Posthumus v. Foubert, 2011 MBCA 43

Citation: Posthumus v. Foubert, 2011 MBCA 43 Date: 20110627 Docket: AI 09-30-07264 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Richard J. Chartier Madam Justice Holly C. Beard BETWEEN: CHARLES POSTHUMOUS ) A. M. Botan and ) J. S. Michaels (Plaintiff) Appellant ) for the Appellant ) ) G. A. McKinnon and ) S. Mattheos- and - ) for the Respondent ) ) Appeal heard: ) October 18, 2010FLORENCE FOUBERT ) ) Judgment delivered: (Defendant) Respondent ) June 27, 2011 BEARD J.A. I.

THE ISSUES 1 The appellant has appealed the damages that were awarded to him for injuries that he suffered in an automobile accident onAugust 19, 1987 (the 1987 accident). The 1987 accident was a relatively simple rear-end collision, and the respondent’s liability isadmitted. The appellant claims that he is now suffering from long-term numbness and tingling in his hands and arms, which hasprevented him from working and participating in sports.

He argued that the symptoms are caused by a permanent condition known asthoracic outlet syndrome (TOS) caused by the 1987 accident. 2 The trial judge was not satisfied on a balance of probabilities that the appellant suffers from TOS.

He found that it was atleast equally as likely that the appellant is suffering from spinal stenosis, which is a degenerative condition that was not proven to berelated to or aggravated by the 1987 accident. 3 The trial judge further found that the appellant suffered only minor, short-term injuries as a result of the 1987 accident thatresolved within 12 to 18 months of the accident, and he set the damages accordingly. It is from this decision that the appellant is nowappealing. 4 The grounds of appeal raised by the appellant, as they are set out in his factum, are as follows: (

i) that the trial judge erred in misconstruing the evidence regarding a myelopathy (swelling of the spinal column), a cervical stenosis,a radiculopathy, a neuropathy, and bladder incontinence to find that they were all evidence of cervical stenosis; (ii) that the trial judge erred in accepting the opinion of Dr. Sommer over Drs. Gerard and Martinez; (iii) that the trial judge erred in rejecting the lay witnesses’ evidence of the appellant’s TOS symptoms between the years 1987 and1990; (iv) that the trial judge erred in failing to consider the “material contribution” causation test of Athey v.

Leonati, (SCC), [1996] 3 S.C.R. 458, for any post-MVA (motor vehicle accident) incidents and the “but for” test for any pre-existingasymptomatic conditions he identified as potentially causative; and (

v) that the trial judge erred in his assessment of general damages and that he further erred in failing to award past and future

income loss. 5 During oral argument, the appellant raised the following additional grounds of appeal that were not included in his factum: (vi) that Dr. Sommer was not a reliable witness because he changed his evidence regarding the diagnosis of spinal stenosis as between his report and his testimony; (vii) that the trial judge erred when he assumed that Dr. Martinez did not know of the 1986 motor vehicle accident (defined in para. 8 below); and (viii) that the trial judge erred in his analysis of Dr.

Gerard’s evidence because he did not take into account his second report. 6 The respondent argued that there was one further ground of appeal that had not been identified by the appellant: (ix) that the trial judge erred in determining (in the alternative) that, if the appellant does, in fact, suffer from TOS, he did not prove, on a balance of probabilities, that the 1987 accident was the cause of the TOS. 7 In

summary, the three underlying issues that are in dispute in this appeal are the trial judge’s findings regarding the reliability of the witnesses and the evidence, the determination of the medical condition that is causing the appellant’s symptoms and whether that condition was caused or aggravated by the 1987 accident. II. THE FACTS 8 The appellant, who was 33 years old in 1987, was a journeyman electrician. He was also an elite athlete who was involved in a number of sports at an elite level, including touch football, which he continued to play for about 10 years after the 1987 accident.

In the year preceding and the years following the 1987 accident, the appellant consulted and/or was treated by numerous medical professionals, including two general practitioners, several specialists, two chiropractors and a massage therapist. During that time, he suffered a number of other accidents, including an earlier car accident on September 3, 1986 (the 1986 accident), a football injury on May 12, 1990, a workplace accident on June 28, 1992, and an electrical workplace accident on June 7, 1996.

The symptoms that he attributed to these accidents were as follows: - in the 1986 accident, 11 months before the 1987 accident, he was knocked unconscious for a brief period and, immediately thereafter, complained of headaches, dizziness and weakness; later that evening, his physician diagnosed a moderately severe hyperextension strain of the cervical vertebrae and a concussion, stated that he was totally disabled and recommended complete bed rest; - immediately following the 1987 accident, the appellant complained of left shoulder pain and restriction pain with numbness and tingling in the left arm and hand, with cold hands and loss of right leg raising; - the football injury on May 12, 1990, involved the appellant falling back and hitting his head, following which he went to the hospital and reported that he had a funny feeling in both hands, with burning and weakness in the right hand; - the workplace accident on June 28, 1992, involved a fall from an 18-foot ladder, in which he seriously injured his left leg, particularly his hamstring, and left knee; and - the workplace accident on June 7, 1996, involved the appellant being thrown to the ground when he touched an electrical transformer, following which he reported tingling in his right hand and an exit burn was noted on his right elbow. 9 The appellant had a CT myelogram on April 3, 1991, which, according to the report, noted a disc protrusion at C5-C6 with poor filling of the C5 nerve root sheath, as well as significant spinal stenosis at C5-C6.

