Mariecel Antonio v. CAA Insurance Company (Ontario), 2016 ONFSCDRS 265

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

Neutral Citation: 2016 ONFSCDRS 265

FSCO A14-005765

BETWEEN:

MARIECEL ANTONIO Applicant

and

CAA INSURANCE COMPANY (ONTARIO) Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator Caroline King

Heard: November 9, 10, 12, 20, 2015, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Jwan Desai, Miguel Maruszki, for Mrs. Antonio Pamela A. Brownlee for CAA Insurance Company (Ontario)

Mariecel Antonio (the ‘Applicant’), was injured in a motor vehicle accident on September 9, 2013. She applied for and received some statutory accident benefits from CAA Insurance Company (Ontario) (“CAA”), payable under the Schedule,¹ but there is an ongoing dispute about benefits payable. The parties were unable to resolve their disputes through mediation, and Mrs. Antonio applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The parties requested a preliminary issue hearing to resolve an essential element of Mrs. Antonio’s arbitration application.

The parties agreed that the preliminary issue is:

Did the accident of September 9, 2013 cause impairment related to the cavernous malformation in the Applicant’s brain?

Result:

The accident of September 9, 2013 did cause impairment related to the cavernous malformation in the Applicant’s brain.

INTRODUCTION

The parties agree that the Applicant had a rare, pre-existing condition (a cavernous malformation in the brainstem), prior to her September 9, 2013 motor vehicle accident, and that she was exhibiting symptoms of the pre-existing condition at and/or around the time of the accident. The pre-existing condition was not diagnosed until after the accident. The parties agree that the accident did not cause the pre-existing condition, but the parties disagree about whether the accident directly caused an impairment within the meaning of the Schedule.

The parties agreed that the test for causation in accident benefit cases includes material contribution.

I. MEDICAL BACKGROUND:

Cavernous Malformation or Cavernoma – The pre-existing condition:

A cavernous malformation, (also called a cavernoma), is a congenital abnormality of the blood vessel formation, where the cluster of blood vessel walls are not formed normally and are weak. Cavernomas can leak or bleed, but a person with a cavernoma may be asymptomatic throughout their life.

Cavernomas are rare and brainstem cavernomas, such as the Applicant’s, are ever rarer. There is no definitive medical study about the effect, if any, of a trauma or motor vehicle accident on an individual with this kind of rare pre-existing condition.

In the Applicant’s case, the parties’ expert witnesses agreed that the Applicant’s cavernoma had leaked blood before the accident and after the accident and likely was leaking around the time of the accident.

Symptoms arising from a leaking or haemorrhaging cavernoma in the brainstem include ptosis (droopy eyelids), and diplopia (double vision).

II. The parties’ respective positionS on the issue of causation.

The expert witnesses agreed that there was a difference in the Applicant’s condition in the time period before the accident and in the time period after the accident, but they disagreed about whether the change was related to the accident.

1. The Applicant’s Position:

It is the Applicant’s position that the accident did cause an impairment related to the cavernous malformation in the Applicant’s brainstem. The Applicant submitted there was a distinct and marked change in the Applicant’s pre and post-accident condition linked to the accident. It was submitted that the Applicant was functional, independent, and had completed a day of work before the time of the accident. Before the accident, the Applicant had not experienced loss of consciousness. The accident involved a sudden deceleration of speed in which she turned/ twisted her neck and hit her head. The bleeding from the cavernoma increased in the hours and days after the accident. Days after the accident, the Applicant did experience loss of consciousness, and ultimately required surgical intervention to address a potentially life-threatening condition arising from the cavernoma and secondary hydrocephalus.

2. The Insurer’s Position:

The Insurer’s position is that the accident did not cause an impairment related to the cavernous malformation in the Applicant’s brain and that before the accident the Applicant had already experienced loss of consciousness or altered consciousness. The Applicant was symptomatic at the time of the accident, and that the accident had no effect² (or at most only a de minimus effect³) on the Applicant’s cavernoma. The Applicant’s deteriorating condition after the accident was a result of the natural progression of her symptomatic cavernoma. Simply put, the Applicant’s cavernoma and the deterioration of her condition were the natural unfolding of her condition and that there was no proximate cause of the deterioration in her condition.

