Neutral Citation: 2011 ONFSCDRS 96 FSCO A09-001676

BETWEEN:

M. M. Applicant

and

AVIVA CANADA INC. Insurer

REASONS FOR DECISION

Before: Jessica Kowalski Heard: September 13, 14, 15 and 16 and October 4, 5, 6, 7 and 8, 2010, in Barrie, Ontario. Written submissions were received up to December 14, 2010. Appearances: Mark Baker for Ms. M Susan Bromley for Aviva Canada Inc.

Issues:

The Applicant, M. M., was injured in a motor vehicle accident on November 26, 1999. She applied for and received statutory accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.¹ She applied for a determination that the accident rendered her catastrophically impaired within the meaning of the Schedule. The parties were unable to resolve this issue through mediation, and Ms. M applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issue in this hearing is:

Issue:

Did Ms. M sustain a catastrophic impairment as a result of the November 26, 1999 accident within the meaning of clause 2(1.1)(f) of the Schedule?

Result:

Ms. M did not sustain a catastrophic impairment as a result of the accident within the meaning of clause 2(1.1)(f) of the Schedule.

BACKGROUND

On November 26, 1999, Ms. M was the front, seat-belted passenger in her friend Allen Byrko’s 1980 Camaro when it was hit from behind while stopped at an intersection in Sudbury. Ms. M was visiting Sudbury for a wedding. She was 29 years old at the time.

Two years later, a disc rupture in her lumbar spine left Ms. M in acute pain. On December 6, 2001, she underwent a lumbosacral discectomy, decompression and foraminotomy at St. Michael’s Hospital in Toronto.

Before the accident, Ms. M described herself as healthy. She had strabismus (a disorder of the alignment of the eyes) and had had abdominal surgery. She had a history of headaches, migraines and neck pain for which she sought treatment at various hospital emergency rooms. She used narcotics to treat her pain. She worked as a cashier at a convenience store.

After the accident, Ms. M continued to attend emergency rooms and walk-in clinics to treat her various symptoms. She moved between Sudbury and Barrie. She was well enough to take on heavier work. She did temporary (short term) jobs with different car parts suppliers, which at times required her to climb into and out of transport trucks and occasionally shift large bins filled with car parts.

Today, Ms. M is impaired in her activities of daily living and has chronic pain. She continues to use narcotics such as oxycontin and oxycocet for her pain. She has tried other interventions including nerve-block injections, but her functional abilities have declined. She relies on her cane to walk and a substantial part of her time at home. She makes weekly outings to the mall with her friends, who visit her and assist her with her housekeeping. Her social life is limited. She no longer works. She receives an Ontario disability support pension.

Ms. M maintains that she sustained injuries to her lumbar spine in the November 26, 1999 accident that led to the December 2001 discectomy and to her subsequent chronic pain, and that have rendered her catastrophically impaired within the meaning of section 2(1.1)(f) of the Schedule.

Under the Schedule² in effect at the time of the accident, the causal link between the accident and an impairment must be direct:

…an incident in which the use or operation of an automobile directly causes an impairment…

Under section 2(1.1)(f) a person suffers a catastrophic impairment if:

(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.

Aviva does not dispute that Ms. M has a chronic pain condition or that she is limited in her activities of daily living. It submits, however, that her impairments are not catastrophic, and, more importantly, that Ms. M has not established on a balance of probabilities that the November 1999 accident caused those impairments. If it did, says Aviva, Ms. M does not meet the 55% whole person impairment (“WPI”) threshold required to be categorized as catastrophically impaired and that, at most, her WPI rating is 45%.

EVIDENCE AND ANALYSIS

Having evaluated Ms. M’s testimony in light of the evidence as a whole, I am not persuaded on a balance of probabilities that Ms. M has established either that her impairments were caused by the accident or that they are catastrophic within the meaning of the Schedule. For the reasons that follow, I did not find Ms. M’s oral evidence to be reliable.

Ms. M’s testimony about the accident itself is not consistent with the police report or emergency room records. Her testimony about her condition is not consistent with what she was reporting to numerous medical practitioners following the accident, although she conceded repeatedly that she accurately reported her symptoms to her various health practitioners when she saw them. More than ten years have passed since the accident, and where there is conflict between her testimony and her medical records, I have preferred the information in the various medical records.

Likewise, where there are discrepancies between Ms. M’s testimony and the few records that do exist to give an account of the accident, I have preferred the latter because they were made contemporaneously with events more that a decade before by independent observers.

CAUSATION

Ms. M’s account of the accident:

Ms. M’s evidence was not consistent with the bulk of the objective evidence, diminishing her credibility as a historian. The first example of the credibility issues is her account of the accident itself. The objective evidence that does exist conflicts with Ms. M’s testimony. Neither party called Mr. Byrko or any other witnesses to the accident.

