Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 61
FSCO A05-001105
BETWEEN:
JOSE CORDEIRO Applicant
and
WAWANESA MUTUAL INSURANCE COMPANY Insurer
REASONS FOR DECISION
Minor error on pages 2 and 12 corrected on April 11, 2007 in accordance with the Dispute Resolution Practice Code and section 21.1 of the Statutory Powers Procedure Act.
Before: David Muir
Heard: February 12, 13 and 14, 2007, in Kitchener, Ontario.
Appearances: Andrew Davidson for Mr. Cordeiro Danette Cashman for Wawanesa Mutual Insurance Company
Issues:
The Applicant, Jose Cordeiro, suffered serious orthopaedic injuries in a motor vehicle accident on September 18, 2002. He claims as well to have suffered a brain injury which has resulted in significant cognitive and emotional difficulties for him. He applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule.1
The underlying issue in this case is narrow, but complex and turns largely on the weight to be given to two neurological opinions and the assessment of other essentially circumstantial evidence.
Mr. Cordeiro claims that he has suffered a catastrophic impairment as a result of the accident. Wawanesa required that he attend at a CAT-DAC assessment. In its report the CAT-DAC concluded that although Mr. Cordeiro undoubtedly was catastrophically impaired, his impairments did not arise directly from the accident. Although the linkage is not made express, by implication at least the DAC seems to have concluded that his condition was attributable to a pre-existing subdural haematoma. Wawanesa supports the DAC's conclusions.
Mr. Cordeiro disagrees with this assessment and while acknowledging that the subdural haematoma was present at the time of the accident argues that it did not cause his impairment but more likely made him more vulnerable to suffer the injury which has caused his catastrophic impairment.
The underlying benefits issues are claims to attendant care benefits and housekeeping and home maintenance benefits which were terminated after 104 weeks in the absence of a determination of a catastrophic impairment as required by the Schedule.
The parties were unable to resolve these disputes through mediation, and Mr. Cordeiro 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:
Did Mr. Cordeiro suffer a catastrophic impairment as defined in section 2(1.1) of the Schedule as a result of a car accident on September 18, 2002?
Following this determination, is Mr. Cordeiro entitled to payments for attendant care and housekeeping and home maintenance services pursuant to sections 16, 18 and 22 of the Schedule, respectively?
Result:
Mr. Cordeiro did suffer a catastrophic impairment as defined in section 2(1.1) of the Schedule as a result of a car accident on September 18, 2002.
Mr. Cordeiro is entitled to payments for attendant care in the amount of $1,027.95 per month from the date of stoppage to date and ongoing pursuant to sections 16 and 18 of the Schedule, and to payment of $30 per week for formal housekeeping assistance and an additional $10 per week during those periods when lawn care is required, pursuant to section 22 of the Schedule.
Mr. Cordeiro is entitled to interest on these amounts found to be owing, pursuant to section 46 of the Schedule.
EVIDENCE AND ANALYSIS:
Mr. Cordeiro is 81 years old. A native of Portugal, he came to Canada in the 1950's. He retired from his work as an electrician when he was 75 years old. At the time of the accident he was living with his wife and his adult daughter.
He has lead a long, largely healthy and productive life. Although active until the events of September 18, 2002, he suffered from a number of maladies, such as diabetes, hypertension, heart disease and elevated cholesterol.
A little more than two months prior to the accident, on July 5/6, 2002 Mr. Cordeiro fell down the stairs in his home. It is assumed by all for purposes of this proceeding that as a result of a blow to the head at that time Mr. Cordeiro began to develop a subdural haematoma which remained undiscovered until a few days after his car accident.
On September 18, 2002, Ms Cordeiro Meier, (Mr. Corderio's adult daughter) responding to calls for help from the street, found her father pinned underneath his car. No one is certain how or why Mr. Cordeiro came to be there. Dr. Quinlan, a physician who attended to him in the Emergency Department of Cambridge Hospital, records that Mr. Cordeiro told him that he tried to exit the car after starting it, failed to properly put it into park, the car began to roll and "he fell underneath the car" and remained there until found by a neighbour. Mr. Cordeiro suffered, almost certainly as a result of being run over by the front or rear wheels of his car, fractures to his right hip and left femur.
