Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2012 ONFSCDRS 79
FSCO A09-002712
BETWEEN:
DANIEL KUMP
Applicant
and
ECONOMICAL MUTUAL INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before: Robert A. Kominar
Heard: February 28, March 1, 2, 3, 2011
Appearances: Christopher A. Richard for Mr. Kump Nicholaus de Koning for Economical Mutual Insurance Company
Issues:
The Applicant, Daniel Kump, was injured in a motor vehicle accident on December 22, 2006. He applied for and received statutory accident benefits from Economical Mutual Insurance Company (“Economical”), payable under the Schedule.1 Economical denied rehabilitation benefits for vehicle conversion. The parties were unable to resolve their disputes through mediation, and Mr. Kump 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:
- Is Mr. Kump entitled to a rehabilitation benefit in the amount of $41,761.45 for purchase of and modifications to a vehicle able to accommodate his disabilities arising out of this accident?
Result:
- Mr. Kump is entitled to the rehabilitation benefits requested.
EVIDENCE AND ANALYSIS:
The parties to this arbitration agreed to the following facts. Daniel Kump was involved in a motor vehicle collision on December 22, 2006 and suffered an undisplaced fracture of the left fibular head as well as various lacerations to his face. He was placed in a Zimmer splint from the date of the accident until February 7, 2007. Mr. Kump was hospitalized from December 22, 2006 through January 3, 2007 in St. Catharines General Hospital and was transferred to Hotel Dieu Shaver Rehabilitation Hospital where he underwent therapy until discharge on April 19, 2007. Mr. Kump’s leg fracture healed properly and the fracture itself was not disabling to Mr. Kump after he left the hospital. Both parties further agree that Mr. Kump has suffered from progressive multiple sclerosis for many years prior to the accident.
In this arbitration, Mr. Kump claims entitlement to rehabilitation benefits associated with vehicle modifications which rendered the family van, which he most commonly travels in, wheelchair accessible, along with interest and legal expenses. These vehicle modifications were recommended in a treatment plan prepared by Nicole Johnson, an occupational therapist, in September 2007. Economical denied the request for funding of the modifications on the basis of its conclusion that Mr. Kump’s need for a wheelchair accessible vehicle was not a result of his automobile accident, but rather the result of the natural progression of his multiple sclerosis.
There is no disagreement between the parties that, at all material times in question, Mr. Kump was not able to bear his own weight, or transfer himself independently to a motorized scooter, and it in fact was that vehicle that he was driving when the accident occurred. He clearly now requires access to a modified vehicle for mobility purposes as he can no longer use a scooter.
The dispute in this arbitration is focused primarily on causality. However, Economical also raised concerns about the cost of the actual vehicle modifications which the Kump family incurred.
It is clear that the law, as it relates to accident benefit claims in Ontario, requires only that the applicant prove causality on a material contribution basis.2 Mr. Kump has no obligation to prove that there was a “substantial” connection between the motor vehicle accident and his disability. The question before me then is whether the admitted rapid decline in Mr. Kump’s physical condition after the accident flowed from his motor vehicle accident in some meaningful way, or was merely that it was randomly coincidental that his medical status significantly declined shortly after this collision? The legal issue here is often discussed in terms of the “crumbling skull” test as opposed to the “thin skull” test.
During the arbitration Mr. Kump and both of his parents gave evidence. I note that Mr. Kump, in addition to his mobility challenges has cognitive difficulties which made it difficult for him to testify at the hearing. I appreciate the efforts he made and the patience of counsel allowing Mr. Kump to do his best to describe what happened in the accident and how his life changed afterwards.
