Tribunal File Number: 17-004722/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits

Between:

S.K.

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Anna Truong APPEARANCES:

For the Applicant: S.K., the Applicant

S.K., the Applicant’s sister

Renée Vinett, Counsel for the Applicant

For the Respondent: Caroline Meyer, Counsel for the Respondent

Devon Marr, Counsel for the Respondent

Heard in-person on: January 29 to February 1, 2018

OVERVIEW

1S.K. (the “Applicant”) was involved in an automobile accident on January 23, 2012, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The Applicant submitted an Application for Determination of Catastrophic Impairment Form (OCF-19), because she alleged she had sustained a catastrophic impairment as a result of the accident. She alleged her accident-related injuries resulted in symptoms which necessitated a cervical spinal laminectomy, decompression and fusion surgery, which she underwent in December 2015.

2The Respondent denied she sustained a catastrophic impairment as a result of the accident and denied the benefits she sought. The Respondent maintained her surgery was not accident-related, but instead, as a result of her pre-existing degenerative spinal conditions.

3The Applicant disagreed with the Respondent’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”). The matter proceeded to a Case Conference, but the parties were unable to resolve the issues in dispute.

PROCEDURAL ISSUES

Dr. Saplys’ Report and Attendance at the Hearing

4Shortly before the hearing, the Respondent notified the Applicant it would no longer be calling Dr. Saplys as a witness. The Applicant then proceeded to obtain and serve Dr. Saplys with a Summons. However, the Summons did not provide enough notice for Dr. Saplys to attend.

5The Applicant argued Dr. Saplys should be required to attend the hearing. In the alternative, the Applicant argued an adverse inference should be drawn from the Respondent’s failure to produce Dr. Saplys as a witness, because the opinion from his report is favourable to the Applicant. The Applicant argued she is at a disadvantage, because she is unable to question him about his report.

6The Respondent argued no adverse inference should be drawn, because the Tribunal’s Case Conference Order only limited witnesses to the ones listed. It did not state the Respondent was obligated to call those witnesses. The Respondent conceded the report is supportive of the Applicant’s case. However, the Respondent argued it is at a disadvantage for being unable to question him about his report, not the Applicant.

7After hearing the submissions from the parties, I declined to draw an adverse inference from the Respondent’s decision to not call Dr. Saplys as a witness for a

few reasons. First, the Tribunal’s Case Conference Order does not state the witnesses listed must be called at the hearing. Second, I allowed the Applicant the option of adjourning the hearing to call Dr. Saplys as a witness. Lastly, even without Dr. Saplys, the Applicant could still enter his report as evidence in the hearing. Therefore, there is no prejudice to the Applicant.

8The Applicant opted not to adjourn the hearing and entered Dr. Saplys’ report. Applicant’s E-mail Dated July 3, 2013

9The Applicant objected to her e-mail dated July 3, 2013, addressed to [DB] of Wawanesa Mutual Insurance Company being entered into evidence. After hearing the submissions of the parties, I allowed the e-mail into evidence, because there is no prejudice to the Applicant. The Applicant wrote the e-mail. Therefore, she is aware of its contents. Furthermore, I allowed the Applicant the option to continue her examination-in-chief with respect to the e-mail. However, she declined the option.

ISSUES TO BE DECIDED

10The following are the issues to be decided:

1. Has the Applicant sustained a catastrophic impairment as defined by the Schedule?

If the answer to issue 1 is yes, then:

2. Is the Applicant entitled to attendant care benefits in the amount of $6,000 per month from January 29, 2018, and ongoing?

3. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

11Based on the totality of the evidence before me, I find the Applicant has not sustained a catastrophic impairment, and she is not entitled to attendant care benefits in the amount of $6,000 per month, or interest.

ANALYSIS

12The hearing took place over four days. The Applicant, her sister and several experts testified. Written closing submissions were submitted after the hearing. I have considered all of the evidence led in this hearing. I have only summarized what I found relevant to my determination below.

1. Catastrophic Impairment

13The Schedule provides several criteria for an accident related impairment to be considered catastrophic. Section 3(2)(e)’s criteria include 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 (the “Guides”), results in a 55% or more impairment of the whole person.

Jurisprudence has held these impairments can include physical impairments, individually or in combination with mental and behavioural impairments, as long as it results in a whole person impairment (“WPI”) of 55% or more according to the Guides.

14The Guides are a compilation of chapters, which contain specific rating criteria for the degree of impairment of individual body systems. Each chapter is dedicated to a particular body system. In order to arrive at a total WPI rating under section 3(2) (e) of the Schedule, each individual impairment must first be rated separately under the corresponding chapters within the Guides to obtain an individual impairment rating. Once all the individual impairment ratings are obtained, they are combined according to a formula in the Guides to arrive at the total WPI rating under section 3(2) (e) of the Schedule.

15In catastrophic impairment assessments, whole person impairments under section 3(2) (e) are referred to as criterion 7 impairments. Mental and behavioural impairments under section 3(2) (f) are referred to as criterion 8 impairments. The applicant claims she has sustained a catastrophic impairment pursuant to section 3(2) (e) of the Schedule on the basis her combined accident-related impairments results in a 67% WPI rating.

Physical Whole Person Impairment (Criterion 7)

16In the Applicant’s Catastrophic Impairment Summary & Analysis Report dated June 13, 2016, Dr. Harold Becker, Omega Medical Director, and Dr. Lisa Becker, Physiatrist & Omega Clinical Coordinator, combined all of the Applicant’s impairment ratings and concluded the Applicant had a total WPI rating of 67%.

This consists of 54% for her physical impairment and 29% for her mental and behavioural impairment. These impairment ratings were based on the reports of Dr. Harpreet Sangha, Physiatrist, and Dr. Dory Becker, Psychologist.

17In the Applicant’s Physical Impairment Evaluation Report dated May 19, 2016, Dr.

