2008 BCSC 1387 Wafler v. Insurance Corporation of British Columbia

Before: The Honourable Mr. Justice Meiklem

Reasons for Judgment

Counsel for the Plaintiff	M.G. Bolda
Counsel for the Defendant	S. Davies
Date and Place of Trial/Hearing:	May 1, 2008
	Vancouver, B.C.

[1] The plaintiff was injured in a motor vehicle accident on November 22, 2005. The plaintiff received weekly disability benefits (commonly known as TTD benefits) pursuant to s. 80(1) of Part 7 of the Regulations under the Insurance (Motor Vehicle) Act, R.S.B. C. 1996, c. 231 until the end of August 2006.

[2] The plaintiff seeks a declaration that he is entitled to further benefits under s. 80 (1) and s. 86 (1) of the Regulations (the latter section deals with disability beyond 104 weeks), and an assessment of those benefits.

[3] For approximately 18 months prior to the accident the plaintiff had been working as a building siding installer, although his occupation for about ten years prior to that was that of a locksmith.

[4] There are two issues raised for determination on this Rule 18A summary trial:

a) whether the exclusion in s. 96 (f) of the Regulations applies to the facts at bar because the plaintiff’s continuing injury is “caused directly or indirectly by sickness or disease”, the disease being a pre-existing degenerative condition of his lumbar spine;

b) if the exclusion does not apply, is the plaintiff still “totally disabled” by an injury sustained in the accident from employment or an occupation for which he is reasonably suited by education, training or experience?

[5] The relevant sections of Part 7 of the Regulations read as follows:

79(1) Subject to subsection (2) and sections 80 to 88, 90, 92, 100, 101 and 104, the corporation shall pay benefits to an insured in respect of death or injury caused by an accident that arises out of the use or operation of a vehicle and that occurs in Canada or the United States of America or on a vessel travelling between Canada and the United States of America.

80(1) Where, within 20 days after an accident for which benefits are provided under this Part, an injury sustained in the accident totally disables an insured who is an employed person from engaging in employment or an occupation for which the insured is reasonably suited by education, training or experience, the corporation shall, subject to section 85, pay to the insured for the duration of the total disability or 104 weeks, whichever is shorter, the lesser of the amounts determined under paragraphs (a) and (b):

(a) the applicable amount of disability benefits set out in section 2 of Schedule 3;

(b) in respect of an accident that occurred

…

(iii) on or after January 1, 1991 an amount per week calculated by taking 75% of the insured's gross earnings for the 12 month period immediately preceding the accident and dividing by the number of weeks and fractions of weeks actually worked during that period.

…

96 The Corporation is not liable to pay benefits under this Part in respect of the injury or death of a person

…

(f) whose injury or death is caused, directly or indirectly, by sickness or disease, unless the sickness or disease was contracted as a direct result of an accident for which benefits are provided under this Part.

[6] The parties have referred to the pre-existing degenerative lumbar spine condition as asymptomatic. It was asymptomatic in the sense that it did not disable the plaintiff, who was functioning as an installer for a siding and roofing company at the time of the motor vehicle accident, but it was symptomatic enough that the plaintiff had experienced episodic pain and had attended a general practitioner, Dr. Jabbour, in April 2004 complaining of having experienced lumbar back pain for a year with flare ups lasting up to 3 days occurring once to twice per month. This attendance was not precipitated by any particular incident, although Mr. Wafler had been off work for two weeks in February 2003 after stepping out of his locksmith’s van and twisting his back and experiencing a “spike of pain”.

[7] Radiographs of his lumbar spine were taken in May 2004 and the radiologist reported: “Overall alignment is satisfactory with preservation of vertebral body heights and disc spaces except at L4-5 where there is mild narrowing and associated anterior osteophytes of L5. The facet joints and SI joints appear normal.” In respect of the pelvis and hip, the radiologist noted very slight superior medial joint space narrowing bilaterally suggesting minimal early osteoarthritic change. In a visit in June 2004, to follow up the x-ray results, Dr. Jabbour made note of the early osteoarthritis and prescribed glucosamine for that and Advil for the flare ups.