III. DID THE APPLICANT EXPERIENCE A PRE-ACCIDENT LOSS OF CONSCIOUSNESS?

It is important to determine whether the Applicant suffered a pre-accident loss of consciousness. A pre-accident loss of consciousness could be a symptom of a worsening condition relating to the Applicant’s cavernoma and would support the Insurer’s theory that the Applicant’s post-accident loss of consciousness was not caused by the accident but was simply the natural progression of the Applicant’s pre-existing medical condition.

I am not satisfied that the Applicant suffered a pre-accident loss of consciousness or altered consciousness for the reasons that follow. There is no medical record created before the day of the accident by the Applicant’s treating physicians which makes any reference to the Applicant losing consciousness. There are no reports to the Ministry of Transport regarding the Applicant about serious medical issues such as loss of consciousness as required by law. The medical records taken most proximate to the accident, (the closest to a first-hand report available), the Emergency Medical Service (‘EMS’) reports and the first treating hospital Mackenzie Health do not indicate there was a loss of consciousness. None of the expert medical witnesses’ opinion reports indicated that she had a pre-accident loss of consciousness, and further, all four of the expert medical witnesses stated in the hearing that the Applicant did not have pre-accident loss of consciousness.⁴

I did consider the few references to pre-accident loss of consciousness in the medical records from St. Michael’s Hospital, (the second treating hospital). These records reveal issues regarding the recording of historical information (as opposed to observational information). There were inconsistencies and multiple errors (which at times were repeated serially) in the historical aspects of the records which suggest there was a lack of care in the collection and use of the historical type of information.⁵ In my mind, this undermined the reliability of the historical aspects of that hospital’s medical record keeping as a whole regarding what happened to the Applicant prior to her admission to that hospital. In the few references to pre-accident/accident loss of consciousness, there are questions about how the information was collected and whether it was assessed against the context of the medical records as a whole.⁶

Finally, when the expert witness evidence, and the pre and post-accident medical records are considered in their entirety, what is most persuasive is not what is in the records, but what is not. There are no references to any episodes of loss of consciousness or altered consciousness in the pre-accident records, or in the records taken within hours of the accident. I find that it is more likely than not that there was no loss of consciousness or altered consciousness pre-accident or on the day of the accident.

IV. DID THE SEPTEMBER 9, 2013 ACCIDENT CAUSE AN IMPAIRMENT?

I have found that the Applicant did not suffer any loss of consciousness or altered consciousness pre-accident or on the day of the accident, but the Applicant still bears the onus of proof to establish whether it is more likely than not that the accident of September 9, 2013 caused impairment related to the cavernous malformation in the Applicant’s brain within the meaning of the Schedule.

For the reasons below, I find that there is a distinction in the Applicant’s level of functioning, symptoms, and condition, pre and post-accident. There was a change in her condition which, I find, flowed in a meaningful way from the accident. The Applicant’s argument that the accident caused an impairment related to the cavernoma was more consistent with the medical records as a whole, and more consistent with the persuasive expert opinion evidence given by the Applicant’s expert witnesses, and in particular the theory opined by Dr. Gladstone.

1. What did the Experts say?

All four expert witnesses agreed that even a small increase in bleeding in the brainstem area could have a significant impact on a person’s condition. All the four expert witnesses agreed that there was a difference in the Applicant’s condition prior to the accident compared to after the accident. The experts did not agree about whether the accident caused an impairment.

a) The Insurer’s Experts.

For different reasons I did not find either of the Insurer’s expert witnesses to be persuasive.

Dr. Moddel’s opinion that the accident had absolutely no effect on the Applicant’s condition, was undermined by his inconsistent evidence and by the fact that he appeared to take on the mantle of an advocate. Dr. Moddel gave testimony that the Applicant lost consciousness at/around the time of the accident. He then reversed his opinion under cross-examination and stated that she did not lose consciousness. Not only was his testimony was internally inconsistent, it diverged from his four written reports provided to the Insurer. In none of these four reports did he indicate that the Applicant lost consciousness or had an altered state of consciousness prior to the accident. He did not clearly explain why he was inconsistent and, at the hearing, appeared to put on the mantle of an advocate suggesting findings that would be more consistent with the Insurer’s position regarding pre-accident loss of consciousness. I found his inconsistency and his positioning in his responses to the Insurer’s counsel’s questions undermined the reliability of his opinion evidence. Consequently, I did not rely on his opinion about the Applicant’s condition.