Mr. Kump’s mother and father described as best they could their son’s life before the accident and afterwards. I found both parents to have provided honest and straightforward evidence, acknowledging that there were things which they did not clearly remember. However, there is no real dispute about the factual background here as far as it relates to Mr. Kump’s ability to independently travel by scooter prior to the accident and his subsequent inability to do so without a motorized wheelchair afterwards. Coupled with the fact that Economical did not in any meaningful way challenge these facts during the arbitration, I am satisfied that, upon determining that there is a reasonable causal connection between the accident and Mr. Kump’s decline in mobility, the request for vehicle modifications are reasonable and necessary. As to the second question, which relates to whether the modifications obtained were reasonably priced, I will comment later.
Each party called medical experts in this arbitration. Before I discuss the evidence of the physicians involved, I note that Nicole Johnson, the occupational therapist who prepared the treatment plan in question, also testified. I find that her evidence was direct and candid. Economical did in cross-examination question her level of professional experience at the time this treatment plan was prepared. She was at the time a relatively new occupational therapist and agreed that she had not prepared a treatment plan for vehicle modifications prior to this one, and further that she had no specific training in assessing specific vehicle modifications and their costs. Notwithstanding this, I find that Ms. Johnson’s evidence was reliable. I specifically focus on the fact that she did not endorse the request for these modifications the first time Mr. Kump’s family requested her to do so. Her initial conclusion was that it was too soon to determine whether Mr. Kump’s significant disability level was going to be long lasting and therefore that it was prudent to wait and see if he improved before she recommended quite expensive accommodations to address his situation. I find this to have been a very reasonable and professionally mature approach to the situation, one that certainly does not suggest a naïve new professional being persuaded to recommend something that a more seasoned veteran would have decisively declined.
I associate Ms. Johnson’s conclusions with the evidence provided by William McLeod, the individual who provided the vehicle modifications to the Kump family. Economical queried whether it would have been prudent for Mr. Kump’s father to have investigated vehicles other than General Motors products, as they might have been less expensive.3 Mr. McLeod’s evidence, which I accept as it was not challenged by Economical, was that his business practice was to only convert vehicles that had been crash tested after a conversion. His evidence was, at that point in time at least, only General Motors vehicles had been so tested. He also testified that there are safety reasons which preclude converting a vehicle that has more than 30,000 miles on its odometer. The conclusion of his evidence was that the Chevy Blazer, which Mr. Kump’s father had originally owned, was neither large nor strong enough for the kind of conversion needed. He also, on cross-examination, satisfied me that some of the alternatives to the full vehicle conversion which the Kump family obtained, such as wheelchair lifts, would not work in this context, as they were inappropriate and unsafe for a winter environment such as Ontario experiences.
In conclusion, I am satisfied on the evidence before me that the purchase of a new vehicle and subsequent modifications obtained were reasonable and necessary in the circumstances. I am also satisfied, primarily on the evidence not having been significantly challenged, that Mr. Kump’s father sold his original vehicle at a reasonable price and put all of the proceeds into the acquisition of a van large and strong enough for Daniel Kump’s needs. And further, I find that Mr. Kump applied for and received reasonably expectable financial assistance from the March of Dimes to accomplish these modifications. The end result is that I am satisfied that the amount which Mr. Kump is claiming for vehicle accommodations is reasonable in the circumstances.
However, the cost of these modifications is really secondary and was not a particularly seriously contested issue in this arbitration. As noted above, the real question is whether the need for this wheelchair accessible vehicle can be connected with the accident.
Mr. Kump relied on the testimony and report of Dr. Rick Paulseth, who is the head of the Neurology department at McMaster University and also runs the multiple sclerosis clinic there. He has been recognized in other adjudicative proceedings as an expert in Neurology and specifically in the field of multiple sclerosis. I note that Dr. Paulseth’s credentials are unquestioned by Economical; in fact, Mr. de Koning advised during his submissions that had Dr. Paulseth not been retained by the Applicant, Economical would quite likely have sought out his expertise in this matter.
