Tribunal File Number: 17-000170/AABS
Case Name: 17-000170 v Unifund Assurance Company
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:
Z. A.
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR: D. Gregory Flude
APPEARANCES:
For the Applicant: Vikhram Bhandari, counsel
For the Respondent: Ellie Persichilli, counsel
HEARD in Writing: August 2, 2017
REASONS FOR DECISION AND ORDER
OVERVIEW:
1The applicant was injured in a motor vehicle accident on December 13, 2014. She applied to the respondent for benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the "Schedule"). The respondent has denied payment of three benefits and the applicant has appealed that denial to the Tribunal.
2The applicant is currently a 73 year old retiree. She was 70 at the time of the accident. She suffers from a number of issues related to her spine that cause back pain and numbness in her extremities. She has a history of spinal issues but argues that the December 2014 accident aggravated them to such an extent that she can no longer enjoy a normal life. She has produced a number of reports from assessors and healthcare practitioners in support of her position.
3The respondent does not deny that the applicant suffers from pain and numbness. It takes the position that the applicant's condition stems from degenerative changes in her spine that began and were documented long before the accident and have proceeded to cause the applicant greater pain and limitation in her daily activities. In its view the accident did not cause the applicant's current condition and therefore she is not entitled to the benefits she seeks. It also relies on reports from assessors it retained.
4There are two broad questions at stake in this appeal. The first is the question of causation: did the injuries sustained in the accident cause the impairment currently suffered by the applicant. If the answer to that question is no, then I need look no further. If yes, I must then look at the applicant's entitlement to the benefits claimed in light of the various tests set out in the Schedule.
5My starting point in resolving the causation question is to focus on three areas: the applicant's pre-accident condition and it symptoms; the nature of the applicant's complaints to treating healthcare professionals at the time of and shortly after the accident; and more recent symptoms the applicant complains of and how they relate to the accident. Having done so, I find that the applicant has not satisfied me on a balance of probabilities that the injuries sustained in the accident are the cause of her recent complaints.
6Before looking at the substance of the appeal, I will address two procedural motions.
PROCEDURAL MOTIONS
7Both parties have brought procedural motions. The applicant has brought a motion to exclude what it alleges to be a late-served expert's report. The respondent has brought a motion to exclude the applicant's reply on the grounds that it is not proper reply. I will deal with the motions first, in the order they were filed.
Motion to Exclude the Expert's Report
8On July 20, 2017 the respondent filed a responding expert report from Dr. Urovitz. The applicant argues that this report is filed in contravention of the case conference order which set the date of July 11, 2017 for the respondent's submissions. The filing date was two days prior to deadline for the applicant to file its reply submissions. The applicant argues that, in addition to breaching the order, the late filing denied it the right to meaningfully respond.
9The respondent makes two submissions; she submits that Rule 9.2 of the Licence Appeal Tribunal Rules of Practice and Procedure (the "Rules") permit filing of documents to be relied on at the hearing within ten days and that this was set out in the Notice of Hearing; and that the report is short and merely confirms Dr. Urovitz's earlier opinion. In the respondent's view, the applicant had ample time to deal with the report in her reply submissions.
10I find that the respondent has misinterpreted the Rules on a number of grounds. The respondent argues that Rule 9.2 provides that documents may be disclosed 10 days before a hearing. She further argues that the Notice of Hearing specifically reaffirmed the application of Rule 9.2 thus allowing her to file prior to 10 days before the hearing. The respondent is mistaken on two grounds: firstly Rule 9.2 does not apply to reports of expert witnesses such as Dr. Urovitz; and, secondly, Rule 9.2 does not provide for a blanket 10 day disclosure rule.
11The disclosure of expert reports is covered by Rule 10.3. Rule 10.3 states that expert reports from responding parties are to be delivered at least 20 days before the hearing or as ordered by the Tribunal. It is clear in this case the Tribunal ordered disclosure as set out in the case conference order. The policy behind this rule is clear. Expert reports contain specialized and technical evidence that requires time for careful review by a party and its technical advisors before the hearing. The Rule recognizes that last minute disclosure is likely to limit full and fair comment on the report and be prejudicial. In the current case, the respondent served Dr. Urovitz's report 13 days before the hearing and two days before the applicant's reply submissions, thereby denying the applicant the ability to have her experts review the report and make meaningful reply.
