M. L. v. Economical Mutual Insurance Company, 2011 ONFSCDRS 92

Financial Services Commission of Ontario / Commission des services financiers de l’Ontario

Neutral Citation: 2011 ONFSCDRS 92

FSCO A09-001059

BETWEEN:

M. L.

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Alec Fadel

Heard: October 18, 19, 20, 21, 22, 25, 26, 27 and 28, 2010 in Ottawa, Ontario Written submissions were received on January 14 and 24, 2011

Appearances: John Hollander and Margot Leduc, student-at-law, for Mr. M. L.

Christopher Schnarr for Economical Mutual Insurance Company

Issues:

The Applicant, M.L., was injured in a motor vehicle accident on August 14, 2003. He applied for and received statutory accident benefits from Economical Mutual Insurance Company (“Economical”), payable under the Schedule.¹ A dispute arose concerning the applicant’s entitlement to various accident benefits including a determination of catastrophic impairment. The parties were unable to resolve their dispute through mediation, and Mr. L. 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. Did the applicant sustain a catastrophic impairment within the meaning of section 2 of the Schedule?

2. Is the applicant entitled to receive a non-earner benefit from March 24, 2007 to date and ongoing, pursuant to section 12 of the Schedule?

3. Is the applicant entitled to an attendant care benefit at the monthly rate of $6,000.00 from January 18, 2006 to date and ongoing, pursuant to section 16 of the Schedule?

4. Is the applicant entitled to weekly housekeeping and home maintenance services at the rate of $100.00 from August 14, 2005 to date and ongoing, pursuant to section 22 of the Schedule?

5. Is the insurer liable to pay a special award pursuant to subsection 282(10) of the Insurance Act?

6. Is the applicant entitled to interest for the overdue payment of benefits pursuant to section 26(2) of the Schedule?

Result:

1. The applicant is not catastrophically impaired as a result of the motor vehicle accident of August 14, 2003.

2. The applicant is not entitled to a non-earner benefit pursuant to section 12 of the Schedule.

3. The applicant is not entitled to an attendant care benefit pursuant to section 16 of the Schedule.

4. The applicant is not entitled to housekeeping and home maintenance pursuant to section 22 of the Schedule.

5. The applicant is not entitled to a special award pursuant to section 26(2) of the Schedule.

EVIDENCE AND ANALYSIS:

The applicant claims that as a result of the motor vehicle accident of August 14, 2003, he suffered a catastrophic impairment pursuant to paragraph (g) and also likely pursuant to paragraph (f) of section 2(1.1) of the Schedule. The relevant parts of section 2 (1.1) of the Schedule provides:

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

(f) subject to subsections (2) and (3), an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 per cent or more impairment of the whole person; or

(g) subject to subsections (2) and (3), an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.

Both clauses (f) and (g) of the Schedule require the applicant’s impairment to be evaluated in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition,1993 (the “Guides”).

The applicant acknowledges that he was in a serious motor vehicle accident in 1995 resulting in a traumatic brain injury with a resulting seizure disorder having a major effect on his life. The injuries sustained in that motor vehicle accident resulted in a deterioration of the applicant’s relationship with his family and society throughout the rest of the 1990s and into 2000. However, the applicant submits that by the time of the August 14, 2003 accident, at issue in this arbitration, he had achieved a significant improvement from these injuries and the resulting sequelae. This improvement is detailed by the oral evidence of the L. family and two other lay witnesses who all testified that the applicant had made a significant improvement in the few years prior to the 2003 accident. The applicant did not testify at the hearing and there appeared general agreement that his participation at the hearing would not be helpful.

The applicant states that while he was still suffering from the impairments of the 1995 accident, immediately prior to the 2003 motor vehicle accident he made a substantial recovery and was largely independent and capable. He points to various activities that he did prior to the 2003 accident which illustrate his alleged recovery, such as getting his driver’s licence back (lost following the 1995 accident), driving long distances, arranging and completing foreign travel, caring for his daughters during their illnesses (one critical), performing home renovations including building a large deck, attending a health center to exercise, volunteering at a nursing home, reintegrating into community and family, successfully dealing with the deterioration of his marriage and considering a new business activity. The applicant also points to an MRI of June 26, 2009, which he submits shows far more extensive damage to the left temporal lobe when compared to an MRI completed on July 28, 1997, which he attributes to the 2003 accident.

While I do not find that the L. family were being intentionally misleading, I do find that they gave their evidence in a way that would be most helpful to M.L.’s success in this arbitration. Clearly, the applicant suffered a serious brain injury in the 1995 accident that was certainly devastating to him and his family. This had documented ongoing ramifications for the L. family with ups and downs all the way up to the 2003 accident. The preponderance of evidence does not support that the applicant had significantly improved prior to the 2003 accident and does not support that the applicant sustained a traumatic brain injury in that accident. I find that the improvements the L. family are referring to prior to the 2003 accident were in fact not to the degree where the applicant had significantly improved but were minimal and their observations and testimony is more about seeing a loved one improve slightly and seeing a more significant improvement than actually existed.

From what he describes as a well-controlled epileptic seizure condition and a well-controlled depression, the applicant submits that following the 2003 accident he deteriorated in virtually all aspects of his physical and mental health. He states that subsequent to the accident, he required and continues to require regular access to a psychiatrist, that he suffered uncontrolled seizures leading to the loss of his driver’s licence and independence, that he requires high doses of medication with significant detrimental side-effects, that he became dependent on others for many of his basic services of living, that he developed incontinence and is socially isolated with no friends or life outside of his immediate family on whom he is totally dependent.

The applicant submitted an OCF-19 together with a certificate of catastrophic impairment in 2007 resulting in an insurer’s examination conducted by Custom Rehab & Assessments Canada (“CRAC”). The applicant submits that despite CRAC’s executive conclusion that he was not catastrophically impaired from the 2003 accident, a reasonable interpretation of the reports would lead one to conclude that the applicant actually had suffered a catastrophic impairment under subparagraph (g) and may well have suffered a catastrophic impairment under subparagraph (f). The applicant states that the CRAC assessment team determined that the applicant’s condition was caused by factors not related to the motor vehicle accident of 2003, notwithstanding clear evidence of deterioration between the 2003 accident and the present. The applicant states that the CRAC team compared the applicant’s condition in 2007 to that in 1998, ignoring several years of alleged steady progress and recovery up to the time of the 2003 accident. He also states that the assessment team trivialized the impact of the 2003 accident which the applicant submits clearly was a material contributing factor in the substantial deterioration of his mental, behavioural and physical health.

For the following reasons, I do not find that the evidence supports that the motor vehicle accident of August 14, 2003 caused or contributed to the applicant’s current condition. I am not persuaded on the preponderance of evidence, that the applicant improved significantly prior to the 2003 accident. Nor do I find that the evidence supports that the applicant sustained a traumatic brain injury of any severity, in the 2003 accident.

Motor vehicle accident of March 15, 1995

The applicant was a pedestrian when he was struck by the front of an oncoming vehicle flipping over the hood of the vehicle that hit him. The applicant spent three weeks in hospital following the 1995 accident remaining confused for days including not remembering the names of family members. Dr. Gita Kindle, family doctor, first saw the applicant on April 25, 1995 and noted that he suffered a fracture of the left tibial plateau and the left tibia along with headache, dizziness, fatigue, memory problems and difficulty concentrating, after suffering a cerebral contusion and concussion. Dr. Kindle was not optimistic that the applicant would ever return to his pre-accident status.

A CT of the head was performed on the day of the accident and found “diffuse cerebral edema,” and a subsequent CT on July 27, 1997 noted “no significant change from 9 Jan 97,” with the “bi-frontal encephalomalacia is unaltered as are the calcific foci in both cerebral hemispheres.” An MRI was attempted on July 28, 1997 but “the patient experienced claustrophobia during the examination, and only unenhanced T1 weighted images were obtained.”

Dr. Gow, psychologist, who treated the applicant subsequent to the 2003 accident also assessed and treated him as a result of the injuries sustained in the 1995 accident. In a report dated February 28, 2006, Dr. Gow referred in detail to the 1995 accident stating that it produced a moderate to severe traumatic brain injury with radiological evidence of contusion to both frontal lobes. She noted the GCS score of 12/15 recorded at the scene and the recording that there was no loss of consciousness though the applicant remained confused and disoriented in hospital until April 18, 1995 when he finally achieved a GCS score of 15/15. Dr. Gow recorded that the L. family noted marked personality changes in the applicant while in hospital with difficulty recognizing his wife for the first few days and difficulty recalling his daughters’ names. Once the applicant returned home, he began to isolate himself spending his time alone in the basement. He was easily irritated, appeared unhappy and was uninterested in performing any of his former activities all of which were noted as marked changes from his pre-morbid status.

Dr. Ilivitsky, consulting psychiatrist, assessed the applicant on August 16, 1995 and confirmed that the applicant was incoherent after the accident and speaking in his native language with difficulty finding words. Dr. Ilivitsky concluded that the applicant suffered from a cerebral contusion affecting mostly the frontal, noting evidence of left hemisphere damage and significant personality change.