In addition to Dr. Paulseth’s qualifications as a physician and expert in multiple sclerosis, he has been Mr. Kump’s treating doctor since 1998. Originally he saw Mr. Kump as a general neurology patient and afterwards he followed his progress in the McMaster multiple sclerosis clinic. Dr. Paulseth testified that he has personally met with and assessed Mr. Kump approximately 12 times since 1998.
According to Dr. Paulseth, Mr. Kump suffered from a “relapsing/remitting” type of multiple sclerosis when he first met him. In essence, this means that he experienced periods of time when his symptoms flared up and other periods of time when the multiple sclerosis “stabilized” for lack of a better term. Mr. Kump was initially treated with medications to deal with the flare ups, but according to Dr. Paulseth, he didn’t respond well to those and they were stopped.
Multiple sclerosis, according to Dr. Paulseth, is a progressive neurological disorder the actual cause of which is unknown. Something attacks the immune system and the central nervous system, ultimately causing the myelin sheath which coats the nerves to strip off. Attacks typically last from one week to about a month. Part of the pathology of multiple sclerosis is the ongoing degrading of the nervous system which leads to progressive declines in function. Significantly, according to Dr. Paulseth, the phenomenon of ongoing gradual decline in function is much more predictable in multiple sclerosis patients than flare up attacks.
There are 3 primary types of multiple sclerosis: relapsing/remitting; primary progressive and secondary progressive. According to Dr. Paulseth, about 90% of multiple sclerosis patients have a relapsing/remitting form of the disease. However, Mr. Kump has, at least since 2001, had secondary progressive multiple sclerosis, which is characterized by a progressive decline in neurological condition without any significant periods of remission. Approximately 50% of multiple sclerosis patients develop the secondary progressive form of the disease after 10 years.
Dr. Paulseth described the clinical history of Mr. Kump’s gradual decline in function over the years he treated him. He related his observations to a widely used scale for describing the level of disability in multiple sclerosis patients, the Expanded Disability Status Scale (EDSS). The EDSS is scored from 0 through 9. Scores of 0-3 reflect mild disability, 3-6 moderate disability, and 6-9 indicate severely impaired disability. It is of particular importance, according to Dr. Paulseth, to note that studies have shown that people with a disability score of less than 4 typically manifest high variability in their progress. However, once scores are more than 4, there is much less variability in their progress, their decline is typically not subject to dramatic spikes.
The EDSS is strongly correlated with mobility. If one has a score of 5.5, he or she may be able to walk about 200 metres without stopping. By the time one reaches a score of 7, he or she can only walk about 5 metres. At level 8 one is wheelchair confined, and beyond that one loses the use of hands and control of other bodily functions.
The EDSS is important in this arbitration as Dr. Paulseth opined that, according to the scientific research, primarily large scale natural history studies, Mr. Kump should have experienced an EDSS score somewhere between 7 and 7.5 around the time of his accident, noting again that the higher one is on this scale, the more “predictable the progress of multiple sclerosis is.” Mr. Kump’s accident occurred on December 22, 2006. At that point in time, Dr. Paulseth rated Mr. Kump at 7 on the EDSS. Within two months after the accident, Mr. Kump’s EDSS increased to 8.5. This very dramatic increase in level of disability was not clinically expected according to Dr. Paulseth. Mr. Kump had gone from being able to walk for at least a few metres on his own just two months before the accident to being completely unable to walk at all and to also experience significant weakness in his hands and most other muscle groups. This loss of strength in his upper extremities made it functionally impossible for Mr. Kump to transfer himself.
