Lloyd Alison Villers v. Pilot Insurance Company, 2005 ONFSCDRS 35

Neutral Citation: 2005 ONFSCDRS 35

FSCO A03-000993

BETWEEN:

LLOYD ALISON VILLERS

Applicant

and

PILOT INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Eban Bayefsky

Heard: June 14, 2004, in Huntsville, Ontario and June 15, 2004 at the offices of the Financial Services Commission of Ontario in Toronto

Appearances:

David Morin for Mr. Villers

Martin Tiidus for Pilot Insurance Company

Issues:

The Applicant, Lloyd Alison Villers, was injured in a motor vehicle accident on June 19, 2000. He applied for and received statutory accident benefits from Pilot Insurance Company ("Pilot"), payable under the Schedule.¹ Pilot denied Mr. Villers' claim of attendant care benefits from October 11, 2002, onward, pursuant to section 16 of the Schedule, and his claim of case manager services, pursuant to section 17 of the Schedule. The parties were unable to resolve their disputes through mediation, and Mr. Villers applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue is:

Is Mr. Villers catastrophically impaired as a result of the June 19, 2000 motor vehicle accident?

Result:

Mr. Villers is not catastrophically impaired as a result of the June 19, 2000 motor vehicle accident.

EVIDENCE AND ANALYSIS:

Background

Mr. Villers was injured in a motor vehicle accident on June 19, 2000, near his trailer-cottage in Port Perry, Ontario. He was stopped at a red light in his pick-up truck and was rear-ended by another vehicle. Repairs to the truck were estimated at approximately $9,000. Mr. Villers' wife, Mrs. Irma Villers, who was a passenger in the truck, testified that Mr. Villers was jerked backward and forward in the accident and became pinned against the steering wheel. Mrs. Villers testified that she drove Mr. Villers to the Port Perry Hospital after the accident, but that "nothing much was done" there. Two days later, Mr. Villers went to the Huntsville District Memorial Hospital (near their home), where he complained of pain on the top of his head, neck and right shoulder following the motor vehicle accident. He was diagnosed as having suffered a cervical sprain. X-rays of his cervical spine the same day indicated various abnormalities, including loss of disc space, traction spurs, and degenerative changes. No acute fractures or dislocations were present. In March 2002, Dr. A. Albert, Mr. Villers' family physician, reported that the degenerative changes had "been there for many years and were documented in previous x-rays of his neck in 1992."

Mr. Villers was 75 years old at the time of the accident. He attended the hearing in a wheelchair. He was frail and had limited recall of the development of his symptoms. He essentially deferred to his wife on these questions. However, he gave the following evidence. He testified that he suffered neck pain at the time of the accident and that it "got gradually worse." He stated that he "could do anything [he] wanted to" before the accident and that "nothing stopped [him]." He said that he got wood from sheds, built fences and chairs, painted and worked on machines. He said that, in the year of the accident, he built box trailers. He stated that, after the accident, he could not do all of this. He admitted to having had "aches and pains" before the accident, but stated that he simply "took a couple of 222s." He said that he could do some of his previous activities after the accident and specifically after two carpal tunnel surgeries (in relation to a pre-existing condition).

Mrs. Villers testified that her husband was very active right up until the time of the accident, doing various types of yardwork (including raking, cleaning decks and snow shovelling), woodworking, loading firewood into a trailer, opening up both his own trailer and his friends' trailer at their cottage property in Port Perry, walking, shopping and driving. Mrs. Villers said that Mr. Villers had previously worked as an auto-mechanic and that he did mechanic's work in his garage. Mrs. Villers testified that, even though Mr. Villers suffered from carpal tunnel syndrome in his wrists before the accident, he could still do work on cars. Mrs. Villers confirmed that in the late 1980s, Mr. Villers made a claim for a veteran's disability pension on the basis of a chronic anxiety state, haemorrhoids and chronic bronchitis. Mrs. Villers stated that Mr. Villers "let on that he was more disabled than he was to get enough pension to live on." In December 1988 and January 1989, Dr. Albert reported that Mr. Villers suffered from right shoulder bursitis and intermittent leg pain from Paget's disease. Dr. Albert reported that Mr. Villers was disabled from his current employment as a truck mechanic and would not recommend further employment.

Roughly nine months before the hearing, Mr. Villers' stepdaughter, Ms. Laura Emerson, participated in a videotaped interview in which she was asked a number of questions about Mr. Villers' pre- and post-accident condition. This was done in light of Ms. Emerson's deteriorating medical condition and the likelihood that she would not survive long enough to testify in person at the hearing. Unfortunately, Ms. Emerson did pass away just prior to the hearing. Pilot Insurance consented to the introduction of the videotape at the hearing, subject to general concerns about its inability to cross-examine on this evidence.

