March 03, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Antonio and CAA – Was insured hurt in an accident? Pre-existing medical condition worsened as a result of accident; accident benefits payable;
Antonio and CAA
Date of Decision: October 3, 2016
Heard Before: Adjudicator Caroline King
Mariecel Antonio was hurt in a car accident on September 9, 2013. She applied for and received some statutory accident benefits from CAA but there is an ongoing dispute about benefits payable. The parties were unable to resolve their disputes through mediation, and Mrs. Antonio applied for arbitration FSCO.
The parties requested a preliminary issue hearing to resolve an essential element of Mrs. Antonio’s arbitration application. The parties agreed that the preliminary issue is:
- Did the accident of September 9, 2013 cause impairment related to the cavernous malformation in Ms. Antonio’s brain?
- The accident of September 9, 2013 did cause impairment related to the cavernous malformation in Ms. Antonio’s brain.
The parties agree that Ms. Antonio had a rare, pre-existing condition (a cavernous malformation in the brainstem), and that she was exhibiting symptoms of the pre-existing condition at and/or around the time of the accident. The pre-existing condition was not diagnosed until after the accident. The parties agree that the accident did not cause the pre-existing condition, but the parties disagree about whether the accident directly caused an impairment within the meaning of the Schedule.
The parties agreed that the test for causation in accident benefit cases includes material contribution.
Ms. Antonio’s has a cavernous malformation, (also called a cavernoma) which is a congenital abnormality of the blood vessel formation, where the cluster of blood vessel walls is not formed normally and are weak. Cavernomas can leak or bleed, but a person with a cavernoma may be asymptomatic throughout their life. Cavernomas are rare and brainstem cavernomas, such as Ms. Antonio’s, are ever rarer. There is no definitive medical study about the effect, if any, of a trauma or motor vehicle accident on an individual with this kind of rare pre-existing condition. In Ms. Antonio’s case, the parties’ expert witnesses agreed that Ms. Antonio’s cavernoma had leaked blood before the accident and after the accident and likely was leaking around the time of the accident. Symptoms arising from a leaking or haemorrhaging cavernoma in the brainstem include ptosis (droopy eyelids), and diplopia (double vision).
The expert witnesses agreed that there was a difference in Ms. Antonio’s condition before the accident and after the accident, but they disagreed about whether the change was related to the accident.
It is Ms. Antonio’s position that the accident did cause an impairment related to the cavernous malformation in Ms. Antonio’s brainstem. Ms. Antonio submitted there was a distinct and marked change in her pre and post-accident condition linked to the accident. It was submitted that Ms. Antonio was functional, independent, and had completed a day of work before the time of the accident. Before the accident, Ms. Antonio had not experienced loss of consciousness. The accident involved a sudden deceleration of speed in which she turned/ twisted her neck and hit her head. The bleeding from the cavernoma increased in the hours and days after the accident. Days after the accident, Ms. Antonio did experience loss of consciousness, and ultimately required surgical intervention to address a potentially life-threatening condition arising from the cavernoma and secondary hydrocephalus.
CAA’s position is that the accident did not cause an impairment related to the cavernous malformation in Ms. Antonio’s brain and that before the accident Ms. Antonio had already experienced loss of consciousness or altered consciousness. Ms. Antonio was symptomatic at the time of the accident, and that the accident had no effect on Ms. Antonio’s cavernoma, rather that Ms. Antonio’s cavernoma and the deterioration of her condition were the natural unfolding of her condition and that there was no proximate cause of the deterioration in her condition.
It is important to determine whether Ms. Antonio suffered a pre-accident loss of consciousness. The Arbitrator reviewed the medical evidence and testimony and determined that she was not satisfied that Ms. Antonio suffered a pre-accident loss of consciousness or altered consciousness for the following reasons. There is no medical record created before the day of the accident by Ms. Antonio’s treating physicians which makes any reference to Ms. Antonio losing consciousness. There are no reports to the Ministry of Transport regarding Ms. Antonio about serious medical issues as required by law. The medical records taken most proximate to the accident, the EMS reports and the first treating hospital do not indicate there was a loss of consciousness. None of the expert medical witnesses’ opinion reports indicated that she had a pre-accident loss of consciousness, and further, all four of the expert medical witnesses stated in the hearing that Ms. Antonio did not have pre-accident loss of consciousness.
The Arbitrator considered the few references to pre-accident loss of consciousness in the medical records from St. Michael’s Hospital, the second treating hospital. These records reveal issues regarding the recording of historical information. There were inconsistencies and multiple errors (which at times were repeated serially) in the historical aspects of the records which suggest there was a lack of care in the collection and use of the historical type of information. On this basis the Arbitrator determined this undermined the reliability of the historical aspects of that hospital’s medical record keeping as a whole regarding what happened to Ms. Antonio prior to her admission to that hospital
The Arbitrator also noted that when the expert witness evidence, and the pre and post-accident medical records are considered in their entirety, what is most persuasive is not what is in the records, but what is not. There are no references to any episodes of loss of consciousness or altered consciousness in the pre-accident records, or in the records taken within hours of the accident. Therefore, it is more likely than not that there was no loss of consciousness or altered consciousness pre-accident or on the day of the accident.
Ms. Antonio still bears the onus of proof to establish whether it is more likely than not that the accident of September 9, 2013 caused impairment related to the cavernous malformation in Ms. Antonio’s brain. Based on the evidence, there was a change in her condition which flowed in a meaningful way from the accident. Ms. Antonio’s argument that the accident caused an impairment related to the cavernoma was more consistent with the medical records and more consistent with the persuasive expert opinion evidence given by Ms. Antonio’s expert witnesses.
Despite the assertion of CAA, the medical documents created on or before the date of the accident do not establish an ongoing pattern of decline related to Ms. Antonio’s cavernoma in the period leading up to the accident. In the months, weeks, and days prior to the accident, the evidence was that Ms. Antonio was carrying out her normal daily activities, including working. Any impairment arising from her cavernoma was mild or moderate. This changed after the accident. There is a temporal connection between the accident and the increasing mass of the cavernoma and the changes in Ms. Antonio’s condition pre and post-accident which is not merely coincidental.
The Arbitrator concluded that the accident of September 9, 2013 caused a ‘cascade of events’. The Arbitrator noted that even if she were to apply the ‘but for’ causation test to this case, she would come to the same finding that the ultimate outcome of the things that happened to Mrs. Antonio had the potential to be different had this accident not occurred. And the outcome of everything that happened if the accident had not occurred could not be reliably predicted to be the same.
The accident of September 9, 2013, caused impairment related to the cavernous malformation (cavernoma) in Ms. Antonio’s brain.