Dr. Perrin, the Insurer’s second expert witness, did a paper review of the Applicant’s medical records for an Insurer’s Catastrophic Impairment determination. Dr. Perrin was not familiar with the details of the case, which undermined the reliability of his assessment of the Applicant’s condition. At the hearing it was apparent that he was not familiar with the details of the case (e.g. he didn’t recall whether the Applicant hit her head in the accident), was not clear on what reports he had considered in his paper review, and was not clear on relevant pre and post-accident history. His report⁷ contained an error regarding the direction of the turn going into the accident (it was a left turn, not a right turn as he indicated in his report).⁸ Further, Dr. Perrin was unclear regarding the legal test regarding material contribution. All of this combined suggests a lack of careful and open consideration of the events of the accident, and the relationship, if any, on the Applicant’s pre-existing condition. As such, I did not rely on his opinion evidence regarding the Applicant’s condition.

b) The Applicant’s Expert Witnesses

Dr. Gladstone’s evidence was internally consistent. Dr. Gladstone’s opinion was that the accident could contribute to the worsening of the Applicant’s cavernoma.

Dr. Gladstone’s theory was that a torsional pressure put on the brainstem and on the superficial tentacles on the superficial part of the cavernoma could cause them to bleed or rupture. Dr. Gladstone described the Applicant’s accident and his theory as follows:

…Blunt trauma to the [Applicant’s] forehead at a high speed, throwing [the Applicant] forwards, ricocheting her backwards, and one other thing I would like to bring up from the notes, and that was that she had a bruise over her left forehead, which means when she hit the hydro pole dead centre in her car, she must have had her neck and head rotated to the right for her to strike it on the left-hand side.

And, that causes a torsional stress on the brain stem and on the neck vessels that go up, that supply these arteries and veins, sufficient, I believe, that could have caused these small little tentacles that come out from the vessels on the superficial part of the cavernoma to bleed or rupture. So, there’s torsional rotation of the neck at a high speed impact – can cause damage to the brainstem.

Neither of the Insurer’s expert witnesses challenged Dr. Gladstone’s theory. Significantly the Insurer’s expert witness, Dr. Perrin, conceded that it was possible that trauma could cause a brainstem cavernoma to bleed. All experts agreed that even a small increase in bleeding could have a significant impact in this important area of the brain.

After considering the expert opinion evidence before me, I find that it is more likely than not that trauma could cause a brainstem cavernoma to bleed and that an increase in bleeding can lead to neurological problems.

2. Comparison of the Applicant’s pre and post-accident condition

a) Pre-Accident Condition:

I have found above that the Applicant did not have episodes of loss of consciousness or altered consciousness prior to the accident. The parties agreed that the Applicant had been working on the day of her accident. The medical records from the family doctor, and the optometrist indicated that the Applicant had intermittent episodes of ptosis (droopy eyelids) and diplopia (blurred vision). Even the Insurer’s expert Dr. Perrin, stated that the Applicant’s symptoms were mild at the time of the accident.

i) What do the records say?

The Applicant’s family doctor was the Applicant’s primary health care provider during the relevant time period. Her notes and referral letters do not show an urgent concern about the potential for an imminent decline and/or potential health crisis. There are no notations in the family doctor’s records written before the day of the accident to suggest that there was any problem of, or concern, about issues of loss of consciousness or altered consciousness.

In February 2013, the family doctor checked the Applicant’s blood sugar levels (which turned out to be normal). The family doctor’s notes from the August 13, 2013 visit⁹ questioned whether the Applicant’s issues were related to fatigue. The family doctor did refer the Applicant to an ophthalmologist, but that appointment with the ophthalmologist was not scheduled to take place until November 2013 (or approximately nine months from the Applicant’s first report to her family doctor about her symptoms). In her referring letter to the ophthalmologist, dated August 14, 2013,¹⁰ the family doctor indicates that the episodes of diplopia and visual blurring have occurred ‘intermittently’ since February and comments that the Applicant notices that the problem ‘occurs more often if she is fatigued’. Thus from the first visit to her family doctor in February 2013, approximately nine months was scheduled to pass before the Applicant’s visit with the ophthalmologist. This response, from the Applicant’s family doctor, who oversaw the Applicant’s health care, is not consistent with a primary care physician who saw signs that there was an ongoing pattern of progressive decline in the period just prior to the accident.

b) Post-Accident Condition

i) What happened in the accident?