This clinical history is not really the core of the dispute between the parties. The question is whether the motor vehicle accident materially contributed to Mr. Kump’s decline in function or whether it was the result of the natural progression of Mr. Kump’s multiple sclerosis. Dr. Paulseth was asked his opinion on what caused this sudden change in Mr. Kump’s disability status. His response was that the motor vehicle accident trauma caused Mr. Kump to be laid up in bed, first in the acute care hospital, and then in the rehabilitation hospital. During this period of time, Mr. Kump became deconditioned. Dr. Paulseth stated that even healthy individuals have challenges in regaining muscle strength after months in bed and rehabilitation. Multiple sclerosis patients have an even more compromised ability to rebound from such situations. Dr. Paulseth did add the proviso that Mr. Kump “might have” experienced a multiple sclerosis attack while he was recovering in hospital from the accident, but all of the evidence is that he didn’t report symptoms associated with such an attack to anyone, nor did any health care practitioner who was attending him note them. Additionally and significantly, the pattern of progression of Mr. Kump’s multiple sclerosis, after the accident, is inconsistent with his having had an attack of such magnitude at this relatively late stage of his illness. Medically, one would have expected Mr. Kump to have gone through a predictably gradual decline in bodily function. Dr. Paulseth’s opinion was that Mr. Kump would not likely have reached the level of 8.5 on the EDSS for a few more years. Thus, something, in Dr. Paulseth’s view, intervened in Mr. Kump’s life that accelerated the progress of multiple sclerosis and the only possibility seems to have been the trauma of the motor vehicle accident.
On cross-examination, Dr. Paulseth was asked whether multiple sclerosis attacks can be brought on by trauma. His answer was that there are some studies which suggest that minor trauma does not bring on multiple sclerosis attacks. However, more recent studies suggest that psycho-social stresses are correlated with those attacks.
Dr. Paulseth acknowledged that the causal connection between trauma and the course of multiple sclerosis is still controversial within neurology. Two recent studies in Denmark and Israel suggest that experiencing “very traumatic” events increase the rate of multiple sclerosis attacks. However, Dr. Paulseth acknowledged that these were not large scale studies and that they also dealt with extreme traumas, such as being bombed in Gaza or having one’s child die.
When he was asked whether any large scale studies make a link between multiple sclerosis and trauma, Dr. Paulseth admitted that there were none that he knew of; but also that there are, in general, not many such studies done in the area of chronic illness. The reason is that funding for such studies is not readily available, as research funds tend to be focused on developing treatments for the disease. People with Mr. Kump’s form of multiple sclerosis typically are currently acknowledged to be beyond the point of effectively responding to treatment.
Further cross-examination focused on assessing the reliability of various types of scientific studies in the area of multiple sclerosis. Specifically, Dr. Paulseth was questioned about the importance of relying only on “evidence based medicine.” In response, he confirmed his understanding, and general approval, of the different levels of evidence, ranging from Level 1 (studies based on at least one randomized control trial), all the way down to Level 3 (opinions based on clinical experience and opinions of authorities in the field). He further testified that, to his knowledge, there are currently no level l studies that identify a link between trauma and the progress of multiple sclerosis. The two studies referred to earlier, in Dr. Paulseth’s opinion, were best described as level 2-iii, and not, merely anecdotal, level 3 anecdotal opinions.
Ultimately, Dr. Paulseth’s conclusion was that it was most likely deconditioning, resulting from Mr. Kump’s prolonged stay in hospital after the accident, that best accounts for his dramatic decline in function. If Mr. Kump did experience what would have had to have been a “very significant multiple sclerosis attack” while in hospital, it is unusual that he didn’t report any of the expected symptoms associated with it, nor did any of his attending health care professionals.
Indeed, Dr. Paulseth’s view was that “if” Mr. Kump did suffer a multiple sclerosis attack while in the hospital, it would have been the worst attack that he had ever experienced in his life. This, according to Dr. Paulseth, was inconsistent with the expected natural history of this disease.
After both counsel completed their questions, I asked Dr. Paulseth whether he, in his clinical practice, had seen patients, other than Mr. Kump, whose disease progression he believed was impacted by trauma. His answer was that he typically sees about 10 multiple sclerosis patients weekly and that he has, perhaps, experienced six situations where he believed that this correlation to trauma was present. His final comment was that those who treat multiple sclerosis patients always encourage them to exercise more. In context, this means that multiple sclerosis patients are always encouraged to keep physically active in order to delay the progression of this disease. No evidence to the contrary was offered in this arbitration.