Sangha noted the Applicant had complaints about her neck, hands, balance, reduced sexual arousal and scarring as a result of the accident. In his report, Dr. Sangha assigned the following physical WPI impairment ratings to the Applicant:

Body Part

Reason

WPI Rating

Medication

Applicant is taking significant amounts of neuropathic pain agents and medical marijuana, all with side effects of cognitive blunting and daytime somnolence

3%

C-Spine

DRE IV- Has long tract signs, and using some adaptive devices to accommodate poor digital dexterity, but unsure if it meets the DRE V threshold of one limb showing severe extremity neurological compromise requiring an extern functional or adaptive device

25%

T-Spine

Mild guarding and hypertonicity to the upper to mid- thoracic paraspinals and rhomboids

5%

Balance

Sway on Rhomberg and unable to do tandem walk. Consistent with neurologically medicated balance impairment and long tract signs and balance issues

1-9%

Upper Extremity

Bilateral digital dexterity issues as a result of cord injury

1-19%

Scarring

9.5 cm midline scar, which the Applicant is self- conscious about

2%

Left Shoulder

Fell onto arms resulting in new issues of glenohumeral instability, which assumes the fall is related to “myelopathic gait” described by neurosurgeon

7%

18Dr. Sangha does not provide a final physical WPI rating. This was done by Drs. L. and H. Becker in their Catastrophic Impairment Summary & Analysis Report. In selecting the appropriate WPI rating for each impairment, Drs. L. and H. Becker arbitrarily selected the highest ratings and did not provide an explanation in their report as to why this was done. They ultimately rated the Applicant’s physical WPI rating at 54% [3+25+5+7+9+19+2], which meets the 55% WPI threshold to be deemed catastrophic under the Schedule.

19In the Respondent’s Catastrophic Executive Summary dated November 2, 2016, Dr. Sekyi-Otu, Orthopaedic Surgeon, combined all of the Applicant’s impairment ratings and concluded the Applicant had a maximum combined WPI rating of 17%. These impairment ratings were taken from his own orthopaedic report and the reports of Dr. West, Psychologist, Dr. Moddel, Neurologist, and Mr. Ford, Occupational Therapist.

20In the Respondent’s Catastrophic Orthopaedic Assessment Report dated November 2, 2016, Dr. Sekyi-Otu concluded the Applicant’s accident related impairment consists of myofascial strains to the cervical and thoracic spines and to the shoulder girdles. He opined the Applicant sustained soft tissue injuries as a result of the accident superimposed on pre-existing conditions, and her neck surgery is not causally related to the accident. Dr. Sekyi-Otu noted the Applicant reported symptoms of burning numbness over her hands, neck pain, and left shoulder instability. He further noted there was no musculoskeletal explanation for the neurological symptoms in the Applicant’s hands. Since Dr. Sekyi-Otu concluded her impairments were not causally linked to the accident, he assigned her a 0% WPI rating.

21In the Respondent’s Catastrophic Neurological Assessment Report dated November 2, 2016, Dr. Garry Moddel, Neurologist, concluded the Applicant did not suffer any neurological impairment as a result of the accident. Dr. Moddel found the Applicant has pre-existing congenital spinal stenosis and he found the Applicant’s neurological issues appear to start after chiropractic manipulations. Dr. Moddel opined any type of neck movements could have easily precipitated the development of spinal cord trauma, because the Applicant is predisposed due to her congenital spinal stenosis. Dr. Moddel found her impairment associated with her cervical spine and upper extremities was consistent with the first category of Table 15 of Chapter 3 of the Guides. However, he did not provide a percentage rating, because he found these impairments were not caused by the accident.

Furthermore, Dr. Moddel did not find any problems with the Applicant’s balance, despite Dr. Sangha’s finding of impairment.

22Dr. Sangha completed a Physiatry Addendum Report dated December 22, 2017, in response to Dr. Sekyi-Otu's and Dr. Moddel’s Reports. Dr. Sangha stated he disagreed with Dr. Sekyi-Otu's assertion that the Applicant had a pre-existing history of neck symptoms for which she required narcotics. Dr. Sangha opined the accident materially contributed to the Applicant’s neck impairments and subsequent complications. Dr. Sangha further stated his opinion and WPI ratings remained unchanged.

Mental and Behavioural Impairments (Criterion 8)

23Mental and behavioural impairments are not rated like physical impairments. These impairments are not assigned a percentage rating by the Guides. Instead, mental and behavioural impairments are rated within four spheres of function and assigned a rating using a five level scale. The Table below from Chapter 14 sets out the four spheres of function and the criteria for each class of impairment.

Classification of Impairments Due to Mental and Behavioural Disorders[^1]

Area or Aspect of Functioning

Class 1: No Impairment

Class 2: Mild Impairment

Class 3: Moderate Impairment

Class 4: Marked Impairment

Class 5: Extreme Impairment

Activities of Daily Living

No impairment is noted

Impairment levels are compatible with most useful functioning

Impairment levels are compatible with some, but not all, useful functioning

Impairment levels significantly impede useful functioning

Impairment levels preclude useful functioning

Social Functioning

Concentration, Persistence and Pace

Adaption

24Under section 3(2) (f) of the Schedule, an impairment is considered catastrophic if, as a result of the accident, the individual suffers a marked (class 4) or extreme (class 5) impairment in one or more of the four spheres of function due to a mental or behavioural disorder (criterion 8). The Applicant concedes she has not sustained a catastrophic impairment pursuant to criterion 8. However, it is relevant to my determination, because mental and behavioural impairments can be included under criterion 7 to obtain a total WPI rating. If the combined total WPI rating reaches a 55% WPI or more, the Applicant will be deemed catastrophic.

25Both sides agree the Applicant has a pre-existing history of depression and anxiety for which she was being treated by a psychiatrist and managing through Abilify, Imovane, Adderall and Cipralex. For the sake of brevity, I will not go into great detail about her pre-accident psychiatric history as it is extensive.

26In the Respondent’s Catastrophic Psychological Assessment Report dated November 2, 2016, Dr. Curt West, Psychologist, diagnosed the Applicant with a Major Depressive Disorder, Recurrent, Moderate and a Pain Disorder Associated with Both Psychological Factors and a General Medical Condition. With respect to the Applicant’s impairment in function, Dr. West found the following:

Sphere of Function

Impairment Rating

Activities of Daily Living

Mild

Social Functioning

Mild to Moderate

Concentration, Persistence and Pace

Mild

Adaptation

Moderate

27It is well-established law any mental and behavioural WPI ratings under criterion 8 can be combined with physical WPI ratings to provide a total WPI rating under criterion 7. However, the Guides themselves do not contain any guidance on how to convert a Chapter 14 mental and behavioural rating into a WPI percentage rating. Jurisprudence has outlined the accepted method of doing so is to utilise Table 3 from Chapter 4 to come up with a percentage rating that parallels the descriptive ranges within the percentage rating system.