Ms. Emerson stated that, although Mr. Villers suffered a stroke in December 1999, and lost the sight in his left eye, he was generally as active as other people, doing yardwork and everything else around the house. However, Ms. Emerson said that Mr. Villers stopped doing work on cars a couple of months before the accident, due to his diabetes, and that he switched to building things, such as tables. Ms. Emerson stated that the accident nearly destroyed Mr. Villers' life and that, previously, he could walk and use his hands, despite his having had a small amount of pain in his hands and neck. Ms. Emerson stated that, immediately following the accident, Mr. Villers was still doing things himself, but that, within two months of the accident, he developed a great amount of pain in his hands and could barely walk. She said that, in less than five months from the accident, he was in a wheelchair. She said that Mrs. Villers had to get help for the things Mr. Villers previously did, and that she, Ms. Emerson, needed to start driving him to medical appointments, because Mr. Villers could not drive after the accident. Ms. Emerson stated that Mr. and Mrs. Villers still went to their trailer-cottage in the summer after the accident, but that eventually had to close it up because it was not wheelchair accessible.

A long-time friend and neighbour of the Villers, Ms. Carol May, testified that there were "no limits" to what Mr. Villers could do before the accident, and that he was very helpful and active, plowing snow, cutting grass and doing woodworking. Ms. May said that Mr. Villers was a different person after the accident. She stated that he stopped cutting the grass and plowing the snow, was not outside as much, complained a lot about neck pain and headaches, had memory problems and was depressed. Ms. May testified that, not long after the accident, Mr. Villers deteriorated very quickly and eventually stopped driving. She said that, a couple of months after the accident, Mr. Villers could not walk. She stated that she could not recall when Mr. Villers started using a wheelchair, but that it was not long after the accident. Ms. May stated that, by the time of Mr. Villers' carpal tunnel surgery, he was no longer working around the house or in the garage and that he did not return to what he used to do after the second carpal tunnel surgery. She said that he may have gone down to his trailer-cottage a couple of times after the accident, but was in a wheelchair. She said that Mr. Villers' pre-accident knee pain did not prevent him from walking.

Mrs. Villers testified that her husband was in severe pain following the accident and that, as a result, they decided to close up their trailer-cottage early and go back to their home in Huntsville. Mrs. Villers denied a report in Pilot's file which stated that Mr. Villers was "slightly stiff but may not apply for ABS [accident benefits]." Both the author and date of the report are unknown. Ms. Villers said that, after the accident, Mr. Villers could not drive. However, she also said that, after carpal tunnel surgery in July 2000, from which he had had good results, he continued to drive. She also said that he continued to drive until the July 2001 surgery (which is probably a reference to a cervical decompression Mr. Villers underwent in August 2001). Mrs. Villers testified that her husband's pain was different and more severe than before the accident, that beginning in June following the accident, she had to help in lifting up his feet to go up the stairs. She said that, by September 2000, Mr. Villers was unable to walk and that she had to assist him in getting out of chairs. She testified that, almost immediately after the accident, she had to "do everything for him," including giving him his meals, bathing him and helping him move around the house. However, she also testified that, even after the carpal tunnel surgery, and even with bandages on, he was still very active, including still being able to work on his trucks. She said that in August 2000, Mr. Villers "started going downhill real fast." However, she also said that between the accident and October 2000, he "started going downhill real fast." Mrs. Villers acknowledged that Dr. Albert's clinical notes in the four months following the accident do not indicate that Mr. Villers had any problem with walking, but stated that Dr. Albert simply said that Mr. Villers' problems were related to his arthritis.

Mr. Villers had a significant medical history prior to the accident. He suffered from gout, diabetes, chronic obstructive pulmonary disease, chronic anxiety, lumbosacral disease (for which he had undergone a spinal fusion in 1987), osteoarthritis, Paget's disease and a duodenal ulcer.

Mr. Villers developed symptoms of bilateral carpal tunnel syndrome in the months immediately prior to the accident, for which he underwent surgery in July and October 2000.

Mr. Villers underwent physiotherapy in October 2000 for his cervical sprain. The January 2001 discharge report indicated that he had slowly improved, but that the problem had not resolved. Mr. Villers was deemed to have discharged himself because he discontinued treatment in early December 2000.

In January 2001, Dr. Albert referred Mr. Villers to Dr. D. Johnstone, an internal medicine specialist, concerning a problem with anemia. In April 2001, Mr. Villers complained of right knee pain and weakness, and subsequently underwent right knee arthroscopy, with a post-operative diagnosis of degenerative tear in his right knee. In June 2001, Mr. Villers underwent a colonoscopy for his anemia. Diagnostic imaging of Mr. Villers in June 2001 showed COPD, suspected Paget's disease in his right scapula and degenerative changes in his lumbar spine.

In July 2001, Dr. T.J. Lapp, a physical medicine and rehabilitation specialist, reported that Mr. Villers likely suffered from progressive cervical myelopathy and referred him to Dr. P. Porter, a neurosurgeon, who reported in August 2001 as follows:

Neurologically his problems date back to June 2000 at which time he was involved in a motor vehicle accident. At that time he had the onset of neck pain and began to develop weakness in all 4 extremities. His neck pain has settled somewhat although he continues to have diffuse aching in the neck, but his neurologic symptoms have clearly progressed. Over the last 5 months he has required assistance to ambulate and currently is essentially wheelchair bound, and occasionally able to get around at home with a walker. His wife has assumed almost all of his care.

In summary this man with multiple medical health problems has severe cervical spondolytic myelopathy and is rapidly progressing to a state of complete dependence.

Dr. Porter recommended surgical decompression of Mr. Villers' spine, which he underwent in August 2001.