A neuropsychological assessment with Dr. Gagnon on October 30, 1995 revealed severe deficits in the areas of attention and executive function. He noted that the deficits were likely related to the bifrontal cerebral contusion observed on the CT scan taken immediately following the accident. Dr. Gagnon was of the view that the applicant’s severe executive dysfunction was not likely to improve and that he would be unable to resume a normal professional life.

The applicant was admitted as a residential patient to the Robin Easey Centre (“REC”) for cognitive rehabilitation in April 1996 with a stated goal of a return to productive activities, a return to driving, improved household management, family and social relationships. He was in the residential program until January 1997 and the day program until May 1998.

At the request of the insurer, Dr. Munson completed a neuropsychological assessment and in her report of March 26, 1997 stated that although the REC’s progress notes documented functional gains in performing ADLs, the applicant “remained in a precarious emotional state, and attempts to wean him off antidepressants resulted in increased agitation and aggressivity.” Dr. Munson noted in her report that her reading of the documentation in the file did not prepare her for “the extent of functional disability Mr. L. portrayed in our first meeting.”

Dr. Quan, psychiatrist, who treated the applicant as a result of the 2003 accident, coincidentally prepared a report dated February 20, 1998 at the request of defence counsel in the tort concerning the 1995 motor vehicle accident. Dr. Quan stated that it seemed the applicant sustained significant brain injuries in the accident referring to the signs of acute brain involvement at the scene of the 1995 accident, his GCS score of 12/15, his confusion and agitation, evidence of the contusion at the back of his head, vomiting on at least three occasions, evidence of disorientation and agitation. Dr. Quan referred to the seizure history as “a very serious development since it would suggest that he has developed scar tissues in his brain to make seizure activity.” He stated that the damage sustained was permanent and opined that the applicant would likely require some type of supervision for the rest of his life. Dr. Quan informed defence counsel that he was afraid that the claim that the applicant was exaggerating his symptoms was a “red-herring” and described the applicant as having sustained “very significant brain damage involving a very delicate part of his brain responsible for planning and executive functions.” Dr. Quan testified that he concluded that the insurer “better pay out and run fast, because this man is badly damaged.” Dr. Quan testified that the applicant’s frontal lobes were damaged with the front portion of his skull indented as a result and the applicant would likely develop seizures noting that once scar tissue formed in his brain it becomes a focal point from where seizures may generate. Dr. Quan further testified that he was telling the insurer (at the time) that the applicant was going to need some degree of assistance for the rest of his life and would never work again.

The applicant suffered another seizure on March 17, 1998 and was admitted to Montfort hospital where, according to Dr. Kindle’s notes, he remained until March 23. Dr. Quan described this seizure as more serious than the previous. Dr. Gow conducted 11 assessments in 1998 prior to her report of August 14, 1998, and following this seizure noted a “significant deterioration in function.” Dr. Gow also noted that toward the end of May 1998 a friend of the applicant’s family committed suicide, which “precipitated a significant deterioration in Mr. L.’s emotional status and function.” Dr. Gow concluded that the applicant had sustained a moderate traumatic brain injury in the 1995 accident noting that the “bi-frontal contusions had progressed over time to encephalomalacia in both frontal lobes.” The prognosis for considerable improvement was noted to be poor given the well entrenched symptoms and Dr. Gow noted that to date she had not worked with “a patient who has achieved a good outcome in the face of these injuries.”

Dr. Kindle’s clinical notes and records continued to document ongoing problems with neck pain and headache in April 1999, noting that the applicant’s headache was there all the time, on both the right and left side of the head and neck at different times since the motor vehicle accident. Dr. McCormack, physiatrist, in a follow-up report dated October 7, 1999 described the applicant as complaining of “chronic headaches” that were worse with stress and exertion. She concluded that the applicant continued to show evidence of “significant mood alteration and decreased initiation post-severe traumatic brain injury.” Dr. McCormack noted that the applicant had painted his wife’s bedroom which took him about one week and that he was able to do housework from time to time when he was feeling well.

2000-2003

Dr. Gow treated the applicant until June 13, 2000, preparing several progress reports. She noted that the applicant was able to increase his participation in some activities, but she remained unconvinced that he would continue to use her therapeutic suggestions beyond the reinforcement of the therapy session. She noted in her report of May 10, 1999 that the prognosis for considerable improvement remained poor. She referred to his discharge report from the REC in May 1998 indicating that little progress had been made. Her final report dated June 13, 2000, noted that there was little to report, the goal remained for him to decrease his napping and increase activity and she noted that he had begun to volunteer at the nursing home, which increased his fatigue.

Throughout 2000, Dr. Kindle noted a number of ongoing problems related to the 1995 motor vehicle accident. On March 31, 2000 she noted difficulty in hearing that may have been assessed after the accident. On August 21, 2000 she noted increasing burning in his feet that seemed to be caused by the medication Zostrix. An application for CPP disability benefits was completed by Dr. Kindle on December 17, 2000 where the diagnosis was post traumatic brain injury with “complications with seizure activity, depression, headache, tinnitus, problems with balance, fatigue, impairment in memory, severe impairment of information processing, distractibility, poor attention span, episodic emotional outbursts, impulse control problems, irritability, loss of taste and smell.” Dr. Kindle noted that the applicant’s condition was stable and that she had not seen any improvements in the last two to three years and his disability was permanent.

According to Dr. Kindle’s clinical notes, she saw the applicant quite frequently throughout 2001 and up to the motor vehicle accident of August 2003. The notes mention complaints around sleeping issues and of ongoing depression. On April 6, 2001, a note from Dr. Kindle states that the applicant had just returned from India three days ago, she testified that she recorded that while in India he was confusing people’s names which she ascribed to a lot of people being at his niece’s wedding. Dr. Kindle also noted depression, that he cannot think properly, “brain can’t function after two hours, can’t observe, have to read over and over again. Better after rest or a sleep. Tired, has to rest every couple of hours. At night, get awaken up at night after a few hours of sleep, usually just lying down.” A note from May 7, 2001 refers to the applicant having to use a cane to ambulate because of dizziness and not being able to balance himself.

The applicant was referred to Dr. Marshall resulting in a consultation report dated October 18, 2001. Dr. Marshall noted that when asked about his chief complaint, the applicant identified many areas of dysfunction and when completing the problem check list, endorsed all 43 items of problems that are commonly found after a brain injury, ranking physical items such as poor balance, difficulty pronouncing words clearly, fatigue and problems with taste and smell as the most predominant. Dr. Marshall recommended a driving assessment to evaluate the applicant’s abilities to drive and suggested that Effexor be prescribed to address depression. An occupational therapy driving evaluation was completed on December 4, 2001 and showed an improvement in the applicant’s reaction time and he was considered safe to resume driving. The report noted that the applicant was using a single point cane for extended activity or bad weather due to pain in the left knee and refers to his fatigue during the day. It is not clear when the applicant received his driver’s licence from the Ministry of Transportation, however, there is indication that he failed a written test in June 2002 and ultimately obtained his licence at some point after September 2002.

In a January 10, 2002 consult note, Dr. Sitwell, neurologist, noted that the applicant had remained seizure free for one year and had been allowed to drive after an assessment with Dr. Grinnell. Dr. Sitwell testified that it was for these reasons that he described the applicant as doing extremely well. In that same consult note, Dr. Sitwell described the applicant as being moody and losing his temper quite easily. With regard to receiving his driver’s licence, Dr. Sitwell stated that the applicant indicated that he wanted to get his licence back and though he had concerns, they were not strong enough that he would literally ban him and arranged to have him assessed by a psychiatrist whose opinion he trusted. In a letter dated October 7, 2002, Dr. Sitwell noted that the applicant remained seizure free on Epival 500 mg and Neurontin 400 mg and it was noted that his Effexor was replaced with Serzone 200 mg. Dr. Sitwell referred to a recent government decision disallowing a disability pension and stated that he did not think the applicant was “capable of holding down a job in any way, shape or form.”

Dr. Kindle recorded on March 5, 2002 that when the applicant is tired he becomes irritable with his family and she increased the dosage of his Effexor. During an attendance on April 12, 2002, Dr. Kindle described the applicant’s mood as “up and down” and again made a diagnosis of depression and at an appointment later that same month the applicant reported that the increase in Effexor was resulting in “bad dreams” and wanted to go back to Serzone. Dr. Kindle noted on May 29, 2002, that the applicant was still depressed and he informed her that his wife was no longer interested in him as a sexual partner and he was very upset. In the same note was a reference to a visit to Montreal where a friend woke him up telling him he was “making noise” while sleeping. Dr. Kindle recorded that the applicant went to Spain with his cousin in her note of August 8, 2002, however, she specifically notes that the applicant “didn’t feel better for long,” and again diagnosed depression. Dr. Kindle referenced the use of Vioxx for right and left knee pain and noted increasing his Serzone. On October 15, 2002, Dr. Kindle reverted the applicant’s medication back to Effexor at an increased dosage. On December 24, 2002 the applicant complained of feeling tired and having no energy and also described nightmares and weird dreams waking him up at 2 or 3 a.m. Of note is Dr. Kindle encouraging the applicant on December 24, 2002 and March 19, 2003 to increase his activity, however, her notes do not reflect that the applicant ever followed up on her recommendations.