Ms. M described the accident as follows: it was around suppertime when she and Mr. Byrko were stopped at an intersection. She heard tires squeal and felt a severe impact that broke the welding in both the driver and front passenger seats, snapping the seat backs back to a flat (supine) position. The impact, she says, moved her body forward with enough force that the seat belt bruised her chest. She described hitting the dashboard and being left “almost upside down”, her feet in the air owing to the broken seat back.

Ms. M testified that Mr. Byrko got out of the car right away and that she told him that her entire spine was burning.

Ms. M testified that when police arrived, she told them that her spine was burning. She testified that police took her statement as a priority because she needed an ambulance to take her to hospital right away.

Because the ambulance took too long to arrive, Ms. M says police let Mr. Byrko drive her to the hospital, despite the broken seat backs. In addition to pain, Ms. M testified that she had severe swelling of her spine that was visible through her t-shirt and which she says the examining physician described as “extensive”. She testified that Mr. Byrko took her straight to the hospital, from where she was ultimately discharged with tylenol-3 and a recommendation of two weeks’ rest.

In a report of an interview that Ms. M gave four years later to Aviva’s investigator (signed on April 17, 2003)³, she described the accident as follows:

We were sitting at a set of lights on Regent Street…there was a red and white half ton in front of us at the lights. Just as the light was going green we thought it was the truck in front squealing his tires then within seconds the young guy hit us from behind. We went flying clean through the lights about three or four car lengths as we got hit, the welding on both seats snapped, the next thing I remember is I was feet over head in the back seat…

The contemporaneous documents that do exist to corroborate the accident – the motor vehicle accident report and the hospital emergency record – contradict Ms. M’s evidence about the accident, her reported injuries, and the discharge instructions.

The motor vehicle accident report recorded that the responding officer arrived on scene at 9:15 p.m. The diagram of the accident shows that there was indeed another vehicle in front of Mr. Byrko’s Camaro. The investigating police officer’s description confirmed that the striking vehicle hit the Camaro, but shows no forward movement of the Camaro – not into the car in front, or into the intersection, or the three or four car lengths ahead as Ms. M would later go on to say.

Despite Ms. M’s reports of urgency, the Sudbury Regional Hospital emergency report shows that Ms. M was not triaged until 12:35 a.m. (on November 27, 1999), more than three hours after the accident. She was admitted with a chief complaint of sore back, thoracic spine.

When asked on cross-examination why it took three hours for her and Mr. Byrko to make what she described as a few-minute drive to the hospital, Ms. M could not address the gap and maintained that she was “almost positive” that she went straight to the hospital.

It was another two-and-a-half hours before Ms. M was placed in a room (at about 3:00 a.m.) and she was not examined until about 4:55 a.m. The emergency report shows that she was discharged at 6:02 a.m. with a diagnosis of neck and back sprain, over-the-counter medication, and a recommendation that she follow-up with a physician or return to emergency if her pain persisted or worsened. Ms. M did not return.

The emergency report did not record any swelling to her spine that Ms. M says doctors described as “extensive”.

There is also no record of injury to Ms. M’s lumbar spine. The emergency report shows that specific areas of her spine were considered, but that the lumbar spine was excluded. Specifically, the box requisitioning an x-ray of Ms. M’s cervical spine was checked, and a handwritten note added a request that the thoracic spine be x-rayed as well. There is no mention of injury to the lumbar spine.

The medical evidence:

Ms. M submits that her medical records are inaccurate because she did not have a steady, treating family physician. I disagree. Because Ms. M did not have a steady family doctor⁴, she attended at walk-in clinics and emergency rooms, where she reported her symptoms and history to each one independent of the others. Because most of those practitioners did not have access to her other records, the ones Ms. M did see relied on her independent accounts without the benefit of a history.

The medical records are consistent in what is missing and in what Ms. M denies reporting. I am not persuaded that the various practitioners, independent of each other, chose to be selective in the same way (by, for example, only noting migraines when there was back pain or repeatedly including cancer when Ms. M says she did not report it) and to omit the same complaints (like low back pain). Since the records are consistent with each other, I cannot rely on what Ms. M told me: if I accept what she told the medical practitioners at a time when her recollection was presumably better, then her condition was better than she testified it to be. If I accept Ms. M’s testimony, I must disregard the objective medical evidence.

The totality of the medical records suggests that Ms. M herself did not think she injured her lower back in the November 1999 accident. I find that her x-rays, records, evidence of heavier work post-accident, the spectre of a later accident (discussed below), together with the testimony of her doctors, suggest that the November 1999 accident did not directly or materially contribute to Ms. M’s December 2001 discectomy and her current pain condition. On balance, it is more likely than not that Ms. M’s disc rupture was caused by something other than the 1999 accident.