Other than the indirect reportage above, Mr. Cordeiro has no recollection of what happened and how he came to be on the ground. In particular, he apparently has no recollection of the car going over him breaking his right hip and left femur. However it happened he was found by his daughter laying on his back largely underneath the car with his shoulders and head extending out. The car was at the bottom of a 20-30 foot slightly sloping driveway. Ms Cordeiro Meier called for assistance from a neighbour and a worker down the street. She then left her father in their care while she went inside and called 911.
Mr. Cordeiro was taken to hospital, and was assessed by a number of medical professionals. Particular care was taken with him because of his underlying health issues mentioned earlier. A decision was made to operate to repair the fractures sustained despite his pre-existing issues and evident anaemia on admission to the hospital.
A source of some controversy is whether there were any early signs of head trauma and associated brain injury. At the accident scene, and in Emergency, it is noted that there were no obvious signs of head trauma. His Glasgow Coma Scale was initially determined to be 15. This remained constant until after his surgery when it began to fluctuate. Despite these scores, Mr. Cordeiro had difficulty communicating in this initial period. Beginning with the ambulance call report it is noted on several occasions that he may be incapable of communicating effectively because of a language barrier. It appears that it was assumed for some time that he did not speak or understand English. On the other hand, Dr. Quinlan, as noted above, was able to get a partial history of what happened on the driveway. The queries with respect to a language barrier continue after Dr. Quinlan obtained the incomplete history of the accident. It is not controversial that Mr. Cordeiro communicates in English quite effectively under normal circumstances.
Mr. Cordeiro also does not remember the accident at all. In particular he does not remember being run over by the car and his leg and hip being broken. He does not remember how he got to be on the ground under the car and his first recollection is reported variously, as being found by his neighbours under his car or, when he came to after the surgeries later that day.
Subsequent to the surgeries there are documented instances of events that might indicate some cognitive sequella of a brain injury. Ms Cordeiro Meier, whose evidence I largely accept, testified that her father on one occasion did not recognise her. He also suffered repeated shaking episodes which she described as like seizures. She testified that she expressed her concerns to staff at Cambridge Memorial and indicated to them that something was seriously wrong. Some of this is documented. Ms Cordeiro Meier wanted him transferred because she was worried that he had suffered some kind of head injury and "everyone knows" that the Cambridge hospital is not equipped to deal with such issues.
In a transfer summary dated September 22, 2002 Dr. Sivakumaran records that in the previous 24 hours Mr. Cordeiro had three episodes of "severe agitation with tachycardia, hypertension and broncho spasm as well as fluctuating levels of consciousness". As a result of these observations a CT Scan of Mr. Cordeiro's head was obtained. The scan revealed a large subdural haematoma with mild mid-line shift and "associated edema".
Mr. Cordeiro was transferred to the Hamilton Health Sciences Centre on September 22, 2002. The haematoma was later treated by draining. It was the view of the Neurosurgeon conducting the procedure that the haematoma was present prior to September 18 because the collected blood was liquified and "mostly purple, not red". This conclusion is accepted by everyone involved in this matter.
Subsequent CT Scans on November 1 and November 20, 2002 indicate that the haematoma had subsided somewhat after draining. However brain atrophy is noted for the first time in these scans.
The hospital records contain further indications of cognitive impairments affecting Mr. Cordeiro throughout his hospital stays at Cambridge Memorial and while a patient at the Hamilton Health Sciences Centre. While at Cambridge he is repeatedly reported as confused, somewhat disoriented, unable to understand commands, vague, and on one occasion unable to understand English or Portugese. These reports continue during his stay at the Hamilton Health Sciences Centre and include reports of delirium, hallucinations, confusion, disorientation, paranoid thinking, combativeness. He was restrained at both institutions for lengthy periods of time to prevent him from removing lines.