In December 2001, Dr. Lapp reported as follows:

Thus, it is clear that Mr. Villers' original upper extremity sensory complaints were primarily the result of severe bilateral CTS. This was confirmed by the prompt response he experienced from surgical decompression. However, less than a year later new upper extremity symptoms, including left hand intrinsic muscle wasting, raised the possibility of a myelopathy or MND. During that same time frame there had been progressive decline in the lower extremity motor function as well. The myelopathy stemmed from central canal stenosis which relates to a chronic degenerative process. However, the spinal cord compression syndrome can be exacerbated by acute flexion or extension of the cervical spine, and it is conceivable that it occurred at the time of the motor vehicle accident. However, typically one would expect a more marked acute neurological decline, rather than the slowly progressive one experienced by Mr. Villers between June, 2000 and June 2001.

...I am unable to comment on the rate of progression or specific time frame of new neurological symptoms since I was not in contact with [Mr. Villers] between August, 2000 and June, 2001.

I am unable to predict whether Mr. Villers would have experienced his myelopathy in the absence of an acute incident such as a motor vehicle accident. Certainly his severe central canal stenosis, documented by MRI scan in the summer, 2001 placed him at a high risk of this phenomenon. However, this is not a risk that I can estimate. It is conceivable that Mr. Villers' neurosurgeon, Dr. Porter, may have a reliable estimate he could quote knowledgeably.

In January 2002, Mr. G. Warman, an occupational therapist, reported that, in his opinion, Mr. Villers suffered a "substantial inability to carry on a normal life as a result of the MVA and...has demonstrated difficulty in all areas of self-care and housekeeping activities." Mr. Warman reported Mr. Villers as saying that, prior to the accident, he was independent in household activities, including building trailers and doing woodworking in his garage. Mr. Warman stated that he would agree with Dr. Porter that the accident "likely exacerbated an ongoing problem that was developing due to degenerative changes within the cervical spine...[r]esulting in an increased speed of deterioration of his physical abilities."

In March 2002, Mr. Villers' family physician, Dr. Albert, reported as follows:

Based on the sequence of events as outlined above, there is some discrepancy with the delayed presentation of severe upper extremity pain being almost a full year after his MVA. There is also a discrepancy with respect to his presentation before his MVA with upper extremity discomfort, which was diagnosed at the time as median nerve compression. Based on these discrepancies, I find it very difficult as his family doctor to ascertain whether or not his symptoms of spinal stenosis were actually exacerbated by the MVA in June of 2000. In my mind, the underlying condition of the spinal stenosis has nothing to do with this accident as it is the result of a degenerative (aging) process. Having said this, I would rely somewhat on the expert opinions of Dr. Lapp and Dr. Porter to ascertain whether they would agree with this or not.

In March 2002, Dr. Porter reported as follows:

Mr. Villers clearly had degenerative disease involving the cervical spine prior to his MVA. This is documented on the x-ray report from March 3 of 1992. Radiologic changes of this type are part of the normal aging process and are contributed to by minor or major trauma to the neck (for example involvement in sports, motor vehicle accidents, etc.) through the years. Many people with these radiologic changes, however, remain asymptomatic. Mr. Villers clearly had new symptoms following the MVA including neck pain and progressive neurological decline. When one has underlying degenerative changes and particularly spinal stenosis, any sudden extreme movement of the neck, particularly hyperextension, can lead to neurological decline.

Thus my opinion is that this man clearly had underlying cervical degenerative disease which was exacerbated by the motor vehicle accident and resulted in severe persistent neurological impairment despite surgical decompression. It is difficult to predict whether Mr. Villers would have ultimately gotten into similar clinical problems in the absence of the MVA, since the natural history of silent or minimally symptomatic cervical degenerative disease is highly variable. There are some individuals who progress to myelopathy slowly without any clearly recognized trauma, but there is no question that trauma such as an MVA does precipitate neurological decline as seen with Mr. Villers.

Dr. Porter completed an Application for Determination of Catastrophic Impairment, stating that Mr. Villers had "severe cervical spondolytic myelopathy causing quadriparesis which makes him dependent for basic ADL's ['activities of daily living'] - this is the result of underlying degenerative changes exacerbated by an MVA 19/6/00." Dr. Porter further stated that Mr. Villers required "neurosurgical decompression which resulted in some improvement, but he remains dependent for ADLs."

In September 2002, a catastrophic impairment Designated Assessment Centre (a "CAT DAC") considered the question of whether Mr. Villers suffered a catastrophic impairment as a result of the motor vehicle accident. The principal assessors were Dr. J. Mayer, a neurosurgeon, and Dr. E. Urovitz, an orthopaedic surgeon. The co-ordinating assessor was Dr. A. Ameis, a physiatrist. The consensus opinion of the CAT DAC was as follows:

The claimant has a long history of widespread cervical spondylosis. The claimant suffered from carpal tunnel syndrome and was having symptoms of neck pain as well as limb paresthesia prior to the accident in question.

The information available with respect to the accident suggests that this was an acceleration-deceleration soft tissue injury to the cervical spine producing a benign whiplash disorder with no increase in degenerative change. It did not produce any evidence of acute neurologic or orthopaedic abnormality, i.e. fracture, dislocation, or evidence of new and significant neurological deficits. There was no evidence of any acute or abrupt change in the claimant's condition suggesting a traumatic contribution to myelopathy. The development of myelopathy was in this case a slow, progressive process, which is in keeping with the natural history of gradual progression of this pre-existing disease.