[8] The defendant relies on the decision in Mawji v. ICBC, 2001 BCSC 1610, [2001] B.C.J. No. 2503 and argues that it is factually indistinguishable from the case at bar. In Mawji, the plaintiff, who suffered from osteoarthritis in her knees, injured her left knee in two accidents. The court's analysis and findings are set out in ¶12 to 14 of the reasons as follows:

12 It is not disputed that before the accidents, the plaintiff suffered from the "disease" of osteoarthritis. The disease, for all intents and purposes, was asymptomatic. The accidents have exacerbated the plaintiff's condition to the point where she now is in need of a knee replacement. The evidence at trial was that without the accident there was a strong possibility that the plaintiff would have required a knee replacement at some time, although when was entirely uncertain.

13 The uncontradicted evidence therefore, is that the accidents have caused the plaintiff's disease of osteoarthritis to become exacerbated to the point where her disease now seriously handicaps her. On this basis it seems clear that the defendant is not liable to pay benefits to her because her injury has been caused indirectly by her disease. The plaintiff argues that the word "injury" in 96(f) is to be confined to the blow she received to her knee in the first accident. I decline to interpret "injury" so narrowly. In any event the benefits claimed by the plaintiff relate to consequences that go beyond the mere blow to the knee and its consequent swelling. In the context of Part 7 it seems to me that "injury" refers to the continuing injurious condition of the claimant. Such continuing condition is one that is caused indirectly by her underlying disease. I have been referred to a number of cases, which of course differ on their facts, but which illustrate the application of Regulation 96(f). The principal case relied on by the defendant is Kostantinos Polykandriotis v. Insurance Corporation of British Columbia (1980) B.C.D. Civ. 1955-01 (Co. Ct.) and the cases therein cited. In that case the plaintiff sustained a number of injuries in a car accident, was admitted to hospital and the next day had a heart attack. There were other complications for the plaintiff in hospital and about six weeks after the accident, while still in hospital, she had a second heart attack from which she died. The court held that the heart attacks were caused by a combination of the accident and its related stress and other facts associated with the injuries together with the plaintiff's prior medical problem and damaged heart. Because "at the very least this damaged heart was a factor in (the plaintiff's death) the exception in the regulation applied". The plaintiff's death was caused indirectly by sickness or disease.

14 Similarly, in the present case, the plaintiff's continuing injurious condition has been caused in part, and indirectly, by her pre-accident underlying "disease" of osteoarthritis. This circumstance does not of course exonerate the tortfeasors from responsibility for the consequences of the accidents. In my view it does entitle the defendant to invoke the exception from liability contained in Regulation 96(f).

[9] The plaintiff does not seek to distinguish the Mawji case on its facts, but respectfully argues that the court did not engage in the correct interpretation and analysis of the application of s. 96 (f) and that this court is not bound by the decision. The plaintiff urges the court to broadly construe coverage and narrowly construe the exclusion clause, in keeping with the guidance set out by the Supreme Court of Canada in Reid Crowther and Partners Ltd. v. Simcoe and Erie General Insurance Co., [1993] 1 S.C.R. 252 in the following passage quoted and adopted by the British Columbia Court of Appeal in Canevada Country Communications Inc. v. GAN Canada Insurance Co., 1999 BCCA 339 at ¶20:

20 The decision in Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co., [1993] 1 S.C.R. 252 at 268-69, 13 C.C.L.I. (2d) 161, provides guidance in interpreting a clause such as the one in issue here:

In each case the courts must examine the provisions of the particular policy at issue (and the surrounding circumstances) to determine if the events in question fall within the terms of coverage of that particular policy. This is not to say that there are no principles governing this type of analysis. Far from it. In each case, the courts must interpret the provisions of the policy at issue in light of general principles of interpretation of insurance policies, including, but not limited to:

(1) the contra proferentum [sic] rule;

(2) the principle that coverage provisions should be construed broadly and exclusion clauses narrowly; and

(3) the desirability, at least where the policy is ambiguous, of giving effect to the reasonable expectations of the parties.