According to Ms Cordeiro Meier, in addition to the concerns she expressed in the first few days at Cambridge Memorial, she noticed changes in her father as soon as he returned home from the hospital in early November 2002. He was not right, according to Cordeiro Meier. Amongst the deficits she noted were an inability to keep track of his medications, difficulty reading, taking telephone messages, and general confusion. In addition there was a general withdrawal from other activities that he had performed prior to the accident, including an aversion to socializing with others. He was unable to drive any longer, not because of his orthopaedic injuries as suggested by counsel for Wawanesa, but according to Ms Cordeiro Meier because of his confusion and disorientation. There is evidence of mild depression. Dr. Russek, the family physician, on October 5 (after Mr. Cordeiro's transfer back to Cambridge Memorial) noted some disorientation and short term memory loss which it was hoped would improve with time. It did not.
Although Ms Cordeiro Meier remained concerned about her father after his ultimate discharge from the hospital, what difficulties he was having are not well documented. In response to concerns expressed about Mr. Cordeiro's confusion and inability to deal with telephone messages and inquiries, his hearing was tested and found to be somewhat deficient but not unusually so for a man of his age. It was not until April 2003 that an insurer's in-home assessment documented significant cognitive impairments consistent with Ms Cordeiro Meier's testimony. Although there has been some fluctuation in his identified impairments, his condition has not improved and as indicated earlier he was found to be catastrophically impaired as a result of his mental and behavioural disorders.
Dr. Rathbone, a neuro-surgeon retained by Mr. Cordeiro, opined that in his view the rapid decline in Mr. Cordeiro's mental status beginning at or shortly after September 18 is a direct consequence of the trauma suffered that day. While recognizing that the subsequently discovered subdural haematoma was quite large and was pressing the brain, it was the doctor's opinion that a normal brain can withstand such pressure and function quite normally at least for a period of time. Dr. Rathbone, in his report, notes that as a subdural haematoma increases in size it will put such pressure on the brain that it begins to damage the underlying brain tissue, ultimately resulting in swelling of the brain itself - the edema. However, in Dr. Rathbone's view, there is no evidence that this had begun to occur prior to September 18. There is no evidence of the symptoms associated with such a phenomena. The haematoma though large, appeared more or less stable, that is there is no evidence of any substantial further bleeding into the haematoma which might have pushed it over the edge so to speak.
Rather, there were two other factors in this case which better explain what had happened, according to Dr. Rathbone. First there must have been some trauma, however slight, to the head in the accident. A normal brain can tolerate significant forces, however, Mr. Cordeiro's brain was pressing up against the haematoma and consequently would have little or no room to move, increasing the forces on the brain initiating the changes which caused the edema. Such a blow or insult to the head could have been quite minor, indeed according to Dr. Rathbone almost anything might have been enough given the parlous state of Mr. Cordeiro's head. According to Dr. Rathbone whatever caused the edema discovered on September 22 must have happened within the previous seven days. In his view, the most reasonable possibility given Mr. Cordeiro's apparently intact state prior to the accident and in the absence of any evidence of other trauma, however minor, was the accident of September 18, 2002.
The other factor suggested in Dr. Rathbone's evidence was the surgery that Mr. Cordeiro underwent to repair his orthopaedic injuries. According to Dr. Rathbone even under optimal conditions surgeries will worsen neurological injuries such as those he felt Mr. Cordeiro would likely have sustained in the accident. According to Dr. Rathbone this is a well recognised phenomenon.
Dr. Bruce Stewart, a neuro-surgeon retained by Wawanesa, disagrees with this assessment. Dr. Stewart was of the view that Mr. Cordeiro because of the multiple risk factors, coronary artery disease, hypertension, hyperlipidemia and Type II diabetes, was at significant risk to suffer rapid cognitive decline. The heart of Dr. Stewart's view is captured in the following passage from his report:
Chronic subdural haematomas present in a number of ways. The may develop rather slowly, so that there may be rather non-specific headache and a slow slippage of cognition followed by lethargy, ataxia and even hemi-paresis. They may also present rather abruptly, with confusion, disorientation, cognitive problems, and drowsiness. when the enlarging subdural reaches critical compression levels of the brain sufficient to produce cerebral ischemia and therefore impairment of cerebral function. Usually this is generalised impairment of function, rarely focal.
