident, Mr. Utracki had a 24-hour 5-FU continuous infusion in his left arm via a PICC line. I accept Dr. Iscoe's evidence that the 5-FU infusion was interrupted as a result of Mr. Utracki's trauma and subsequent hospitalization. I further accept Dr. Iscoe's evidence, based on his expertise, his access to and thorough review of the relevant records and his extensive examination under oath that (1) the Infusional 5-FU has very limited activity in this disease and was not critical to the efficacy of the chemotherapy (2) the discontinuation of the Infusional 5-FU had no material consequence on the impact of the chemotherapy program that was started on or about November 28th given the state of the disease at the time of the accident and, (3) the core treatments are Vinorelbine and Cisplatinum, and that without them, the chemotherapy is useless.

24. I further accept Dr. Iscoe's evidence that Mr. Utracki's chemotherapy after November 28, 2000 would not have been renewed for some three weeks if the standard rules of practice were followed. Therefore, the next cycle of chemotherapy would have been on or about December 19, 2000.

25. I accept Dr. Walde's evidence that an unenhanced CT scan of the head was conducted on December 1, 2000 because of concerns as to whether there was any trauma damage from the car accident. I accept Dr. Walde's evidence that an unenhanced study could miss anything except major collections of blood, trauma or fractures. The study showed no abnormality. I accept Dr. Walde's evidence that metastases can be present which can be missed on a non-contrast study because the tumour nodules are vascular. Diagnostic imaging of the chest on December 1, 2000 showed a mass lesion, the appearances being highly suggestive of metastatic disease of the axial skeleton.

26. I accept Dr. Iscoe's evidence that following the car accident, Mr. Utracki was slowly recovering from his accident injuries; that a number of days after the accident, he started to mobilize and around December 11th he was able to walk with a walker with one person assisting. I also accept Dr. Iscoe's evidence that complaints by Mr. Utracki starting in mid-December 2000 of left-sided numbness and double vision would be attributable to a neurological event in the patient's brain. Before the next cycle of chemotherapy was due to begin, further CT scans and MRIs were conducted to investigate Mr. Utracki's neurological symptomology.

27. A CT scan, this time with contrast, of Mr. Utracki's head, chest and abdomen was conducted on December 12, 2000. I accept Dr. Iscoe's opinion that the significance of the scan is that the brain metastases had become evident and that the metastases were causing significant dysfunction, in other words, Mr. Utracki was now symptomatic. I further accept his evidence that this progression of the cancer was not caused by the accident. An MRI of the head was done the same day, ordered by Dr. Walde. The presentation was in keeping with leptomeningeal and intracerebral metastases (intracerebral metastases means inside the brain).

28. I accept the evidence of Dr. Walde that leptomeningeal metastases means that the lining of the brain has been diffusely infiltrated by the tumour. I accept the evidence of Dr. Iscoe that leptomeningeal disease sort of surrounds the brain like Saran Wrap and that leptomeningeal disease is much worse because the disease is not focal; rather, the cancer is free floating around the whole brain and down the spinal cord. A chest imaging showed further progression from the October 25, 2000 examination.

29. On December 15, 2000, Dr. Walde ordered an MRI study. The MRI department would not do the study because of Mr. Utracki's metal pins resulting from the car accident. Upon discussion with staff and Dr. Walde's view that it was very important to know what was going on in the brain and the chances of the pins moving (because of the strong magnetic field) being very slim, the MRI study ultimately proceeded on December 18, 2000. I accept Dr. Walde's evidence, as treating specialist, that the three-day delay of the MRI was negligible on Mr. Utracki's condition.

30. I further accept Dr. Walde's evidence that the MRI results confirmed what was suspected with the CT scan and were compatible with cerebral metastases but many more than seen on the CT scan, and showed a central haemorrhage with surrounding swelling. Radiation treatment was arranged for Mr. Utracki in Sudbury.