[10] One of the general principles of interpretation of insurance policies mentioned in the above cases is the desirability, at least where the policy is ambiguous, of giving effect to the reasonable expectation of the parties. The plaintiff argues that while it is a reasonable expectation that the insurer would protect itself by an exclusion from situations where the injury has nothing to do with the accident, it is not a reasonable expectation that the insurer would rely on a pre-existing and asymptomatic condition or disease as an indirect cause of the continuing injury when that disease only manifests symptoms as a result of accident related injuries.

[11] The plaintiff argues that such a position is unreasonable and is a "technical construction that defeats the object and insuring intent of the legislation providing coverage", something which is to be avoided as stated by the Supreme Court of Canada in Amos v. ICBC, [1995] S.C.J. No 74 (at ¶16 and 17). It is unreasonable, the plaintiff argues, because the vast majority of motor vehicle accident injuries result in whiplash involving the neck and back and a good number of people in the general population, especially the elderly and infirm, have asymptomatic degenerative disease which could be triggered and become symptomatic as a result of a motor vehicle accident. He submits that "an exclusion clause with the potential ability to deny benefits to most of the population in B.C. over the age of 30 cannot be the insuring intent of the legislation providing coverage".

[12] Although the plaintiff's reductio ad absurdum argument assumes facts not established by the evidence in this case, (the only evidence in this case on the prevalence of degenerative spinal disease is Dr. Hirsch’s opinion to the effect that degenerative spinal conditions observable on radiographs are not rare in the general population and they are commonly asymptomatic), there is some force to the argument that the approach applied in Mawji, taken to its logical extreme, would deny coverage to any claimant with a pre-existing condition of sickness or disease that contributed in any way whatsoever, no matter how minor the contribution, to a continuing injurious condition following a motor vehicle accident. I agree that such an extreme interpretation would defeat the clear insuring intent set out in s. 80 (1) of the Regulation to provide wage-loss benefits to insured persons who are totally disabled as a result of injuries sustained in motor vehicle accidents.

[13] Interestingly, ICBC did not act on that extreme interpretation in this case, but discontinued benefits as of August 31, 2006 only after receiving a medical letter in June 2006 from Dr. Dommisse that stated, in part: “In my opinion, this man’s complaints have been caused by this motor vehicle accident in part. His pre-existing condition is likely contributing to his ongoing symptoms.” Dr. Dommisse also opined that “His continued symptoms, in my opinion, are related to the degenerative changes at L4/5 at this time." and: “His length of temporary disability will likely last an additional three months from the present time owing to his degenerative changes.”

[14] Affidavit #1 of Suzanne Deering, ICBC Adjuster, states at paragraph 13: "Based on the opinions expressed in Dr. Dommisse’s report, the defendant continued to pay TTD benefits to the plaintiff up until August 31, 2006.” The defendant thus paid TTD benefits, notwithstanding the causal contribution of the pre-existing condition, up to the time that, according to this medical opinion, the disability from the combined effects of the accident and his degenerative condition would end, and the ongoing problems were related only to the disease. This is some evidence that ICBC’s reasonable expectation in respect of the s. 96(f) exclusion was not consistent with an extreme application of Mawji.

[15] ICBC received further reports from Dr. Dommisse. His December 15, 2006 letter commented on some other intervening opinions of others and a new CT scan done on August 24, 2006. That letter states, in part:

The new CT scan done for him at Ridge Meadows Hospital on August 24, 2006 shows moderately severe spinal canal stenosis at the L4/5 level as a result of degenerative spondylolisthesis. There is no evidence of lateral recess stenosis at this level.

He also has narrowing of the disk space posteriorally at L5/S1.

Referring to the letter of Dr. G. Hirsch of November 27, 2006 on page 6 in the first line Dr. Hirsch states: "Had the accident not occurred, it is more probable than not that Mr. Wafler would have continued to go on for many years without any low back symptoms or significant low back symptoms."

I disagree with this statement seeing as this man does have a premorbid condition of moderately severe spinal canal stenosis at L4/5 as a result of degenerative spondylolisthesis. This is outlined above as noted in the CT scan done for him at Ridge Meadows Hospital on August 24, 2006.