Ms. M did not report any further injuries or pain to her lower back after the accident and she did not seek treatment for her lower back for some 13 months after. Her first post-accident x‑ray of the lumbar spine (taken more than 13 months after the accident) was normal.

Ms. M was not reporting any trauma to her back during numerous medical visits, even when back pain became her primary complaint. She variously reported that she had had no accident, had been in an accident in 2001, or that she neither had nor was aware of any trauma to her back.

It was not until almost two years after the accident that a second x-ray of Ms. M’s spine revealed concerns. Even then, Ms. M was not reporting the 1999 accident. In the meantime, she had taken on heavier work (compared to her work before the accident), was moving between Timmins, Barrie and Sudbury, and was awaiting a disability settlement.

Immediately after the accident, there is an OHIP summary entry (on November 28, 1999) for a visit with a Paul Gibb, but there were no other records and Ms. M had no recollection of that visit. According to her OHIP summary, she did not seek any treatment for her back or neck between the November 1999 accident and January 2001.

On January 10, 2001, Ms. M made her first documented post-accident complaint of low back pain when she sought treatment at the Barrie After-Hours Clinic. The consultation form recorded her symptoms as a “few day history of low back pain” with “no obvious precipitating factors.” Under the heading for treatment, Ms. M was told to follow-up with her doctor or emergency room for x-rays if she did not have relief in a few days.

That same day, Ms. M went to the emergency room at The Royal Victoria Hospital of Barrie (“RVH”), where she reported three days of lower back pain, consistent with her report to the Barrie After-Hours Clinic earlier in the day. Like with the Barrie After-Hours Clinic, Ms. M made no apparent report of the November 1999 accident as a precipitating factor, and the emergency report simply noted that Ms. M had “no known injury.” The RVH took x-rays of Ms. M’s lumbar spine. The results of those x-rays (the first of the lumbar spine since the accident) were normal. According to the x-ray report:

The bones of the lumbar spine are normally aligned. The disc spaces are maintained. The pedicles are all intact.

Thereafter, Ms. M made the following medical visits where she either did not report having been in an accident or did not complain of low back pain:

i. April 1, 2001: Ms. M attended the Barrie After-Hours Clinic complaining of low back pain. The notes made no mention of the November 1999 accident and Ms. M was prescribed pain medication;

ii. July 19, 2001: Ms. M attended emergency at the RVH with a chief complaint and admitting diagnosis of chest pain. The ER report and triage record noted a history of low back pain radiating into Ms. M’s left leg (she testified it was her right), and a week of numbness on her left hand and fingers. She was diagnosed with chest wall pain and sciatica, carpal tunnel syndrome was canvassed, and she was sent home with a prescription for pain medication; and

iii. July 21, 2001: Ms. M attended the Barrie After-Hours Clinic. They noted she had been treated at RVH for chest wall pain. They diagnosed her with costochondritis (chest wall pain) and sent her home with a prescription for tylenol-3.

Her next complaint of lumbar pain was on August 8, 2001, when Ms. M attended at the RVH emergency complaining of low back pain radiating down her right leg to her toes, and numbness. According to the nursing assessment, Ms. M reported “no history of back trauma”, suggesting that she did not report the 1999 accident during this visit either.

During the August 8, 2001 attendance, Ms. M had another set of x-rays taken of her lumbar spine. Where the January 10, 2001 images were normal, this time, in the seven intervening months, there were changes. The August 8, 2001 imaging report states:

There is perhaps some minimal disc space narrowing at L-5-S-1. There are minimal early degenerative disc changes in the lower thoracic spine. Mild marginal sclerotic changes are seen in the sacroiliac joints.

Ms. M returned to the RVH emergency on August 14, 2001 complaining of migraine. She returned later that same day complaining of headache. For the first time since the accident, neck pain and tenderness were noted but migraine was the chief diagnosis.

The next day (August 15, 2001), when Ms. M attended the ER of the Sudbury Regional Hospital complaining of side head numbness, there was no mention of pain in her lower back.

She attended the Sudbury Regional Hospital ER again on August 22, 2001 at 12:05 a.m. complaining of numbness to her head and limbs. She testified that she had a severe migraine. She presented by wheelchair, hyperventilating and testified that she was in distress. Within five minutes of being seen she appears to have settled, and by 1:30 a.m. she was recorded as ambulatory, outside smoking and in no apparent distress. The hospital recorded that she had no abnormal gait, and Ms. M testified that if she had had problems walking by then, she would have reported them. Before discharging her, the hospital records queried whether Ms. M was drug-seeking.

