March 22, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Steinberg and Wawanesa
Date of Decision: January 15, 2018
Heard Before: Adjudicator Charles Matheson
CAT IMPAIRMENT: chiropractor may conduct a CAT assessment under the request of a physician; chronic pain is a significant factor in CAT diagnosis; applicant provided ample evidence of his conditions; arbitrator preferred evidence of applicant and one IE over the rest of the insurer examinations
Mr. Rudolf Steinberg was injured in a motor vehicle accident on October 29, 2011. He applied for and received statutory accident benefits from Wawanesa but when the parties were unable to resolve their disputes through mediation, and Mr. Steinberg applied for arbitration at the FSCO.
- Did Mr. Steinberg sustain a catastrophic impairment within the meaning of the Schedule as a result of the accident?
- Mr. Steinberg sustained a catastrophic impairment within the meaning of the Schedule as a result of the accident.
Motion or Objection Mid-Hearing
Just prior to Dr. Baird’s (chiropractor) testimony, Wawanesa raised the issue that s. 45(1)(1) of the Schedule precludes a Chiropractor from providing an opinion on a catastrophic determination or WPI. Wawanesa argues that only a “Physician” can offer a catastrophic determination and we do not have one. Wawanesa draws attention to the wording in s. 45(1)(1) in that the Physician has to do the assessments or examinations in connection with a determination of catastrophic impairment, and then may be assisted by such other regulated health professionals. This language, Wawanesa insists, is unambiguous. Therefore, Chiropractors cannot be experts in catastrophic determinations, because the Chiropractor is not retained directly by the Physician.
In the Adjudicator’s view, this section speaks to the rules of the application process only, in that the application must be completed by the same Physician who does the initial assessments or examinations which triggers the completion of the application being put forward to Wawanesa. In this case Mr. Steinberg’s family Physician signed an OCF-19. Dr. Baird is simply assisting the original Physician to formulate the full medical picture of Mr. Steinberg and as such is not precluded as being an expert on the Guides. Dr. Baird is accepted as an expert in the Guides.
Mr. Steinberg was a front seat passenger in a pick-up truck when the driver lost control of the vehicle on an icy bridge, causing the vehicle to roll over and come to rest on its roof. The horse trailer being towed by the pick-up truck also was up-set on its side.
Mr. Steinberg testified that prior to the subject motor vehicle accident he was living on his 70-acre horse farm in a mobile home on the property that is heated by a wood boiler in a separate building. Today, however, Mr. Steinberg lives alone on this property with 5 horses and 3 dogs. His daughter is living independently in Alberta, and his son is currently living and working in Thunder Bay and primarily resides with his mother during his seasonal work year. Prior to the accident he enjoyed physical activities with his children including fishing, hunting, horseback riding, martial arts, snow sledding, snow shoeing, cutting wood, and camping. He states that now he can only fish or hunt with the help of a second person on good days and then only for a short time. Mr. Steinberg was a logging truck driver combined with some operation of other logging and construction equipment based on the time of year and the work that was available at the time, for most of his adult life. He stated that he changed his employment just prior to the accident and was working as a heavy equipment mechanic. Mr. Steinberg stated that he has not been able to return to work in any capacity since 2012.
Mr. Steinberg testified that as a result of the accident he developed two black eyes, then started to develop memory problems, with headaches five times per week. Migraine headaches continue to this day. He found he was also having short-term memory issues with a slower processing speed of information/memory. He is now prone to lose or misplace his keys, cell phone, tools and/or his wallet. He also testified that he has now developed balance issues and “fogginess” in regards to concentration and thought processes. Mr. Steinberg also testified that he leaked fluid from his ears for about a year after the accident.
During examination and cross-examination, admits to being able to drive but he finds that a significant rest is required if he travels more than two hours as either a passenger or driver. As a passenger he is subject to vertigo/anxiety attacks. The other two modes of long distance transportation that Mr. Steinberg has tried since the accident were on a train and a plane, and both were in Mr. Steinberg’s opinion the most painful and uncomfortable events he has endured. He’s attempted to socialize, however, he found that he would suddenly be lost mid-sentence in his own story and could not recall what he had said or what was next. This was verified later by his son’s testimony and Dr. S’s testimony.
Mr. Steinberg described the motions which caused him pain and how those movements impact his ability to work as either a driver, welder or mechanic. He explained that his hand eye coordination prevents him from welding and doing finer mechanical duties. He also testified that he loses sensation in his legs when he is lying down or sitting in any one position too long. He also said that he hit both knees on the dash of the vehicle which in turn required him to acquire knee braces which help him to stabilize his knees, relieving his pain on a daily basis. Mr. Steinberg testified that he had right knee surgery recommended in June 2012.
Under cross-examination, Mr. Steinberg reasoned that he did not go for the surgery because of money issues, recovery time and issues around who would look after him and the farm. As well, the doctor would not give him 100% assurance of a complete recovery.
Mr. Steinberg testified that he had been diagnosed with severe sleep apnea after experiencing a difficult time going to sleep because he could not get comfortable. He continued to describe moving in bed until he could hear a gurgling sound in his ears before finding the correct neck position which allowed him to sleep. He would be able to sleep for short periods as the pain or numbness in his legs would wake him during the night. Mr. Steinberg testified that he did not have any sleep issues prior to the accident, thus, he attributes the sleep apnea to the accident despite that no medical practitioners explicitly told him that the accident was the cause of the sleep apnea. Mr. Steinberg testified that he was assessed with severe sleep apnea where a machine was recommended. He said he tried the machine but to no avail, as the pressure in his head while using the machine was very uncomfortable and as a result he could not sleep, so he did not use it again because of the pain.