In my opinion, it is more likely than not that this man would have experienced lumbosacral and/or leg symptoms as a result of his pre-existing lumbar spine conditions.

[16] Dr. Dommisse’s more recent report on January 9, 2008 stated that he had received and reviewed further clinical records from various sources and he stated:

These records do change my opinion as has been expressed in my report of June 8, 2006.

Referring to the clinical records of Dr. Jabbour dated April 21, 2004, Mr. Wafler was noted to have a history of low back pain for one year at that time.

In my opinion, it is likely that Mr. Wafler's ongoing lumbosacral symptoms are related to his prior history of low back pain.

[17] Mr. Wafler was referred to Dr. Turnbull, a neurosurgeon who examined him on October 16, 2006. Dr. Turnbull's letter of the same date includes the following comments and opinion:

I have seen plain x-rays of his lumbar spine and the CT scan of his lumbar spine, which is dated August 24, 2006. The scan shows some anterolisthesis at L4-5 which is related to degenerative disease of the facet joints at that level.

He basically has a mechanical-type back pain, caused by the underlying degenerative changes of the spine which evidently were aggravated by the MVA.

Degenerative changes in the spine of the type that can be seen may well be incompatible with an ongoing career doing any kind of heavy work. One could predict that if he were to start doing heavy lifting and bending his back, the pain problem would become worse because he would be irritating the degenerative changes in the facet joints at L4-5.

Nothing about his condition adjusts to me that surgery would be advisable. I believe that as long as he can avoid heavy activities, it is quite likely that the pain will gradually settle down, but possibly will not clear completely. I advised him to try to resume his past career of working as a locksmith since this is a job that would not require him to do very heavy work and in the long run would probably be the best option for him, unless he were able to obtain some other kind of light work. I have strongly advised him to avoid undertaking activities that involve heavy lifting.

[18] Mr. Wafler was referred by his lawyer to Dr. G.H. Hirsch, a Physical Medicine and Rehabilitation specialist, who examined him on November 27, 2006. The portions of his report of the same day that deal directly with the issue of the causal relationship between his pre-existing condition, the motor vehicle accident, and the current disability, state the following at page 5:

Based on self report, Mr. Wafler was not experiencing back pain in 2005, prior to the November 2005 motor vehicle accident. His description of being symptom-free prior to this motor vehicle accident is not unexpected despite the noted radiographic changes. Such radiographic findings are not rare in the general population and are quite commonly asymptomatic.

I do feel, however, that there was an underlying propensity to be injured at this particular area and hence it is more likely than not that the motor vehicle accident on November 22, 2005, injured this same area, causing further damage and is therefore responsible for his current ongoing symptoms.

I believe that Mr. Wafler's current symptomatic complaints are a combination of mechanical low back dysfunction and myofascial pain symptoms of the right paralumbar muscles and right quadratus lumborum muscle. The mechanical findings are reflected by the fact that posteroanterior springing of the L4 and L5 vertebrae elicited maximum pain response.

[19] Dr. Hirsch reiterates his opinion on page 7 of his report as follows:

Based on today's obtained history and review of the forwarded clinical documents, it is my opinion that the acute onset of low back pain and resultant decline in function is causally related to the November 2005 motor vehicle accident.

…

Mr. Wafler reported that he has made a 20 to 30% symptomatic recovery regarding his low back injuries. He reported that for the past four months he has not noticed any further symptomatic gains. Accordingly, I would view the prognosis for a good recovery as guarded at this juncture.

At present and in the foreseeable future, I do not foresee that Mr. Wafler will improve sufficiently to get back to his pre-motor vehicle accident line of work. Furthermore, at present I would question whether he is gainfully employable as a locksmith.