12The time for the respondent to raise its need for a further expert report was at the March 15, 2017 case conference. I note that other than the disclosure schedule set out in the order, the Tribunal made no orders as to document production. This suggests that the parties were satisfied with the production to that date and the respondent had a full record upon which to seek a further report from Dr. Urovitz. It was open to the respondent to raise its desire for a responding expert report with Adjudicator Gosio and develop a timetable for disclosure that took its desire into account. It failed to do so.
13The second ground is the fact that, even if it were applicable, the respondent misinterprets Rule 9.2. This rule does not have a blanket 10 day disclosure provision. It has a default 10 day disclosure provision. It requires parties to disclose documents: "…at least 10 days before the hearing, or at any other time ordered by the Tribunal." It mirrors the provisions of Rule 10.3 regarding default timelines and Tribunal orders. The case conference order sets out a clear disclosure timetable. There is nothing in the Rule or the order to suggest that a party may depart from the disclosure timetable. I reject the respondent's submission that the order has to explicitly exclude the 10 day default period.
14The reference to Rule 9 in the Notice of Hearing does nothing to bolster the respondent's position. The Notice does not purport to interpret the Rule or give it greater meaning. It simply draws the parties' attention to it as a courtesy and points out the consequences for failure to comply.
15In light of the above, I exclude the responding report of Dr. Urovitz dated July 18, 2017. I note from the respondent's submissions that the report contains no new information and is simply a restatement of Dr. Urovitz's opinion set out in his earlier report. Thus, the report adds nothing to the evidentiary record and its exclusion causes no prejudice to the respondent.
Motion to Exclude the Applicant's Reply
16The respondent brings a motion to exclude the applicant's reply submissions on the ground that they are improper. The respondent takes the position that the applicant is splitting her case by making factual and legal assertions that should have been made in her initial submissions. It relies on three cases in support of its position - Schick v. Boehringer Jrigelheim (Canada) Ltd., Krause v. The Queen, and Allcock Laight & Westwood Ltd. v. Patten, Bernard and Dynamic Displays Ltd.2
17The applicant argues that the reply submissions address points specifically raised in the respondent's submissions and are, therefore, proper. This position fails to grasp the essence of the right of reply. In Krause at p. 473, the Court encapsulated the limited right of reply as follows:
The plaintiff or the Crown may be allowed to call evidence in rebuttal after completion of the defence case, where the defence has raised some new matter or defence which the Crown has had no opportunity to deal with and which the Crown or the plaintiff could not reasonably have anticipated.
18Having reviewed the submissions of the parties, I find that the reply submissions are nothing more than a restatement of the applicant's case in an attempt to address areas the respondent says are deficient. The applicant argues that the respondent's submissions attack her credibility, criticized her medical opinions and relied on the Ontario Court of Appeal decision in Heath v. Economical Mutual Insurance Company ("Heath").3 I can see nothing in these submissions that could not have been reasonably anticipated by the applicant.
19To accept the applicant's position would be to find that any time a respondent questions the credibility of a witness or the sufficiency of the applicant's evidence, the door is open for the applicant to lead new evidence and deny the respondent the ability to respond to it. It is the essence of litigation that the parties disagree over the sufficiency of each other's evidence and it is certainly within the contemplation of the applicant in this case that the respondent will attack both the applicant's affidavit and her medical and other reports. The respondent's submissions do no more and there is no new matter or defence to trigger the right to submit further evidence in reply.
20The applicant is seeking a non-earner benefit. The leading case setting out the factors to be weighed in considering a claim for a non-earner benefit is Heath. In relying on Heath, the respondent is setting out a well-known legal test then applying it to the facts as it interprets them. In doing so, the respondent has made submissions on areas where it feels the applicant has not met the test. Outlining the perceived deficiencies in the applicant's case is the substance of defence practice. In and of itself it does not trigger a right in the applicant to use reply submissions to bolster its case by addressing those perceived deficiencies. That was the function of the applicant's initial submissions. It was open to the applicant to set out the Heath test and apply it to the facts as she saw fit.
21In light of the above, I find the applicant's reply submissions are beyond the scope of proper reply submissions. Accordingly I will not take them into consideration.
SUBSTANTIVE ISSUES IN DISPUTE:
22The case conference order defines the issues in dispute as follows:
(i) Is [Z. A.] entitled to receive a non-earner benefit in the amount of $185 per week for the time period from June 13, 2015 to present and ongoing?
(ii) Is [Z. A.] entitled to receive a medical benefit in the amount of $5,125.67 for assistive devices pursuant to a Treatment and Assessment Plan dated June 22, 2016?
