Download Automobile Injury Appeal Commission Province of Saskatchewan

Automobile Injury Appeal Commission
Province of Saskatchewan
Citation:
R.C. v. Saskatchewan Government
Insurance, 2014 SKAIA 004
Date:
20140127
File:
013 of 2012
BETWEEN
R.C., Appellant
and
Saskatchewan Government Insurance, Respondent
Appearances:
R.C., Appellant
Steven Haichert, for the Respondent
Before:
Tim Rickard, Chair
Joy Dobko, Commission Member
THIS DECISION HAS BEEN EDITED TO PROTECT THE PERSONAL AND
HEALTH INFORMATION OF INDIVIDUALS BY REMOVING PERSONAL
IDENTIFIERS AND OTHER IDENTIFYING INFORMATION.
Heard at Regina, Saskatchewan
July 16, 2013
Page 2
DECISION
[1]
R.C. appeals a decision of Saskatchewan Government Insurance [“SGI”] dated
March 17, 2011 in which SGI determined that the Appellant’s current neck symptoms were
not related to injuries caused in the motor vehicle accident which occurred on October 31,
2009 (the “accident”).
FACTS AND FINDINGS
[2]
The Appellant was involved in an accident on October 31, 2009 (the “accident”) in
which his vehicle struck a deer. Damages to his vehicle were $2,494.17. The Appellant did
not report the injury to his neck to SGI until August 2010.
[3]
SGI issued a decision letter on March 17, 2011 in which they determined that the
Appellant’s current symptoms and injuries were not related to the accident. SGI wrote:
Information on the file indicates that almost ten months lapsed from the date of the motor vehicle
accident to when you first reported injuries to SGI. Medical reports from [Practitioner 1] and
[Practitioner 2] indicate that you reported that your neck symptoms started in or around
December 2009. There was no mention in their reports that you advised them your neck pain
arose from a motor vehicle accident.
[4]
The Appellant also injured his back on November 1, 2009. He attended emergency
for this injury but did not report any injury or symptoms in his neck. His back injury was
reported as a WCB claim. The WCB file indicates the Appellant was off work for 4 days
with his back injury. We note the Appellant has had a significant amount of claims through
WCB over many years.
[5]
The Appellant first saw his family physician for neck pain in his office on December
17, 2009. X-rays taken on that date showed mild narrowing of the intervertebral disc space
at C4-5. The Appellant’s physician subsequently reported that the Appellant attended at
emergency on three occasions for the pain in his neck: December 30, 2009, January 27th and
February 16th, 2010. He further stated the rest of the times were office consultations. The
physician recommended massage, physiotherapy and pain medications and referred him to a
neurologist. He provided SGI with his written opinion in October 2010, the injuries were
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consistent with neck strain or whiplash from the accident. This is the first mention of the
accident by the physician.
[6]
The Appellant was referred by his physician to a neurologist on January 13, 2010.
The neurologist reported “complaints of neck pain and stiffness with the left shoulder for the
last month”. He reported no history of recent injuries (emphasis added). The neurologist
opined the injuries were musculoskeletal in nature with a mild narrowing at C4-5 cervical
spine level. He referred the Appellant for an MRI and recommended massage treatment and
Arthrotec.
[7]
March 2010 MRI results showed a “left paracentral disc herniation at the C5-6
level”. Specifically, the report stated:
At the C5-6 level there is a moderately sized left paracentral disc herniation, which is causing
mild mass effect upon the left anterolateral aspect of the thecal sac, as well as moderate to severe
left neuroforaminal stenosis. This is contacting and possibly impinging the exiting left C6 nerve
root. No other significant degenerative disc disease is identified.
[8]
On June 1, 2010, the Appellant saw an orthopedic surgeon regarding his neck
complaints. The orthopedic surgeon recommended physiotherapy and other conservative
measures rather than surgery as surgery was unpredictable and unreliable. The Appellant
made no mention of his accident.
[9]
It is noted from the WCB file the Appellant injured his back again on July 19, 2010.
His physician reports him to be back to work by October 6, 2010 even though WCB was
still treating the low back strain in May 2011.