The accident occurred approximately at 2:49 p.m. on September 9, 2013. I found that the Applicant did not experience any loss of consciousness at or around the time of the accident. EMS arrived at the scene of the accident at approximately 2:51 p.m. and found the Applicant alert and oriented. The Applicant told EMS that her droopy eyelids prevented her from seeing and caused her to have the accident.¹¹

It was not disputed that the Applicant was making a left hand turn when she drove her car into a utility pole at around 40-60 km per hour. The air bags did not deploy, there was no damage to the windshield, and there were no intrusions into the car. The EMS reports¹² indicate that the impact was at about 40-60 km per hour. The centre front of the car was punched in by the impact. Even taking into account that the car would absorb some of the impact, it still involves the sudden deceleration of the Applicant’s body (travelling in the car) from about 40-60 km per hour to 0 km per hour upon impact.

ii) The Applicant’s Post-Accident Condition:

The EMS records indicated that there was a minor swelling to the Applicant’s left eyebrow, that she had a forehead haematoma, and subsequently that she complained of neck pain.¹³ The first treating hospital, Mackenzie Health, Emergency Nursing Assessment indicates that the Applicant hit her left eyebrow during injury.¹⁴

When I consider the path of travel of the car (it was turning left), the EMS notes which recorded minor swelling and a haematoma on the left eyebrow, and the first treating hospital records which indicate that the Applicant hit her left eyebrow instead of the middle of her forehead in this front on impact, I find that it is more likely than not that she twisted her neck at/around the time of impact when she hit her head.

The Applicant’s CT scan reports show a persistent increase and mass of the hemorrhagic lesion from the short period after the accident and in the days following. The first CT scan was taken approximately 3 hours after the September 9, 2013 accident. The following list shows the date and times of some of the CT scans and the size of the mass measured.

September 9, 2013 at 5:55 p.m. -- 1.4 x 1.4 c.m.¹⁵ [mild hydrocephalus]
September 10, 2013 at 3:50 a.m. – 1.8 x 1.6 c.m.¹⁶ [moderate hydrocephalus]
September 10, 2013 at 9:06 p.m. – 2.0 x 1.9 c.m.¹⁷ [increase in hydrocephalus]
September 14, 2013 at 12:47a.m. -- 2.3 x 2.1 c.m.¹⁸

The timelines and the recorded increase in the cavernoma mass in the hours, days, and weeks after the accident establishes a strong temporal link between the increase in the size of the mass and the accident.

There are also temporal links with other marked changes in the Applicant’s condition which were connected to the secondary hydrocephalus. Four days after the accident, the St. Michael’s records indicate that the Applicant had fluctuating loss of consciousness.¹⁹ On September 15, 2013, the Applicant is reported to have had multiple episodes of loss of consciousness²⁰. On September 19, 2013, the medical notes state in part:

…Concerned [the Applicant] is very symptomatic from the combination of her cavernoma and secondary [hydrocephalus]; in addition to her cranial nerve involvement she also has cognitive disturbance… and pronounced postural instability in terms of gait.²¹

By September 22, 2013, there were indications that the Applicant had severe cognitive difficulties, dementia, and gait difficulties, the latter two of which were linked to the secondary hydrocephalus.

The medical records state:²²

We are also concerned that should [the Applicant] have a recurrent bleed, and [increased] hydro, she could die.

To address the Applicant’s increasing hemorrhagic cavernoma mass, periods of loss of consciousness, and other resulting conditions, the Applicant had an image guided resection of the brain stem cavernoma on September 30, 2013.

c) So is there a Causal Connection?

Despite the assertion of the Insurer, the medical documents created on or before the date of the accident do not establish an ongoing pattern of decline related to the Applicant’s cavernoma in the period leading up to the accident. In the months, weeks, and days prior to the accident, the evidence was that the Applicant was carrying out her normal daily activities, including working. Any impairment arising from her cavernoma was mild or moderate. This changed after the accident.

There is a temporal connection between the accident and the increasing mass of the cavernoma and the changes in the Applicant’s condition pre and post-accident which is not merely coincidental. I find that the accident of September 9, 2013 caused, in Dr. Gladstone’s words, a ‘cascade of events’. I find that it is more likely than not that a small torsional force on the weak tributaries to her symptomatic brainstem cavernoma could, and did, lead to increased bleeding of her cavernoma as suggested by Dr. Gladstone, and as supported from the CT reports which show the increase in the size of the cavernoma lesion post-accident. Such a slight torsional twist may not be significant in a typical brain, but the Applicant’s brain was not a typical brain, she had a cavernoma on her brainstem, and her cavernoma was symptomatic and leaking blood at/around the time of the accident.