31. I accept Dr. Iscoe's evidence that in treating lesions of the brain, radiation is the preferred treatment as chemotherapy is usually not effective. This is consistent with the evidence of Dr. Walde that drugs do not adequately get into the brain to have an effect, that the primary form of treatment for brain metastases that consistently shows a response is radiotherapy. I further accept Dr. Walde's evidence that as there was not yet an explosion in Mr. Utracki's condition, it was reasonable to delay the chemotherapy until the radiotherapy took place. I accept Dr. Iscoe's evidence that a delay in chemotherapy of one or two weeks would not have made any difference to Mr. Utracki's condition. I further accept his opinion that the change in treatment from chemotherapy to radiation had nothing to do with the car accident.

32. A December 18, 2000 imaging of the head was in keeping with both leptomeningeal and intracerebral metastases.

33. I accept Dr. Iscoe's evidence that within the three-week period following Mr. Utracki's chemotherapy session on or about November 28th, the symptomatic development of brain metastases changed everything. Radiation was now the preferred method to treat the neurologic events (i.e. the more pressing issue of lesions in the brain), which if progressive, could have been devastating or lethal.

34. I further accept Dr. Iscoe's evidence that two of the chemotherapy drugs, in particular the Cisplatinum and the Infusional 5-FU, are radiation enhancers, that is, they may enhance the effect of the radiation beyond the point of tolerance. I accept his evidence that the two types of treatments are not combined unless one is going for broke, i.e. you think that you can cure somebody and so you are willing to accept a much higher risk. Again, I accept Dr. Iscoe's evidence that here, the treatment was palliative, there was not going to be any ultimate cure and the benefits were going to be very modest. I thus accept Dr. Iscoe's evidence that even if the accident had not occurred, Mr. Utracki's chemotherapy regime would have been changed and he would have progressed to the brain irradiation.

35. Mr. Utracki was transferred in late December 2000 to Sudbury for five straight days of radiation. I accept the evidence of Dr. Walde that the radiation took place the earliest date possible, the Sudbury radiation department having closed for the seasonal holidays. Mr. Utracki was subsequently returned to hospital in Sault Ste. Marie, and was released to his home in mid-January 2001. His condition was deteriorating; he became blind except for an ability to see a little only in one eye. He could not walk. He could not use his hand because of the surgery. He became diabetic.

36. A March 29, 2001 CT scan with contrast of Mr. Utracki's thorax and brain showed a mass now encroaching upon one of the main arteries going from the heart to the lungs, in other words, the cancer in the chest was worsening. I accept Dr. Walde's evidence that the March 29, 2001 CT scans explained that the radiation had dealt with Mr. Utracki's problems in December and January (which had caused left-sided weakness) but that he had developed new brain metastases in the left, frontal area of the brain which caused right-sided weakness (the right side of the brain controlling the left side of the body, and vice versa); succinctly, there was "flagrant tumour progression at this point." I further accept Dr. Walde's evidence that still "the patient was, you know, desperate to live."

37. I accept Dr. Iscoe's evidence that in two critical areas, the chest and the brain, the cancer was progressing notwithstanding the prior radiation. I accept Dr. Iscoe's evidence that radiation therapy is a radical treatment, that unlike chemotherapy, it is not repeated. This is because normal tissue in the area has a finite tolerance to the amount of radiation it can receive; if exceeded, it can lead to lethal brain necrosis or to paralysis. Chemotherapy was reinstituted after the radiation was given. I accept Dr. Iscoe's evidence that Mr. Utracki was now bed bound due to his cancer condition.

38. I accept the evidence that Mr. Utracki thought that if he could soak a few times in the hot water of a Jacuzzi, the jets would stimulate his muscles to help him to walk. I accept the family's evidence that Mr. Utracki greatly preferred tubs over showers. I accept their evidence that Mr. Utracki was pressing his wife to finish the installation of the Jacuzzi. I accept Mrs. Utracki's evidence that she hired someone to do the job fast and that she did not even ask how much it would cost. I accept Mrs. Utracki's evidence that just as she wanted to believe that her husband would live, she thought that maybe the Jacuzzi would help. I also accept her evidence that she knew that the Jacuzzi would not help him but that her husband had it in his head that it would help him to walk.