[10]
The Appellant saw a neurosurgeon around August 3, 2010. The contents of the
report are important in this case as there is no mention of the accident:
…As you are well aware, this patient complains of the following:
1. Pain in his neck with radiation down into his upper limbs over the last six months; this
started insidiously. He was then taken off work for four to five months and then returned to
work.
2. One month ago, he twisted his back while carrying some water pails at work; there is no
radiation of pain down into his legs. He is still not working, and is awaiting physiotherapy.
On Examination, cranial nerves are normal.
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Cervical Spine:
Neck movements are full. There is no neurological deficit.
Lumbar Spine:
His gait is normal. Forward flexion is full. Straight Leg Raising is
possible to 90° on both sides. Motor power and sensory function are
normal.
Investigations Reviewed:
APPRAISAL:
An MRI of the Cervical Spine showed a small C5-6 left disc
lesion.
As this patient has only a Small Cervical Disc without any radiation down
into his upper limbs, and there is no neurological deficit, it may as well be
left alone. Physiotherapy will help.
As far as his Lumbar Spine is concerned, again, this patient has a Lumbar
Sprain without any deficit. Physiotherapy will help.
For both his neck and his Lumbar Spine, no surgery is indicated. If you could expedite his
Physiotherapy program, he would benefit and return to work quicker.
[11]
Around August 26, 2010, the Appellant completed his Application for Injury
Benefits and reported the accident to SGI. He requested they open an injury claim because
he now required physiotherapy. The Appellant initially reported that he felt jarring in his
left shoulder but then 3 weeks after the accident he experienced neck pain. However, in his
Application for Benefits he reported “jarring in his neck”.
[12]
In a conversation with his personal injury representative he reported being off work
from December 21, 2009 to April 2010. However, this is not consistent with what he
reported in his Application for Benefits. He reported being off work December 12, 2009 to
June 28, 2010 due to the accident injury. However, there is no indication in this report that
the Appellant was instructed to be off work for five months. It was not until March 4, 2010
that the physician recommended the Appellant be off work or his job description should be
adjusted regarding his neck problem.
[13]
He attended for his first physiotherapy treatment on August 30, 2010.
The
physiotherapy treatment was for biomechanical dysfunction in his lumbar and cervical
spine. There is a notation that a request will be made to SGI for coverage. The back
treatment relates to the WCB injury in July 2010.
[14]
A practitioner’s report completed in October 2010 by the Appellant’s physician
noted a neck sprain and osteoarthritis of the neck. He further noted restricted range of
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motion of the shoulder but did not specify which shoulder. The diagnosis was whiplash
associated disorder Grade II.
[15]
SGI retained a medical consultant, specifically an orthopedic surgeon, to complete a
review of the Appellant’s file to determine if his ongoing left sided neck pain would be
attributable to the accident. The medical consultant also provided evidence at the hearing.
After reviewing all of the medical information, he opined:
Based on the fact that the accident took place in October 2009, that the first contact with SGI
regarding the injury was in August 2010, and based on the Orthopedic Surgeon’s and the
Neurosurgeon’s reports in which there is no mention of injuries, and mention made that the pain
started insidiously a few months ago (i.e. December 2009), there is no indication whatsoever in
this file that the neck pain of which the Appellant complains is due to the MVA of October 31,
2009.
It is my opinion that [R.C.]’s neck pain is unrelated to the MVA in question.
He further testified that whiplash injuries are acute immediately and then subside over time.
He noted that when the Appellant attended 6 weeks later to his physician, he made no
mention of the car accident. The Appellant testified that his neck was bothering him shortly
after the accident but he thought it would get better. It was the opinion of the medical
consultant if the Appellant’s neck had been bothering him since the accident he would have
reported that to his specialists and he did not. He noted the first mention of the accident was
in August 2010.
He further explained that “cervical spondylosis” referred to by the
neurosurgeon was used to refer to arthritis or degenerative disc disease.
[16]
SGI’s medical consultant also noted that pain for a herniated disc occurs
immediately and improves over time not the other way around as the Appellant has
described. He states that it is the natural evolution of a disc herniation to improve over time.