Economical relied on the evidence of Dr. Sherali Esmail, a well-known neurologist with a diversity of clinical and medico-legal experience, especially in the areas of Parkinson’s disease and stroke. Although Dr. Esmail stated that he did not do a specialized fellowship in multiple sclerosis during his medical training, his estimate was that approximately 10% of his work, as a neurologist, has been with multiple sclerosis patients. He did work for 6 months in a multiple sclerosis clinic near the end of his medical training. Dr. Esmail observed that multiple sclerosis patients do not typically wind up in acute care hospitals and thus, as a neurologist in such situations, he is more likely to have encountered stroke victims than multiple sclerosis patients in his hospital rounds.
Dr. Esmail agreed with Dr. Paulseth that Mr. Kump suffers from a secondary progressive form of multiple sclerosis. In his view, Mr. Kump presents with a fairly advanced form of this disease.
Dr. Esmail however takes issue with Dr. Paulseth’s conclusion that there is a causal link between Mr. Kump’s disability level and the motor vehicle accident. According to Dr. Esmail, there have, for a long time, been claims asserted that trauma can either bring on multiple sclerosis attacks or lead to an exacerbation of a multiple sclerosis patient’s condition.
Dr. Esmail opined that the best scientific conclusion currently available is that there is no correlation between multiple sclerosis and trauma of any sort. In support of this conclusion, he relies on 2 cohort studies that found that, not only does trauma not bring on or worsen multiple sclerosis, but that one British study strongly suggests that people whose multiple sclerosis worsens actually experience fewer incidents of trauma than the normal population.
These studies, according to Dr. Esmail, should be classified as level 2 within an evidence based framework. He noted that, in his view, it is important, if possible, not to rely on anecdotal, uncontrolled, non-prospective studies in reaching valid scientific conclusions about such issues. According to Dr. Esmail, there are numerous factors that correlate with the progression of multiple sclerosis symptoms; but trauma has never been demonstrated to be one of them.
Dr. Esmail disagrees with Dr. Paulseth that Mr. Kump should have been rated at level 7 on the EDSS at the time of the accident. In his view, his score should have “at least been 7.5” at that point in time. I note however that, according to Dr. Paulseth’s evidence in this arbitration, which is the only direct evidence on what such an EDSS score functionally means, a score of 7.5 would have meant that Mr. Kump could not walk unassisted with that score. The evidence before me is that Mr. Kump was able to walk short distances before the motor vehicle accident.
Dr. Esmail went on to testify that he agreed that Mr. Kump subsequently progressed to the level of 8.5 on the EDSS; but that this is exactly what one would have expected in the natural history of multiple sclerosis in the relevant time frame.
When Dr. Esmail was asked whether deconditioning in the hospital could have contributed to Mr. Kump’s worsening condition, he opined that Mr. Kump’s condition should only have deteriorated “if he acquired an infection while in the hospital.” The records do not suggest that he had any such infection.
On cross-examination, Dr. Esmail was asked how much direct experience he had with Mr. Kump’s case. He stated that he only saw him once for the insurer examination. He further agreed that he did not review Mr. Kump’s family doctor’s clinical notes and records, as these records were, in his view, often “unreadable.” Dr. Esmail did not ask the insurer to have these notes transcribed.
If that was the case, I point out that insurers often pay to have doctor’s notes transcribed into legible form. I find it odd that a specialist physician would proffer “illegibility” as an insurmountable reason for not including a review of a long-term treating physician’s medical history in his evaluative process.
Dr. Esmail also was unclear as to whether he had reviewed the clinical notes and records from Dr. Paulseth at the McMaster multiple sclerosis clinic. Once again, I must say that it is extremely unusual, to say the least, that an expert medical assessor would attend at an adjudicative hearing such as this arbitration, and not even know whether he had “looked at” what undoubtedly are the most salient clinical records in this case.