(iii) Is [Z. A.] entitled to a payment for the cost of an examination in the amount of $3,658.50 for an orthopaedic assessment pursuant to a Treatment and Assessment Plan dated November 7, 2016?
(iv) Is [Z. A.] entitled to interest for the overdue payment of benefits?
RESULT:
23I find that the applicant has failed to demonstrate on a balance of probabilities that there is a causal link between the injuries she sustained in the accident and the conditions of which she currently complains. Therefore, I answer all of the above questions with a negative and dismiss her appeal.
ANALYSIS:
24The applicant is seeking a non-earner benefit and two medical and rehabilitation benefits. While the specific test for entitlement to these benefits differs, they share the common requirement that the applicant must have sustained an impairment as a result of the accident. The Schedule does not use the term injury; it uses the term "impairment" and defines it as: "a loss or abnormality of a psychological, physiological or anatomical structure or function." The applicant must demonstrate that as a result of the accident she sustained an impairment to be entitled to recover benefits. In my view the applicant has failed to show that the impairments she complains of were sustained in the accident.
25As stated above, my approach to the causation issue will focus on three areas: i) the applicant's pre-accident medical condition; ii) her medical complaints at the time of and shortly after the accident; and, iii) her recent complaints and the evidence that shows they result from the accident. After reviewing all of the evidence, I find that none of the applicant's impairments which currently form the basis of her claim for a non-earner benefit and the two treatment plans arise as a result of the accident.
Applicant's Pre-Accident Medical Condition
26The applicant has had an extensive history of spinal problems. Commencing in 2012, two years before the accident, medical imaging of the applicant's spine showed multilevel degenerative disc disease, osteoarthritis of the facet joints and narrowing of the nerve conduits or foramina (a condition known as stenosis). The problems were particularly severe in the cervical spine with evidence of the nerves being crushed or flattened. The entire spine showed signs of degeneration and there was stenosis in the lumbar spine area.
27On October 21, 2012 the applicant went to the emergency department of her local hospital complaining of tingling in her hands and legs and weakness in her legs that was sufficiently severe that she could not walk. She was admitted for further tests. Three days later she underwent emergency surgery [at the hospital] on her cervical spine to relieve pressure on the nerves. Her treating physician, Dr. Kongkham noted that she had been feeling clumsy with her hands together with numbness for several weeks. The lower limb weakness developed 1-2 days before she went to the emergency department.
28The applicant continued to see Dr. Kongkham as an outpatient for a number of years. In the period before the accident, the applicant complained from time to time of pain that worsened when she carried out activities. Despite this, Dr. Kongkham seemed to be satisfied with her recovery from the cervical spine surgery.
29Other records indicate that the applicant suffered from numbness and pain in her extremities following her surgery but prior to the accident. According to the clinical notes and records of her family physician, she complained of cramping in both arms and numbness in her fingers in April 2013. Later in the report, the doctor notes cramping in upper and lower extremities following physical effort. At that same visit, the applicant reported waking up at night with neck and arm pain. She reported that she walks daily for 30 minutes to an hour. One month later, the applicant applied for a disabled parking permit.
30Two other entries in her doctor's clinical notes and records reflect pre-accident physical symptoms the applicant experienced in the period between her cervical spine surgery and the accident. In July 2013 the applicant fell down several steps while on a visit to Chicago. She injured her knee and shoulder. Several entries address visits to her doctor to address pain and swelling from that accident. In June 2014 the applicant went to her doctor complaining of heaviness and weakness on her upper right side. The condition had lasted two weeks before she decided to see her doctor. It was accompanied by numbness and tingling in her upper right extremities and neck pain.
31To sum up, the medical picture of the applicant before the accident shows that she had a degenerative condition affecting the whole of her spine. It was particularly acute at the cervical spine. Her cervical degeneration was sufficiently severe that the applicant had to undergo emergency surgery in 2012. Following the emergency surgery, the applicant continued to suffer bouts of pain, weakness and numbness in her upper and lower extremities. She had a fall in Chicago that injured her shoulder and knee and caused her some ongoing swelling. Medical imaging showed an ongoing degenerative condition impacting the channels through which the nerves leave the spine. It also showed ongoing osteoarthritis at the spinal joints and some minor slippage of vertebrae in the cervical spine.
32The respondent points out that the applicant glosses over her medical history between the emergency surgery and the accident in her affidavit. At paragraph 9, she covers the two years of medical history in two sentences:
Prior to the MVA, I suffered from neck and back pain. I had a surgical procedure (cervical laminectomy) in October 2012 to help relieve pressure on my spinal cord caused by spinal stenosis.