It is true that a definite or significant blow to the head in an individual with an asymptomatic subdural haematoma may disrupt cerebral perfusion sufficiently to rapidly precipitate new neurological symptoms. In this particular case, there is no evidence of a head injury in the accident of September 18, 2002. Dr. Rathbone provides a theoretical postulation without any supportive factual data of head injury in the MVA.
The normal course of a subdural haematoma is to reach a critical level of compression of the brain. At that point, neurological symptoms develop rather rapidly. That is the most likely explanation of the period of confusion reported in hospital days after the MVA. A fluctuating level of consciousness in that time, however, was complicated by difficulties in communication (possibly due to a language barrier), and the compounding sedative effects of morphine.
Dr. Stewart does note that the ambulance attendants mention that Mr. Corderio could not recall the incident, but that this confusion cleared up quickly and his Glasgow Coma Scale was always 15 prior to the surgeries later performed. The fluctuations in consciousness evidenced later, could, in Dr. Stewart's view be explained by the narcotics administered for pain.
In response to Dr. Rathbone's suggestion of a "surgery effect": Dr. Stewart testified at length respecting the care that those attending to Mr. Cordeiro took in considering all of his pre-existing medical conditions. It was Dr. Stewart's opinion based on a review of the records that there were no complications associated with the surgeries he underwent and that they did not negatively effect Mr. Cordeiro's neurological status.
This is an extremely close case. The opinions of the competing experts are both compelling, indeed either could well be correct. I am persuaded however that Dr. Rathbone's view best describes the genesis of Mr. Cordeiro's difficulties. I have come to this conclusion for the following reasons.
To begin with, I accept Ms Cordeiro Meier's evidence that the change in her father's cognitive functioning was significant and was apparent immediately after the event of September 18. In particular, I accept her evidence that her father was, as she put it, not right from the time she first saw him in the Cambridge Memorial Hospital shortly after the accident. I also accept her evidence that these changes continued to be evident from the time that Mr. Cordeiro came home from the hospital in early November.
I also find that Dr. Stewart's opinions discounts too heavily the evidence of cognitive and behavioural issues that are documented in the hospital records. In his view there is no documentation of substantial cognitive impairment until April 2003.
I find that there is evidence of immediate cognitive consequences of brain injury which continued through the hospital stays and beyond. Some of this can, of course, be explained by the trauma and pain associated with the accident including the analgesics administered to him while in hospital. The records are clear however that there were issues with his behaviour, comprehension etc. throughout his hospital stays over several weeks. For example, Dr. Stewart may be correct that the identification of a language barrier while at the accident scene and even for a time thereafter may have been a reversion to Mr. Cordeiro's mother tongue in the crisis of the trauma. However, his language problems were clearly more profound than that as there are many reports of confusion and incomprehension extending well beyond the initial traumatic stage. His family report on more than one occasion that they cannot understand what he is saying and again the hospital records are replete with queries whether he understands what is being said to him. On one documented occasion it is apparent to the reporter that Mr. Cordeiro does not understand Portugese or English. To my mind, it is one thing to respond in your mother tongue in the minutes or hours after a trauma such as this, it is quite another to not understand a second language that you have used for the past 50 years, days after the trauma.
A key difference between Dr. Rathbone and Dr. Stewart is the latter's view that there is no evidence of head trauma on September 18. Aside from the fact that it is not essential to Dr. Rathbone's theory that there be a significant trauma in light of Mr. Cordeiro's perilous physical state given his multitude of risk factors including the subdural haematoma, I also find that it is more likely than not that Mr. Cordeiro must have suffered some, likely minor, insult or blow to his head on September 18. I make this finding on the following basis.