39. I accept Mrs. Utracki's evidence that her husband eventually gave up; he couldn't see; he was just lying in bed; he needed diapers; he was very proud.

40. I accept Dr. Iscoe's opinion that Mr. Utracki died from metastatic lung cancer and any directly associated complications, such as the coagulation problem. Dr. Iscoe testified that his guess was that is was the involvement in the lung that was the precipitator despite a second line and a third line (regime) of chemotherapy. Dr. Iscoe had earlier stated in a report that the major event leading to his death appeared to be related to the brain metastases. He testified that this was based on information that he had at the time, which did not include the post-admission records. Dr. Iscoe was of the view that the lung, the metastases in the brain and the DIC (disseminated intravascular coagulation) were all related to the cancer and the fact that it was uncontrolled.

2. Causation

Part VII of the Schedule provides for payment of specific death and funeral benefits, if an insured person dies as a result of an accident within a specified period of time. It is pursuant to this Part that the Applicants present their claims, other than for the Jacuzzi. There is no dispute that Mr. Utracki was an insured person. There is no dispute that Mr. Utracki died within the time period specified in the policy. The parties differ, however, as to whether Mr. Utracki died "as a result of an accident."

i. that the car accident was a direct or major cause of the spread of cancer

Mrs. Utracki testified that the cancer got into her late husband's head because he sustained a very bad head injury in the car accident. She also testified, however, that she did not remember any doctor telling her this. A report dated January 15, 2001 from Ms. C. Sweetnam, a rehabilitation consultant with N.R.C.S. Inc., states that it was Dr. Spadafora's opinion "that the motor vehicle accident on November 30, 2000, was the major cause in the spread of Mr. Utracki's cancer." Dr. Spadafora, however, writes in her letter dated July 18, 2002 that she had tried to clarify with Ms. Sweetnam in January 2001 that she had not said that the spread of Mr. Utracki's cancer was directly related to the car accident. Nonetheless, Ms. Sweetnam states, once more, in her February 5, 2001 correspondence, that it "was the opinion of Dr. Spadafora [that] the MVA was the major cause in the spread of Mr. Utracki's cancer."

There is no opinion evidence before me of any expert with the requisite expertise that this most unfortunate car accident was the direct or a major cause in the spread of Mr. Utracki's cancer.

One can understand how a lay person in Mrs. Utracki's situation might arrive at this conclusion. However, the medical evidence does not support this theory and I cannot accept same.

ii. that the car accident delayed or interrupted treatment, allowing the the cancer to spread

Ms. Sweetnam, in her January 15, 2001 letter states that prior to the accident, Mr. Utracki required chemotherapy on a constant basis to combat the cancer. She continues by saying that following the accident, chemotherapy was discontinued due to the sustained injuries. She states that as a result, Mr. Utracki developed DIC and further, with the interruption of the chemotherapy, the cancer metastasized to the brain resulting in multiple lesions that continued to grow in size. She concludes by saying that it was Dr. Spadafora's opinion that the November 30, 2000 car accident was the "major" cause in the spread of Mr. Utracki's cancer and his functional decline. The letter is "signed-back" by Dr. Spadafora on February 9, 2001 (having added in writing the word "contributing" in lieu of the word "major" and having also added the words "patient's functional decline" having occurred as a result of the accident).

I am unable, based on the evidence, to accept these opinions.

Rather, I accept the contemporaneous documentary evidence and the oral expert evidence that Mr. Utracki was not, pre-accident, on chemotherapy on a constant basis - there were interruptions (because of bleeding, etc.) such as the suspension, noted above, in November 2000. Secondly, the chemotherapy was not discontinued following the accident due to injuries sustained; it was changed following the accident, as also noted above, because of the development of symptomatic brain lesions that had nothing, I find, to do with the accident.