Table 3 Emotional or Behavioural Impairments[^2]

Impairment Description

% Impairment of the Whole Person

Mild Limitation

0-14%

Moderate Limitation

15-29%

Marked Limitations

30-49%

Severe Limitation (of almost all functions)

50-70%

28Dr. West, the Respondent’s Psychologist, converted the Applicant’s mental and behavioural rating under Chapter 14 to a WPI rating of 15% for several reasons. First, based on the evidence, Dr. West assigned her ratings from mild to moderate, which using Table 3, suggested a 15 to 17% WPI rating would be appropriate as it “errs on the side of caution” and falls within the moderate range overall. Second, he assigned her a GAF of 55-65 which ranges from 8% to 23% WPI. If the midpoint GAF of 60 is taken, it would be the equivalent of a 15% WPI rating utilising the California Method (another method used to convert to a WPI rating). Since this was consistent with his rating using the Table Method, Dr. West provided a final WPI rating of 15% for the Applicant’s mental and behavioural impairment.

29In the Applicant’s Catastrophic Mental/Behavioural Evaluation Report dated May 30, 2016, Dr. Dory Becker, Psychologist, diagnosed the Applicant with a Major Depressive Disorder, Recurrent, Moderate to Severe, and a Chronic and Generalized Anxiety Disorder. With respect to the Applicant’s impairment in function, Dr. D. Becker found the following:

Sphere of Function

Impairment Rating

Activities of Daily Living

Moderate

Social Functioning

Moderate

Concentration, Persistence and Pace

Moderate

Adaptation

Moderate

30Dr. D. Becker concluded the “subject accident has materially contributed” to the Applicant’s “current psychological symptomatology and associated impairments in functioning”. However, unlike Dr. West, Dr. D. Becker does not provide a WPI rating. The Applicant’s mental and behavioural WPI rating was assigned by Drs. L. and H. Becker in their Catastrophic Impairment Summary & Analysis Report. Since Dr. D. Becker found the Applicant sustained moderate impairment in all spheres of function, they found it is compatible with a WPI rating of 15-29% using Table 3 from Chapter 4. They ultimately selected 29% as the WPI rating used in combining with her physical WPI ratings. There was no explanation given in their report as to why 29% was selected, except that they used the highest rating.

31During her in-chief examination, with respect to the Applicant’s social functioning, Dr. D. Becker testified she would have only given the Applicant a Class 2 (mild impairment), if the Applicant’s activities were compared to those of an “average” person. However, Dr. D. Becker testified she gave the Applicant a Class 3 (moderate impairment) based on the Applicant’s self-report that she was an extremely socially active individual pre-accident. This is contradicted by pre- accident records. For example, Dr. Jonathan Downar, the Applicant’s Psychiatrist, assigned her a GAF of 55 in his clinical note of September 9, 2010, approximately 16 months pre-accident. In this same note, the Applicant reported to Dr. Downar she had lost a significant romantic relationship due to her depression. Furthermore, the Applicant was unemployed due to her physical and mental health until May 2011, less than a year pre-accident.

32Overall, Dr. D. Becker appears to have over-estimated the Applicant’s baseline based on the Applicant’s subjective reporting. The Applicant has shown a tendency to overstate her pre-accident functioning and understate her post- accident functioning in various assessments and even in her own treatment records. During the assessment of both Dr. D. Becker and Dr. West, psychometric testing revealed the Applicant had a tendency to over endorse symptoms.

33At the hearing, Dr. West was made aware the Applicant was diagnosed with Seasonal Affective Disorder, and prescribed Imovane and Seroquel pre-accident. He testified this would affect his diagnosis and rating, because it “belies a lower level of functionality than reported” in his interview with her. Furthermore, Dr. West testified Seroquel is an anti-psychotic, which would demonstrate to him she had mental health issues that exceeded what she reported to him. Dr. West testified had he known about this at the assessment, he would have decreased his rating slightly.

34The Applicant’s assessors gave her a 29% WPI rating for her mental and behavioural impairment, while the Respondent’s assessor gave her a 15% WPI rating. I preferred the WPI rating of Dr. West for several reasons. While both Dr. West and Dr. D. Becker conducted psychometric testing, outside of the PAI, which was conducted by both doctors, the rest of Dr. D. Becker’s psychometric testing did not contain validity measures. Furthermore, unlike Dr. D. Becker, Dr. West provides a WPI rating and provides numerous reasons in support of his WPI rating. Dr. D. Becker defers the WPI rating to Drs. L. and H. Becker, who both do not have expertise in psychological assessments. Moreover, Drs. L. and H. Becker do not provide any reasons in support of their selection of the 29% WPI rating except that they used the highest rating from the moderate range.

35At the hearing, Dr. H. Becker explained his practice of selecting the highest number in the range. Essentially, he stated an Applicant’s symptoms can fluctuate, so if they qualify for a specific tier, all a physician can state with accuracy is the Applicant’s impairment falls within that range and does not qualify for the next range up. He opined choosing an exact rating in the range would be imprecise, because an exact rating would only be a snapshot in time and it may not be reflective of the Applicant’s impairment overall. In his opinion, if an Applicant could be 29%, he rates them at 29%.

36I do not accept this explanation and approach. The Guides are merely a framework to assist physicians in assigning WPI ratings. Clinical judgement by the assessor is still required. Arbitrarily choosing the highest end of the range is contrary to the intent of the Guides. Practically speaking, this method provides no assistance to the adjudicator, because a WPI rating is meaningless unless the adjudicator can understand the reasons why it was given. If an assessor automatically gives an Applicant the highest rating in the range once an Applicant reaches a range’s minimum, there is no need to have a range at all.

37Based on the totality of the evidence, I preferred the WPI rating of Dr. West over Dr. L. Becker and Dr. H. Becker. Both Dr. West and Dr. D. Becker found the Applicant sustained a moderate impairment and Dr. West’s WPI rating of 15% falls within the moderate range, so it is still consistent with Dr. D. Becker’s finding. Therefore, I find the Applicant’s WPI rating with respect to her mental and behavioural impairment is 15%. 15% shall be the WPI rating used to calculate her WPI rating under Criterion 7.

