Q.B.G. A.D. 1996 No. 1334 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: ROBERT PETERS and SASKATCHEWAN GOVERNMENT INSURANCE RESPONDENT Robert Peters appeared on his own behalf Jennifer A. Bailey for the respondent JUDGMENT MAURICE J. January 21, 1999 [1] On February 26,1995, at Saskatoon, Saskatchewan, the applicant Peters, age 34, sustained injury to his lower back in an automobile accident. The back injury resolved within ten days to two weeks. [2] In late June of 1995, Peters began to experience pain in his back. His condition slowly worsened until he was hospitalized in late October of 1995 and diagnosed with large central and right sided disc herniation at the L5/S1 level. He made an application under Part VIII of The Automobile Accident Insurance Act, R.S.S. 1978, c. A- 35 (the “Act”), for income replacement benefits contending that the accident of February 26,1995 caused the disc herniation. The respondent, Saskatchewan Government Insurance, denied his claim for benefits. It took the position the disc herniation was not caused by the accident. Pursuant to s. 194(1) of the Act, Peters applied to the respondent for review of its decision. The respondent confirmed its decision and Peters appealed to this Court pursuant to s. 197. [3] The issue before me is whether Peters’ disc herniation was caused by the accident of February 26, 1995. [4] Peters applied for income replacement benefits as a non-earner pursuant to s. 117 (1) of the Act: Subject to subsection (5), if on the 181st and subsequent days following an accident non-earner is unable to hold the employment he or she could have held at the time of the accident, the non-earner is entitled to an income replacement benefit calculated pursuant to this section. [5] There is no doubt that for period of time after the disc herniation, Peters was unable to hold the employment he could have held at the time of the accident and would be entitled to an income replacement benefit if the herniation was caused by the accident. [6] Accident is defined in s.100(1)(a) as: “accident” means any event in which bodily injury is caused by an automobile. [7] The onus is on Peters to establish his claim to the benefits on balance of probabilities: Collis v. Saskatchewan Government Insurance (1998), 1998 CanLII 13463 (SK QB), 165 Sask. R. 108 (Q.B.). In Athley v. Leonati (1996), 1996 CanLII 183 (SCC), 140 D.L.R. (4th) 235 at 238 (S.C.C.), Major J. said: Causation is established where the plaintiff proves to the civil standard on balance of probabilities that the defendant caused or contributed to the injury: Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] S.C.R. 311, 72 D.L.R.(4th) 289 (S.C.C.); McGhee v. National Coal Board, [1972] All E.R. 1008 (H.L.). [8] Peters relies on the evidence of two family physicians in support of his contention. Dr. Dindo was his family physician prior to the accident. In his medical report Dr. Dindo noted that, up to October 1994, Peters was not diagnosed as suffering from herniated disc or from any injury or dysfunction of the discs. He was generally in good health and had no evidence of any back problems. Dr. Rai, Peters’ family physician after the accident, in his medical report, stated: ... feel that though the pain and discomfort from June onwards was caused from disc problem which initially caused nerve root irritation and later nerve root compression causing acute pain, these discomforts seem to have some relation to the injury of February 1995 as he had no back problem prior to 1995. Based on the above mentioned facts still feel that his already existing back injury of February 1995 probably worsened the disc discomfort. Though the patient was symptom free from March to June 1995 most of the time he was not doing any work and his soft tissue injury had not completely healed causing his symptoms to get worse after the disc herniation. [9] Based on this medical evidence, and on his own testimony that the back pain he suffered after June of 1995 was in the same area as the pain he suffered after the accident, Peters claimed to have met the onus on him of proving that the accident caused the disc herniation. [10] Unfortunately for Peters, Dr. Rai does not conclude that the accident caused the herniation; he only concludes that it would worsen the symptoms. [11] In the absence of any other evidence, one could, perhaps, infer that, due to the fact Dr. Dindo found no evidence of disc herniation prior to the accident, together with Peters’ testimony that the back pain he suffered after June of 1995 was in the same area as the pain he suffered after the accident, the accident must have been cause of the herniation. [12] However, in this case, there is other evidence. Dr. Flotre, the medical director of rehabilitation services for the respondent, testified that in his opinion the accident did not cause the disc herniation. He explained that if Peters’ disc had been herniated by the accident, he would have expected symptoms and signs of herniation such as leg pain, numbness, tingling sensations and muscle weakness over the succeeding weeks, and Peters was symptom free until late June. He also explained that the quick resolution of Peters’ back problems and the length of time after the accident he was symptom free militated against disc herniation at the time of the accident. He stated that there can be multiple causes of disc herniation which have nothing to do with trauma. And pain in the same area after lengthy symptom free period of time, post accident, could be related to numerous causes other than the accident. Dr. Flotre\'s opinion was supported by Dr. Stewart, the orthopaedic surgeon who treated Peters for the herniation, who also opined that the herniation was not caused by the accident. In his medical report he stated: ... He [Peters] is trying to relate this all to his previous accident but have told him that the disc herniation coincided with the marked exacerbation and right leg pain in late October 1995. [13] A review of all of the evidence leads me to conclude that Peters has not met the onus on him of establishing causation on a balance of probabilities. His appeal is dismissed.
The applicant sustained a lower back injury in an automobile accident in February 1995 which resolved within ten days to two weeks. In June 1995 he began to experience pain in his back which slowly worsened until he was hospitalized in October 1995. He was diagnosed with a large central and right sided disc herniation. SGI denied his claim for income replacement benefits as a non-earner under s.117(1) of the Automobile Accident Insurance Act. In issue was whether the accident caused the disc herniation. HELD: The appeal was dismissed. The plaintiff had not met the onus on him of establishing causation on a balance of probabilities. Two family physicians supported his contention but the medical director of rehabilitation services for SGI and the orthopaedic surgeon who treated the applicant were both of the opinion the herniation was not caused by the accident.