When asked about the opinion of the chiropractor, the medical consultant discredited the
report stating that the chiropractor did not see the Appellant for two years after the accident
and that a WAD injury causes pain immediately.
[17]
The Appellant saw his neurosurgeon for a second time in May 2011. It was the
opinion of the neurosurgeon that there was no change in his symptoms over the last year and
a half. He reported the Appellant’s pain was due to cervical spondylosis. He was going to
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arrange a follow up MRI to see if there was a “worsening of his degenerative disc disease”.
The Appellant was advised to continue with massage, physio and anti-inflammatories.
[18]
In June 2011, the Appellant received his first chiropractic treatment on his neck from
a chiropractor. The chiropractor previously treated the Appellant for his WCB low back
injury. The diagnosis was WAD II neck injury. The chiropractor reported as follows:
Our diagnosis at this time was one of a WAD II neck injury. Because of the pain the patient
was in originally, he may have irritated his disc in the C5-6 area but also he may have had
simply a brachial plexus traction injury of the nerve plexus of the neck, which would have
caused quite substantial discomfort. Currently, on examination there is no indication there is
a disc injury or any signs of brachial plexus irritation. ….
Obviously, since I did not review the patient following the accident, it is hard for me to say
what was present at that time. However, his injuries and loss of joint play are very
consistent with what he describes as an accident. He did hit the deer on the right front
driver’s side, and this would cause his neck and upper back to move forward towards the
impact. His left shoulder would be restricted by the seatbelt, and this would cause the
traction of the upper back and neck area. I do not know how you resolve these issues, but
[R.C.] asked me to write and give my opinion. I do think it is quite easy to connect his
symptoms to what transpired with the vehicle accident.
A second report from the chiropractor in September 2011 noted an improvement in the
Appellant’s neck condition but acknowledged that he did not review the appellant until 2
years post accident. He did note that he believed the Appellant to be straight forward with
his presentation.
[19]
A second MRI completed August 7, 2011 showed improvement with a decrease in
size to the small left paracentral disc protrusion at C5-6. There was mild residual neural
foraminal narrowing on the left but no evidence of any spinal stenosis or nerve root
impingement.
[20]
In October 2011, the new MRI and chiropractic report was sent to SGI’s medical
consultant for review.
He concluded the new evidence did not alter his previous
conclusions. He reached the same conclusion in April 2012 after reviewing a January 2012
report from the Appellant’s family physician.
[21]
The family physician’s January 2012 report stated that in his opinion the Appellant’s
neck injuries were consistent with injuries seen in motor vehicle accidents/whiplash injuries.
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[22]
We have reviewed the medical notes of the family physician and we note the
following:
a)
A reference to degenerative disc disease in November 2007.
We believe this
reference to be to the low back region.
b)
In June 2008, the Appellant attended upon his physician for pain in the left side of
his neck. The diagnosis was neck pain and muscle spasm.
[23]
An MRI of the Appellant’s lumbar spine taken January 24, 2011 shows multi-level
degenerative changes with no evidence of spinal stenosis.
LAW AND ANALYSIS
[24]
The Appellant argues that he has never been in this type of an accident before. He
says the pain eventually got worse and he had to use all his sick time to take time off after
the accident. He says the pain worsened because he was not able to get treatment until
August 2010. The Appellant argues that the time between the accident and the reported
neck symptoms has been misinterpreted.
[25]
SGI argues that the Appellant failed to report his injuries for 10 months. They rely
upon the reports of the neurologist, neurosurgeon and orthopedic surgeon and their medical
consultant.
[26]
Causation of the Appellant’s neck symptoms must result from injuries sustained in
the accident. The onus is on the Appellant to prove the injuries were caused in the accident.
In this case, simply because the Appellant experienced pain 6 weeks after the accident and
was not in pain prior to the accident; this is not enough to prove causation.
[27]
The correlation of these events – the Appellant’s accident and subsequent pain
and/or diagnosis of medical conditions – does not prove causation. Simply because the
diagnosis happened after the accident does not establish a cause-and-effect relationship
between these events.