I accept Dr. Iscoe's evidence that Mr. Utracki did not develop DIC because the chemotherapy was discontinued, it was always there. I accept his evidence that the one-centimetre lesion is the size of a fingernail and contains one billion cells, arising "from a single sort of misbehaved cell," and that does not happen overnight. This conforms with the evidence of the treating expert, Dr. Walde, who also disagrees that the chemotherapy was discontinued due to the accident injuries or that as a result Mr. Utracki developed DIC. Dr. Walde specifically disagreed with the statement that "with the interruption in the chemotherapy, the cancer has metastasized to the brain resulting in multiple lesions that continue to grow in size."

I accept Dr. Walde's evidence that he was the treating physician in the immediate period following this accident, taking over Mr. Utracki's management and arranging his subsequent care, and that Dr. Spadafora only briefly saw the patient once while he was in intensive care (as confirmed in Dr. Spadafora's own July 18, 2002 letter). Accordingly, I find that Dr. Walde would be in a better position to comment on the deceased's medical course during this specific period.

Dr. Walde also queried whether Dr. Spadafora had an opportunity to review the medical records at the time that she was speaking to Ms. Sweetnam. This is a very legitimate question both regarding Dr. Spadafora's opinion in early 2001 as well as in 2002. Dr. Spadafora, very properly and most helpfully to the reader, advises in her last correspondence, being July 18, 2002, that she did not have Mr. Utracki's cancer clinic notes available to her at that time (she is silent on what documentation she did have available) when she reiterates that because of the accident, the plan to reinstitute the chemotherapy upon Mr. Utracki's recovery from the side effects of his prior chemotherapy had to be modified. Again, I find this to be incorrect. I find that the chemotherapy had been reinstituted before the accident and that the next scheduled treatment (which would have occurred on or about December 19, 2000) did not take place (as stated by Dr. Walde) as a result of the central nervous system disease progression, not because of any complications with respect to the fractures or other accident-related injuries.

Dr. Walde was, however, concerned with the chemotherapy potentially resulting in infection in the arm because of the pins, which is why he requested the physician split the cast so he could keep a very close eye on the pins looking for any infection.

The Applicants argued that the three-day delay in conducting the MRI (because of the pins in his wrist) contributed to Mr. Utracki’s demise. I accept, especially in the absence of any contradicting credible expert evidence, the evidence of the treating expert, Dr. Walde, as noted above, that the effect of the three-day delay on the deceased’s condition was negligible.

The Applicants also referred to a significant drop in Mr. Utracki’s platelet count after admission following the car accident. I accept Dr. Iscoe’s evidence that sometimes platelet counts go up related to trauma, sometimes they go down and further, that the reactivation of the DIC did not affect the growth of the cancer, it was one more thing with which one must deal. I note, however, the absence of any medical evidence making the causative link between the accident-related injuries to the drop in the platelet count to the subsequent demise of Mr. Utracki on April 17, 2001.

iii. that the accident-related injuries impacted upon Mr. Utracki’s ability to fight the cancer

Mrs. Utracki testified that she was told that her husband was too weak to fight two things (the cancer and the accident-related injuries) at the same time. She testified that she asked why her husband was not put back on chemotherapy and was told that he could not fight two things at the same time.

Dr. Walde, in his letter of September 19, 2001 to the Applicant's counsel, wrote that "there is no doubt that the accident impacted on [Mr. Utracki's] quality of life, however, in no way did the accident impact on the disease status, treatment or survival." Dr. Iscoe agreed with this statement. At the hearing, Dr. Walde reiterated this opinion. He testified that while Mr. Utracki's accident affected his functional state and quality of life, the accident-related functional decline did not impact upon his clinical (cancer) course, that clinical course was already impacted on by the central nervous system disease. He testified that the motor vehicle accident had a negligible effect, if any, on the longevity of Mr. Utracki's life. Dr. Walde did not clarify whether the effect was to reduce or lengthen life expectancy.