In January 2003, Dr. Kindle noted that the applicant remained stable from a neurological point of view and was seizure free, his dosage of Effexor appeared to be lowered. A letter from Dr. Sitwell to Dr. Kindle dated February 4, 2003 noted that the applicant was going through a divorce and was going to lose his house and also states that the applicant did not feel capable of working. Dr. Kindle noted depression on March 19, 2003 indicating that the applicant’s house was for sale and that the intention was for Mrs. L. to move to her own place. The applicant could not understand why his wife wanted to leave after many years of marriage. During the assessment in March, the applicant had a complete assessment, he was on Vioxx, Effexor, Epival and Neurontin at the time. It was noted that he went to sleep at 9 p.m. and napped twice a day for 2 to 3 hours per nap and was dizzy in the morning. The report also notes the applicant reporting that he drank 5 to 6 glasses of wine per week. There is no mention in Dr. Kindle’s notes of any significant improvement in the applicant’s condition and no comment concerning the applicant supervising the care of his eldest daughter, building a large deck or an intention to start his own income tax business for taxi drivers, as alleged.

Motor Vehicle Accident of 2003

The motor vehicle accident at issue in this arbitration occurred in the evening of August 14, 2003, the first day of the province-wide blackout. The applicant was the front seat passenger of his vehicle being driven by Ms. Palwinder Sahi, his wife’s friend. The vehicle was struck at the front on the passenger side. There is some discrepancy about the speed of the striking vehicle but apparently the force caused the applicant’s vehicle to spin. The applicant was taken by ambulance to Etobicoke General. The ambulance call report notes: a small contusion to his right parietal along with no neck pain; he was not in obvious distress; he was alert and oriented x 3; there was no loss of consciousness; no air bag deployed; there was substantial damage to the vehicle; had been drinking one beer; the GCS score was 15/15 on two separate occasions; “headache” was noted as the final primary problem. The report also noted the earlier history of seizure and hypertension and recorded that the applicant had an old brain injury from 1994 with memory loss and recorded the medication that he was presently taking. Under “General Appearances,” it was recorded that the applicant was slow to respond verbally and specifically notes, “friend claims this is normal” (emphasis added). The applicant was assessed at William Osler Health Centre complaining of headache and the emergency personnel also recorded the previous brain injury from 1995 and resulting seizure disorder as well as the applicant’s current medications. According to her statement dated July 6, 2005, Ms. Sahi attended at William Osler with the applicant but declined to be treated, as she was fine. The applicant was discharged that same day with a prescription for Naprosyn and the report shows that he was informed to follow-up with his GP about the head injury in 2-3 days.

According to Dr. Kindle’s notes, she first saw the applicant on August 21, 2003 and the applicant provided a detailed description of the accident. She specifically noted that there was no loss of consciousness and there was no mention of subjective reports of loss of awareness or an altered level of consciousness. She noted that when the applicant drove back to Ottawa, he rested at a gas station for about an hour because he was tired and had pain in the right side of his head. Dr. Kindle next saw the applicant on August 26, 2003 along with Mrs. L. where the accident was not mentioned and the focus was on dealing with an issue with one of their daughters. A further attendance on September 4, 2003 noted the applicant still had tightness and pain in the shoulder area, problems with vision, problems with sleeping and pressure on the right side of his head. Dr. Kindle testified that at that time she decided to do a CAT scan to see what was going on. The CT of the head was taken on October 27, 2003 and did not show evidence of recent trauma.

The applicant attended at Montfort Health on August 26, 2003 for physiotherapy treatment. At the time of his initial assessment, he was complaining of neck and periscapular pain and headaches and the clinical impression was a WAD II with headaches with a prognosis for recovery to pre-accident function noted to be good. The applicant was discharged on October 2, 2003 and the report from Montfort notes that his physical complaints had resolved but for minor trapezious and there were no further complaints of headaches and he reported that his neck pain, which he noted to have had since the 1995 accident, had returned to the pre-2003 accident level. Dr. Kindle’s file contains a further treatment plan calling for physiotherapy and massage dated October 6, 2003, however, it appears that the insurer responded to this with information that the plan was incomplete and there does not appear to be further follow-up for physical treatment at that time on behalf of the applicant.

After the 2003 accident, the applicant first attended with Dr. Sitwell on October 9, 2003 where his seizure disorder was still noted to be stable and his medications were unchanged. At the time of this attendance, the applicant complained of headaches that resolved after 30 minutes of rest. Dr. Sitwell noted that the applicant was controlling his pain relatively well and suggested an increase in his Neurontin as a possibility to address the complaints of right-sided headaches if they became a persistent problem. Dr. Sitwell testified that based on his observations he did not have information to support that the applicant experienced any alteration in consciousness contemporaneous with the August 2003 accident or evidence of deterioration in his condition up to the incident of July 4, 2004 (detailed below). The applicant’s second attendance with Dr. Sitwell was February 12, 2004 where he noted that the applicant had misunderstood his instructions regarding the potential increase of his daily dose of Neurontin and noted that he was given a prescription that outlined an increase as high as 1200 mg PO TID (by mouth three times a day). Dr. Sitwell testified that he did not tell the applicant to use the maximum dose of Neurontin in February 2004 but to self-titrate and use the dosage as needed. As noted by the insurer, based on the prescription printout provided by the applicant it appears that the applicant did not increase his use of Neurontin until as early as June 2004. Dr. Sitwell testified that he did not have any evidence that the applicant had post-traumatic headaches after February 2004 and admitted that his appearance at the time did not cause him any concern about his level of cognition.

Dr. Quan first saw the applicant on March 24, 2004 after a referral from Dr. Kindle. Dr. Kindle testified that she referred the applicant to a psychiatrist because he had seemed better when she increased his medication but he was again complaining of depression. Dr. Quan testified that he felt the applicant sustained a traumatic brain injury in the 2003 accident after he reported that he had lost consciousness in the accident and the reported haematoma on the parietal part of the head. In his report dated April 14, 2004, Dr. Quan noted that the applicant “had a sense of some pressure in the right side of his head,” along with complaints of constant fatigue and depression. Dr. Quan stated that the applicant showed obvious evidence or psychomotor retardation, was despondent and withdrawn. He concluded that the applicant had dementia due to head trauma and suspected that his disrupted sleep exacerbated his depression and fatigue. It was suggested that the applicant start taking 1 mg of clonazepam to address his restless leg syndrome. Dr. Quan indicated that when the applicant was going through the history of his motor vehicle accidents, he realized that he had seen him before or at least had knowledge of him, recalling his involvement with the 1995 accident. Dr. Quan stated that during his initial assessment he recommended that the applicant participate in a sleep study as he had symptoms that suggested restless leg syndrome and sleep apnea.

July 4, 2004 and Beyond

An incident occurred on July 4, 2004 when the applicant was alone at his house and was walking his dog at around 9 p.m. In describing this incident to Dr. Kindle, the applicant stated that he could not remember what happened but suddenly “blacked out” and did not remember slipping. The note said that he hit his head on the ground and fell backwards when trying to get up hitting the back of his head on the garage door. The note stated that he was shaking and could not get up or walk so the applicant ended up crawling back into the house on his knees and went to bed. He ended up urinating in the bed and putting a towel down and going back to sleep. The note references pain on the right side of the head where a scrape was and pain in the top of his head. The applicant noted that he was feeling very tired and he had no nausea or vomiting. An EEG was booked which the applicant underwent on July 27, 2004 and the results were within normal limits.

Dr. Kindle queried whether the applicant had a seizure and told the applicant not to drive. In fact, he has not driven since this incident of July 4, 2004. There is a note in Dr. Quan’s file from November 30, 2004 noting that Dr. Kindle doubled his Effexor because he was feeling frustrated with his inability to drive. In that same note Dr. Quan recorded that the applicant was “[u]pset that Dr. Sitwell did not feel the seizures were due to his latest accident.”

The applicant attended next on August 19, 2004 and Dr. Kindle’s notes record that there was no seizure since the last visit and notes confusion and memory issues. There is mention that he was feeling depressed because of all the current changes in his life. The note records that the applicant’s house had been sold and that he would have a change in living quarters and would probably stay in Mrs. L.’s home while she was in India for 2 months. Dr. Kindle noted that the applicant was crying at the appointment, he knew his wife and eldest daughter would be okay and his main worry was his dog and the fact that he would miss his neighbourhood.

In a letter to Economical dated October 11, 2004, Dr. Kindle referred to the applicant’s headaches noting they were likely due to the 2003 accident. She also referred to the applicant’s seizure disorder that started in July 1997 noting that he had been seizure free since March 1998 and had a breakthrough seizure on July 4, 2004. Dr. Kindle stated that she could not say whether the 2003 accident caused him to have this seizure indicating the insurer may want to seek an expert opinion and to contact Dr. Sitwell.