Combined Physical and Non-Physical Whole Person Impairment (Criterion 7)

38As mentioned above, the Applicant’s Catastrophic Impairment Assessors determined the Applicant’s combined WPI rating under criterion 7 is 67% and she has sustained a catastrophic impairment as defined by the Schedule. The Respondent’s Catastrophic Impairment Assessors determined it is 15% and she has not sustained a catastrophic impairment. The biggest difference in ratings between the Applicant’s and the Respondent’s assessors are with respect to the Applicant’s physical WPI ratings.

Pre-existing Degenerative Disc Disease and Spinal Stenosis

39Both parties are in agreement the Applicant suffered from pre-existing bilateral shoulder dislocations and her post-accident shoulder surgery is not related to the accident. Both parties are in agreement the Applicant suffers from pre-existing undiagnosed degenerative disc disease (“DDD”) and spinal stenosis. The record is clear on that. Both parties are also in agreement degenerative changes cannot be caused by an accident.

40The Applicant argued her DDD and spinal stenosis were asymptomatic pre- accident. I do not agree. While I agree her neck issues were not a dominant feature of her pre-accident presentation, it was not essentially asymptomatic. In the year leading up to the accident, there were four notations relating to her neck in the clinical notes and records of Dr. Albert Wong, her family physician. Furthermore, in a note dated March 16, 2011, Dr. Eduard Bercovici of the Epilepsy Clinic at Toronto Western Hospital noted the Applicant was on Percocet for neck pain. Having said that, I do find the accident initially exacerbated her pre-existing DDD and spinal stenosis.

41The Applicant suffered from soft tissue injuries as a result of the accident. In the Disability Certificate (OCF-3) of Dr. Wong dated February 6, 2012, he diagnosed the Applicant with “neck and back pain/strain”. In a letter dated March 16, 2012, Dr. Patrick Wong, a substitute for her family physician, stated the “recovery for her neck and back strain is currently estimated to be 1-2 months from today”, and he referred the Applicant to a physiatrist for further assessment. A second Disability Certificate dated October 11, 2012, was completed by Dr. John Theodoropoulos, Orthopaedic Surgeon. The Applicant completed Part 3, wherein she described neck pain associated with her shoulder dislocations. A third Disability Certificate dated July 24, 2014 is completed by Dr. Theodoropoulos. The Applicant again completed Part 3. However, there is no reference to neck pain at all.

42The Applicant initially saw Dr. Sukhinder Banghu, Physiatrist, in April 2012, a few months post-accident, for intermittent neck and upper back pain. The Applicant reported to Dr. Banghu there was a 50% improvement in her symptoms and she was keeping active by jogging. Dr. Banghu found she had normal range of motion in her neck and her gait was normal. Hoffman’s and Romberg’s were normal. Dr. Banghu found her symptoms were consistent with myofascial pain affecting the upper trapezial fibers and rhomboids. He ordered an X-ray of her cervical spine to ensure there was no underlying bony abnormality and recommended physiotherapy.

43It is clear from the records the Applicant sustained soft tissue injuries as a result of the accident which initially exacerbated her pre-existing conditions. However, the exacerbation and accident related injuries were resolving. This is admitted by the Applicant herself.

44The Applicant wrote an e-mail dated July 3, 2013, to [DB] of Wawanesa Mutual Insurance Company, which stated the following:

• She was progressing well until the end of May 2013, when she started seeing a chiropractor for her residual neck and upper back pain.

• Her neck and upper back pain worsened after a rather “aggressive” chiropractic adjustment.

• She experienced more frequent left shoulder dislocations and began getting tingling and numbness in her fingers.

• The pain was so “excruciating and debilitating” she went on medical leave from June 10, 2013 to July 2, 2013.

• As of this letter, she had improved a lot and her pain is tolerable and she is able to work.

• The range of motion in her left shoulder has improved although the finger tingling and numbness in her left hand continues.

• Her physiotherapist suspects the recent “flare up” is due in part to her long hours of desk work combined with “possibly the chiropractic adjustment” of her neck. Her physiotherapist advised her chiropractic adjustments were not a “good idea”.

• 1-1.5 months before this “episode”, the intensity and frequency of her neck and back pain was reduced and she attended physiotherapy less.

• She was advised by her physiatrist to attend physiotherapy at least twice a week and reduce her level of activity/exercise to about 20%.

45The record shows the Applicant was recovering and progressing well until the alleged “aggressive” chiropractic manipulation. Both parties agree the Applicant sustained some degree of injury from a chiropractic manipulation in May 2013. Where the parties disagree is the extent of the injury from the alleged “aggressive” chiropractic manipulation.

46At the hearing, Dr. Sangha testified the Applicant had residual neck pain prior to the alleged “aggressive” chiropractic manipulation and he further testified, on a balance of probabilities, the chiropractic adjustment in May 2013 caused trauma to the Applicant’s spinal cord. He testified this trauma resulted in the cascading neurological complications she experienced. Dr. Sangha testified if not for the “aggressive” chiropractic manipulation, the Applicant would not have needed spinal decompression surgery.

47Dr. Sangha further testified if the Applicant’s alleged manipulation induced spinal cord injury was not caused by the accident, the Applicant’s physical WPI rating would only include ratings for medication use of 3%, the cervical spine of 25% and the thoracic spine of 5%. This results in a physical WPI rating of 31%. Even if I took Dr. L. Becker and Dr. H Becker’s arbitrary mental behavioural WPI rating of 29%, which I have already stated I do not accept, the Applicant’s combined WPI rating under criterion 7 would only equal 51% and she still would not have sustained a catastrophic impairment as a result of the accident.

Causation

48Both parties agree this case turns on causation. Both parties agree the prevailing test for causation in accident benefits matters is the “but for” test. The Applicant identified the issue correctly in her closing submissions. In order for the Applicant to have sustained a catastrophic impairment as a result of the accident, the Applicant’s “symptoms necessitating cervical spine stabilisation and fusion surgery on December 15, 2015” must be causally connected to the accident of January 23, 2012.