Regarding Mr. Utracki's will to live, Dr. Walde testified that "if a patient is very depressed and withdrawn and would not cooperate, then that does not allow the patient to achieve the best response that one could achieve and, therefore, a good outlook is very important. But . . . You may have all the will in the world to live, but if you don't respond you will die in this disease, particularly, in the state that Mr. Utracki presented. And he was a very determined patient with very good home support from his wife." Dr. Walde did, however, qualify his answer in saying that he had very little to do with Mr. Utracki after his initial admission as an in-patient after the car accident. In my opinion, however, this is the more crucial period in question regarding the causation issues in dispute.

Dr. Iscoe agreed with Dr. Walde's statement that "there is no doubt that the accident impacted on [Mr. Utracki's] quality of life, however, in no way did the accident impact on the disease status, treatment or survival." Dr. Iscoe was of the view that Mr. Utracki's clinical course after an initial improvement was not in any way related to the car accident. He did not believe that hope in any way added to longevity. He did not agree that a person's strength or will or constitution is at all a significant factor in how they will respond to treatment or their potential longevity in fighting a cancer. Rather, Mr. Utracki's life expectancy was dependent on his response both to chemotherapy and to the radiation.

Dr. Iscoe agreed with Dr. Cantlie's statement that Mr. Utracki's initial recovery was a tribute, in part, to his constitution only to the extent that the patient's constitution allowed him to tolerate the treatments. His opinion was that Mr. Utracki was destined to die on April 17, 2001, whether or not he had the accident, give or take a couple of days. He testified that the specific cancer treatment was designed and was given in the hope that it would lengthen Mr. Utracki's life and there was little doubt that it did because if he had not had any treatment in April 1999, he would have died much earlier than he ultimately did.

In his report dated February 18, 2004, Dr. Iscoe wrote that he did not believe that the accident-related injuries contributed "significantly" to his death. In his oral testimony, Dr. Iscoe stated that "I would say [the injuries sustained by Mr. Utracki in the car accident] did not contribute to his death, period, and take out the word significant because it leaves open to interpretation as to what that means." Dr. Iscoe testified that Mr. Utracki's functional decline was due not to the car accident but to his uncontrolled malignancy.

In response to the question would Mr. Utracki, had the accident not occurred, have been able to survive a day longer or any period longer than he did, responded: "I don't think so, truthfully. You can fashion arguments either which way you want, but the truth of the matter is I think he was destined to die when he did." Dr. Iscoe further testified that the car accident may have added a few days to Mr. Utracki’s life because when he developed the neurologic symptoms, they were picked up earlier by virtue of his being under hospital supervision, which would hasten the time that the CT scan was done. Further, the brain metastases were discovered (and the coagulation was changed) before the bleeding progressed to the point that it might have been disastrous for him, i.e. seriously disabled to the point that his functional decline would have been significantly hastened.

In this regard, I also note the evidence of Dr. Cantlie that the interruption of the chemotherapy, not solely due to the accident in any case and preceded by signs of progression including the onset of cerebral metastases, had very little influence in the eventual outcome. Dr. Iscoe noted Dr. Cantlie as being one of his teachers. I, however, rely very little on Dr. Cantlie’s opinion, given that he is a certified internist and haematologist, rather than an oncologist.

I also rely very little on the opinion of Dr. J. Mayer, dated April 21, 2001, prepared for Lombard, that "Mr. Utracki’s death was due to the progression of his malignancy, and was in no way affected by the motor vehicle accident that occurred on November 30, 2000." Dr. Mayer is a neurosurgeon, who very properly notes in his report that it might be helpful to have an oncologist review Mr. Utracki’s file.