She next attended the RVH complaining of migraine on September 2, 2001. She did not complain of lower back pain, but apparently reported under her past medical history that she had slipped a disc in her lower back. Her migraine was recorded as being “same as usual.” She was prescribed demerol and discharged.

There are a number of visits with different physicians in Ms. M’s OHIP summary between this time and her next visit to the Brady After Hours Clinic (in Sudbury) on September 19, 2001 that Ms. M did not recall. The Brady After Hours Clinic noted back pain, shingles and sciatica, but the main complaint was chest wall pain, with a diagnosis of costochondritis.⁵

When Ms. M next attended the Barrie After-Hours Clinic on September 26, 2001, she complained of a sore back. Under her history, she reportedly advised that she had been at the RVH for a “herniated disc” two weeks before (but on that September 2, 2001 visit, Ms. M was reported as attending with a migraine and no complaint of back pain was recorded except the reference to a ‘slipped disc’).

First reference to a motor vehicle accident in the medical records:

Ms. M denies that she was involved or injured in a second accident. Based on the objective evidence, however, if Ms. M’s back was injured in an accident, it was not the November 26, 1999 one. All the references to a motor vehicle accident in Ms. M’s medical records suggest that if she was in an accident in which she injured her low back that that accident occurred some time between mid-January and August 2001.

The first reference to a car accident in the medical records appeared on October 17, 2001, when she attended the RVH emergency room complaining of low back pain. The emergency record noted that Ms. M reported a history of chronic pain but no trauma. The emergency triage record noted that Ms. M reported low back pain for eight weeks that had been improving until the day before this visit. The nursing record, meanwhile, noted under her prior medical history that Ms. M had a “car accident 6 months ago.”

An emergency report from the RVH dated October 18, 2001 noted under “physician history” that Ms. M had had an accident on August 2, 2001 and that she has been experiencing low back pain since. The emergency triage record (also dated October 18, 2001) noted that Ms. M had reported an accident “2 months ago”, consistent with the August 2, 2001 date recorded earlier.

And again, later that night (at approximately 12:15 a.m. on October 19, 2001), the RVH emergency nursing assessment noted that Ms. M was experiencing “back problems x months since car crash”, referring to months and not years.

Ms. M returned to the RVH emergency room on November 16, 2001 where her chief complaint was headache, not back pain. Three days later, she attended at the Barrie After-Hours Clinic where she complained of low back pain but was diagnosed with a migraine, discharged with demerol, gravol and a prescription for tylenol-3.

By November 28, 2001, the RVH physiotherapy department diagnosed Ms. M with sciatica and wrote in a note that same day that Ms. M had had her third episode of back pain since August 2001 (consistent with Ms. M’s reports of an accident around August of that year). Also on November 28, 2001, Ms. M returned to the RVH emergency room complaining of low back pain since August 2001.⁶

Where in January 2001 Ms. M made no apparent mention of trauma or an accident (and at which point Ms. M’s lumbar x-ray was normal), by October 2001 she was reporting an accident.

Ms. M had no explanation for the various references to an accident around August 2001. She argued that the notations could be attributed to hospital error or error by Mr. Byrko, who she says was attending with her on occasion and providing her history to emergency and clinic personnel. I am not persuaded that the references to a 2001 accident were merely intake error or attributable to errors in reporting by Mr. Byrko, especially since Mr. Byrko, as the driver, would have first-hand knowledge of the accident date. Ms. M also suggested that the references to an accident in late 2001 as having occurred “months” before, really meant years and referred to the November 1999 accident. Meanwhile, she alternately reported having had no accident or no known trauma to her back at various visits, including the critical visits to specifically assess her lumbar spine when that was her explicit concern. If these were the only inconsistencies between Ms. M’s self-reporting, the medical records and her testimony, I might be more inclined to agree. But the discrepancies continued.

Just before the discectomy:

Ms. M’s testimony, compared with medical records and the unexplained references to an accident before her August 2001 abnormal x-rays, also conflicts with what she was reporting to assessors leading up to her discectomy with neurologist Dr. Paul Muller.

Dr. Muller first saw Ms. M in November 2001, after she was referred to him as a consequence of severe low back and leg pain. He testified that by the time she saw him, her pain had become acute, she had had the pain for a “couple of months prior,” and that it was worsening. As set out below, she did not tell him about the 1999 accident.