Although Dr. Lapp correctly indicated that a spinal segment suffering from pre-existent degenerative disc disease could be vulnerable to injury from a car accident, this is a potential complication realized in some but not all cases. When realized, the requisite clinical picture would involve an abrupt and marked increase in symptomatology with associated objective findings. Such a clinical picture does not correspond to the evidence in this case. Given that in this case the pattern does correspond fully with the natural pattern of slow and progressive change, it is necessary to conclude that Mr. Villers' symptoms were manifestations of the natural evolution of a cervical myelopathy, solely on the basis of pre-existing degenerative disc disease.

It would appear from the latest records available that Mr. Villers is left with some ongoing impairments as a result of cervical degenerative disc disease, stenosis and cervical myelopathy, which necessitated decompression. However, as it is not felt that such impairments arose as a direct result of the motor vehicle accident in question, it is necessary to conclude that the impairments do not meet the causation criterion for catastrophic impairment.

The Assessment Team concluded that in the absence of causal relationship, the applicant's circumstances cannot meet the requirements of Catastrophic Impairment designation on the basis of the accident in question. This conclusion is driven by the documentary evidence. The Assessors were of the opinion that the use of a direct clinical assessment would not alter their conclusion over lack of causation.

Accordingly the evaluation will terminate at this point, with the conclusion that catastrophic impairment was not sustained in the accident in question.

Dr. Mayer testified that he and the other assessors simply conducted a paper review of the issue of whether Mr. Villers had been rendered catastrophically impaired as a result of the motor vehicle accident. Dr. Mayer had not reviewed Dr. Porter's report at the time of the DAC assessment because it had not been included in the materials forwarded to the DAC. Dr. Mayer had not reviewed Dr. Porter's report with the other DAC assessors. Dr. Mayer had discussed his evidence with Pilot's counsel prior to the hearing without consulting the other assessors.

Dr. Mayer disputed Dr. Porter's suggestion that Mr. Villers was asymptomatic prior to the accident. However, Dr. Mayer testified that, before the accident, Mr. Villers had been able to do things and was "getting along in his usual way." Dr. Mayer was under the impression that Mr. Villers was still able to do things until a year post-accident. Dr. Mayer testified that Mr. Villers' deterioration was not caused by the accident because the worsening in his condition would have been expected within a week of the accident, not a year later. Dr. Mayer stated that a rapid decline in Mr. Villers' condition following the accident could be as a result of the natural progression of his pre-existing condition and that, if there were a deterioration within three months of the accident, that would have been due to the natural progression of Mr. Villers' pre-existing condition. Dr. Mayer stated that if, within a month of the accident, a rapid deterioration in Mr. Villers' pre-existing condition could be objectively demonstrated, then his state could potentially be related to the accident.

In cross-examination, Dr. Mayer testified that it was unusual that Mr. Villers was not brought in for an assessment by the DAC and that he did not know why this occurred. Dr. Mayer testified that he understood that any determination that Mr. Villers was not catastrophically impaired could not be made without seeing him and without taking a good history. He stated that taking a good medical history was an important diagnostic tool. In this regard, Dr. Mayer acknowledged that he simply knew that the accident had involved a rear-end collision and was not aware of the specific mechanics of the accident, the extent of the damage, Mr. Villers' movement in the car or Mr. Villers' personal circumstances between the accident and his surgery in 2001. Dr. Mayer stated that it would be particularly relevant to an assessment of Mr. Villers' condition if he had lost the ability to ambulate following the accident.

Although Dr. Mayer had said that there was no need to assess Mr. Villers since his deterioration took place well after the accident, he testified that, where the DAC's decision is that a person is not catastrophically impaired, then almost invariably the person is brought in for an assessment. Dr. Mayer stated that it would have affected his assessment if he had known Mr. Villers' medical history. Dr. Mayer acknowledged that Dr. Porter had had a good opportunity to assess Mr. Villers, but that Dr. Porter was "trying to be kind" and "helpful" to Mr. Villers in concluding that there was a causal relationship between the accident and his impairment. However, Dr. Mayer acknowledged that, if Mr. Villers had been fragile before the accident, degenerative changes in his spine could have been aggravated in the collision, but that he would have expected to hear complaints soon after, not a year later.

Analysis

Catastrophic Impairment

The parties agreed that any consideration of whether Mr. Villers had been rendered catastrophically impaired as a result of the accident ought to be done in relation to the category of "quadriplegia," as contained in the following provision of the Schedule:

2(1.1) For the purposes of this Regulation, a catastrophic impairment caused by an accident that occurs before October 1, 2003 is,

(a) paraplegia or quadriplegia....

While Pilot initially raised the question of whether Mr. Villers was, in fact, catastrophically impaired, the parties focussed their evidence and submissions entirely on the issue of whether the motor vehicle accident significantly or materially contributed to Mr. Villers' impairment.