It was suggested by Mr. Cordeiro that he had perhaps been dragged down the driveway underneath the car. Dr. Rathbone subscribed to this view. I do not think it necessary to decide this issue except to note that it is entirely possible in the circumstances. However given what we do know about the circumstances, the only reasonable conclusion is that Mr. Cordeiro was at one point vertical, either in the car and getting out of it, or standing beside it. Moments later he was horizontal – found laying on his back underneath the car having been run over. Somehow he came to be there. I find that the most reasonable inference is that he fell and would have had to hit the ground with some force, even if only falling down. I find that a likely minor acceleration-de-acceleration injury to his head and brain is likely to have occurred. Given the acknowledged parlous state of Mr. Cordeiro's head, as a consequence of the subdural haematoma, it was this likely slight insult or blow which resulted in the edema discovered in the CT-scan of September 22. In this regard, while I accept as possible Dr. Stewart's opinion that the edema was caused by the subdural haematoma putting increasing pressure on the brain, I prefer the evidence of Dr. Rathbone on this point – that the edema was caused not by the subdural haematoma itself, but by a mild trauma of some kind to the head, subject already to the pressure created by the large, to that point entirely asymptomatic, subdural haematoma.
Morever, there is some evidence of immediate post-traumatic brain injury. In addition to the problems noted by Ms Cordeiro Meier and those documented in the records there is a period of post-traumatic amnesia, of indeterminate and short duration. Dr. Stewart describes this as post-traumatic confusion, but states that it "cleared quickly". I do not agree with this assessment. Mr. Cordeiro does not remember the car passing over him and breaking his hip and femur and so far as the records are concerned has never remembered it. I agree with Dr. Rathbone that he ought to recall that.
Mr. Cordeiro has also never been able to accurately recall who found him under the car. Ms Cordeiro-Meier states that she found him first and called for assistance from a neighbour and a worker down the street. She then went into the house to call 911, leaving her father in the care of these two men. Mr. Cordeiro, to the extent that he has related anything has always said that he was found by a neighbour. The most reasonable inference is that he has no recall at all from the moment that he began to leave the vehicle until he found himself under the car in the presence of these two men, while his daughter had returned to the house to call for assistance. There is some indication that the period of amnesia is greater than this, however I find that it lasted at least this long – matter of moments only perhaps but an indicator of some level of trauma to the brain.
Dr. Stewart's views that there is no evidence of head trauma do not account for this apparent fact and to that extent is less comprehensive a view than Dr. Rathbone. Given my finding that there is sufficient evidence to support the conclusion that there was some insult or blow to Mr. Cordeiro's head, this makes it more likely than not that the mechanism of brain injury articulated by Dr. Rathbone is the correct one – that is, the rapid movement of the brain inside a severely compromised skull cavity as a consequence of the large haematoma. I also accept Dr. Rathbone's view that this is what caused the edema first noted on the CT-scan of September 22, the first sign of the damage to the brain damage leading eventually, with documented early signs, of significant cognitive impairments.
For these reasons I prefer the evidence of Dr. Rathbone and Ms Cordeiro Meier and find that Mr. Cordeiro has suffered a catastrophic impairment as a result of this motor vehicle accident.
As regards the quantum of benefits in dispute, neither party takes issue with what was being paid for housekeeping and attendant care at the time of stoppage. Accordingly, I find that Mr. Cordeiro is entitled to payments for attendant care in the amount of $1,027.95 per month, from the date of stoppage to date and ongoing, pursuant to sections 16 and 18 of the Schedule, and to payment of $30 per week for formal housekeeping assistance and an additional $10 per week during those periods when lawn care is required, pursuant to section 22 of the Schedule.
EXPENSES:
The parties agreed to defer the issue of expenses pending the release of my reasons for decision. If they are unable to agree on expenses, they may speak to the issue in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code (Fourth Edition, Updated — October 2003).
March 23, 2007
David Muir Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 61
FSCO A05-001105
BETWEEN:
JOSE CORDEIRO Applicant
and
WAWANESA MUTUAL INSURANCE COMPANY Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Wawanesa shall pay to Mr. Cordeiro $1,027.95 per month for attendant care from the date of stoppage to date and ongoing pursuant to sections 16 and 18 of the Schedule.
Wawanesa shall pay to Mr. Cordeiro $30 per week for formal housekeeping assistance and an additional $10 per week during those periods when lawn care is required from the date of stoppage to date and ongoing, pursuant to section 22 of the Schedule.
Wawanesa shall pay to Mr. Cordeiro interest on these amounts found to be owing, pursuant to section 46 of the Schedule.
March 23, 2007
David Muir Arbitrator
Date