When Ms. M attended specifically for a lumbar spine assessment at the McKenzie Institute on November 28, 2001, she reported pain down the side of her right leg and back that had commenced for “no apparent reason”. The report suggests that Ms. M’s back symptoms came on for no apparent cause and she reported no prior accidents. Specifically, “no” was checked off with respect to previous accidents. Once again, the record was based on Ms. M’s self-report. I find it curious, if, as Ms. M testified, she was concerned that her lower back was being ignored over her other symptoms, that she would avoid any mention of the accident at a time when her lower back became the critical and only focus of investigation leading up to her surgery.

Thereafter, on December 4, 2001 at St. Michael’s Hospital, an emergency nursing assessment recorded that Ms. M was presenting with a herniated disc in her back. Under the heading “Pertinent History” (which is described as “given by patient”), Ms. M apparently told the nurse that she had injured her back “3 months ago.”

Dr. Muller admitted Ms. M to St. Michael’s Hospital where he performed the discectomy on December 6, 2001.

After the discectomy:

After her surgery, Ms. M followed up with Dr. Muller, who reported on her progress in a letter dated February 11, 2002 to a Dr. Paul Howard at the RVH. Dr. Muller wrote that Ms. M “has come along very nicely” and although she still had back pain, she was neurologically “quite well”. He wrote that Ms. M could straight leg raise 90° in the sitting position, her deep tendon reflexes had returned and her ankle jerk was intact.

And although Ms. M argues that the accident led her to the December 2001 surgery, she did not tell Dr. Muller about it when she was being assessed pre-surgery. In his February 11, 2002 report, Dr. Muller wrote:

She noted, in the office today, that she was involved in a motor vehicle accident on November 26, 1999. Apparently, the car in which she was a passenger was hit from behind. She noted burning of her spine at the time of the impact, and was seen in the Emergency Department where plain films of the cervical and thoracic region were taken. I don’t know whether lumbar films were taken at that juncture.

And that:

After the motor vehicle accident she did make a reasonable recovery to the point where she was able to undertake some reasonably heavy jobs.

Ms. M had no explanation as to why she mentioned the accident to Dr. Muller for the first time in February 2002, or why she failed to mention it when she was asked specific questions about trauma to her back in assessments before the surgery.

Dr. Muller’s evidence:

The concerns about the reliability of Ms. M’s testimony continued when I considered it with Dr. Muller’s evidence.

Dr. Muller gave an expert opinion on whether there was a causal relationship between the 1999 accident and Ms. M’s 2001 disc rupture. In direct examination he testified that Ms. M undoubtedly experienced an injury to her lumbar spine in the accident that had a probability of causing a fissure in the annulus fibrosus (restraining ligament) that could set the stage for a subsequent disc rupture. He accepted that Ms. M’s lumbar spine was injured in the accident and concluded that the likelihood for injury to her lower back was very high because Ms. M told him that she had reported immediate pain to her lower back for which she says she sought treatment. Meanwhile, she apparently did not tell him about the accident until months after the surgery, and had ignored it in the assessments leading up to it.

Ms. M also testified that Dr. Muller told her that she had only a 20% chance of ever walking again. Ms. M was emphatic: she testified that if her walk to the hospital pre‑surgery was going to be her last, she was determined to take it.

Meanwhile, Dr. Muller flatly denied telling Ms. M that she had only a 20% chance of ever walking again after the discectomy. He testified that he discussed the various risks associated with the surgery but that the likelihood of a spinal cord injury leading to a severe outcome was “extremely low” because there is no spinal cord in the affected part of the spine.

On cross-examination, when presented with the facts of the accident as they appear in the objective evidence, including the lack of evidence to support complaints of immediate or subsequent lumbar pain, Dr. Muller testified that the probability of the accident having caused Ms. M’s disc rupture was very low.

It was Ms. M’s self-report that led Dr. Muller to opine that there was a relationship between the accident and the disc rupture. He conceded on cross-examination that the only physical finding at the time of the accident was mid-line tenderness in Ms. M’s thoracic spine and that, since the thoracic spine ends at the low back, the outward manifestations of Ms. M’s injuries could be described as “not that dramatic.” He testified that without evidence of an injury to Ms. M’s lumbar spine during the 1999 accident, the chances of it setting off her disc rupture would be low and further, that since there were no referrals to specialists after the accident, it had not likely been that traumatic.

Dr. Muller himself had earlier written that the relationship between the accident and the disc rupture was “problematic”. In a letter to her counsel dated December 10, 2002, he wrote that Ms. M had not told him about the accident until the February 11, 2002 follow-up and that no specific therapies to Ms. M’s spine were undertaken after the accident, and again that Ms. M “was able to return to work and even undertake some heavy jobs according to her account.” [emphasis added]

Dr. Muller also wrote that he was confident that the disc rupture did not occur at the time of the accident but that the accident may have contributed to degenerative disc process or weakened the annulus fibrosis which would make a disc more vulnerable to future rupture. He concluded that a “severe injury to the lumbar spine as the consequence of the accident was unlikely but not impossible considering the subsequent events and the delay between the motor vehicle accident and the disc rupture.”