Dr. Albert considered the question of causation in relation to Mr. Villers' spinal stenosis. In the Application for Determination of Catastrophic Impairment, Dr. Porter certified that Mr. Villers suffers from quadriplegia and reported that Mr. Villers suffered from severe cervical spondolytic myelopathy causing quadriparesis. The DAC concluded that Mr. Villers had been left with some ongoing impairments as a result of cervical degenerative disc disease, stenosis and cervical myelopathy.

While there is some question as to whether Mr. Villers, in fact, suffers from a catastrophic impairment, given the prima facie certification by Dr. Porter that Mr. Villers suffers from a catastrophic impairment within the meaning of the legislation, and the problems with the DAC process (as discussed below), I am prepared to consider the principal question of causation on the basis that Mr. Villers, in fact, suffers from a catastrophic impairment, namely, severe cervical spondolytic myelopathy causing quadriparesis.

The DAC Process

Mr. Villers spent a considerable amount of time attacking the process followed by the DAC in this case. Based on Dr. Mayer's testimony, I accept that the DAC ought to have followed its usual process of bringing the applicant in for an assessment, given the DAC's general view that Mr. Villers had not been catastrophically impaired by the accident. I find that such an assessment would have greatly aided the DAC's analysis in this case, given the importance of understanding Mr. Villers' pre- and post-accident medical history. I am, therefore, unable to rely on the DAC's general conclusion that Mr. Villers did not suffer a catastrophic impairment as a result of the June 2000 motor vehicle accident.

However, despite the flaws in the DAC process, I find that I am able to rely on both the DAC's and Dr. Mayer's general evidence as to the medical criteria to be applied in determining the question of whether the trauma suffered by Mr. Villers in the accident aggravated his pre-existing degenerative condition, resulting in his subsequent deterioration, surgery and impairment. While Mr. Villers challenged the DAC process, including the fact that counsel for Pilot contacted Dr. Mayer prior to the hearing to discuss his evidence, Mr. Villers did not go so far as to suggest that the DAC report was inadmissible or that Dr. Mayer ought to be excluded as an expert witness at the hearing. Nor did Mr. Villers challenge Dr. Mayer's ability to give evidence on the general medical considerations applicable to the question of causation in this case. Dr. Mayer's testimony in this regard was consistent with the DAC's general approach to the question of causation. In any event, Mr. Villers essentially sought to establish the deficiencies in Dr. Mayer's and the DAC's understanding of Mr. Villers' medical history and to argue that Mr. Villers' circumstances (as understood by Dr. Porter), in fact, satisfied the medical criteria laid out by the DAC and Dr. Mayer on the issue of causation. I note, as well, that Dr. Lapp and Dr. Albert identified the same criteria as Dr. Mayer and the DAC on the issue of causation, and that Mr. Villers did not attempt to challenge this evidence.

I am conscious of the importance of the completeness, fairness and neutrality of the DAC process, as set out in the Commission's Catastrophic Impairment Designated Assessment Centre, Assessment Guidelines, and General Guideline #4, Ensuring Neutrality of the Designated Assessment Centre System. I agree, however, with the arbitration decision of Lee and State Farm Mutual Automobile Insurance Company (FSCO A03-000181, November 27, 2003) to the effect that the discretion to accept or reject a DAC's evidence rests ultimately with the presiding arbitrator. As noted, despite the limitations in the DAC process, I find the DAC's and Dr. Mayer's evidence to be sound and helpful as it pertained to the general medical question of the potential relationship between the motor vehicle accident and the development of Mr. Villers' medical condition and impairment. I will, therefore, rely on their evidence to the extent of establishing the general medical considerations applicable to the issue of causation in this case.

Causation

Dr. Porter concluded that Mr. Villers' pre-existing cervical degenerative disease was exacerbated by the accident apparently on the basis that he "clearly had new symptoms following the MVA including neck pain and progressive neurological decline." Dr. Porter indicated that in light of pre-existing degenerative changes and particularly of spinal stenosis, "any sudden extreme movement of the neck, particularly hyperextension, can lead to neurological decline." Dr. Porter stated that "trauma such as an MVA does precipitate neurological decline as seen with Mr. Villers." Significantly, Dr. Porter did not address the question of the timing of the appearance of Mr. Villers' symptoms following the accident and whether this was relevant to the question of causation. Dr. Porter also suggested that Mr. Villers was asymptomatic prior to the accident, or at least that he did not have symptoms similar to those he had following the accident. As discussed below, I find that neither of these assumptions is correct.

Both Dr. Albert and the DAC identified the issue of timing as central to the issue of causation. They also had a clearer (although, as discussed above in relation to the DAC, still inadequate) understanding of Mr. Villers' pre- and post-accident medical state. Dr. Albert noted that Mr. Villers suffered from upper extremity pain both before and after the accident. He also noted that Mr. Villers did not develop severe upper extremity pain until almost a year post-accident. The DAC, and Dr. Mayer in his testimony, clearly indicated that the motor vehicle accident would only have been relevant to the development of Mr. Villers' neurological impairment if he had suffered an abrupt, marked and objective increase in symptomatology following the accident. Otherwise, Mr. Villers' condition would more likely have been related to the natural progression of his pre-existing degenerative disease. As with Dr. Albert, the DAC and Dr. Mayer properly noted Mr. Villers' pre-accident neurological symptoms, namely, neck pain and limb paresthesia. Dr. Mayer indicated that the accident could potentially have caused or exacerbated Mr. Villers' condition if he had suffered an objective deterioration within 1-4 weeks of the accident.