The point is that Dr. Esmail does not believe that such data was particularly important to him and he specifically testified that he “usually doesn’t comment on other people’s notes.” Finally, Dr. Esmail testified that he found no need to read clinical notes related to Mr. Kump’s physiotherapy, as they were “irrelevant to him”, as a physician.
Dr. Esmail testified that, notwithstanding his view that multiple sclerosis has a predictable natural history which can easily explain Mr. Kump’s increasing disability after the motor vehicle accident, he would never tell a patient in the early stages of the disease that he or she “would be in a wheelchair 20 years down the road.”
His rationale for this conclusion was that any such a message would be “too blunt” to communicate to a patient after an initial interview and diagnosis. However, he did say that, after conducting further studies, such as MRIs, he would be open to talking to patients about the probability that their likely future life would involve confinement to wheelchairs.
Dr. Esmail acknowledged that rate of progression of multiple sclerosis is dependent on many things. Having acknowledged this variability, Dr. Esmail testified that he agreed with Dr. Paulseth that patients do tend to spend most of their time around level 7 on the EDSS scale, clarifying that the scale is logarithmic in nature and so, by definition, it will take much longer to progress from level 7 to level 8 than it will from level 1 to level 2. He agreed that, once one reaches level 7 on the EDSS, the progress of the multiple sclerosis is generally more stable and predictable than in earlier stages.
When Dr. Esmail was asked whether he knew how long Mr. Kump had been at level 7 on the EDSS, he responded that he did not, but he believed that Mr. Kump had been there longer than Dr. Paulseth believed. No reason was offered for this conclusion.
The only reasonable inference from this evidence is that Dr. Esmail predicted an imminent and significant change in Mr. Kump’s disability level because he had been at level 7 “long enough” to anticipate a further decline in function, which experts agree will inevitably result in Mr. Kump’s death from multiple sclerosis, barring any cure being discovered.
This case must be decided only on the evidence before me. The only real question therefore is what weight I should give to the professional opinions on the causal nexus offered by Dr. Esmail and Dr. Paulseth.
Mr. Kump has the burden of proving that his claim for these vehicle modifications is reasonable and necessary on the balance of probabilities. I find that he has met that burden of proof for the following reasons:
It is uncontested that Mr. Kump had a significantly lower level of functional disability prior to the motor vehicle accident than he had shortly after it. That disability directly affected his mobility and directly resulted in the need for him to travel thereafter in a motorized wheelchair and wheelchair accessible van.
Mr. Kump, as proven, through the consistent family evidence as well as the medical evidence of Dr. Paulseth, had not experienced a major multiple sclerosis attack for many years prior to the motor vehicle accident.
Mr. Kump, at the time of the accident, was acknowledged to have been at least at level 7 on the EDSS scale. According to both Dr. Esmail and Dr. Paulseth, multiple sclerosis progresses much faster in the early stages of the disease and then “levels out,” resulting in a gradual degenerative loss of function, both physically and cognitively over time.
Dr. Paulseth testified that, in the normal course of multiple sclerosis, it would have been very unusual for Mr. Kump to have experienced what would have been the most severe attack in his life while in hospital, given the advanced stage of his disease, and further given that neither Mr. Kump, nor any health care practitioner caring for him, noted any of the symptoms of a multiple sclerosis attack during his time in hospital.
My role is to decide whether Mr. Kump, on the balance of probabilities. has persuaded me that the motor vehicle accident materially contributed to his ongoing disability as opposed to his multiple sclerosis. In order to make that determination I must judge whether Dr. Paulseth’s or Dr. Esmail’s evidence is more persuasive.
I prefer Dr. Paulseth’s evidence as to what EDSS level Mr. Kump was at just prior to the motor vehicle accident. Dr. Paulseth is a recognized specialist, both academically and clinically, in the field of multiple sclerosis. But in addition to that, he has also been Mr. Kump’s primary treating physician for this disease for many years.