While we do not know the size of the mass, and/or the amount of leakage and fluid around the cavernoma prior to the accident, we do know that the Applicant had been functioning just prior to the accident, had completed her day of work, and that her impairment from the symptoms of the cavernoma were mild and manageable prior to the accident. It is not disputed that cavernomas and the tributaries which run to the cavernomas are fragile in nature and can leak blood. I have found that the Applicant twisted her neck at the time she hit her head in the accident and accept Dr. Gladstone’s unchallenged opinion that this could cause an increase torsional pressure on the thin fragile tributaries which run into the symptomatic cavernoma which could lead to increased bleeding. The post-accident CT scans, show the mass increasing significantly in the time period shortly after the accident and the days following.

In the six months prior to the accident, the Applicant’s cavernoma was symptomatic on an episodic basis, and there is no documented report generated prior to the accident which indicated that her level of functioning was significantly compromised. The fact that the Applicant’s symptoms were ‘episodic’ in nature indicates that the symptoms had previously resolved. No documentation prior to the accident indicated that there was any issue with loss of consciousness, severe cognitive issues, or gait difficulties.

Yet, within hours of the accident, the Applicant’s lesion had expanded from 1.4 x 1.4 cm to 1.8 x 1.6 cm and it continued to expand. Four days after the accident, the Applicant’s level of consciousness started to fluctuate and the Applicant’s cavernoma lesion continued to expand, two days later the Applicant had multiple episodes of loss of consciousness, and seven days after that the Applicant is documented to have had some dementia, severe cognitive difficulties, gait difficulties, and the doctors were concerned that if she had a recurrent bleed and hydrocephalus, the Applicant could die.²³ Eight days after that (or twenty-one days after the accident), the Applicant had surgery to address the life-threatening impairment from her cavernoma.

In this case, the documented measurements of the increase in mass and fluid related to the Applicant’s cavernoma, and post-accident change in the Applicant’s functioning and cavernoma, satisfies me that it is more likely than not that there is a reasonable causal connection to the accident and the post-accident decline and impairment related to the Applicant’s cavernoma which is not explained by any other intervening event.

There are many aspects of this case which are analogous to aspects in the Kump and Economical Mutual Insurance Company²⁴ case. In that case, Mr. Kump had a pre-existing condition prior to his accident. There were not any determinative medical studies, to provide a foundation for an evaluation of the impact of trauma on Mr. Kump’s pre-existing condition. The arbitrator stated that:

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.

Likewise in this case, even though there is no determinative medical study which is conclusive about the impact of trauma on brainstem cavernomas, I find that the impairment related to the Applicant’s cavernoma is more likely than not to be materially associated with the Applicant’s September 9, 2013 accident, than with the natural progression of this condition, as this finding is supported by the change in the pre and post-accident condition, and by Dr. Gladstone’s unchallenged theory.

In this case, the parties agreed that the test for causation in accident benefits cases includes material contribution. Nevertheless, even if I were to apply the ‘but for’ causation test to this case, I would come to the same finding and adopt the analysis offered by Dr. Lesiuk in Monks v. ING Insurance Co. of Canada which is equally applicable in this case:²⁵

[T]he ultimate outcome of the things that happened to her had the potential to be different had this accident not occurred. And the outcome of everything that happened if the accident had not occurred could not be reliably predicted to be the same.

V. FINAL CONCLUSIONS:

I find that it is more likely than not that the accident occurred when the Applicant’s cavernoma was symptomatic and that the accident involved a torsional twist of the Applicant’s neck which put additional pressure on the thin, fragile walled blood vessels leading to the cavernoma resulting in additional blood leaking and the sequelae of increased hydrocephalus. This tipped the delicate balance in the Applicant’s brain from a mild impairment from her episodically symptomatic cavernoma, to an impairment related to the cavernoma which approximately three weeks after the accident was life threatening.

I accept Dr. Gladstone’s unchallenged theory that the impact of the accident on the Applicant’s pre-existing cavernoma as ‘start[ing] a cascade of events that leads to more and more vigorous bleeding over time, that leads to a life threatening situation in a number of days and weeks afterwords.’ But for the accident I am not satisfied that this outcome could reliably be predicted to be the same.

The accident of September 9, 2013, caused impairment related to the cavernous malformation (cavernoma) in the Applicant’s brain.

October 3, 2016

Caroline King Arbitrator

Date