49The biggest disagreement between the parties is whether or not the Applicant’s post-accident cervical spine surgery is causally related to the accident. The Applicant argued she would not have required the cervical spine surgery if she had not sustained “manipulation induced trauma” to her spinal cord, as a result of the “aggressive” manipulation performed by Dr. Laura Cory, Chiropractor, in May 2013. The Applicant further argued she would not have sought out chiropractic treatment from Dr. Cory if she had not sustained injuries as a result of the accident. Therefore, the Applicant argued the accident caused her symptoms necessitating cervical spine stabilisation and fusion surgery.

50The Respondent made two main arguments. First, the Respondent argued the symptoms which led to the Applicant’s cervical spine stabilisation and fusion surgery were not caused by the accident or the alleged “aggressive” chiropractic manipulation, but rather the Applicant’s pre-existing spinal conditions.

51Second, the Respondent argued if the symptoms necessitating surgery were caused by the alleged “aggressive” chiropractic manipulation, it would still not be causally related to the accident. The Respondent argued the “aggressive” chiropractic manipulation was an independent intervening event and it was beyond the realm of outcomes expected from chiropractic treatment. The Respondent further argued if all that is required for an event to be as a result of an accident is an Applicant’s subjective belief it would resolve symptoms, then the law of an intervening event is meaningless. The Respondent argued it cannot be held responsible for the negligent potentially tortious actions of a third party.

52The onus is on the Applicant to prove, on a balance of probabilities, her symptoms necessitating cervical spine surgery were caused by the accident. The Applicant has failed to prove this. I am sympathetic to the Applicant’s condition. However, based on the evidence before me, I do not find the accident of January 2012, or the alleged “aggressive” chiropractic manipulation caused her symptoms which necessitated cervical spine surgery. Based on all the evidence before me, I find it more likely than not, the progression of her pre-existing congenital DDD and spinal stenosis led to her need for cervical spine decompression and fusion surgery in December 2015.

53While the Applicant testified her symptoms worsened after the alleged “aggressive” chiropractic manipulation and did not get better, this testimony is provided years after the alleged incident and it is contradicted by contemporaneous objective medical evidence. The Applicant has shown a tendency to over endorse her symptoms as evidenced by the various assessor reports, such as Dr. West and Dr. D. Becker. This is also evident in the treating record of Dr. Ginsburg dated October 17, 2016, where he noted the Applicant initially stated she did not feel any better, and only endorsed improvement upon further detailed questioning.

Diagnostic Imaging

54There is only one relevant diagnostic imaging before me predating the accident, which is an X-ray dated January 9, 2008, showing no abnormality to the cervical spine. The Applicant had various diagnostic imaging of her cervical spine completed post-accident³.

55The Applicant’s diagnostic imaging post-accident shows a steady progression in her DDD and spinal stenosis. Nothing in the Applicant’s diagnostic imaging shows trauma to her spinal cord. The last diagnostic imaging in 2015 prior to her surgery shows degenerative cervical spondylosis and OPLL (ossification on the posterior longitudinal ligament) superimposed on developmental narrowing result in severe cervical spinal stenosis. These findings are degenerative and are not accident related.

56The Applicant’s diagnostic imaging show degenerative changes led to her need for surgery, especially the fusion.

Treating Records

57The Applicant has an extensive team of physicians treating her spinal problems. Post-accident, relevant treating physicians include: Dr. Sukhinder Banghu, Physiatrist, Dr. Michael Sawa, Neurologist, and Dr. Loch MacDonald, Neurosurgeon.

Dr. Sukhinder Banghu, Physiatrist

58After her initial visit mentioned above, Dr. Banghu saw the Applicant again in July 2013 due to complaints of intermittent left sided pain in the trapezial ridge. He noted she was managing her pain “quite well” until mid-May 2013, when she noticed worsening pain, especially after a chiropractic adjustment. He further noted her pain has been resolving since stopping chiropractic treatment and overall her symptoms are improving. Dr. Banghu further noted there was marked flattening of the Applicant’s spinal cord, but no abnormal signal was seen on the MRI completed in January 2013. On assessment, Dr. Banghu found normal range of motion in the Applicant’s neck, and a normal gait. He opined her symptoms were suggestive of myofascial upper trapezial pain. However, she had abnormal reactions: a positive Hoffman and an up going Babinski. Because of this, Dr. Banghu made a neurological referral.

Dr. Michael Sawa, Neurologist

59The Applicant saw Dr. Sawa in November 2013. Dr. Sawa noted her neck pain had dramatically improved, but she has developed tingling in the fingertips of both hands. However, he noted this was also improving. Upon examination, Dr. Sawa found the Applicant had a normal gait and Rhomberg testing was normal. Dr. Sawa opined the Applicant had a mildly abnormal neurological examination, which most likely represents minimal manifestations of a myeloradiculopathy. He noted she had fairly significant degenerative changes on her cervical MRI with cord flattening, but normal signal. He recommended she avoid activities that jar her head and neck.

60Dr. Sawa noted the Applicant missed an expedited follow-up appointment in January 2014. He further noted his administrative assistant contacted the Applicant, who indicated her symptoms have been stable. He noted she has already been referred to a neurosurgeon prior to the missed appointment.

61Dr. Sawa saw the Applicant again in July 2014 for flares of neck pain. The Applicant reported an increase in neck pain and “cracking and crunching” in her neck. Dr. Sawa noted she was not experiencing any neurological symptoms except left arm weakness which may be related to her recent left shoulder surgery. Dr. Sawa found the Applicant’s gait was unremarkable and her neurological status was stable. With respect to her neck pain, Dr. Sawa deferred pain management to her family physician and suggested she contact Dr. Banghu for medically supervised conservative neck treatments.

Dr. Loch MacDonald, Neurosurgeon

62Dr. MacDonald saw the Applicant in March 2014. Dr. MacDonald noted she reported having some neck and interscapular pain after the accident, but no radicular pain. He further noted she had increased neck pain as well as numbness in her fingertips with difficulty walking after chiropractic neck manipulation, but those symptoms have improved and she feels “pretty much back to normal and can function well”. He noted, on examination, she had brisk reflexes throughout, could walk normally and did not have clumsy hands. Dr. MacDonald noted her MRI showed congenital spinal stenosis with severe multilevel canal narrowing, but no obvious signal change in the cord. He opined she had some manipulation-induced trauma to the cervical cord, but that has improved. He concluded given her relatively good neurological condition and lack of signal change in the cord, continued observation with no intervention was appropriate.