On February 25, 2003, Dr. Muller wrote again to Ms. M’s counsel, this time 100% certain that the accident caused a back injury that “almost certainly contributed to the natural degeneration that occurs to lumbar discs with time.” He also opined that although the disc rupture was not present immediately after the accident it was “highly likely” that the injuries sustained in the accident were materially related to the subsequent disc extrusion and nerve root compression. He did not provide reasons except that Ms. M complained immediately of burning pain after the accident and had visits to the RVH emergency room in January 2001 (where, notably, her x-ray was normal) and July 19, 2001 with the complaint of back pain.

I rely more on Dr. Muller’s testimony over the opinion in his reports because his reports were based on Ms. M’s account and self-reports, which included that she had an immediate injury to her spine for which she sought treatment. For reasons already mentioned, because of the multiple inconsistencies between Ms. M’s self-reports to health care providers and assessors and her testimony, I have placed greater weight on Dr. Muller’s opinion after he was told about the accident as described in the police report, the injuries as documented in the Sudbury Regional Hospital’s emergency record, and lack of subsequent complaints.

There are other inconsistencies between Ms. M’s account and the medical evidence. Although they do not relate to her lumbar pain, but because her credibility and that of her self‑reporting are key, and while not exhaustive, they bear mentioning:

First, Ms. M testified that she was still expecting to undergo surgery on her neck and back, but the records clearly set out that she was not a candidate for further surgery and that she knew that. For example, in a report of a consultation with Ms. M on December 5, 2005, Dr. Muller wrote that Ms. M seemed reassured that further surgical treatment would be of no value to her. He also wrote to Dr. Steve Blitzer, Ms. M’s chronic pain specialist, on November 20, 2006 that Ms. M was not doing too badly and that surgery could be compromising to her in the long run and was not recommended. At that point, wrote Dr. Muller, Ms. M was “quite satisfied to take a wait-and-see approach…”. On June 28, 2010, shortly before the hearing, Dr. Muller wrote again to Dr. Blitzer that he did not think Ms. M was a candidate for further surgical treatment and that she was “quite disinclined toward same” – all suggesting that Ms. M was well aware that she was not a candidate for more surgery because Dr. Muller had discussed it with her more than once.

Second, Ms. M testified that in addition to back troubles, she began to experience bowel and bladder incontinence because of the accident and reported that this problem began before the discectomy. Her medical records say otherwise, with there being no evidence of bowel or bladder issues until June 2004 when the first notations of incontinence appear in her medical records. Even then, her family physician, Dr. Trevor Berns, testified that it was stress incontinence unrelated to the accident.

Third, there is the issue of cancer. Although wholly unrelated to any injuries Ms. M might have sustained in the accident, her medical records are filled with notations of cancer, and particularly ovarian cancer. Ms. M denied ever reporting or having cancer, but it keeps popping up in her medical records. As with other inconsistencies, Ms. M blamed practitioner error, and submitted that because she had an abdominal scar, or reported ovarian cysts, treating practitioners chose to unilaterally interpret those as cancer.

If Ms. M never had or reported cancer, odd references could be reasonably explained. But again – consistently and independent of each other – medical practitioners were recording that Ms. M was reporting a history of ovarian cancer when their only source of that history was Ms. M herself. The consistent alleged mis-reporting based exclusively on Ms. M’s reports as intake error defies the odds, and there is no evidence that she might have simply forgot. Dr. Berns, who had become Ms. M’s treating physician, himself noted under her prior medical history that she had cancer in 1991. On balance, I find that Ms. M was, in fact, reporting a history of ovarian cancer to the various service providers for unknown reasons, and the conflict between her oral testimony and the persistent evidence in the records calls into question the reliability of her evidence as a whole.

Fourth, Ms. M reported to Dr. Blitzer and Dr. Muller that she was healthy before the accident. Dr. Muller noted that Ms. M had neck pain that had resolved, strabismus, and the occasional migraine. Dr. Blitzer’s evidence was that Ms. M described her pre-accident health to him as “perfect”.

Her medical records, meanwhile, show multiple physician visits. In 1997, she had neck pain that required a CT scan, and was reporting a history of migraines that was repeating itself in 1999. Ms. M also testified that she started using narcotics like oxycocet and oxycontin after the accident, but her medical records show she used those before the accident.