In her July 18, 2002 letter, Dr. Spadafora clarified that while she did not believe that the car accident directly caused the cancer to spread, the accident did result in considerable functional decline which impacted on his clinical course. Given,

– Dr. Spadafora's limited involvement in Mr. Utracki's case during the critical period following the car accident;

– her validly conceded lack of access to the patient’s cancer clinic notes and the very legitimate question as to whether she had access to and had reviewed the hospital notes when rendering her opinion;

– the thorough review and testimony of Drs. Iscoe and Walde (the latter being Mr. Utracki’s treating doctor during the critical post-accident period); and,

– the lack of any documentary or oral evidence of Dr. Spadafora or any other qualified expert rebutting the evidence of Drs. Iscoe and Walde,

I give little weight to Dr. Spadafora’s opinion, which was the medical opinion most supportive of the Applicants case and I am unable to find that the accident-related injuries impacted upon Mr. Utracki’s ability to fight the cancer such as to contribute to his demise.

iv. conclusion re causation

Accordingly, based on the evidence, I am unable to conclude that it is more likely than not that Mr. Utracki died as a result of the November 30, 2000 accident. I accept the evidence of Pawel's girlfriend, Ms. Crossman, that the last week or two before the accident, Mr. Utracki was talking "funny," that he was not in context, that he was becoming more tired, that he was getting frustrated, that he wanted his independence. I find that this was a result of the progression of his cancer condition. On the basis of the medical evidence presented, I am unable to find that it is more likely than not that the car accident materially or significantly contributed to the progression of Mr. Utracki's cancer condition, to his death or to his dying earlier than otherwise would have been the case.

Accordingly, I find that neither Mrs. Utracki, in her personal capacity, nor Pawel Budzalewicz is entitled to payment of death benefits pursuant to section 25 of the Schedule. Further, I find that Mrs. Utracki, neither as Executrix of the Estate of the late Mr. Utracki nor in her personal capacity, is entitled to payment of funeral expenses pursuant to section 26 of the Schedule, the latter, again, being payable only if the insured person (being the late Mr. Utracki) died as a result of an accident.

3. Dependency

If I am wrong concerning the causation issue, I further find that Pawel was not a dependant of the late Mr. Utracki pursuant to subparagraph 25(2)(2)(i) of the Schedule, nor was Pawel a person upon whom the late Mr. Utracki was a dependant at the time of the accident pursuant to subparagraph 25(2)(5)(i).

Subsection 2(6) of the Schedule states that:

For the purpose of this Regulation, a person is a dependant of another person if the person is principally dependent for financial support or care on the other person or the other person's spouse.

The Applicants argue that at the time of the accident, Pawel was principally dependent on his mother for care, which, it is submitted, means or includes moral support provided to a twenty-six year-old employed adult. I find little evidential (for example, that Pawel was always on the phone talking to his mother) or legal basis for this argument and reject same. It was not argued that Mr. Utracki was principally dependent on Pawel for care at the time of the accident.

Regarding Pawel's dependency on Mr. Utracki at the time of the accident, I note that in his Application for Accident Benefits, Pawel stated that he was not covered under the policy of any person on whom he was a dependant. At the arbitration hearing, Pawel testified that at the time of the car accident, his only source of income was what he made on the truck and that he was paid by his mother. His mother also testified that he was paid wages for his employment by Lena's Transport. I find that at all material times Pawel was not a dependant of Mr. Utracki. I further find that he was an employee of Lena's Transport, or in the alternative, he had a contractual relationship with Lena’s Transport as an independent contractor.

Nor do I accept that Mr. Utracki was principally dependent on Pawel for financial support. I accept Pawel's evidence that he did not really contribute to the cost of the house, although he did do some grocery shopping. I accept Ms. Crossman's evidence that Pawel's cash flow was pretty minimal. I accept Pawel’s evidence that he eventually left trucking because there was no money in it. I also accept the evidence of CRWX's letter of January 29, 2001 that at the time of the accident, Mrs. Utracki was earning $600 a week (i.e., $31,200 a year). I accept Mr. Utracki's statement dated December 7, 2000 that he was on a disability pension through C.P.P. I accept the evidence of Mr. Utracki's 2000 Income Tax Return which reported gross business income of $133,112 and net business income of $11,609, in addition to $6,184 in social assistance payments. At the time of the accident, Mr. Utracki was also receiving from Commercial Union Life Assurance Company of Canada a monthly benefit in the amount of $2,628.13.