63Dr. MacDonald saw the Applicant again in November 2015. At this appointment, the Applicant had worsening symptoms and signs of cervical myelopathy. He noted the Applicant had stinging, tingling and numbness in her fingers associated with clumsiness and she had progressive difficulty walking. He noted she had difficulty performing tandem gait and she had a myelopathic gait. He reviewed her MRI of September 18, 2015, which noted severe spinal stenosis and he opined this was probably due to the underlying ossification on the posterior longitudinal ligament. He referred her to a CT scan to determine if there was slowing calcification of the posterior longitudinal ligament, which would determine whether or not she should have a fusion. Dr. MacDonald recommended laminectomy decompression surgery to halt the progression of her symptoms.

64Dr. MacDonald performed a cervical spinal laminectomy, decompression and fusion surgery on the Applicant on December 17, 2015, without any complications.

65Dr. MacDonald wrote a letter dated January 22, 2016, in response to one from Dr. Carolina Bellemare. Dr. MacDonald stated the Applicant’s diagnosis is cervical spondylitic myelopathy with spinal cord compression, myelopathy, neurological deficits, and signal change in the spinal cord. He noted when Dr. Sawa saw the Applicant in November 2013, there were no major myelopathic symptoms or signs, and follow-up by Dr. Sawa showed no development of new symptoms. However, he noted by November 2, 2015, she had worsening symptoms and developed signs of myelopathy. He further noted MRI showed several spinal stenosis with suggestion of signal change, so she underwent a cervical spinal laminectomy and decompression in December 2015 without complications.

66The Applicant has a pre-existing congenital degenerative condition. By definition, she was born with it and it will continue to worsen over time. The Applicant’s treating records show she sustained an exacerbation of her symptoms as a result of the alleged “aggressive” chiropractic manipulation. However, the record shows this resolving when she saw Dr. Banghu in July 2013, and had resolved by March 2014, when she saw Dr. MacDonald. Meanwhile, the Applicant’s underlying condition continued to progress until November 2015, when Dr. MacDonald recommended she undergo a cervical spinal laminectomy, decompression and fusion surgery to halt the progression of her symptoms. This occurred in December 2015, almost three years post-accident.

67Dr. Banghu noted in July 2013, there was already marked flattening of the Applicant’s cervical spinal cord evident in her MRI of January 2013 which pre- dated the alleged “aggressive” chiropractic manipulation. He noted her pain had been resolving since stopping chiropractic treatment and her symptoms were improving.

68At the hearing, Dr. Sekyi-Otu testified myelomalacia is the softening of the spinal cord and this usually occurs over time. He further testified the presence of myelomalacia itself cannot tell you the cause of it. Dr. Sangha testified at the hearing, myelomalacia can be caused by trauma, or it can be degenerative.

69During cross-examination, Dr. Sangha was asked to compare the two MRIs taken of the Applicant’s cervical spine: one from January 2013 and one from December 2013. He testified the Applicant’s degenerative changes were progressing with respect to the impingement of the cord and he agreed there would be an expected increase in symptoms that flow from this.

70In Dr. MacDonald’s note of November 2015, he recommended the Applicant undergo a laminectomy and decompression surgery to halt the progression of symptoms relating to her cervical spinal stenosis. He noted whether or not there should be fusion surgery was dependent on the level of calcification of the posterior longitudinal ligament which has nothing to do with spinal cord trauma. These are degenerative changes.

71Dr. MacDonald’s letter dated April 2016 sums up the progression of the Applicant’s condition quite succinctly. He described the Applicant’s diagnosis as “cervical spondylitic myelopathy with spinal cord compression, myelopathy, neurological deficits, and signal change in the spinal cord”. This demonstrates the myelopathy was as a result of her spinal stenosis and congenital narrowing of her spinal canal. Again, these are degenerative changes and are not caused by trauma.

72Dr. MacDonald further noted when Dr. Sawa saw the Applicant in November 2013, there were no major myelopathic symptoms or signs, and follow-up by Dr. Sawa (in July 2014) showed no development of new symptoms. However, when Dr. MacDonald saw her on November 2, 2015, she had worsening symptoms and developed signs of myelopathy. He further noted the MRI showed severe spinal stenosis with suggestion of signal change, so she underwent a cervical spinal laminectomy and decompression in December 2015 without complications.

73As mentioned above, Dr. Sangha is of the opinion the accident materially contributed to the Applicant’s neck impairments and subsequent complications. He furthered this opinion at the hearing by stating “but for” the aggressive chiropractic manipulation, the Applicant would not have required surgery. Furthermore, the Applicant argued Dr. Saplys’ report also supports this opinion. While these two physicians opined the Applicant’s cervical spine surgery is causally related to the accident, this is not determinative of legal causation. I must weigh the evidence as a whole and determine whether or not legal causation has been met.

Dr. Sangha’s Opinion

74Dr. Sangha’s report is sparse in detail although he did offer better explanations of his WPI ratings during his testimony. Dr. Sangha assessed the Applicant years after the alleged “aggressive” chiropractic manipulation. He only saw the Applicant once for a single physiatry assessment in May 2016, over four years post-accident and three years post-chiropractic manipulation. Dr. Sangha’s opinion with respect to the “aggressive” chiropractic manipulation being causally related to the accident was only expressed at the hearing.

75Dr. Sangha’s opinion is not corroborated by the objective contemporaneous medical evidence before me. Furthermore, his opinion is based on the Applicant’s self-report that there was an “aggressive” chiropractic manipulation. Even if I were to accept the alleged “aggressive” chiropractic manipulation actually occurred, this still does not prove causation. While some of the Applicant’s symptoms did manifest after the alleged “aggressive” chiropractic manipulation, this does not establish causation. Correlation is not causation. The Applicant’s underlying degenerative condition progressed before the alleged “aggressive” chiropractic manipulation and it also continued to progress after it.

76I preferred and placed greater weight on the Applicant’s treating records, especially Dr. MacDonald’s, because they are contemporaneous objective medical evidence. I specifically preferred the evidence of Dr. MacDonald, because he is the Applicant’s treating neurosurgeon which makes his records the most relevant to this dispute. Dr. MacDonald also followed the Applicant’s condition over years, and assessed her during the relevant timeframe. In fact, both Dr. Sekyi-Otu and Dr. Sangha both quote Dr. MacDonald’s records and opinions.