Similarly, Ms. M testified that by the end of 2002 she still had no movement in her legs, could not bend and was using a walker. Meanwhile, after her visit and follow-up with Dr. Muller on February 11, 2002, he was writing that Ms. M was doing well, could straight-leg raise, knee bend, and her ankle jerk was intact. Physiotherapy records showed a good recovery and almost normal range of motion by the time she was discharged from physiotherapy in July 2002. They noted that she could flex to the floor and was weight-bearing as tolerated with a cane.

In a case that turns on the credibility of Ms. M’s evidence, she was not disclosing an accurate or complete history to her treating physicians like Drs. Blitzer or Berns. And where her assessors relied on Ms. M’s subjective accounts, her credibility affects the credibility of their reports and opinions to the extent that they were based on Ms. M’s self-reports of symptomology and history.

Conclusion:

Ms. M argues that there has been a tendency for assessors and healthcare providers to consistently get her history wrong, and to consider her whole back with no effort to isolate or examine specific areas of complaint. From the outset, however, the Sudbury Regional Hospital isolated her cervical and thoracic spine for investigation. Thereafter, there is no documented medical evidence that supports that Ms. M made any complaint of low back pain until 2001. Even then, she denied trauma to her back, or attributed it variously to unknown causes or to a later, 2001 accident, before which she had moved around and had done some relatively heavy work.

Ms. M also submits that her records are incomplete or inaccurate because the practitioners she did see only recorded her primary complaints (like migraines) at the expense of the others, recording only what they chose to treat and ignoring what she says were her repeated complaints about low back pain.

The cumulative inconsistencies are overwhelming, and I find Ms. M’s credibility must be cast in doubt and her testimony given little weight except where it was supported by independent evidence.

The records, made contemporaneously with Ms. M’s various hospital and clinic attendances, were admittedly based on Ms. M’s self-reports that she says were accurate at the time. Ms. M gave no reasonable explanation for the medical records to have cumulatively been so overwhelmingly inaccurate: either Ms. M was mis-reporting, or her testimony during this hearing was inaccurate. I am not persuaded that on balance, everyone who took Ms. M’s reports at the Sudbury Regional Hospital, the RVH, the McKenzie Institute or the walk-in clinics she saw, chose to omit exactly the same complaints consistently and include others (that Ms. M says she never made), all without the benefit of each other’s records.

Further, given the number of references to a 2001 accident, recorded variously as having occurred on or around August 2, 2001, I find it implausible that it was simply an event made up by different hospital staff. Nor am I persuaded that those references ought to be interpreted as references to the 1999 accident given the various descriptions that place it after her normal x-ray on January 10, 2001 but before her abnormal film on August 8, 2001.

Even in the few months leading up to the surgery, the medical records suggest alternately that Ms. M was reporting no known injury to her back and an accident around August 2001.

Despite Ms. M’s suggestion that her low back was not treated, by November 28, 2001, when Ms. M was assessed at the McKenzie Institute, it was the only focus of concern. Yet during her assessment she answered that her back pain commenced for “no apparent reason” and said “no” to having had any accidents. In my view, either Ms. M likely did not injure her back in the 1999 accident or never thought the accident was serious enough to report it.

Ms. M continued with her life after the accident, even doing heavier work. Dr. Muller testified that one can have a back injury as a consequence of pushing and pulling the big drums in the transport trucks that Ms. M occasionally did in her post-accident work.

Similarly, Dr. Richard Wolbeck, a chiropractor to whom Ms. M was referred for treatment in July 2007, testified that the cause of Ms. M’s disc rupture could be a repetitive strain as opposed to an acute traumatic event. On balance, he could not say that the accident was the cause, since Ms. M did some heavy work after the accident and before her medical records disclosed complaints of low back pain.

I have considered this evidence in view of:

(i) Ms. M’s work after the accident, together with her failure to report any back symptoms for more than a year after the accident, during which time she did somewhat heavy work;

(ii) the fact that her first complaints of low back pain occur just over 13 months after the accident and reported symptoms reveal a normal, unremarkable x-ray on January 10, 2001;

(iii) references to another accident between January 10, 2001 and August 8, 2001, at which time Ms. M has a second x-ray of the lumbar spine which, this time, shows some pathology and degeneration;

(iv) her failure to report the accident at various times and during critical assessments (like at the McKenzie Institute before her discectomy); and

(v) the fact that Dr. Muller (together with Drs. Blitzer, Berns and even Wolbeck) were never made aware of the medical history and relied on Ms. M’s self‑reporting, which has proven inconsistent, to conclude that the accident caused the disc rupture – conclusions they changed when, on cross-examination, they were presented with the inconsistencies between Ms. M’s self-report and the medical reports,

and find that the November 1999 accident did not cause or materially contribute to Ms. M’s discectomy and chronic pain condition.