The Applicants argument in this regard is not so much that Pawel contributed more to the Utracki household than any other source; rather the argument is more that without Pawel's assistance driving the truck and his flexibility regarding payment, Mr. Utracki’s financial situation would have been significantly compromised. It is possible that this is so. However, the Applicants provided no case law in support of the proposition that such a situation was equivalent to dependency, and I am unable to conclude that Mr. Utracki was principally dependent on Pawel for financial support.

4. the Jacuzzi

Mrs. Utracki, as Executrix of the estate of the late Mr. Utracki, claims the sum of $6,578 for expenses related to the renovation of the family basement and the installation of the Jacuzzi. The account is dated March 30, 2001. The claim is made pursuant to sections 14 (medical benefit) and/or 15 (rehabilitation benefit) of the Schedule. The former requires that the expense be reasonable and necessary and incurred as a result of the accident. The latter requires that the rehabilitation measure be reasonable and necessary to reduce or eliminate the effects of any impairment related disability or to facilitate the insured person's reintegration into his family, the rest of society and the labour market.

I am not persuaded that the said expenses are either reasonable or necessary for the following reasons:

– I was not referred to any opinion of any medical person or caregiver within the voluminous material filed, that the expenses were reasonable or necessary or that the Jacuzzi would eliminate or reduce the effects of any disability, nor was any expert called to give evidence in this regard;

– Mrs. Utracki, herself, thought that the Jacuzzi probably would not help her husband, but that he had it in his head that this would help him walk;

– the opinion of Ms. B. Campbell, a rehabilitation consultant with N.R.C.S. (as noted above, retained by Lombard), who in her letter of May 8, 2001stated that in her opinion, the Jacuzzi was not reasonable or necessary as Mr. Utracki was unable to walk and required the use of floor to ceiling poles and the assistance of two to three people to transfer him in and out of the bath tub. Ms. Campbell also queried the ability of Mr. Utracki to access the Jacuzzi in the basement;

– the opinion of Dr. H.S. Seiden, a general practitioner retained by Lombard, that the Jacuzzi was neither reasonable nor necessary because:

– Mr. Utracki was being bathed in his bedroom, he could be more efficiently washed in his bed, which was more hygenic - there was no indication that Mr. Utracki was using a bathroom;

– Mr. Utracki was weak and could not sit unsupported;

– Mr. Utracki required total assistance requiring transfers, which would involve up to three people assisting;

– Mr. Utracki was suffering from rectal bleeding and diarrhea;

– Mr. Utracki was confused, he had IV lines attached to him, he was on oxygen, and it would not be safe to have him soak in a tub;

– it could adversely affect the patient's circulation; and,

– Dr. Seiden was unable to find any purpose for which any health practitioner would recommend the use of a Jacuzzi for this gentleman.

EXPENSES:

Having now determined the substantive issues in dispute, if the parties cannot agree on the entitlement to or the amount of the expenses of this proceeding, they may request an appointment for a determination of same in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, May 31, 2001).

October 20, 2004

Lawrence Blackman Arbitrator

Date

Neutral Citation: 2004 ONFSCDRS 155

FSCO A03-000569, A03-000570 and A03-000571

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

THE ESTATE OF THE LATE KRZYSZTOF UTRACKI BY HIS EXECUTRIX, MARIA UTRACKI, MARIA UTRACKI IN HER PERSONAL CAPACITY, and PAWEL BUDZALEWICZ

Applicants

and

LOMBARD GENERAL INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The Applicants' claims herein against the Insurer, Lombard General Insurance Company of Canada, are hereby dismissed.

2. If the parties cannot agree on the legal expenses of these proceedings, they may request an appointment for a determination of same in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, May 31, 2001).

October 20, 2004

Lawrence Blackman Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98, 114/00 and 482/01.
2. 2Exhibit 3, Tab 50