77I also placed greater weight on Dr. MacDonald’s records, because he is objective and not involved in the accident benefits system. All his records and assessments were conducted for treating purposes and not with the intent of dispute resolution. Furthermore, Dr. MacDonald was the physician that recommended and conducted the Applicant’s surgery. Therefore, Dr. MacDonald is the physician in the best position to assess and document the Applicant’s condition.

Dr. Saplys’ Report

78The Applicant submitted the Orthopaedic Insurer’s Examination Report dated May 12, 2016, of Dr. R. Saplys, Orthopaedic Surgeon. In his report, Dr. Saplys concluded “It is my orthopaedic opinion that as a result of the motor vehicle accident of January 23, 2012, this claimant sustained an exacerbation of pre- existing but essentially asymptomatic severe degenerative changes in her cervical spine. It is my opinion that her symptoms necessitating cervical spine stabilisation and fusion surgery on December 17, 2015 were, in fact, causally related to the motor vehicle accident”.

79The purpose of Dr. Saplys’ report was to assess whether or not the Applicant required attendant care as a result of her surgery on December 17, 2015. On pages 2-3 of Dr. Saplys’ report, he lists 45 documents that were made available for review. However, he does not state he reviewed these documents. In fact, on page 3 of his report directly under the last item on the list, Dr. Saplys noted “the history was obtained entirely from the claimant”. Dr. Saplys further noted he spent a total of 35 minutes with the Applicant during his assessment which included the time obtaining the history from the Applicant.

80Dr. Saplys’ report was sparse on details and he did not substantiate his opinion. Dr. Saplys just provides a bald statement without any explanation. Furthermore, as with Dr. Sangha, Dr. Saplys’ report is not corroborated by any of the contemporaneous medical records.

81For the same reasons I placed less weight on Dr. Sangha’s opinion, I placed less weight on Dr. Saplys’ report.

Chiropractic Manipulation Causation

82While I do not accept the Applicant’s assertion she sustained a manipulation- induced spinal cord injury as a result of the chiropractic manipulation performed by Dr. Cory, even if I did accept that assertion, I would still find the Applicant’s symptoms necessitating cervical spine surgery were not causally linked to the January 2012 accident.

83The Applicant testified she sought out chiropractic care at the advice of her sister, who is not a medical practitioner. The Applicant further testified she did not ask the opinion of any of her treating physicians before she began chiropractic treatment. At the time the Applicant began treatment, she was under the care of a team of treating medical physicians as well as her family physician. None of her treating physicians recommended chiropractic treatment. In fact, her physiotherapist advised her after the fact that chiropractic manipulations were not a “good idea”. Dr. Sangha also testified he would not recommend someone with her condition seek chiropractic treatment.

84Distilled down to its most basic form, the Applicant is arguing “but for” the alleged “aggressive” chiropractic manipulation the Applicant would not have the symptoms that necessitated cervical spine surgery, and “but for” the accident, the Applicant would not have sought out chiropractic treatment. In order to satisfy causation on a “but for” basis, the Applicant must prove there was a single unbroken chain of causation from the accident to her chiropractic manipulation to her surgery. There are two “but for”s and the second “but for” breaks the chain of causation.

85The Applicant quoted many cases in support of her position the accident and the “aggressive” chiropractic manipulation are part of the same unbroken chain of causation. Many of these cases are Financial Services Commission of Ontario (“FSCO”) cases which are not binding, and I did not find them persuasive.

86The only case I feel compelled to comment on is Monks v. ING Insurance⁴. This case is distinguishable on the facts, because in Monks the surgery which led to the insured person’s impairment was required as a result of her accident-related injuries. In this matter, chiropractic treatment was not required or recommended by a medical physician to treat the Applicant’s accident-related injuries. In fact, chiropractic treatment was recommended by her sister.

87Having said that, the main distinguishing feature between Monks and this matter is in Monks, the surgery was properly performed without any complications. Thus, the judge found there was an unbroken chain of causation. Justice Lalonde stated at paragraph 549: “There is absolutely no evidence that the surgery was anything other than properly performed and there is no evidence of any intervening act. As a result, the consequences are directly and properly traceable to the accident.”

88In this matter, Dr. Sangha testified something went very wrong during the last chiropractic manipulation. In fact, he testified the Applicant sustained manipulation- induced trauma which led to a spinal cord injury. He further testified he would assume a chiropractor would not perform aggressive manipulations on a patient with the Applicant’s “neck findings”. Therefore, Monks is actually supportive of the finding the “aggressive” chiropractic manipulation is an intervening act which breaks the chain of causation.

89The question in this matter is quite simple, “but for” the accident, would the Applicant have received the alleged “aggressive” chiropractic manipulation? The answer is no. The alleged “aggressive” chiropractic manipulation was not a reasonable expected outcome of chiropractic treatment. Plainly put, the motor vehicle accident did not cause her to endure an “aggressive” chiropractic manipulation that went wrong. The chiropractor was the cause of the “aggressive” chiropractic manipulation, not the accident. Therefore, even if I accepted the symptoms that necessitated cervical spine surgery stemmed from the alleged “aggressive” chiropractic manipulation, it would still not be causally linked to the accident, because the “aggressive” chiropractic manipulation was an intervening act.

Causation Not Met

90At its core, this case involves a young woman with congenital DDD and spinal stenosis who was involved in a motor vehicle accident in January 2012 from which she sustained soft tissue injuries and an initial exacerbation of her pre-existing condition. These soft tissue injuries and initial exacerbation of her pre-existing condition were resolving. Meanwhile, her underlying condition continued to progress as evidenced by the diagnostic imaging. She experienced a second exacerbation of her symptoms as a result of chiropractic treatment. Again, the record shows this had also resolved. During this time, her underlying spinal condition continued to progress in spite of these exacerbations.

91Dr. Sangha testified symptoms of a spinal cord injury may develop immediately after the injury, but their development may also be delayed. The Applicant argued this explained why her initial symptoms post chiropractic adjustment improved. I do not accept this explanation. Weighing the evidence as a whole, it is more likely her spinal condition progressed and led to her myelomalacia than a delayed manifestation of a spinal cord injury. There was no evidence of trauma in her diagnostic imaging. The findings were all degenerative in nature. Furthermore, Dr. MacDonald saw her for the first time in March 2014, almost a year post chiropractic manipulation. If the symptoms from the alleged manipulation-induced spinal cord injury had not manifested by then, on a balance of probabilities, it is more likely they are non-existent rather than delayed.