A letter from Dr. Sitwell to the applicant’s solicitor dated November 12, 2004 notes that he first saw the applicant in March 1998 and even at that time he had a history of seizure disorder. Dr. Sitwell stated that just prior to the 2003 accident, the applicant had been relatively stable and his seizures were under relative control since 2001. He also noted that prior to the accident, he was suffering occasional post-traumatic headaches and that depression was a considerable problem, noting his marital stress. Dr. Sitwell stated that it was difficult to determine the applicant’s seizure frequency since the 2003 accident noting again that he was having breakthrough seizures in 2001. Dr. Sitwell indicated that he could not rule out the possibility that the seizures were exacerbated by the 2003 accident, but also noted that some patients with post-traumatic seizures note an increase in their frequency as they get older. Dr. Sitwell summarized that the applicant had seizures from the time of his 1995 accident and stated that “[a]lthough his seizure frequency might have increased transiently after the second accident . . . he has actually been relative seizure-free over the past two months.”

There is an undated letter in Dr. Sitwell’s file from the applicant’s eldest daughter that appeared to be faxed to him on November 26, 2004. In her letter, Ms. L. states that over the last few months she has seen her father’s condition deteriorate and he was becoming much more dependent on the family. She notes that he had fallen down the stairs many times and they find him asleep on the toilet or on the floor. She notes that her mother was in India at the time of writing her letter and the applicant was spending weekdays alone at home which caused her concern. She again states that “[t]he last little while has been very hard on my family. I just feel that he was much more independent before (still needed some help) but now he’s just become someone else, someone who needs constant care and attention.”

In late 2004 the applicant was diagnosed with sleep apnea and in a letter dated February 23, 2005, Dr. Murphy, otolaryngologist, indicated that the sleep study was done after a referral for snoring. Dr. Murphy noted the past accident with severe brain injury and that the applicant dated the onset of the sleep apnea to the time of this accident and the subsequent rehab. Dr. Sitwell testified that sleep apnea had the potential to aggravate the applicant’s seizure disorder. Dr. Quan testified that for someone with a brain injury such as the applicant, sleep apnea would worsen his depression and fatigue.

In February 2004, Dr. Kindle noted family discord and a notation “gets more headaches when he is under stress.” In the fall of 2005, she recorded that the applicant had lent a friend $300,000.00 and never got the money back. In February 2006, she recorded that the applicant was in an altercation with this same acquaintance that involved his being grabbed from behind while in a moving vehicle put in a headlock and being punched on his face/neck on the left side. It was noted that the applicant got out of the vehicle at a red light and proceeded to break the windows of the car on the passenger side with his cane and ultimately police were called. Dr. Kindle noted on February 6, 2006 that the applicant had left face pain and neck pain in the throat area, “since that person choked him,” and also that the applicant’s daughter was getting married and he wanted to have some money back. There were other instances of financial stress, Dr. Kindle noted on September 18, 2007 that the applicant was not happy with the settlement from his tort action concerning the 2003 accident.

In July 2006, there was a fire at an investment residence owned by the L.’s where the applicant acted as property manager and occasionally stayed; he was there at the time of the fire. A news article about the fire appeared in Dr. Sitwell’s file who testified that the stress and depression resulting from the event could have an effect on the applicant’s headaches.

Dr. Gow conducted a neurological assessment in July and October 2005 resulting in her report of February 28, 2006. Dr. Gow noted that the applicant appeared to have been very briefly dazed with no apparent loss of consciousness as a result of the 2003 accident. She noted that the applicant appeared confused and slow to the witness at the scene of the accident and remained with residual dilapidation in his cognitive status. She concluded that it was “simply not possible to state with any degree of certainty whether the second accident (2003) produced additional cerebral damage.” She concluded that the applicant’s slowing of mentation, impaired sustained attention, inefficiency in retrieving information from memory, dissociation between intact motor speed and impaired dexterity and impaired initiation and generation could just as easily be ascribed to his depression as to a traumatic brain injury. However, Dr. Gow stated that given the applicant’s known cerebral vulnerability, he was at increased risk to sustain additional, permanent cognitive and behavioural effects as a result of the putative, mild traumatic brain injury. She stated that it was predictable that the applicant would interpret the new event as very traumatic and that this perception would interact with any genuine change that resulted from the injury. Dr. Gow stated that the second accident was the catalyst for the applicant’s current setback and could be directly implicated in the dissolution of his marriage.

The OCF-19 of March 6, 2007 was completed by Dr. Quan and described the impairment resulting from the accident as “extreme impairment (class 5) due to mental and behavioural disorder resulting from severe brain damage, more than 55% impairment of the whole person.” Dr. Quan indicated that the applicant met the criteria for catastrophic impairment under section 2 (e) and (f) of the Schedule. Dr. Quan referred to the traumatic brain injury with bilateral frontal lobe contusions from the 1995 accident which he noted predisposed him to further injuries to his brain in the August 14, 2003 accident rendering him incapable of living on his own, subject to seizures, impaired memory and poor executive functions.

In a letter dated September 17, 2010 to applicant’s counsel, Dr. Quan describes the applicant’s injury from the 2003 accident as a large hematoma.² He referred to his 2004 assessment noting that the applicant was severely depressed with indications of a sleep disorder and states that at the time the applicant was unable to drive as a result of a resurgence of seizures, a condition that had improved just prior to the 2003 accident. Dr. Quan refers to an increase in the severity and frequency of seizures noting that he had lost his licence again. Dr. Quan stated that brain injuries were cumulative and opined that the applicant “most probably did experience a significant exacerbation of his condition as a result of the motor vehicle accident occurring in 2003.” He noted that the depression had increased in severity resulting in the psychiatric referral for treatment. Dr. Quan referred to the left temporal damage shown on the 2009 MRI and stated that it seemed that the temporal lobe, parietal lobe and right cerebellar lesions were new, having developed since the 2003 accident. Dr. Quan stated that as a result of the cumulative damage to the applicant’s brain, “over the course of the years, has been left with post-traumatic epilepsy, dementia, major depressive disorder most likely of an organic origin as well as other issues and problems including diabetes, sleep disorder and osteoarthritic conditions.” He concluded that the prognosis was very guarded and that he thought the applicant satisfied the criteria for a designation of catastrophic injury with a need for supervision of one kind or another for the rest of his life.

Dr. Reesor, psychologist, prepared a report dated March 4, 2008 at the request of applicant’s counsel in order to comment on the CRAC CAT assessment. At the outset of his report, Dr. Reesor refers to the OCF-19 prepared by Dr. Quan and his reference that the injuries from the 1995 accident predisposed him to further injuries to the brain. Dr. Reesor referred to the executive summary of the CRAC assessment and concluded that even though the final whole person impairment (“WPI”) was not calculated by the assessors it was entirely reasonable to assume that according to their numbers the applicant would meet the 55% WPI.

Dr. Reesor stated that the CRAC assessors appeared to be taking the position that although the applicant may be catastrophically impaired at the time of their assessment, it was not as a result of this accident when taking into consideration the issues of causation and apportionment. In the opinion of Dr. Reesor, the main issues in the case came down to a determination around aggravation and apportionment. Dr. Reesor stated that at a basic level, apportionment is determined by estimating the pre-existing impairment and subtracting that from a current impairment to account for the effects of an intervening event such as the August 2003 accident. Dr. Reesor suggested that it was probable that as a result of the 1995 accident the applicant was at or near what would be considered a catastrophic impairment as defined by the Schedule prior to the August 2003 accident.

Dr. Reesor wrote that the 2003 accident resulted in injuries and aggravation of pre-existing problems and that it was more probable than not that the injuries sustained in the 2003 accident, given his pre-accident vulnerabilities, led to persistent sequelae and problems. Dr. Reesor stated that it was probable that the 2003 accident introduced new and more extensive symptomatology than existed prior to the accident. He referenced the Guides which sets out that there is an aggravation when there is a greater than 3% increase in WPI and stated that it was reasonable and conservative to estimate a range of 5-15% increase in the applicant’s overall impairment rating as a result of the 2003 accident. Dr. Reesor referenced the criteria in the Schedule and noted the wording that an impairment caused by an accident “results in” the impairment as noted in the Guides. He stated that “[a]n interpretation of that phrase ‘results in’ would mean that the pre-existing impairment is added to the new impairments or aggravations.”

In a letter from Dr. Gow to the applicant’s solicitor dated September 16, 2010, a number of scenarios of how the 2003 accident may have contributed to the applicant’s condition were discussed. Dr. Gow found that the best scenario was that the 2003 accident materially contributed to the applicant’s current condition. She opined that the 2003 accident “likely resulted in a mild, traumatic brain injury,” and with an individual with the applicant’s pre-morbid vulnerabilities resulted in a deterioration of his function and escalation of his emotional disinhibition, increasing his depression and focus on disability at the same time losing his primary support network. In referring to the traumatic brain injury, Dr. Gow again referred to the “brief alteration of consciousness” from the 2003 accident.