WHOLE PERSON IMPAIRMENT

Given my findings on causation, I find it moot to assess the percentage of Ms. M’s WPI. However, if I am wrong on causation, I am not persuaded that Ms. M has discharged her burden of proving, on a balance of probabilities, that she meets the 55% WPI threshold in the Schedule.

In calculating the level of catastrophic impairment, the Schedule requires that the WPI of 55% or more be determined in accordance with the Fourth Edition of the Guides.⁷ Ms. M bears the burden of proving that she meets that threshold. Among her evidence, she relies on the opinion of Dr. Blitzer, her treating chronic pain specialist, who prepared a report dated December15, 2008 in which he assessed Ms. M’s WPI at 82%.

Dr. Blitzer’s basis of understanding Ms. M’s injuries and condition came primarily from what Ms. M told him. He had some notes and a limited medical history. He assumed Ms. M’s account was accurate and therefore that her injuries were caused by the November 1999 accident. He concluded that her total cumulative WPI was 82%.⁸ In his December 15, 2008 report, Dr. Blitzer wrote:

I have determined that Ms. [M] does meet the criteria of catastrophic impairment as defined under the Statutory Accident Benefit Schedule [sic]. Specifically, she meets the criteria of: (F) Impairment or combination of impairments that in accordance with the American Medical Association’s Guide [sic] to the Evaluation of Permanent Impairment, 4th edition, results in 55% or more impairment of the whole person.

Although Dr. Blitzer concluded that Ms. M met the 55% WPI threshold under the Fourth Edition of the Guides, he did not have or use the Fourth Edition of the Guides when rating her. At page 2 of his report, Dr. Blitzer wrote that:

For the purpose of this report, I am using the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th edition, 2002, which is similar to the 4th edition and which is available to me.

Dr. Blitzer did not conduct a rigorous examination of Ms. M in compliance with the Schedule. He testified that he had very limited training and experience with the Fourth Edition, having attended a one-day series of lectures over 10 years ago. In the five years prior to assessing Ms. M, Dr. Blitzer did not recall reading anything about the interpretation of the Fourth Edition. He neither owned a copy of the Fourth Edition nor did he consult one when he completed his report and assessment of Ms. M and concluded her to have an 82% WPI in accordance with the Fourth Edition. His primary method for finding out about Ms. M’s pain was her subjective reporting, and he assumed that Ms. M reported her symptoms and history accurately and truthfully. He was candid in his testimony that he rated on Ms. M’s symptoms. He also used his discretion to increase Ms. M’s ratings when he felt they were not high enough using the Guides.

Also, when he rated Ms. M’s psychological impairment to be 20%, for example, Dr. Blitzer assigned that number because a psychologist had rated Ms. M to be 20% impaired in 2006 and Dr. Blitzer agreed that Ms. M should have some rating for psychological impairment. He also assigned a WPI rating for shoulder pain, hip pain and sleep disturbances based on information he got from Ms. M. Meanwhile, there was no mention in his file of any of those symptoms, and he was by then Ms. M’s treating physician for chronic pain.

Similarly, Ms. M’s family physician characterized her as being catastrophically impaired. Dr. Berns gave a wholesale assessment of Ms. M because he felt it unfair that her condition be described as anything less than catastrophic. Dr. Berns testified that he believes Ms. M has a WPI rating greater than 55% and that his was a “global impression”. He did not calculate Ms. M’s WPI, but gave what he called a “global assessment”.

The Guides accommodate a physician’s judgment and the ‘art’ of medicine and allow for incorporation of physician judgment and discretion. They are meant to provide an informed estimate of impairment, and not a precise measure.⁹ However, the Fourth Edition also provides a methodology to use in assessing a patient, which Ms. M’s assessors did not follow.

Both Dr. Blitzer and Dr. Berns gave recognition to the fact that Ms. M has chronic pain. Although Dr. Blitzer prepared a report setting out a WPI rating, both treating physicians testified; in their respective evidence, in what may have merely been well-intentioned advocacy for a sympathetic patient, they used a wholesale application of numbers to rate her impairments without regard for the methods or investigation required by the Schedule and specifically described in the Guides (the Fourth or even the Fifth Editions). The broad‑strokes approach suggests that they placed themselves in the role of well-meaning advocates and relied more on the art of medicine at the expense of the examination set out in detail in the Fourth Edition of the Guides by which to assess a whole person impairment.

Accordingly, having found that Ms. M did not meet her burden of proof to establish impairment within the meaning of the Schedule, I do not feel I need to deal with Aviva’s evidence that at most Ms. M’s WPI is 45%.

October 28, 2011

Jessica Kowalski Arbitrator

Date

Financial Services Commission of Ontario