Dr. Lapp also addressed the question of the timing of Mr. Villers' symptoms following the accident. Dr. Lapp acknowledged that he could not comment directly on the question of causation, since he had not seen Mr. Villers between August 2000 and June 2001. Dr. Lapp did indicate that it was "conceivable" that Mr. Villers' pre-existing degenerative condition was exacerbated in the motor vehicle accident, but, like Dr. Mayer and the DAC, suggested that this was unlikely given Mr. Villers' "slowly progressive" rather than "marked acute" neurological decline. Significantly, Dr. Lapp suggested that Mr. Villers' severe central canal stenosis rendered him highly susceptible to developing the myelopathy from which he suffered, even without the trauma of the motor vehicle accident.

I find, as a general matter, that Dr. Porter did not give sufficient weight to the questions raised by the DAC and by Drs. Mayer, Lapp and Albert. Mr. Villers did not call Dr. Porter as a witness to address this matter. As noted, Mr. Villers neither challenged nor undermined the notion that the nature, extent and timing of Mr. Villers' pre- and post-accident conditions were relevant to the issue of causation. Instead, Mr. Villers maintained that he satisfied these concerns, namely, that he suffered an abrupt, marked and objective increase in symptomatology following the accident. I accept the considerations laid down by the DAC and by Drs. Mayer, Lapp and Albert on the issue of causation. I also do not accept Mr. Villers' submission that he satisfied these criteria. I find that Mr. Villers' condition was more likely than not related to the natural progression of his pre-existing degenerative condition. I do not accept that the progression of Mr. Villers' condition or the development of his impairment were materially changed and/or exacerbated by the motor vehicle accident.

Mr. Villers suffered from a number of ailments in the year prior to the accident including diabetes, right knee pain, degenerative disc disease, chronic obstructive pulmonary disease, gout, Paget's disease, bilateral carpal tunnel syndrome, cerebrovascular disease, a stroke, renal calculi, blindness in the left eye and a cataract in his right eye. Despite these numerous problems, Mr. Villers, his wife, his stepdaughter (Ms. Emerson) and his neighbour (Ms. May) attempted to suggest that he was extremely active in the months leading up to the accident and that "nothing stopped him." His wife claimed that he was "functioning normally." Ms. Emerson stated that "he could do anything others could do, except run." Ms. May testified that there were "no limits" to what Mr. Villers could do before the accident. For the following reasons, I find these characterizations of Mr. Villers' pre-accident condition to be unreliable.

Three months prior to the accident, Dr. A. Drohomyrecky, a urologist who saw Mr. Villers concerning his renal condition, described Mr. Villers as a "fragile gentleman with many medical problems." Two months before the accident, Dr. J. Cripps, an ophthalmologist, reported Mr. and Mrs. Villers as saying that, since the December 1999 stroke, Mr. Villers' diminished eyesight "no longer allow[ed] him to function nor to drive" and that he had not been able to drive his new truck "for some time because of his current poor level of function." Contrary to Mrs. Villers' assertion that Mr. Villers worked on cars up until the time of the accident, Ms. Emerson stated that Mr. Villers stopped working on cars due to his diabetes just a couple of months before the accident. In April 2000, Drs. M. Goldszmidt and B. Larocque, the pre-lithotripsy (renal calculi operation) assessors, reported Mr. Villers as saying that he experienced shortness of breath upon "exertion with one flight of stairs" and had "difficulty eating with his right hand and holding a glass with his right hand." Approximately twelve days before the accident (and following the cataract operation), Dr. Lapp examined Mr. Villers in respect of "right arm neuropathic pain and paresthesia" and reported Mr. Villers as saying that he had used a "cane in the right hand for balance and security since his visual changes." On the basis of this evidence, I do not accept Mr. Villers' and the others' evidence that he was involved in various physically demanding tasks and was essentially functioning normally right up until the time of the motor vehicle accident. I find that Mr. Villers likely suffered various restrictions in his daily activities due to his numerous medical ailments and treatments.

Dr. Porter reported that "neurologically [Mr. Villers'] problems date back to June 2000... [at which time] he had the onset of neck pain and began to develop weakness in all 4 extremities." Dr. Porter also reported that Mr. Villers "clearly had new symptoms following the MVA including neck pain and progressive neurological decline." Based on the following evidence, I find that Dr. Porter (and the occupational therapist who agreed with him) did not have a sufficient understanding of Mr. Villers' pre- and post-accident condition.

Mr. Villers acknowledged having had "aches and pains" before the accident, which I have found to be a significant understatement of his pre-accident problems. Ms. Emerson stated that he had neck pain before the accident. As early as 1988, Dr. Albert reported Mr. Villers as being disabled from manual labour due to right shoulder bursitis and leg pain. In 1990, Dr. A. Karasik, a rheumatologist, reported Mr. Villers as complaining of right shoulder pain and cervical neck pain. In 1993, Ms. C. Evans, a physiotherapist, saw Mr. Villers regarding "chronic neck pain" which was minimal during the day, but increased at night.