An MRI scan of the cervical spine was undertaken on July 24, 1999, and the accompanying report noted a shallow disc herniation at C4-C5 and C5-C6, with associated degenerative changes resulting in spinal cord compression and spinal cord swelling. There was also a shallow disc herniation at C6-C7.

The appellant’s treating physicians had diagnosed his medical condition as being that of spinal stenosis, which is a degenerative condition associated with a narrowing of the spinal canal. 10 The medical records also note that, prior to the 1987 accident and as early as 1982, the appellant had been treated periodically for episodic low back pain, which was diagnosed as spondylolisthesis.

This is a degenerative, rather than an injury-related condition. 11 In 2003, the appellant contacted two specialists in the United States, both from Toledo, Ohio, to obtain further opinions as to the medical cause of his symptoms and whether they were caused by the 1987 accident. Dr. Gerard was qualified at the trial as an expert in neurology and imaging, while Dr. Martinez was qualified as an expert in vascular surgery and TOS. 12 Dr.

Gerard provided an initial report dated December 11, 2003, which was based on a review of a selection of the appellant’s medical records without having examined him or obtained an oral history from him. In that report, he stated that, in his opinion, the appellant had TOS. He explained TOS as a complex of signs and symptoms caused by compression of the vital neurovascular structures at the thoracic outlet region, those signs and symptoms including pain, numbness, tingling, weakness and other disorders in the upper extremity.

He also stated that the condition did not cause any symptoms below the belt, such as numbness and tingling in the feet and toes or bladder incontinence. He acknowledged that the appellant also had some changes at the C5-C6 cervical disc interspace, but he concluded that the appellant’s symptoms could not be explained on the basis of cervical spinal cord and/or cervical nerve root compression at that level.

He reviewed the selected reports sent to him of the appellant’s condition and was of the opinion that the medical evaluators directed their attention to the cervical spine and whether the appellant required surgery, rather than asking what was causing the symptoms, thereby missing the TOS.

13 The appellant travelled to Toledo, Ohio, and was examined by both Dr. Gerard and Dr. Martinez on January 28, 2004. Dr.Martinez provided two reports, one dated January 28, 2004, and the second dated June 14, 2004. In the first report, he stated that it wasclear that the appellant did not have any of the medical symptoms before the 1987 accident, so he concluded that the injuries were theresult of that accident.

He stated that the CT myelogram of the cervical disc was not of clinical relevance, and he concluded that theappellant had thoracic outlet syndrome, which he said is often accompanied by a cervical disc anomaly. He made some treatmentrecommendations, but was skeptical as to whether they would be effective, given the length of time that had elapsed since the accident. He confirmed that diagnosis in the later report addressed to the appellant’s counsel. 14 The respondent retained an expert, Dr. Sommer, to review the appellant’s medical files and the reports of Drs.

Gerard andMartinez, to provide an opinion as to the appellant’s condition and to comment on the opinions provided by Drs. Gerard and Martinez. He did not either interview or examine the appellant. 15 Dr. Sommer was qualified as an expert in physiatry (musculoskeletal systems), with a qualified expertise in imaging. Dr.Sommer reviewed the appellant’s medical files, two surveillance videos and the reports of Drs. Gerard and Martinez. He noted that TOSwas considered by Dr. Nassar, but was excluded by him as a diagnosis. Dr. Sommer disagreed with the diagnosis of TOS made by Drs.Gerard and Martinez.

He noted the many discrepancies in the medical history provided by the appellant to the various medicalpractitioners over the years, which he felt made the related diagnoses unreliable.

He concluded that the appellant was not suffering fromTOS caused by the 1987 accident, but from cervical spinal stenosis (also called “cervical stenosis” and “spinal stenosis”) that was theresult of degenerative changes to the cervical spine unrelated to any of the accidents or to any injury, a conclusion that he came to afterexamining the history of the appellant’s symptoms as contained in the medical reports, the medical reports of the imaging tests and thefact that there was no objective medical confirmation of the diagnosis of neurologic TOS. 16 Dr.

Gerard provided a second report dated January 20, 2009, in response to Dr. Sommer’s report. He acknowledged, again,that there were changes in the appellant’s cervical spine, but remained of the opinion that they were not clinically significant in relationto his symptoms, and he concluded that the only condition that explained all of the appellant’s symptoms was TOS. In fact, there wasevidence of other symptoms that were consistent with cervical stenosis and inconsistent with TOS, those being numbness and tingling inthe feet and toes and bladder incontinence. Dr.

Gerard was unaware of the problems with the appellant’s feet until the trial,notwithstanding that they had been referred to in the medical reports that he reviewed prior to his first report. At the trial, he explainedthose symptoms, as well as the incontinence, as being the result of other conditions unrelated to TOS. III. THE STANDARD OF REVIEW 17 The leading cases from the Supreme Court of Canada on standards of review in civil matters are Housen v. Nikolaisen, 2002SCC 33 at paras. 7-37, [2002] 2 S.C.R. 235, and H.L. v.