The Custom Rehab CAT Assessment

The conclusion in the executive summary of the CRAC CAT assessment was that the WPI rating attributed to the 2003 accident was 0%; the applicant did not meet any of the criteria for a finding of catastrophic impairment from this accident. It was determined that there was evidence that the applicant suffered from a class 5 impairment (extreme impairment) due to a mental and behavioural disorder under criteria (g) that would meet the threshold as a result of the 1995 accident. It was concluded that the 2003 accident did not aggravate or exacerbate the applicant’s pre-existing psychiatric disorder nor did it result in a new psychiatric disorder.

Dr. Dost conducted a neurological assessment on May 11, 2007. There were four main factors that dissuaded him from finding that the 2003 accident resulted in a mild traumatic brain injury, being: no loss of consciousness; CT scan after the 2003 accident showed no change from previous studies; the neuropsychological evaluation of Dr. Gow showed no significant change in impairment; and, the existence of a multitude of other factors that could affect his cognition. In his review of the medical records, he noted the presence of multi-focal parenchymal calcifications in CT scans taken after the 1995 accident, noted to be associated with serious depressive syndromes, as well as seizure disorders. Dr. Dost recorded that from a physical neurological perspective the applicant had a number of complaints, which were outlined in his report including, decrease in sense of smell and taste, blurred vision, sleep disturbance and bilateral tinnitus.

Dr. Dost did not assign a WPI rating noting that the symptoms existed pre-accident. He referred to the complaint of light-headedness and balance difficulty noting that the applicant was now using a cane and opined that there was no organic neurological explanation for the balance difficulty. He also did not assign a WPI rating for the episodic tingling in his hands given that it did not cause any functional impairment and there was no evidence of the second motor vehicle accident having contributed in any way. Dr. Dost also felt the reported tingling and burning in both feet, although uncorroborated on examination, was unrelated to the second motor vehicle accident and no WPI was applied. Dr. Dost concluded by commenting that he did not agree with the view that the post-traumatic epilepsy was exacerbated by the second motor vehicle accident necessitating an increase in the medications which is causing fatigue and neurocognitive complaints. He stated that the applicant suffered a very serious brain injury in the 1995 accident and it is “well known in the cohort of patients epilepsy is secondary to structural lesions, which this gentleman has, and epileptic control is often very difficult with periods of remission and relapse.”

Dr. Dost also pointed to “a multitude of factors” unrelated to the 2003 accident which could have increased his seizure frequency including sleep apnea and psychological stressors combined with the fact that there was no objective evidence that the applicant suffered a traumatic brain injury as a result of the 2003 accident.

Dr. Dost testified that he ultimately gave cognition a zero rating. He stated that when looking at cognition, he separates into neurological causes of cognitive decline and non-neurological causes of cognitive decline. In the primary neurological causes, it was concluded that there was no evidence for a traumatic brain injury as a result of the 2003 accident for a number of reasons. Dr. Dost stated that the applicant did not satisfy the diagnostic criteria required for traumatic brain injury which was noted to be well-published by a number of organizations. According to Dr. Dost the criteria requires one of the following at the time of the accident: loss of consciousness; amnesia for the events (either retrograde or antrograde); focal neurological deficit (stroke-like symptoms), paralysis on a side; a depression of the GCS; or, lack of orientation. Dr. Dost pointed out that “lack of orientation” was not a subjective report but was a based on testing at the time of the accident. Given that these criteria were not satisfied, he could not make a diagnosis of traumatic brain injury. When questioned about the entry “amnesic” on the emergency report, Dr. Dost stated that it was his opinion that it meant there was no amnesia present. He stated that if amnesia were present some description would be present to describe the duration and note what he does and does not recall; this descriptor was noted to be crucial for grading the injury. Dr. Dost testified that the fact that the ER doctor recorded that there was a prior head injury and seizure disorder, in his opinion and experience, they would be more careful in treating these populations.

Dr. Dost testified that a post-traumatic headache disorder was not a reliable marker noting that people who have significant sequelae from traumatic brain injury may not complain of headache and people who have no traumatic brain injury whatsoever could have headache as a primary complaint. Dr. Dost also testified that the fact that the applicant was able to drive back to Ottawa told him that this was not a significant concussive event. He testified that this was a gross measure but that driving involved the integration of memory, processing speed, visual spatial abilities, eye/hand co-ordination, multi-tasking, judgement and forethought. The applicant’s ability to drive, even after resting for three or four days, was an indicator that his brain was functioning at a level where he was able to drive, being unusual for a concussed individual. Dr. Dost testified that an individual with pre-existing problems, the threshold would be a lot lower and the applicant would have experienced a lot more than what was seen on the ambulance call and emergency reports.

Dr. Rashid, neuropsychologist, completed an assessment on May 29, 2007 noting that the applicant’s performance on most measures of neurocognitive functioning indicated substantial impairments. He associated most of the impairment to be directly related to the cerebral impairment recorded by various evaluative processes following his injury in the 1995 accident. The applicant’s “severe depression” was noted to be a result of this cerebral impairment which caused him to experience functional maladjustment. Dr. Rashid concluded that although the applicant was substantially impaired, it was not as a result of the motor vehicle accident of August 14, 2003.

Dr. Lexier conducted an orthopaedic assessment resulting in a report of June 8, 2007. At the assessment, the applicant’s chief complaint was noted to be low back pain with a secondary complaint that his head was swollen. He also complained of pain in both knees and that his balance was not right. The applicant dated the onset of these complaints to the 2003 accident. Dr. Lexier set out the documents he reviewed prior to making his determination and found that as a result of the 2003 accident the applicant sustained a contusion of the right temporal region, a strain of the lumbosacral spine and a Grade II acceleration-deceleration injury to the supporting musculo-ligamentous structures of the cervical spine with a normal time to resolution being six to eight weeks.

Dr. Finkel conducted a psychiatric assessment on June 11, 2007 and concluded that there was little objective evidence to support the proposition that the applicant sustained an additional brain injury in the 2003 accident. Dr. Finkel referred to the subsequent imaging studies that were negative in terms of finding any new changes and the ambulance call report noting no loss of consciousness and a GCS of 15/15. Dr. Finkel stated that as a result of the 1995 accident, the applicant suffered significant personality change with symptoms of irritability, aggressiveness and social withdrawal complicated by symptoms of depression. He concluded that neuropsychological testing was unable to determine any clear evidence of a decline in function resulting from the 2003 accident in comparison to assessments predating that accident. Dr. Finkel testified that he would have expected only a modest chance of improvement after June 2000, the time Dr. Gow stopped her treatment, given that in most cases the bulk of the recovery from a significant brain injury occurs within the first 5 years post-accident. Dr. Finkel testified that the chances of additional improvement after the first five years, when there has been little improvement, were significantly less. Dr. Finkel noted that Dr. Kindle’s records do not contain any indication of change in mood after the August 2003 accident until November 2003 and testified that if there had been symptoms of emotional trauma they should have shown up acutely, within days to a couple of weeks. Dr. Finkel pointed out that in Dr. Quan’s records he felt there was very little mention of the accident and most of the references were with respect to financial concerns, family stressors and marital separation. Dr. Finkel testified that if it had indeed aggravated the applicant’s depression he would have expected to see more or a reference or a pre-occupation with the accident.

Dr. Finkel disagreed with Dr. Reesor noting that Dr. Reesor had only conducted a document review and the basis on which he established a change in function was based largely on self-reporting or from what was gleaned from others about the applicant’s self-report. He also noted that Dr. Reesor attempted to assign a WPI rating in which he addressed physical concerns which was outside of his area of expertise. Dr. Finkel responded, when asked about the applicant’s alleged improvements prior to the 2003 accident, that he would be shocked and surprised that these things would be possible. He noted the potential for improvement in his mood with the insurance settlement from the first accident taking place around this time, but noted that despite the alleged improvements from 2000 to 2003 there was barely a couple of months during that period when he is not treated with antidepressants by his family physician. Instead, what Dr. Finkel noted in this period was a discontinuation of one medication and the introduction of a new one with gradually progressively increasing doses toward the accident of 2003.

An OT assessment was completed by Ms. Noori and she concluded that at the time of her assessment the applicant was catastrophically impaired. Ms. Noori did not comment on the applicant’s condition relating to the 2003 accident and left questions of causation to be addressed by the other medical professionals in the team.

ANALYSIS

Credibility

The applicant did not testify at the hearing. His wife H.L., his eldest daughter R.L. and youngest daughter A.L. gave testimony about the applicant and his condition both before and after the 2003 accident. In addition, the applicant’s cousin David gave evidence along with Mr. Gil, a friend. The applicant’s lay evidence in many parts paint a picture of a considerably improved man in 2002/2003 in comparison with the last formal assessor’s final opinions in 2000 which showed a man with little improvement and little hope for future improvement. In many ways, the applicant’s current condition was predicted to occur by treating doctors following the 1995 accident. The importance of this alleged improvement is therefore crucial to my decision given that without this improvement it would appear that the applicant’s condition was one of stabilization and decline over the years as a result of the motor vehicle accident of 1995.