33The respondent urges me to find that this paragraph is such an extreme understatement that it is misleading. It urges me to find the applicant lacking in credibility because of the misleading nature of the paragraph. I decline to do so. I acknowledge that it provides scant information, but it does not hide the fact that the applicant suffered ongoing back and neck pain prior to the accident.
Complaints Contemporaneous with the Accident
34The medical records from in and around the time of the accident in December 2014 show that the applicant's medical complaints immediately after and arising out of the accident were limited both in scope and time. Her submission that the car she was in was "violently struck" on the right side is unsupported by the evidence. Her affidavit implies, but does not state, that she has suffered a range of severe symptoms continuously since the accident. The evidence also does not support this implication.
35The Ambulance Call Report of December 13, 2014 notes that the accident in question was low speed with minimal damage to the car the applicant was riding in. At the scene, the applicant complained of neck pain and a mild headache. She described the neck pain as worse than following the 20124 cervical surgery. She specifically denied suffering from dizziness or numbness and tingling in her extremities. By the time the applicant arrived at the emergency room she was complaining of mild neck pain and mild headache. She could move her neck with no difficulty. She was discharged.
36Two days after being discharged from hospital, the applicant went to see her family doctor. He noted that she was no longer complaining of headache: she had no numbness or tingling: but she did have neck pain. The doctor noted good range of motion of the neck but with pain. The doctor recommended warm compresses and prescribed pain medication. She did not consult her doctor for spine-related problems for several months after this visit, despite seeing the doctor on three occasions for other issues.
37The applicant had a follow up visit with Dr. Kongkham three months after the accident on February 23, 2015. It is clear from Dr. Kongkham's notes that she did discuss the accident with him. Dr. Kongkham states:
She did mention she suffered an incidental motor vehicle collision in December of last year where she was T-boned on her side. She was seen in hospital where X-rays were apparently performed. Fortunately, it does not appear that she suffered any significant injury related to this accident.
38The applicant attended another follow-up visit with Dr. Kongkham in August 2015. Dr. Kongkham expressed general satisfaction with the recovery of the applicant's neck, noting only intermittent neck pain when the applicant was sitting with her neck flexed for extended periods, such as when she was reading. The applicant reported that: "Her walking is stable and her coordination is intact."
39My review of the contemporaneous treatment records indicates that the applicant suffered a minor injury to her neck as a result of the accident. The pain was initially described as severe at the scene but had subsided considerably by the time the applicant arrived at the hospital emergency room. It was of sufficient severity that she visited her family doctor and was prescribed pain killers two days after the accident, but, thereafter, she made no further contemporaneous complaint and the symptoms were gone by the time she saw Dr. Kongkham on February 23, 2015. In August, 2015, 9 months after the accident, the applicant had no problems walking or with her coordination.
Complaints of Back Pain
40The first post-accident complaint of back pain was approximately three months after the accident. On March 24, 2015, the applicant went to see her family doctor complaining of upper back pain with no numbness or tingling in her extremities. The condition had started two days earlier. In June, and again in August, 2015, the applicant went to see her family doctor with complaints of back pain and numbness and tingling in her extremities. An X-ray taken on August 14, 2015 showed degenerative changes in the lumbar region. The clinician diagnosed: "Degenerative disc disease in lumbar spine L1-L2 and L3-L4, inclusive. Degenerative changes of the lower thoracic and lumbar spine endplates. Osteopenia [loss of bone mass short of osteoporosis] of the lumbar vertebra. Osteoarthritis at the facet joints at L3-L4 and L5 to S1, inclusive5."
41The applicant had an MRI on September 28, 2015 that confirmed the X-ray findings. In particular it noted: "L2-L3: Moderate disc narrowing with central disc bulge and mild facet OA [osteoarthritis]. Borderline mixed spinal stenosis. L3-L4: Moderate disc narrowing, Moderate facet and ligamentum flavum hypertrophy6 resulting in mild mixed spinaI stenosis. L4-L5: Mild disc narrowing. Severe facet and ligamentum flavum hypertrophy resulting in moderately severe mixed spinal stenosis."
42The applicant's final visit to Dr. Kongkham was on January 25, 2016. He noted that the applicant complained of lower back pain that originated six or seven months prior to the visit. Dr. Kongkham discussed surgery on the applicant's lumber spine, similar to the surgery performed on her surgical spine, to address the lumbar spine stenosis. The applicant declined the surgery. Dr. Kongkham noted that the applicant was happy with the results of the cervical spine surgery and felt that she was coping well after 3 years post-surgery.