Wawanesa raised his pre-accident medical history, in regards to his visits to his family doctor and his chiropractor during the two months prior to the accident. In this time frame it was noted that Mr. Steinberg was complaining of aches and pains in both his shoulders and knees. Mr. Steinberg argued that these were aches and pains associated with his recent job change from driver to mechanic.
The Arbitrator reviewed the testimony of Dr. M (neurophyschologist) who testified on behalf of Mr. Steinberg, as to the validity and veracity of her neurological reports dated February 24, 2013, February 15, 2015, and more importantly her catastrophic impairment report April 8, 2017, and the necessity of her authored OCF-19, application for catastrophic determination dated July 5, 2017. Her examination and reports concluded that the WPI is estimated at the higher end of the moderate limitation (15-29 percent).
Dr. M opined that Mr. Steinberg is a self-sustaining person with great sense self-reliance and a fixer, and opined that Mr. Steinberg should attend a Chronic Pain Management program, which she recommended in the past. The doctor is also not convinced that the cognitive impairments Mr. Steinberg is suffering will resolve in a short period of time. Further the doctor opined that Mr. Steinberg’s test results, since 2015, have shown his symptoms to be stable.
Dr. P testified that he started treating Mr. Steinberg in late 2014, and continued to treat him until July 2017, and admitted that he had no experience with a case of cervical spine loss of motion segment integrity, in that the pathology was such that Mr. Steinberg would make some progress and then slide back almost to the beginning, or other symptoms or issues would arise as a result of his previous treatments. He was puzzled as he has not seen this type of total body trauma before. Therefore, he referred him dynamic imaging or moving x-rays to help assess future expectations and treatments.
The resulting imaging started to explain what challenges were before Mr. Steinberg which led to subsequent MRI images, which now in this doctor’s opinion confirmed that Mr. Steinberg has an unstable neck vertebra. He said he did not know what else to do for Mr. Steinberg as this was a “weird” case, in that there were confounding symptomology being presented after numerous treatments.
Dr. Schroder(chiropractor) testified that he was Mr. Steinberg’s treating Chiropractor prior to the accident and continued to treat him for about 18 months post-accident. He testified that it was evident from the diagnostic imaging that all Mr. Steinberg’s divergent symptoms were not (as previously thought) from pre-existing injuries.
Mr. Steinberg’s family doctor testified that he was suffering from post-concussion head injuries, displayed by Mr. Steinberg’s medical post-accident medical history, complaints and symptoms.
Dr. B, chiropractor, reviewed all of the imaging and conducted thorough analysis of Mr. Steinberg’s condition. He concluded that MR. Steinberg had a WPI rating of 73%. Dr. B defended this finding saying that the intention of the Guides is to look at the impairment of a whole person and how the impairment will eventually impact the person’s life. Therefore, in his opinion respectively, Mr. Steinberg’s life will have a downward spiral and may cut his life expectancy significantly and thus, the effects of the accident will have a negative impact on Mr. Steinberg’s life over time, which the impairment ratings should ultimately show.
A Registered Kinesiotherapist and Professional Ergonomist testified for Mr. Steinberg as to the accuracy and integrity of his evidenced report which found that Mr. Steinberg suffered a WPI of 85%.
Dr. T (Psychiatrist) provided a full psychiatric diagnosis (DSM 5) on page 6 of his report, which which suggested a diagnosis of Craniocervical syndrome.” Dr. T opines that the white fluid that Mr. Steinberg complained of coming from his ears was in fact leaking spinal fluid which was being blocked or backed up in the skull but deferred any physical findings to others who specialize in this area.
Dr. GM (Neurologist) testified on behalf of Wawanesa concluding that, “At this point in time I do not think gentlemen suffered any neurological sequelae as far as the motor vehicle accident is concerned.” His first two addendums did not change his neurological assessment. Dr. GM confirmed his opinion that the issues that Mr. Steinberg is suffering from were not the result of the motor vehicle accident, for example, the temperature of Mr. Steinberg’s limbs are not neurological in nature, it relates to his obesity. The pinched nerve in his back is a result of a horse accident. The doctor opined that the referenced “meralgia” is again related to Mr. Steinberg’s being overweight.
Dr. RL (Neuropsychologist) testified on behalf of Wawanesa concluding that Mr. Steinberg did not suffer a major impairment from the accident, despite trouble with his memory recall, number recall for math questions, low word generation, poor frontal lobe testing results and very poor psychomotor test results. Dr. RL provided a WPI rating of 5-7 percent. She made three addendums based on paper reviews of information from Wawnesa and did not change her diagnosis.
Dr. CBP (Orthopaedic Surgeon) testified on behalf of Wawanesa and concluded Mr. Steinberg was not catastrophically impaired.
Upon review of the evidence and the Law the Adjudicator noted that the marked impairment (class 4) ratings were extreme. He also noted that “evaluating impairment due to pain is difficult but not impossible.” Pain is subjective and cannot be measured objectively. Pain evokes negative psychologic reactions, such as fear, anxiety, and depression. Chronic pain and pain-related behaviour are not, per se, impairments, but they should trigger assessments with regard to ability to function and carry out daily activities.
On the basis of the evidence the Adjudicator determined that Mr. Steinberg sustained a catastrophic impairment within the meaning of the Schedule. The Arbitrator noted that he prefered the evidence and arguments of Mr. Steinberg in combination with that of Wawanesa’s expert, Dr. P, and is convinced that Mr. Steinberg would have been found catastrophic as a result of being found to have reached a 55% WPI rating.