In a case such as this, the evidence of the lay witnesses as to the applicant’s condition at a certain time in the past, must be weighed against the contemporaneous information in the medical files and reports from the treating doctors. In my view, this medical evidence does not support the testimony of the lay witnesses that the applicant had significantly improved prior to the 2003 accident. In fact, the medical information supports that the applicant continued to deal with complications that resulted from the 1995 accident up to the 2003 accident and beyond.

Dr. Gow testified that in attempting to render her opinion regarding the effects of the 2003 accident, she tried to get information from the applicant about any change between the time she last saw him in 2000 up to the August 2003 accident. Dr. Gow testified that the applicant never told her about building a deck although she noted that the information would have been relevant, she also confirmed that at no time did he articulate wanting to do tax returns as a business or his property management endeavours. Dr. Gow explained that normally people are focused on what is wrong with them and not reporting the things that they are able to do. However, this did not explain why the applicant did not provide this information when Dr. Gow is trying to assess the changes from the 2003 accident. According to Dr. Gow, she spent a lot of time with the applicant trying to identify the change in him from prior to the 2003 accident until the time she saw him following same, yet despite these efforts the applicant did not provide information that substantiates the evidence of improvement as alleged by the lay witnesses.

I find it significant that Dr. Kindle’s notes do not corroborate the testimony of the applicant’s family members that he had considerably improved before the August 2003 accident. For example, Dr. Kindle saw the applicant shortly after his return from India (the notes say three days after) and a number of concerns were noted including depression but there was no mention that his return was sudden and out of urgency concerning the health of his eldest daughter who had attempted suicide. Also, the man who Dr. Kindle describes in that note does not appear in any condition to be supervising the care of an ailing daughter as alleged. Dr. Kindle testified that she had no report that the applicant took control of the care of his daughter. It does not make sense that the applicant would not mention this to Dr. Kindle when he saw her so shortly after his return from India. I do not rely on the family’s testimony about the extent of the applicant’s assistance with his eldest daughter in her recovery. Clearly he was living in the same home and was involved in his daughter’s care, but to find that the actual extent of care that he was giving to be reflective of a significant recovery of his 1995 brain injury is not a finding I am prepared to make given that it is not supported by the medical evidence.

Despite her encouragement on at least two instances to increase his activity, the fact that Dr. Kindle’s notes do not record any of the alleged improvements is troubling and I cannot put the significant weight to the lay testimony that the applicant is requesting. It seems to me that right up to the time of the motor vehicle accident, the applicant, as predicted, continued to suffer from the sequelae from the 1995 motor vehicle accident.

While I do not find that the L. family were being intentionally misleading, I do find that they gave their evidence in a way that would be most helpful to M.L.’s success in this arbitration. Clearly, the applicant suffered a serious brain injury in the 1995 accident that was certainly devastating to him and his family. This had documented ongoing ramifications for the L. family with ups and downs all the way up to the 2003 accident. The preponderance of evidence does not support that the applicant had significantly improved prior to the 2003 accident and does not support that the applicant sustained a traumatic brain injury in that accident. I find that the improvements the L. family are referring to prior to the 2003 accident were in fact not to the degree where the applicant had significantly improved but were minimal and their observations and testimony is more about seeing a loved one improve slightly and seeing a more significant improvement than actually existed.

Causation

The question before me is not what caused the applicant’s current condition but whether or not the 2003 motor vehicle accident caused or materially contributed to his current condition and complaints. The burden of proof rests with the applicant to show on a balance of probabilities that he was catastrophically injured as a result of the motor vehicle accident of August 14, 2003. For the following reasons, I find that the applicant has not met that burden.

The general test for causation is the “but for” test and requires that the applicant show on a balance of probabilities that but for the motor vehicle accident, his current condition would not have occurred. The Supreme Court of Canada in Athey v. Leonati stated that when the “but for” test is unworkable causation can be established where the applicant shows, on a balance of probabilities, that the accident “materially contributed” to the current condition. The Supreme Court stated that:

The “but for” test is unworkable in some circumstances, so the courts have recognized that causation is established where the defendant’s negligence “materially contributed” to the occurrence of the injury . . . A contributing factor is material if it falls outside the de minimis range . . .

In Snell v. Farrell, supra, this Court recently confirmed that the plaintiff must prove that the defendant’s tortious conduct caused or contributed to the plaintiff’s injury. The causation test is not to be applied too rigidly. Causation need not be determined by scientific precision . . . it is “essentially a practical question of fact which can best be answered by ordinary common sense”. Although the burden of proof remains with the plaintiff, in some circumstances an inference of causation may be drawn from the evidence without positive scientific proof.³

I find that the evidence supports that the applicant did not sustain a catastrophic impairment in the 2003 accident nor did the accident materially contribute to the applicant’s current condition. The most persuasive evidence surrounds the actual event itself and I find that together the ambulance call, emergency report, doctor’s notes from August and September 2003, records from Montfort Health and CAT scan of October 27, 2003 do not support that the applicant sustained a traumatic brain injury in the 2003 accident.

Of all of the medical professionals that testified, all but Dr. Sitwell agreed that there must be an altered level of consciousness at the event in order for the applicant to have sustained a traumatic brain injury in that accident. Even Dr. Sitwell, who could not agree fully in testimony, stated that this was more probable than not. In testimony, Drs. Sitwell, Quan and Reesor acknowledged that they had not been provided with a copy of the ambulance call or emergency report prior to formulating an opinion on whether a catastrophic injury was sustained in the 2003 accident.

Dr. Gow testified that she felt a finding of a mild traumatic brain injury sustained in the 2003 accident was necessary in order for the accident to have materially contributed to the applicant’s current condition. She testified that she did not think the 2003 accident would be considered to have materially contributed to the applicant’s condition if a brain injury was not sustained. Dr. Gow testified that when diagnosing a traumatic brain injury, the ambulance call and emergency report are typically the two greatest sources of information to help determine if there was the presence or non-presence of an altered level of consciousness. She testified that also relevant were the police report and witness statements especially given that typically the loss of alertness happens for seconds which would not get recorded on an ambulance call. Dr. Gow testified that she based her opinion that there was a mild traumatic brain injury on the witness statement and the applicant’s reporting to her that there was a loss of consciousness. This is problematic for the applicant’s claims, given what the witness actually informed the ambulance personnel and that there is no indication, other than subjective reporting, that the applicant experienced memory loss for this accident.

There is no indication that the applicant experienced any altered level of consciousness following the 2003 accident, in the recording of the event to Dr. Kindle, the two documents from the day of the accident and even in his own family’s recollection of the events. In fact, according to Mrs. L., she did not think this was a major accident. In her testimony, she did not mention any indication given to her by either Ms. Sahi or the applicant, when first speaking to them by telephone about the accident, that the applicant was disoriented or that there was any reason for concern. Also, I do not accept the applicant’s assertion that he had to rest in Toronto for a few days before attempting to drive back to Ottawa. If that were the case, Mrs. L. would have testified to having that sort of discussion with either Ms. Sahi or the applicant. All Mrs. L. stated about her discussion following the accident was that “there was an accident and [M.L.] was fine.” This is one example of how the applicant has exaggerated the events surrounding the motor vehicle accident after the fact to show that he sustained a more significant injury rather than the actual reality.

Ms. Sahi provided a statement of July 6, 2005 detailing a different interpretation concerning the applicant’s state immediately following the accident than what she initially told the medical professionals at the time. In her 2005 statement Ms. Sahi stated that they were both in shock after the accident and the applicant indicated he was hurt: “and then was saying something to me but he was mumbling and slurring his words and I couldn’t understand what he was saying; he seemed disoriented.” Other than the shock about an unexpected accident which both parties experienced, I give this statement no further weight given that it is not what Ms. Sahi informed the accident attendants at the time. I do not accept that the applicant was slurring his words or communicating in any way different than he was prior to the accident because if he were, Ms. Sahi would have communicated same to the emergency personnel. Instead, the only recording of communication issues noted on the ambulance call specifically states that Ms. Sahi informed them that he was this way before the accident. Had Ms. Sahi really been concerned that the applicant was displaying a different affect after the accident, she would have communicated this to the ambulance attendant or emergency personnel, instead of telling them that he was this way before the accident and only telling someone of this “disorientation” almost two years after the fact. Without testimony from Ms. Sahi explaining this discrepancy, I give this part of her statement no weight.