Applicant's Report of Her Symptoms and the Clinical Record
43The applicant lists the symptoms she says she has suffered since the accident in her affidavit from paragraphs 5 to 15. To paraphrase those paragraphs, she states that, since the accident, she has suffered from:
- Immediate severe pain in her neck, shoulder and lower back accompanied by dizziness (para 5),
- The pain, predominantly in her back, has gotten worse since physiotherapy and other treatment has stopped (para 8),
- The pain is constant and radiates down her left arm to her hand. Neck movement is restricted and painful (para 10),
- Constant back pain, both in the middle and lower regions. The pain in the lower back is the most excruciating and is sharp and shooting in nature. The pain radiates down to the ankles and is accompanied by feelings of numbness in the toes. The lower back pain greatly restricts/prevents all of her everyday movements such as sitting, standing, walking, lifting, bending, carrying, going up and down stairs, crouching and kneeling (para 11),
- Daily intermittent headaches (para 12),
- Constant bilateral hip, knee and ankle pain that is achy and sharp in character. Collectively, these pains restrict/prevent everyday movements such as sitting, standing, walking, lifting, bending, carrying, going up and down stairs, crouching and kneeling (para 13),
- Dizziness, flashbacks, and car-related anxiety. Discomfort, nervousness and anxiety being inside a motor vehicle. She has only driven on one or two occasions after the accident (para 14), and
- Trouble falling and staying asleep. Often awakes at night due to severe pain in the lower back (para 15).
44My difficulty with this evidence is that it is not supported by the medical record. I accept that the applicant felt severe pain at the accident scene since it is recorded in the ambulance report. That report also records a headache. By the time the applicant reached the emergency room of the local hospital, the pain symptoms had greatly reduced and were referred to as "mild." There is no mention in the record of shoulder pain and dizziness is specifically addressed and ruled out by her family doctor at the visit immediately after the accident. The only mention from the family doctor of sleeplessness pre-dates the accident.
45The medical record does disclose that the applicant has suffered from both upper and lower back pain since the accident but, for the most part, the complaints are intermittent not constant as she suggests and post-date the accident by many months to years. The first post-accident complaint was not until three months after the accident, in March 2015. There are other complaints in June and August 2015 that lead to medical imaging tests. Those tests find the likely cause of the applicant's complaints to be the degeneration of her spine. Neither of them assigned the cause of the applicant's pain and numbness to accident related injuries. As a result, in January 2016 Dr. Kongkham recommended surgical intervention akin to the earlier operation on her cervical spine.
The Expert Reports
46The applicant attended for a number of medical assessments. In each case, she self-reported the injuries she suffered in the accident and the of the assessors have accepted those self-reports at face value in coming to their conclusions. Despite the fact that each examiner accepted the applicant's self-report of the list of injuries and assigned their cause to the accident, I have found above that there is no evidence in the medical record to support the applicant's contention that she suffered a shoulder injury, lower back pain or dizziness as a result of the accident,
47The applicant relies on a Functional Assessment Evaluation performed by Dr. Justin Guy, a chiropractor who assessed the applicant 10 months after the accident. Dr. Guy was asked to give his opinion on whether the applicant suffers a complete inability to live a normal life. In arriving at his opinion, he sets out his understanding of the injuries sustained by the applicant in the accident. He states: "[The Applicant] reported experiencing pain immediately following the accident (she stated that she couldn't move due to the pain) in her neck, middle back and lower back. She stated that she also experienced dizziness [sic]." As shown above, the applicant's complaints at the scene of the accident were limited to neck pain which subsided quickly between the accident scene and the emergency room and a mild headache. Her family doctor specifically found no complaints of dizziness two days later when she examined the applicant. The applicant did not complain of other back pain until at least four months post-accident.
48In a section addressing the applicant's self-reported symptoms, Dr. Guy sets out the list of complaints broadly similar to the paragraphs in the applicant's affidavit set out above. He accepts at face value that the symptoms all stem from the accident. Following a very extensive and well documented series of test of the applicant's functionality, he concludes that the injuries the applicant informed him she sustained in the accident render her completely unable to live a normal life. In arriving at this conclusion he states: "[The Applicant] suffers from the following as a direct result of the motor vehicle accident: injury of muscle and tendon at neck level; low back pain; pain in thoracic spine; and headache." As noted the medical record supports only injury to the neck arising from the accident.