As noted above, Economical openly acknowledged Dr. Paulseth’s very strong professional credentials in the field of multiple sclerosis through their counsel’s statement that they would have sought out his opinion on Mr. Kump had he not already been engaged by the other side. 4
This, to my mind, is very strong support for his expertise and objectivity. It also illustrates that he is exactly the kind of neutral expert which the legal system ought to rely upon. He is, in my view, anything but a “partisan” witness. In addition, Dr. Paulseth’s specialty, both academically and clinically, is in the area of multiple sclerosis, whereas Dr. Esmail is a general neurologist, who, although he sees multiple sclerosis patients, has much more experience in treating and evaluating stroke and Parkinson’s patients. This in no way is meant to suggest that Dr. Esmail is unqualified to render a professional opinion in such a case, but only that I find that, on all counts, Dr. Paulseth’s expertise and direct clinical experience in the field of multiple sclerosis rationally invites more adjudicative deference.
Both physicians understand and acknowledge that they use the EDSS in their clinical practice. There is no doubt that this scale is generally accepted in the medical profession as a useful and reliable scale within the discipline of neurology. Dr. Paulseth referred me to a graph wherein he charts Mr. Kump’s disease progression from 1993 onwards.5 Mr. Kump progressed, according to this chart which I have no reason to doubt reflects Dr. Paulseth’s clinical observations, gradually from level 4 to level 7 over a period of approximately 13 years. Then he, much more rapidly, progressed from level 7 to level 8.5 in just over 1 year after the motor vehicle accident. This rapid progression is exactly what would “not” be predicted according to Dr. Paulseth, absent some intervening factor.
The evidence of both physicians was that, if one were to anticipate such dramatic changes in functional status in a multiple sclerosis patient, they would much more likely be seen at the onset of the disease rather than closer to the end, where Mr. Kump unarguably is. The warrant for this is the evidence of both doctors that dramatic swings in functional status are not often observed once a patient reaches level 7 on the EDSS.
Although there is medical opinion on both sides of this case, I accept that Dr. Paulseth’s view is more probable than Dr. Esmail’s.
The reason supporting my conclusion is that Dr. Paulseth has a very extensive background in the area of multiple sclerosis, both as a researcher and a practitioner. Coupled with this is that Mr. Paulseth has been Mr. Kump’s treating neurologist for many years and thus is able to relate his theoretical understandings of multiple sclerosis to Mr. Kump’s actual medical history. I have no reason to find that Dr. Paulseth’s evidence showed any unwarranted attempt to “support” his patient as opposed to provide me with his considered objective medical opinion. In fact, I find that Dr. Paulseth was quite candid in acknowledging that the causes of multiple sclerosis are not clear at the present time. Therefore, causality may be unclear at the moment. Dr. Esmail, on the other hand, simply referred to the few past studies that have looked into this issue and reported on the results to support his conclusions. I find that Dr. Paulseth’s combination of objective research and clinical treatment in the area of multiple sclerosis deserves rational deference.
There are cases that have dealt with this issue before, however they all have dealt with the threshold question as to whether trauma can cause or exacerbate multiple sclerosis. In this case it is clear that Mr. Kump had multiple sclerosis for years prior to the accident. No one is suggesting that his multiple sclerosis was caused by the motor vehicle accident.
The reality here is that Mr. Kump experienced, what I accept to have been, an exacerbation of his disability after the motor vehicle accident which has not been reasonably explained as part of the progression of his medical condition. I acknowledge Dr. Esmail’s view that there does not seem to be much evidence based research to support the view that trauma can cause such a situation. However, I also accept Dr. Paulseth’s opinion that there is a paucity of research into this area due to the fact that research funds tend to be devoted on treatments and possibly cures for multiple sclerosis.