I also find that the subject motor vehicle accident was not a material contributor to the applicant’s condition post July 2004. In the time following the motor vehicle accident of August 14, 2003 and up to the incident of July 4, 2004, the records do not support that a significant injury was sustained in the 2003 accident. It is apparent that the applicant experienced a temporary increase to his right side headaches by way of pressure on the right side of his head from the 2003 accident that was noted to have resolved around February 2004 by Dr. Sitwell. In a note of July 19, 2007, Dr. Sitwell stated that any increase in the applicant’s headaches following the 2003 accident was transient. As well, any musculoskeletal issues that arose from the accident seemed to be successfully dealt with in the initial treatment by the applicant’s own reporting in October 2003 and no complete treatment plan to address musculoskeletal symptoms was submitted. The applicant tried to involve himself with outside activities at the Vista Centre which was something that he had not pursued in the years prior to the 2003 accident. The applicant did not report a change to his pre-existing depression in the first few months after the accident and the records do not support any pronounced change in the applicant’s functional ability. Dr. Zachon’s assessment was that there was no visual abnormality. The applicant continued to drive and there was no reporting of his becoming less capable of completing his activities of daily living. From the evidence, as well, during this period the applicant was moving closer to the point where he would be moving out of his family residence and separating from his spouse of over 20 years.

In his first and subsequent visits with Dr. Kindle since the accident, she did not record any reduced attention or concentration, there was no word finding difficulties or diminished comprehension, there was no change in his personality or demeanour or an increased report of fatigue, irritability, low back or knee pain. In fact, during her testimony, Dr. Kindle acknowledged that she was not concerned that the applicant sustained a brain injury at the time of her August 2003 assessment.

According to chapter 2 of the Guides “the first step in assessing an individual’s impairment is gathering thorough and complete historical information on the medical condition(s) and then carrying out a medical evaluation supported by appropriate tests and diagnostic procedures.” According to the Guides “[t]he second step in assessing the impairment is analyzing the history and the clinical and laboratory findings to determine the nature and extent of the impairment or dysfunction of the affected body part or system.”

I find that the assessments completed by the insurer assessors are the most complete and reliable starting with an examination of the key source documents which do not support that the applicant experienced an altered level of consciousness. It appears that the ambulance attendants were wary of this vary issue given that the applicant appeared to them to be slurring his words but this was clarified by Ms. Sahi when she informed them that this was normal for the applicant.

The applicant submits that the insurer assessors determined that the 2003 accident was not the cause of his impairment and that they failed to take into consideration the degree of change alleged in the few years prior to the 2003 accident. It is apparent that Dr. Dost and Dr. Finkel were the only experts that testified who actually reviewed the family doctor’s pre-accident clinical notes and records, the ambulance call and the emergency report prior to rendering their opinion that the accident did not play a material role in the applicant’s condition. I find that the insurer assessors more closely followed the protocol to assess the applicant pursuant to the Guides and their conclusion was reasonable and supportable. Dr. Dost gave a thorough review of the criteria for establishing traumatic brain injury and his evidence was convincing with regard to a lack of brain injury in the 2003 accident or any increase in seizure activity as a result. Dr. Finkel’s evidence supported that the 2003 accident did not cause or contribute to an increase in the insured’s behavioural and emotional impairments. Further, these conclusions are supported by the applicant’s treating physiotherapist and by his own reporting in October 2003.

I reject the applicant’s submission that comments about CRAC made by another arbitrator of this tribunal are relevant to my consideration in this instance. In fact, I find the CRAC assessment the most useful objective analysis regarding the contribution from the 2003 motor vehicle accident to the applicant’s current condition. The applicant’s case is premised on a significant pre-accident improvement that is supported almost exclusively on the evidence of his family and friends. The consensus among the medical experts that testified at the hearing was that a traumatic brain injury must have been sustained in the motor vehicle accident of 2003 for it to make a material contribution to his condition. There simply is no objective evidence that this occurred. The expert evidence that supports this is premised on a statement made in 2005, which I do not accept, and the applicant’s subjective reporting of memory loss in the face of conflicting contemporaneous evidence. After reviewing the totality of medical evidence provided, I agree with the conclusions of the CRAC assessment team.

The consult note from Dr. Sitwell dated October 9, 2003 verifies that the headaches reported by the applicant following the 2003 accident were not significant in nature and did not result in the decrease of function or a need for treatment. Dr. Sitwell testified that he did not have any great concern about the applicant’s presentation in October 2003 and that he treated him for an increase in headaches after a blow to the right side of his head the nature of which being reported by the applicant did not appear to be serious. Dr. Sitwell testified that based on his presentation he would not be surprised to hear that the applicant was driving at the time of this assessment and agreed that his driving back to Ottawa after the accident involved a significant level of cognitive functioning.

Dr. Gow is equivocal in her view that a brain injury was sustained in the 2003 accident in her report of February 28, 2006. Further, prior to rendering her opinion that the accident was a material contributor in her report of September 16, 2010, she testified that she had not received an updated medical brief which would have included records after September 2004. Dr. Gow testified that the applicant’s condition would have been vulnerable to life stressors and she agreed that to be completely thorough she should have reviewed the updated file. She agreed that Dr. Kindle’s concern about the effect of alcohol in May 2007 would have been important information to consider. Instead, Dr. Gow testified that she took on faith when she was told that there was no further medical event that occurred that would contribute to the applicant’s brain injury or his neurological status. In addition, Dr. Gow had before her the pre-accident records of Drs. Kindle and Sitwell which both reference the applicant’s impending marital separation, yet she indicated in her report of February 28, 2006 that the 2003 accident was directly implicated in the breakup of his marriage. Dr. Gow testified that she relied on her interview with the applicant to a significant extent when forming her opinion about his marriage and admitted that it was problematic to rely on his description of the accident given his memory issues. I find that Dr. Gow ignored evidence that did not support a finding of catastrophic impairment from the 2003 accident and her evidence is mostly not helpful in making my findings.

Dr. Quan confirmed that he was making a diagnosis when he completed the OCF-19 and that he did not review the emergency record, ambulance call and pre-accident notes of Dr. Kindle. Dr. Quan agreed that he would want to review these documents but stated he was quite convinced that the applicant suffered serious damage and wanted to make a concerted effort to get him as much help as possible. Dr. Quan agreed he would have some doubt if an ambulance call that stated no loss of consciousness – oriented times 3, and also would want to know that he was discharged from the emergency without a head injury protocol. While giving testimony, Dr. Quan seemed surprised to learn that the applicant drove home to Ottawa after the accident indicating that it would have been important information to have had, given that driving involves a lot of cognitive functioning. Dr. Quan agreed that it was possible that even without a further traumatic brain injury, the applicant’s current condition could be as a result of the 1995 injury. Dr. Quan also confirmed in testimony that he did not review Dr. Kindle’s notes before writing his letter of 2010.

Although Dr. Quan completed the OCF-19, he testified that strictly speaking the diagnosis of brain injury was outside his area of expertise. He also testified that when completing the OCF‑19 he did not consult the Guides. He agreed that the Guides call for a review of the records from other health professionals and though he had some documents he did not have a large part of them. Dr. Quan also testified that he did not ask the applicant about his abilities before the 2003 accident. Dr. Quan testified that in making his diagnosis of traumatic brain injury, he relied on the applicant’s subjective reporting of experiencing a loss of consciousness in the 2003 accident but confirmed that he did not review the ambulance call or emergency report which I find does not support this view.

Dr. Reesor testified that he assessed the process that the applicant went through in the CRAC assessment starting with the assumption that the CRAC assessors had already completed the review process, he did not examine the applicant prior to writing his report of March 4, 2008. He confirmed that his understanding of the causation issue was whether or not there was any material or substantive contributions from the 2003 accident that resulted in a catastrophic impairment. Dr. Reesor testified that the CRAC assessors found that the applicant was not considered catastrophically impaired after applying the concepts of causation and apportionment. Dr. Reesor relied on the reports of Drs. Gow, Sitwell, Marshall and Kindle, testifying that he based his opinion on the same information that was in the CRAC assessor’s possession. However, he confirmed that he did not review the ambulance call, emergency report or Dr. Kindle’s notes. I do not find that the evidence of Dr. Reesor is reliable given that he did not consider the underlying source data before completing his review of the CRAC assessment and, in fact, before giving his testimony at this hearing. I agree with the insurer that it is impossible for Dr. Reesor to critique the CRAC process, especially issues of causation and issues concerning impairment ratings without having available the same clinical records that supported the conclusions made by the CRAC assessors.

Dr. Reesor relied on the opinion of treating health professionals in the face of contradictory source documents. He testified that he preferred the view of Dr. Gow with regard to the 2003 accident being responsible for the marital breakup, despite Dr. Sitwell’s note from February 2003 and Dr. Kindle’s pre-accident notes suggesting otherwise. Dr. Reesor testified that he was unaware that Dr. Gow had not reviewed Dr. Sitwell’s notes prior to coming to her own conclusions on the marital breakdown. However, he testified that he would rely on the judgment of treating professionals such as Dr. Gow even if he was unaware whether she had a complete clinical history. The trouble with Dr. Reesor’s evidence is illustrated in his admission that Dr. Quan’s reporting that the applicant was driving after the 2003 accident with no problem would have been important information to have when he prepared his report in 2008, information that would have been available if he had reviewed clinical notes and records.