Three months before the accident, Dr. Albert reported that there had been "no worsening of [Mr. Villers'] neurological deficit relative to his cavernous vein thrombosis..." (emphasis added). Two months before the accident, Drs. Goldszmidt and Larocque reported Mr. Villers as continuing to have right arm and leg weakness and difficulty ambulating (although these had improved considerably since the December 1999 stroke), "glove and stocking-type peripheral neuropathy with decreased sensation to pinprick up to just below the knees bilaterally," a "moderate amount of decreased sensation in both hands" (although this was not fully examined at the time), and "some rigidity in both upper extremities with a mild amount of resting tremor in the right hand." In late April 2000, Dr. M. Mensour conducted a pre-cataract operation assessment and noted that Mr. Villers had been left with "right arm hemiparesis" following his recent stroke, "leg cramps...[and] peripheral neuropathy in both legs secondary to his diabetes...." Roughly three weeks before the accident, Mr. Villers went to the emergency department of the Huntsville Memorial Hospital complaining of swollen feet. Twelve days before the accident, Dr. Lapp confirmed Mr. Villers' complaints of right arm, wrist and hand pain and paresthesia, as well as some symptoms of left hand numbness. Significantly, Dr. Lapp reported Mr. Villers as denying both that he had "any similar lower extremity complaints" or that he had "any history of neck pain or past surgeries." Dr. Lapp did note that Mr. Villers' cervical spine range of motion was painless, but also noted that both the neck range of motion and shoulder abduction were limited.

On the basis of this information, I do not accept Dr. Porter's statement to the effect that Mr. Villers' neurological problems began following the motor vehicle accident in June 2000. Specifically, while Mr. Villers may have suffered an increase in his neck pain as a result of the accident, I find that he suffered from neck pain for several years before, and up to, the time of the accident. I also find that he suffered other relevant symptoms, including pain, weakness and specific neurological deficits in both of his arms and legs. I, therefore, do not accept Dr. Porter's report that Mr. Villers only began to develop weakness in his extremities following the accident, or that he "clearly had new symptoms following the MVA...."

Similarly, while I accept Dr. Porter's observation that Mr. Villers suffered a neurological decline, I do not accept Dr. Porter's or the others' suggestion that this developed shortly after the accident.

Mr. and Mrs. Villers attempted to suggest that the accident was very serious, involving extensive damage and pinning Mr. Villers against the steering wheel. They attempted to suggest that Mr. Villers suffered debilitating and worsening pain immediately following the accident.

However, Mrs. Villers testified that her husband continued to be very active until after the carpal tunnel surgeries (which took place in July and October 2000). While Mrs. Villers said that her husband could not drive following the accident, she also said that he continued to drive until the July 2001 surgery (which was, in fact, the August 2001 surgical decompression of his spine for his cervical myelopathy). Mrs. Villers also testified that Mr. Villers could continue to work on his trucks following the carpal tunnel surgeries, something Ms. Emerson maintained he had stopped doing even before the accident. Ms. Emerson also stated that Mr. Villers continued to do things himself after the accident. In August 2000, Dr. Lapp reported that Mr. Villers had had a "motor vehicle accident in June with some neck discomfort, but he is firm in stating that his symptoms [of left hand numbness] preceded that accident" (emphasis added). Contrary to the family's suggestion that Mr. Villers' pain and condition significantly worsened following the accident, the January 2001 physiotherapy discharge note indicates that, while his condition had not resolved, it had slowly improved.

In February 2001, Dr. Johnstone, the specialist who had examined Mr. Villers regarding a problem with anemia and fatigue, reported that Mr. Villers was "comfortable and in no distress" and that the "head and neck examination was unremarkable" (emphasis added). Contrary to the family's suggestion that Mr. Villers could barely walk immediately following the accident and was using a wheelchair within two, three or five months post-accident, Dr. Johnstone reported a problem that Mr. Villers had had before the accident, namely, "exertional dyspnea which really has not gotten any worse in the last year but he has difficulty climbing one flight of stairs." A hospital note at the time indicates that Mr. Villers was complaining of aches in his arms and legs, but this was the case before the accident.

Mr. Villers went to the emergency department of the Huntsville Memorial Hospital in March 2001 where he was diagnosed as having suffered an "exacerbation of [his pre-existing condition of] COPD and infection probably pneumonia." The attending physician at the time, Dr. J. Rea, notes that the "head and neck exam is normal." Mr. Villers was discharged from the hospital four days later, when Dr. Rea noted that Mr. Villers had "gradually recovered to the point where he no longer needed his oxygen and was able to ambulate without shortness of breath" (emphasis added).

In late April 2001, some ten months post-accident, Algonquin Health Services assessed Mr. Villers for mobility aids in connection with a problem with falling. In May 2001, Dr. T. Wallace, an orthopaedic surgeon, reported Mr. Villers as complaining of having "problems with his left lower extremity" following the 1999 stroke, of having to rely "on his right leg to [get] around with," of "gradually getting more and more symptoms in his right knee" and of having "fallen several times." Dr. Wallace diagnosed degenerative changes in Mr. Villers' right knee and arranged an arthroscopy, which Mr. Villers underwent two weeks later.