[28]
For SGI to be liable for the consequences of the Appellant’s current medical
conditions, it must be shown that the injury sustained by the Appellant in the accident
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caused or contributed to his condition. Causation will be shown if the Appellant would not
have suffered from this condition “but for” the accident or if the accident contributed
materially to his condition. Adapting the analysis outlined by Mr. Justice Major in Athey
v.Leonati 1 , the ramifications for this appeal are as follows:
a) If the condition would likely have occurred at the same time, without the
injuries sustained in the accident, then causation is not proven;
b) If it was necessary to have both the accident and a predisposition to the
condition for the condition to occur, then causation is proven, since the condition
would not have occurred but for the accident. Even if the accident played only a
minor role, SGI would be fully liable because the accident was still a necessary
contributing cause.
c) If the accident alone could have been a sufficient cause, and the pre-existing
condition alone could have been a sufficient cause, then it is unclear which was
the cause-in-fact of the condition. It would have to be determined, on a balance
of probabilities, whether the accident materially contributed to the condition.
[29]
We find it difficult to accept that the Appellant’s neck pain is related to the accident
in October 2009. His first report of neck pain is in December 2009 to his physician. He
does not, at that time, report the accident to his physician, at least it is not in his physician’s
notes or the referral letters to the specialists. We find the lack of reporting to be critical in
making our findings for the following reasons:
a)
The Appellant saw a neurologist in January 2010 and reported that the neck pain
started insidiously around December 2009. He reported no history of recent injury.
There is no report of the accident to the orthopedic surgeon on June 1, 2010. In
August 2010 he reported no accident to the neurosurgeon. If we rely upon the referral
letters sent from the Appellant’s physician there is also no mention of the neck pain
being secondary to an accident.
1
[1996] 3 S.C.R. 458
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b)
The Appellant says he never reported the claim because he thought it would get
better with time. We find this very difficult to accept given that this is an Appellant
extremely familiar with WCB claims and reporting. It is our opinion that if the
Appellant’s neck had been hurt in the car accident he would have given notice to SGI.
We accept the evidence of SGI’s medical consultant that if the neck had been painful
following the accident the appellant would have mentioned that to the specialists.
c)
We have reviewed the December 14, 2009 chart note of the family physician.
There does not appear to be any indication of the Appellant advising his doctor of the
car accident.
d)
It is the opinion of the neurologist and the neurosurgeon that the Appellant’s neck
pain is related to his degenerative disc disease.
e)
It is October 2010 when the Appellant’s physician refers to the neck injury being
caused in the accident. He reports there has been no condition since the accident
except a back injury which recovered. In fact, the Appellant had two back injuries
since the accident. This inconsistency of reporting is critical to our findings. We are
not sure if the inconsistency arises with the Appellant or the physician.
f)
[30]
There is a history of left sided neck pain in June 2008.
We have also reviewed the medical opinion of the chiropractor. We are not able to
place great reliance on this report. The chiropractor did not examine the Appellant for
almost two years after the accident. We accept the evidence of SGI’s medical consultant
that the WAD II injury would be acute after the accident and improve over time. We do not
accept that the Appellant’s injury would get worse 6 weeks after the accident.
[31]
It is our opinion that the Appellant attended his physician for symptoms in his neck.
The physician referred him off to the necessary specialists for further opinion. It was not
until many months later that the accident came to light and then the connection to the
accident was alleged. We find that there must be some reasonableness in time for reporting
injuries. We are not saying the Appellant does not have a neck injury; we simply are not
able to conclude that it was caused or contributed to by the accident due to the lack of
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medical substantiation of the injury until many months later. The Appellant has not proven
to us on a balance of probabilities that the neck symptoms he is currently experienced were
caused in his motor vehicle accident.
CONCLUSION
[32]
SGI’s decision dated March 17, 2011 is upheld.
COSTS
[33]
The Appellant has not been successful in his appeal and is therefore not entitled to
costs.
Dated at Regina, Saskatchewan, on January 27, 2014.
Tim Rickard, Chair
Joy Dobko, Commission Member
Automobile Injury Appeal Commission