The applicant points to a 2009 finding of encephalomalcia in the left temporal lobe and the deposits of hemosiderin found on the MRI of June 26, 2009 and compares it to the MRI of 1997. The applicant argues that the 2009 MRI shows far more extensive damage, which he attributes to the 2003 accident. However, these two MRIs cannot be compared given that the 1997 MRI was incomplete. Dr. Dost examined the MRI from June 25, 2009 noting that it showed extensive encephalomalacia (softening of the brain) in the frontal lobes and in the left temporal lobe. When asked to compare this MRI to the one from 1997, Dr. Dost pointed out that the 1997 MRI notes, “[t]he patient experienced claustrophobia during the examination, and only unenhanced T1 weighted images were obtained.” Dr. Dost testified that this was significant because encephalomalacia appears on T2 weighted images and that T1 weighted images were not accurate when looking at encephalomalacia. Dr. Dost concluded that one could not compare the two MRIs and further that with the encephalomalacia of the left temporal lobe, it would not be conceivable that the individual would not have neurological symptoms at the time. He stated that the left temporal lobe was responsible for language function, specifically language comprehension, so someone with the extent of damage shown to the left temporal lobe would not be able to communicate at the time of the accident, contrary to what was observed.

Even the treating professionals that supported the applicant’s claim were equivocal in their opinion concerning the MRIs. Dr. Sitwell testified that the damage shown on the 2009 MRI was significant and specifically stated that it would require significant head trauma. Dr. Sitwell stated there did not have to be an altered level of consciousness after the event, but it was probably more often than not that there was. Dr. Sitwell also confirmed that the damage shown in the 2009 MRI could have been caused by any of the falls that the applicant experienced. Dr. Sitwell agreed that he could not categorically state that the 2003 accident caused the damage to the left temporal lobe. Dr. Quan agreed that it was more likely than not that for the changes on the 2009 MRI one would expect there to be some measureable alteration in consciousness.

There are many pre-existing factors that could have impacted the applicant that have nothing to do with the accident of 2003 such as balance issues, vision issues, ongoing treatment for depression, sleep issues (including evidence of making noises while sleeping). Indeed the predictions of all the treating doctors in the period prior to 2001 were that the applicant’s condition would deteriorate. The applicant stopped seeing a psychologist in 2000 and was therein monitored by his family doctor. Dr. Kindle’s notes and records do not reflect an improvement in the applicant’s condition in the years prior to the 2003 accident and actually document ongoing difficulties with depression, insomnia and issues surrounding medication dosages. There are also post-accident factors at play that more than likely contributed to the applicant’s current condition. The marriage that was declining prior to the 2003 accident came to a final end, the incident of July 4, 2004, a fall recorded on May 12, 2005, the altercation with a family acquaintance over a bad loan, getting older, many instances of financial stress, upheaval of life with a move from the family home, were some of the factors highlighted by the evidence.

The applicant attempts to point to conditions that appeared or were exacerbated over the years since the 2003 accident to state that it made at minimum a material contribution. There is no reliable evidence that the 2003 motor vehicle accident caused or exacerbated the applicant’s sleep apnea, increased reliance on toxic medications, contributed to an increase in depression or any of the myriad of items the applicant alleges were caused by the accident.

Dr. Dost testified that the 2003 accident did not contribute to the sleep apnea. He referred to the pre-accident record that showed there was an unrecognized sleep disorder, which was typical for sleep apnea. In his opinion, it was logical that his sleep apnea was a continuation of a pre‑existing issue and felt it was circuitous to accept that a pre-existing disorder resolved untreated to be replaced by another sleep disorder. Dr. Gow agreed that the applicant had issues with sleep prior to the accident of 2003 noting that disrupted sleep had been a feature of his presentation for a long time; she testified that the applicant could have had undiagnosed sleep apnea prior to the 2003 accident. She indicated that the significance of sleep apnea was the impact on one’s ability to perform a number of more complex cognitive operations.

Dr. Dost, in an addendum report dated September 15, 2010, provided a detailed explanation as to why the applicant’s pre-existing seizure disorder was not made worse as a result of the August 2003 accident. He noted “[t]he natural history of seizure disorders related to traumatic brain injury with structural brain derangement is that of continued seizures despite medical management.” Dr. Dost again points to the fact that the pre-accident seizures were not fully controlled referring to Dr. Sitwell’s mention of rare breakthrough seizures in 2001. He saw no evidence of any factors related to the 2003 accident that could potentially worsen seizures. He stated that sleep apnea was unrelated to the 2003 accident and is a known aggravating factor for seizures; he referred to an unacceptable temporal lag between the incident and the worsening of seizures noted as wholly incompatible with medical causality as defined by Bradford-Hill. Dr. Dost testified that when there is a neuro-trauma, the seizure threshold is lessened especially in individuals who are prone to seizures. He testified that he would have expected a worsening of the seizure very soon after the 2003 accident given the brain injury from 1995. He stated that the implication was that the worsening of the seizure disorder was related to a non-traumatic event such as a worsening of his sleep apnea or the natural evolution of the pre-existing seizure disorder. Dr. Dost further testified that individuals in the applicant’s population group had a very difficult time controlling their seizures and a very high likelihood of recurrent seizures. He noted that they will go into remissions and relapses and it was common for patients he treated to get their driver’s licence back only to have it revoked when a seizure takes place followed by another requalification process.

In cross-examination, Dr. Gow testified that one could not determine if the incident of July 2004 was a seizure or a slip and fall. In cross-examination, Dr. Sitwell testified that he could not prove one way or another that a seizure had taken place and agreed it was possible that the applicant hit his head against something and fell down having an altered level of consciousness. It was approximately four months after the July 2004 incident that Dr. Sitwell received the aforementioned letter from R.L. outlining her concerns regarding her father’s condition. Dr. Sitwell testified that this was one of the first pieces of evidence of deterioration in the applicant’s condition after the accident of August 14, 2003.

Certainly the applicant has deteriorated since the motor vehicle accident of 2003. However, he has not shown that this was a result of the motor vehicle accident of August 14, 2003 pursuant to the Schedule.

The parties provided submissions and caselaw regarding the quantification of the WPI in order to make a finding of catastrophic impairment. Given my finding on causation regarding the subject motor vehicle accident, my analysis will not deal with the caselaw on this issue.

Attendant Care Benefit

The applicant clarified at the outset of the hearing that he was seeking attendant care at the monthly rate of $6,000.00 from January 18, 2006 and ongoing. A Form 1 dated April 4, 2007 recommended attendant care at the rate of $793.73 per month on the basis of a severe brain injury and his seizure disorder. Given my finding that the motor vehicle accident of August 14, 2003 did not result in the applicant sustaining a brain injury and my comments regarding the applicant’s seizure disorder, I find that the applicant is not entitled to the attendant care claimed. Further section 18(2) of the Schedule states that “no attendant care benefit is payable for expenses incurred more than 104 weeks after the accident,” and s. 18(3) clarifies that 18(2) does “not apply in respect of an insured person who sustains a catastrophic impairment as a result of the accident.” The applicant is therefore not entitled to the attendant care benefits claimed,

Housekeeping and Home Maintenance

The applicant clarified at the outset of the hearing that he was seeking entitlement to a housekeeping benefit at the rate of $100.00 per week from August 14, 2005 and ongoing. Given my findings with regard to catastrophic impairment, as per s. 22(3) of the Schedule, “no payment is required under this section for expenses incurred more than 104 weeks after the onset of the disability.”

Non-Earner Benefit

The applicant claims entitlement to a non-earner benefit from March 24, 2007 and ongoing. Given my findings on causation concerning the August 14, 2003 accident, I find that he is not entitled to a non-earner benefit as a result of this accident. Further, s. 12 of the Schedule provides that an insured person may be entitled to a non-earner benefit if they suffer a complete inability to carry on a normal life “as a result of and within 104 weeks after the accident.” There is no provision that allows for an insured to apply for this benefit if a complete inability occurs after 104 weeks from the date of the accident.

EXPENSES:

If the parties are unable to reach an agreement on expenses, they may request an appointment before me in accordance with Rule 79 of the Dispute Resolution Practice Code.

Alec Fadel

Arbitrator

Date

Financial Services Commission of Ontario / Commission des services financiers de l’Ontario

Neutral Citation: 2011 ONFSCDRS 92

FSCO A09-001059

BETWEEN:

M. L.

Applicant

and

ECONOMICAL 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:

1. The applicant is not catastrophically impaired as a result of the motor vehicle accident of August 14, 2003.

2. The applicant is not entitled to a non-earner benefit pursuant to section 12 of the Schedule.

3. The applicant is not entitled to an attendant care benefit pursuant to section 16 of the Schedule.

4. The applicant is not entitled to housekeeping and home maintenance pursuant to section 22 of the Schedule.

5. The applicant is not entitled to a special award pursuant to subsection 282(10) of the Insurance Act.

October 20, 2011

Alec Fadel

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2The ambulance call noted a small contusion.
3. 31996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, paras 15 and 16