49It appears that Dr. Guy was totally unaware of the applicant's extensive history of spinal degeneration other than the cervical spine operation in 2012. There is nothing in his report to suggest that he reviewed any of the medical imaging that showed this extensive degeneration and he relied on the applicant's self-report that she had not suffered back pain before the accident, an assertion that is called into question by the family doctor's clinical notes and records. In light of these omissions, Dr. Guy had insufficient or no evidence upon which he could provide an opinion on the cause of the applicant's functional limitations. I find his report unhelpful for this reason.
50The respondent relies on a report from Dr. Urovitz, an orthopaedic surgeon. Dr. Urovitz examined the applicant on June 7, 2015. He reviewed medical imaging for the period from 2012 to December 2014. Of note is the fact that Dr. Urovitz also accepted the applicant's self-report of the injuries that she suffered in the accident. He notes that after the accident the applicant: "Followed up with her family physician on the day following the accident complaining of severe pain in her neck, shoulders and lower back." The applicant's follow up with her family doctor was much more limited in scope.
51Not surprisingly, accepting that the applicant complained of back and shoulder pain immediately following the accident, Dr. Urovitz concludes: "It is my orthopaedic opinion that the claimant suffered musculo-ligamentous injuries to the cervical, shoulders and dorsolumbar spines as a result of the indexed accident." I have the family doctors clinical notes and records before me. They were not available to Dr. Urovitz or Dr. Guy. In light of those records, I find Dr. Urovitz's opinion as to causation suspect. I do not rely on it.
52Dr. Getahun, an orthopaedic surgeon, completed an assessment on behalf of the applicant on November 7, 2016. His report reviews Dr. Urovitz's report and the applicant's history of spinal degeneration. He accepts Dr. Urovitz's conclusion about the nature of the injuries the applicant sustained in the accident and makes similar findings himself. While I note that Dr. Getahun states in his document review that he had the clinical notes and records of the applicant's family doctor, he concludes that the applicant sustained a myofascial strain of the lumbosacral spine in the accident aggravating a pre-existing degenerative condition. He makes no comment on why it took over four months for back pain to manifest itself.
CONCLUSION
53Having reviewed both the medical records and the reports of expert assessors, I am of the view that the applicant has failed to establish that the accident caused the impairments of which she now complains. I find that the majority of the assessments were based on an assumption that the applicant sustained more extensive injuries in the accident than is supported in the medical record. That assumption is sufficiently fundamental, in my view, to call into question the causation conclusions in the reports.
54The medical record states repeatedly that the applicant's back pain and restrictions result from the degenerative condition of her spine. Indeed, the applicant herself acknowledged to Dr. Henry Chan, an orthopaedic surgeon who examined her in July 2016, that: "The patient claimed that there is no significant injury to the back all along." Her treating neurosurgeon, Dr. Kongkham, found that she had completely recovered from the effects of the accident by February 2015 and considered the effects to be minor. Thereafter, Dr. Kongkham satisfied himself that the applicant had recovered from the cervical spine surgery and advised her in 2016 of options to deal with the degenerative condition in her lumbar spine.
ORDER
55Having read the evidence and submissions of the parties, I find that the injuries sustained in the accident are not the cause of the applicant's current impairments. I need not consider her claim for benefits. I dismiss the applicant's claim for a non-earner benefit and two medical and rehabilitation benefits.
Released: March 7, 2018
___________________________
D. Gregory Flude, Vice-Chair
Footnotes
- O. Reg 34/10
- Schick v. Boehringer Jrigelheim (Canada) Ltd., 2011 ONSC 63
Krause v. The Queen 1986 CanLII 39 (SCC), [1986] 2 S.C.R. 466, [1986] S.C.J. No. 65
Allcock Laight & Westwood Ltd. v. Patten, Bernard and Dynamic Displays Ltd., [1967] O.R. 18 (Ont. C.A.) - Heath v. Economical Mutual Insurance Company, 2009 ONCA 391
- Note: The report refers to the date of the cervical surgery as 2014 but I have no other reports of surgery so I take this date as a misprint.
- The spine is divided into three areas. From top to bottom they are cervical spine, thoracic spine, lumbar spine and sacrum. Each area has a number of vertebrae that are designated by a letter and a number. For example L4 refers to the 4th lowest vertebra in the lumbar spine region and S1 refers to the top of 5 fused vertebra in the sacrum.
- Inflammation of the ligaments that hold the spine together that can impinge on nerve roots.