[20] Mr. Wafler's family physician since November 25, 2005 (3 days after the motor vehicle accident) has been Dr. Marais. His medicolegal report of June 11, 2007 provides a useful review, not only of the opinions I have quoted above, but of other referrals made by Dr. Marais, including a referral to an anaesthetist for injections of the facet joints, and referrals for kinesiology, physiotherapy, chiropractic treatments, massage, and aqua exercises. Dr. Marais reports that Mr. Wafler had some success with facet joint injections but has not had much success with the other treatment modalities. Dr. Marais describes Mr. Wafler as “asymptomatic and well” until the November 2005 accident and states that the accident caused chronic lower back pain and the inability to work as of June 2007. In Dr. Marais’ opinion, it is impossible to predict how long Mr. Wafler's back symptoms will continue. It is possible that he might make a complete recovery but it is also possible that he will never make a 100% recovery to the point where he is able to go back to his old job. Dr. Marais also thinks that retraining for a sedentary type of job will probably be the best route for Mr. Wafler.

[21] I do not think there is any more certainty as to Mr. Wafler’s prognosis expressed by any of the specialists who have examined Mr. Wafler and his medical records.

[22] There is obvious disagreement between the experts in this case on the relative causal contributions of his pre-existing degenerative condition and the injury sustained in the accident to Mr. Wafler’s ongoing disability. Drs. Turnbull and Dommisse are ascribing more causal significance to the pre-existing degenerative condition in relation to the work disability, and Drs. Marais and Hirsch ascribe more significance to the effects of the motor vehicle accident. It is noteworthy that there was no such dichotomy in the medical opinions in the Mawji case, where, according to the reported reasons, the uncontradicted evidence was that “the accidents have caused the plaintiff’s disease of osteoarthritis to become exacerbated to the point where her disease now seriously handicaps her.” It was noted that she now needed a knee replacement several years earlier than she would have but for the accident. Thus the court proceeded on the factual finding that, although permanently aggravated by the accident, it was the disease that was disabling the plaintiff. This would be the probable finding in this case if I accepted the opinion of Dr. Dommisse and to a lesser extent, that of Dr. Turnbull. Dr. Turnbull opined that Mr. Wafler’s painful condition will quite likely settle down if he avoids heavy work, which implies that he feels the aggravation caused by the accident is still dissipating to some extent. Dr. Dommisse’s opinion stands in contrast to the opinions of Drs. Marais and Hirsch in this case, which are to the effect that the injury sustained in the accident is the more significant cause of his work disability.

[23] I have considered carefully whether the factual conclusion that the disease was now handicapping the plaintiff was crucial to the result in Mawji and whether the different facts in this case call for a different result.

[24] On the facts of Mawji, the significance of the pre-existing osteoarthritis as a contributory cause of the plaintiff’s continuing injurious condition is obvious and undoubtedly that pre-existing disease passed the “but for” test for causation. Even though the court in Mawji did not expressly articulate that specific test, it is the well established legal test for causation, and its application is readily apparent in the cases cited and quoted in the Polykandriotis v. ICBC case followed by Catliff J. in Mawji, namely: Robbins et al v. Travelers Insurance Co., 84 D.L.R.(3d) 727, Jason v. Batten (1969) 1 Lloyds Rep. 281, and Tomlinson v. Prudential Ins. Co. (1954) O.R. 508. These cases all involved interpretations of exclusionary provisions in insurance policies employing essentially the same language as s. 96(f) of the Regulation. In Robbins, a pre-existing heart disease was found on the medical evidence not to be a contributing cause of the cardiac arrest induced by a motor vehicle accident. In the Jason case, arterial disease, and in Tomlinson, haemophilia, were found to be contributing causes because the accidental injuries would not have caused the loss without their existence.

[25] The plaintiff referred me to the recent case of Hamo v. ICBC, 2007 BCSC 854 as an example of a case coming to a result arguably inconsistent with Mawji. In Hamo, the plaintiff who was injured in a motor vehicle accident had a fragile knee from previous injury (not disease or sickness) and also had a congenital degenerative hip condition on the same side that Humphries J. said could be described as “sickness or disease”. The accepted medical evidence was that while the plaintiff had been compensating for the injured knee before the accident, he could not do so afterwards. The decompensation of the knee was, in the expert’s opinion “accentuated by the fact that he has a congenital problem in the left hip, there is changes in keeping with early arthritis…which can lead to a painful situation down the entire leg...”. The doctor opined that the plaintiff was at a greater risk than many other patients would have been because of his underlying congenital problem with the left hip, and that the hip situation was a contributing factor to the left knee pain. Humphries J. applied the “but for” test in analyzing whether the accident caused further injury to his knee. She found that it did, and awarded accident benefits.