92The treating records from her physiatrist, neurologist and neurosurgeon all appear to suggest her neurological sequelae stem from her spinal stenosis. It is reasonably expected an individual with “cervical spinal stenosis due to degenerative bulging disc/osteophytes superimposed on developmentally narrow cervical spinal canal” who is showing a clear progression of narrowing in her cervical spinal canal may end up with myelomalacia, the softening of her spinal cord. Even before the alleged “aggressive” chiropractic manipulation, her diagnostic imaging of January 2013 already revealed marked flattening of her spinal cord due to stenosis. Dr. Banghu even made note of this. Her condition continued to progress over years until it culminated in the December 2015 decompression surgery which took place almost four years post-accident.

93Spinal decompression surgery is meant to improve the space in the spinal canal which helps decompress the spinal cord. Dr. Sekyi-Otu testified this is completed by removing the osteophytes around the spine to stabilise it. The osteophytes were not caused by the accident or the alleged “aggressive” chiropractic manipulation. Furthermore, as stated above, the fusion part of the surgery was dependent on the level of calcification on the posterior longitudinal ligament which also has nothing to do with the accident or the alleged “aggressive” chiropractic manipulation. These are all degenerative changes.

94Based on the totality of the evidence before me, the Applicant has failed to establish an unbroken chain of causation between her symptoms necessitating cervical spine surgery and the motor vehicle accident of January 2012. Therefore, according to Dr. Sangha’s testimony her physical WPI rating would only include ratings for medication use of 3%, the cervical spine of 25% and the thoracic spine of 5%. This results in a physical WPI rating of 31%. Combining it with Dr. West’s mental and behavioural WPI rating of 15%, the Applicant’s total combined WPI rating under criterion 7 equals 41%. This does not meet the 55% WPI threshold. Therefore, the Applicant has failed to establish she has sustained a catastrophic impairment as defined by the Schedule.

2. Attendant Care Benefits

95Since I found the Applicant has not sustained a catastrophic impairment as defined by the Schedule as a result of the accident, she is not entitled to attendant care benefits past 104 weeks post-accident. Therefore, I find the Applicant is not entitled to any attendant care benefits.

3. Interest

96Since I found nothing payable, the Applicant is not entitled to any interest.

CONCLUSION

97For the reasons outlined above, I find the Applicant has not sustained a catastrophic impairment as defined by the Schedule and she is not entitled to attendant care benefits or interest.

Released: August 9, 2018

____________________

Anna Truong

Adjudicator

APPENDIX A – Diagnostic Imaging Summary

Date

Type

Finding

Oct. 21/12

X-ray

Mild kyphosis of the cervical spine. No fracture of prevertebral soft tissue swelling. Mild degenerative disc disease from C4-6 with mild spondylosis and uncarthrosis. Mild neuroforaminal stenosis from C4-6 bilaterally due to overlying kyphosis and mild degenerative changes.

Dec. 21/12

CT scan

Mild foraminal encroachment is noted at the C3-C4 level on both sides the neuroforamina are well preserved. Degenerative changes involving the disc spaces and facet joints are noted throughout the cervical spine and ossification of the posterior longitudinal ligament is noted at the C4 level and in particular at the C6 level with mild encroachment upon the spinal canal. Bulging discs are noted at the C4-C5 C5-C6 and C6-C7 levels. The spinal canal is lower limits of normal in size on a congenital basis with superimposed degenerative changes have created further narrowing of the spinal canal at the mid cervical levels. Soft tissue contents of the canal are of course better visualized with MRI examination.

Jan. 31/13

MRI

There is slight reversal of the normal cervical lordosis. At C3-C4 there is a posterior osteocartilaginous bar projecting slightly to the left. There is very mild foraminal narrowing on the left. There is compression of the sac and very slight flattening of the cord.

At C4-C5 there is a posterior lateral osteocartilaginous bar projecting to the right. There is compression of the sac and flattening of the cord. There is mild bilateral foraminal narrowing, worse.on the right than the left.

At C5/6 there is disc space narrowing with a large posterior osteocartilaginous bar. There is compression of the sac and marked flattening of the cord. No abnormal signal is seen within the cord at this level or at the other levels. There is mild bilateral foraminal narrowing.

At C6-C7 is a posterior lateral osteocartilaginous bar projecting to the right. There is compression of the sac and mild flattening of the cord. There is mild to moderate foraminal narrowing on the right.

Summary: Multilevel degenerative changes resulting in spinal stenosis, most marked at C5-C6.

Dec. 30/13

MRI

There is moderate multilevel degenerative cervical spondylosis superimposed on a developmentally narrow cervical spinal canal. There is flattening of the cervical cord. There is an area of abnormal signal intensity within the cervical cord (myelomalacia) maximal opposite C4-C5.

Cervical spinal stenosis due to degenerative bulging disc/osteophytes superimposed on developmentally narrow cervical spinal canal. There is evidence of myelomalacia opposite C4-5.

Sept. 18/15

MRI

Multilevel degenerative changes involving cervical spine with severe canal stenosis centered at C5-6 and to a lesser degree C6-

7. An area of myelomalacia at the level of C4-5 is noted especially on the sagittal T2 weighted images.

Dec. 10/15

CT scan

Loss of cervical lordosis. There is degenerative cervical disc disease and OPLL superimposed on a developmentally narrow cervical spinal canal. OPLL extends from C4 to C6.

Mild loss of disc space height at C5-C6. There is some endplate irregularity and subchondral sclerosis at C4-C5, C5-C6. There is anterior osteophyte formation. Degenerative spondylosis, OPLL and superimposed developmental narrowing of the cervical canal result in cervical spinal stenosis extending from C3 to C4-C7. Stenosis is most severe at C4-C5 and C5-C6. Mild multilevel foraminal stenosis.

Degenerative cervical spondylosis and OPLL superimposed on developmental narrowing result in severe cervical spinal stenosis.

Footnotes

1. 3Please see Appendix A for Diagnostic Imaging Summary
2. 42005 CanLII 21689 (ON SC), [2005] O.J. No. 2526 (“Monks”)
3. 1The Guides at 301.
4. 2Ibid at 142.