Although Mr. Kump’s case may be important in a legal context, in general his situation is not on the top of the priority for research in the field. This situation leaves adjudicators in a quandary.
My conclusion is that Mr. Kump’s rapid decline in physical function shortly after the motor vehicle accident cannot be reasonably explained as the predictable progression of his multiple sclerosis. I accept Dr. Paulseth’s evidence that such a significant flare up is exactly what would not be expected at the stage of multiple sclerosis that Mr. Kump had arrived at. Therefore, something anomalous is likely to have accelerated his rapid functional decline. There is no evidence before me of potential intervening factors, other than this automobile accident. There is evidence, which I accept, from Dr. Paulseth that there may be a plausible correlation between physical and psychological stress and progression of multiple sclerosis. Mr. Kump’s confinement to hospital after the accident clearly had something to do with his worsening physical status. He was only in hospital as a result of this accident.
Notwithstanding the generic research which Dr. Esmail relied on to support his evidence, it is clear that the studies in this area are based on assigning probabilities to the specific situations they deal with. There are always exceptions to the conclusions that such medical studies reach. I accept Dr. Paulseth’s evidence that the “kind” of trauma one experiences may have a bearing on the result of the study and that not much of this research has so far been done. In many ways Mr. Kump’s situation may be a “black swan” example that challenges the current conventional scientific wisdom about the nature of multiple sclerosis.6
The justice system must not trade the rights and entitlements of those who may be “exceptions to the rules” in favour of statistical probabilities, particularly in fields where research has been inconclusive. Probability estimates always reflect the fact that there are exceptions to the generalizations made. In this case I find that Mr. Kump’s condition is more likely to have been materially associated with the automobile accident than with the continuing progress of his multiple sclerosis. The progress of his disease, in my view, would not have been associated with the rapid decline in function that he experienced absent an intervening force. The only force that can rationally be associated with this is the motor vehicle accident.
Therefore, Mr. Kump is entitled to a rehabilitation benefit in the amount of $41,761.45 for purchase of and modifications to a vehicle able to accommodate his disabilities arising out of this accident.
EXPENSES:
If the parties cannot agree on expenses, they may arrange for a hearing on expenses in accordance with the provisions of the Dispute Resolution Practice Code.
May 14, 2012
Robert A. Kominar Arbitrator
Date
Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2012 ONFSCDRS 79
FSCO A09-002712
BETWEEN:
DANIEL KUMP
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:
- Mr. Kump is entitled to a rehabilitation benefit in the amount of $41,761.45 for purchase of and modifications to a vehicle able to accommodate his disabilities arising out of the motor vehicle accident.
May 14, 2012
Robert A. Kominar Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- See generally Monks v. ING. 2008 ONCA 269
- This issue arises from the fact that Mr. Kump’s father is a retired General Motors employee and clearly prefers to buy that company’s vehicles. Economical questioned whether it would have been less costly to purchase a van manufactured by another auto maker.
- I want to compliment both counsel on the professional approach they took to this arbitration, and I particularly want to acknowledge Mr. de Koning’s objective and fair minded approach to this arbitration. This is clearly a case where there was reasonable doubt about how to evaluate divergent expert evidence which the parties received and thus it likely needed a third-party decision. The fact that the parties were able to agree on a statement of facts and filed a joint document brief is evidence that both counsel are consummate professionals who are only interested in obtaining a fair and reasonable resolution of their disagreement.
- Exhibit 5 in the arbitration
- It is well known that there is currently significant debate about the causes of multiple sclerosis, and thus the appropriate treatment for it. The “Zamboni treatment” which is presently being investigated, and funded by governments, suggests that multiple sclerosis is a different sort of disease than conventional neurology believes it to be. Whether this is the case or not, the point is that Mr. Kump’s presentation may be the exception to the rule that results in a different understanding of this disease. On The Black Swan, see Nassim Taleb, Random House, 2007.