Mr. Villers returned to Dr. Lapp in June 2001 regarding a recurrence of bilateral carpal tunnel symptoms. Contrary to Mr. Villers' suggestion that his neck pain significantly worsened after the accident, Dr. Lapp reported that Mr. Villers had "ongoing neck pain, and this is unchanged from his MVA..." (which was consistent with Dr. Lapp's findings in August 2000). More significantly is that, just as he had reported immediately before the accident, Dr. Lapp stated that "examination revealed restricted c-spine range of motion." I note that Dr. Lapp did not state that Mr. Villers' cervical spine range of motion was painful, which suggests that it was painless, just as it was before the accident.

Most significantly is that, contrary to Mrs. Villers' suggestion that Mr. Villers could barely walk immediately following the accident, and the family's suggestion that Mr. Villers was wheelchair-bound within two, three or five months of the accident, Dr. Lapp reports in July 2001 (and for the first time in any of the medical documents) that Mr. Villers "has been wheelchair bound for more than a month now." Further, Dr. Lapp reports that Mr. Villers' presentation is most suggestive of progressive cervical myelopathy and that the "findings today are quite distinctive from those in June at my last exam" (emphasis added). Dr. Porter reported in August 2001 that "over the last 5 months [roughly nine months post-accident] Mr. Villers has required assistance to ambulate and currently is essentially wheelchair bound, and [is] occasionally able to get around at home with a walker." Dr. Porter arranged a cervical decompression, which took place a month later. Prior to the surgery, Dr. B. Chanpong, an anesthesiologist, reported that, while Mr. Villers was using a wheelchair and scooter outside the house, he used a walker at home and "cannot walk one block without [experiencing] shortness of breath."

Based on this evidence, I find that, aside from Mr. Villers' problems with pre-existing carpal tunnel syndrome, COPD and right-leg pain and weakness, as well as the new problem of anemia, Mr. Villers' condition remained relatively stable following the accident. Even if Mr. Villers' degenerative knee condition was new, neither he nor the medical practitioners suggested that this was caused or exacerbated by the motor vehicle accident. I find significant that Mr. Villers suffered right leg pain and weakness prior to the accident, and that he reported to Dr. Wallace that he had gradually gotten more problems with his right knee due to the effects on his left leg following the 1999 stroke.

While Mr. Villers' neck pain may have increased following the accident, I find that it improved at points and was, at most, only marginally worse than it was before the accident. I find significant Dr. Albert's observation (as confirmed by Mrs. Villers) that immediately following the accident, Mr. Villers had "no new complaints of upper extremity pain or paresthesia." Dr. Lapp also saw Mr. Villers two months post-accident and reported him as only suffering from "some neck discomfort," a problem which remained unchanged until approximately a year post-accident. I further find that Mr. Villers' ability to walk was not significantly compromised until nine to ten months after the accident, and, as reported by Dr. Wallace, this was primarily a function of Mr. Villers' degenerative knee condition. I note that in November 2001, three months following the cervical decompression, Dr. Lapp reported Mr. Villers as complaining of substantial right knee pain, which Dr. Lapp stated was "attributable to his longstanding OA [osteoarthritis]." I find that the difficulty walking noted by Dr. Johnstone in February 2001 pertained, not to Mr. Villers' neck or knee problems, but to his breathing problems on exertion.

I note, as well, that Mr. Villers was already using a cane to walk immediately prior to the accident due to the problems he suffered from his stroke.

I find that Mr. Villers' condition changed significantly between June and July 2001, when Dr. Lapp reported "distinctive findings" and that Mr. Villers had begun to use a wheelchair. I find that the family greatly exaggerated the deterioration in Mr. Villers' ability to walk and to function in the months following the accident.

Returning, then, to the relevant medical criteria in this case, I find that Mr. Villers did not suffer an abrupt, marked and objective increase in symptomatology following the accident. Mr. Villers suffered significant medical problems and restrictions prior to the accident. He suffered a marginal increase in neck pain following the accident, with no new complaints of upper extremity pain or paresthesia. He remained relatively active until well after the accident. He suffered from a number of problems in the months following the accident, but these were due to pre-existing and/or non-accident-related medical conditions. Mr. Villers' walking difficulties did not surface until several months post-accident. Mr. Villers began to complain of a significant increase in upper extremity pain in the late spring or early summer of 2001, which Dr. Lapp noted to be "distinctive" and "suggestive of progressive cervical myelopathy." Dr. Porter subsequently confirmed this diagnosis, after which Mr. Villers underwent a cervical decompression.

While Mr. Villers had a number of medical problems following the accident, and eventually underwent surgery for a serious spinal condition, I find, on a balance of probabilities, that the June 2000 motor vehicle accident did not significantly contribute to the deterioration in his condition. Mr. Villers did not experience the significant and rapid neurological decline generally associated with a traumatic exacerbation of his pre-accident degenerative condition. In relation to Dr. Porter's diagnosis of catastrophic impairment, I find that the accident did not significantly or materially contribute to the development of severe cervical spondolytic myelopathy causing quadriparesis. I find it more likely than not that Mr. Villers' condition was a function of a naturally progressing disease that had not been materially changed or exacerbated by the motor vehicle accident.

I, therefore, conclude that Mr. Villers was not catastrophically impaired as a result of the June 19, 2000 motor vehicle accident.

EXPENSES:

If required, the parties may now make submissions on the issue of expenses.

March 17, 2005

Eban Bayefsky Arbitrator

Date