[26] It does not appear from the reasons in Hamo that the defendant argued Mawji or sought a finding that the contribution of the hip condition brought the claim within the s. 96(f) exclusion, although there was evidence that the pre-existing hip condition was a contributing factor to the plaintiff’s post accident condition. I think it is readily apparent, however, that it was a minor contributing factor that probably would not meet the “but for” test of causation in respect of the disabling injury.

[27] Mawji is not a first instance decision; it cannot be said that its interpretive analysis is incorrect, because the court did not engage in any detailed statutory interpretation analysis; rather, it followed the Polykandriotis interpretation of the predecessor section in the Regulations and the aforementioned decisions dating as far back as 1954 that had interpreted analogous exclusions in other private accident insurance policies. The drastic consequence that the present plaintiff suggests, of exclusion from coverage for anyone suffering any degree of degenerative condition that is rendered symptomatic by an accident, is avoided so long as it is understood that a pre-existing disease which is aggravated must meet the “but for” test in respect of the total disability in order to bring it within the s. 96(f) exclusion.

[28] I note that Mawji was applied by Humphries J. in the case of Kibsey v. Wielki, 2008 BCSC 880 (decided after counsels’ submissions in this case). The issue in that case was whether future Part 7 benefits should be deducted from a tort award following a trial. The plaintiff had pre-existing ankylosing spondylitis. The court held that given the reasoning in Mawji and the evidence at trial on the direct and indirect effect of that disease on the plaintiff’s continuing condition, the chance of him receiving Part 7 benefits for future care costs was very unlikely, and the court made no deduction from the award on the tort claim.

[29] In my view, the medical evidence in this case, notwithstanding the differences of opinion on the relative significance of the concurrent causes of Mr. Wafler’s continuing disability and whether the injuries suffered in the accident had resolved by August 31, 2006, clearly establishes that the degenerative lumbar spine, specifically at the L4/5 facet joints was a contributing cause of his disability after that date. While I do not find it proven that the effects of the accidental injury were fully resolved by that time, the defendant has established that, but for his degenerative disease, Mr. Wafler would not be totally disabled within the meaning of the covering provisions after August 31, 2006.

[30] Consequently, I find that the defendant has established that the s. 96(f) exclusion applies and I decline to make the declaration sought by the plaintiff.

[31] This finding makes it unnecessary to decide the issue of whether, if not so excluded, the plaintiff remains totally disabled and entitled to benefits. Nevertheless, I have considered the evidence on that issue and if I had come to the opposite conclusion on the s. 96(f) exclusion issue, I would hold that the plaintiff has established that he remains disabled from returning to his former occupation as a roofer and siding installer and is likely to remain so disabled indefinitely, but I would hold that the defendant has discharged the onus of establishing that employment for which the plaintiff is reasonably suited, namely returning to his former trade of a locksmith, remains open to him.

[32] Mr. Wafler states in his February 12, 2008 affidavit that the job requirements of a locksmith are not as physically demanding as his last job, but “to make any money at it and to be competitive, it’s fast paced work requiring lots of crouching, kneeling and bending, often of a repetitive nature.” Dr. Hirsch somewhat tentatively supports Mr. Wafler’s assessment as to the immediate future, but his assessment is obviously driven by Mr. Wafler’s self-reporting. In examination for discovery Mr. Wafler acknowledged his reason for leaving the locksmith trade was that he became “jaded” with his former employers, and that he has not attempted to find work in that trade since his injury, even though he describes his financial situation as “becoming desperate”. While I understand that he may not feel as competitively employable as a locksmith as he was previously, (and this will be significant in respect of assessing damages on his tort claim), I do not think he is precluded from pursuing that occupation, even if temporarily limited to an aspect of it that will accommodate his still-improving physical limitations.

[33] The defendant has been successful and is entitled to costs.

“I.C. Meiklem J.”

MEIKLEM J.

Citation:	*Wafler v. Insurance Corporation of British Columbia,*
	2008 BCSC 1387