Canada (Attorney General), 2005 SCC 25 at paras. 52-76, [2005] 1 S.C.R. 401. (See also, the majority reasons in this court’s decision in Macatula v.

Tessier, 2003 MBCA 31, 173 Man.R. (2d) 55.) 18 The majority in Housen noted that questions on appeal can be divided into four categories (at para. 7) and that the standard ofreview to be applied to each category of question is as follows: (1) on a question of law, the standard of review is correctness – a court of appeal can substitute its decision for that of the trial judge ifthe decision of the trial judge is not correct (at para. 8); (2) on a question of fact, a court of appeal cannot intervene unless it can be established that the trial judge made a palpable andoverriding error (at para. 10); (3) on an inference of fact, the standard of review is that of palpable and overriding error (at para. 25); where, however, evidenceexists to support an inference, an appellate court would be hard pressed to find a palpable and overriding error (at para. 22); and (4) a question of mixed fact and law involves the application of a legal standard to a set of facts, which lie on a spectrum – where theerror can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error inprinciple, such an error can be considered an error of law, subject to the standard of correctness, but where the legal principle is notreadily extricable, the question of mixed fact and law is reviewable on the standard of palpable and overriding error (at para. 36).

Stated another way, the general rule is that, where the question is one of whether or not the standard was met on the facts of a particularcase, that question involves the application of a legal standard to a set of facts and is subject to review on a standard of palpable andoverriding error, unless it is clear that the trial judge made some error in principle with respect to the characterization of the standard orits application, in which case the error may amount to an error of law (at para. 37). 19 The concept of “palpable and overriding error” was explained by the Ontario Court of Appeal in Waxman et al. v.

Waxman etal. (2004), (ON CA), 186 O.A.C. 201, leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 291 (QL), as follows(at paras. 296-97): The “palpable and overriding” standard addresses both the nature of the factual error and its impact on the result. A “palpable” error isone that is obvious, plain to see or clear: Housen at 246 [S.C.R.].

Examples of “palpable” factual errors include findings made in thecomplete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence andfindings of fact drawn from primary facts that are the result of speculation rather than inference. An “overriding” error is an error that is sufficiently significant to vitiate the challenged finding of fact.

Where the challenged finding offact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a “palpable” error does notautomatically mean that the error is also “overriding”. The appellant must demonstrate that the error goes to the root of the challengedfinding of fact such that the fact cannot safely stand in the face of that error: Minister of National Revenue v. Schwartz, (SCC), [1996] 1 S.C.R. 254; 193 N.R. 241, at 281 [S.C.R.].

20 The application of this standard was explained in the reasons of the majority in Macatula . The paramount issue in that case was whether there had been an agreement between the plaintiff and the defendant, which was a question of fact. In determining that issue, Monnin J.A., for the majority, stated as follows (at paras. 71-72): The issue on this appeal is not whether I agree with the conclusion arrived at by the trial judge but whether, on the evidence, the trial judge was entitled to arrive at the findings that he did or whether, in arriving at those findings, he committed palpable and overriding error.

My view of the evidence as a whole is that it was open for the trial judge to come to the conclusion that he did. There was some evidence on which to support the findings made by the trial judge and as my brother Huband points out in his reasons, “an appeal cannot be allowed on the basis that the appeal court believes that it would have come to a different conclusion” (at para. 9).

In addition, I am unable to state that those findings were not in “harmony with the preponderance of the probabilities”. 21 The parties in this case took the position that the standard of review for all of the grounds of appeal was that of palpable and overriding error. I am in agreement that that is the appropriate standard to be applied to all of the grounds of appeal set out in paras. 4 and 5 herein, except (iv).

This is because all of the grounds, other than (iv), involve the trial judge’s findings of fact, the credibility of witnesses, or the weighing of the evidence, all clearly within the discretion of the trial judge. 22 The ground at (iv) raises the question of whether the trial judge applied the proper legal test in determining causation. The failure to apply the proper legal test is a question of law and is subject to the standard of correctness. ( See Housen , at para. 36 .) IV.

ANALYSIS OF THE INDIVIDUAL ISSUES 23 I will now undertake a review of the issues raised by the parties, although not necessarily in the order in which they were argued. 1. Did the trial judge err in accepting the opinion of Dr. Sommer over Drs. Gerard and Martinez ? The Trial Judge’s Decision 24 The trial judge was of the view that Dr. Gerard had assumed the role of an advocate for the appellant, finding that he had rejected evidence that detracted from his diagnosis and disregarded evidence that did not support his findings. He concluded that the report and opinion of Dr.

Gerard were worthy of little weight. 25 The trial judge found Dr. Martinez to be a credible witness, but he found that his diagnosis was problematic, in part, because he was not aware of the results of a 1999 MRI which disclosed that the appellant had signs of spinal stenosis, which was the differential diagnosis. The trial judge stated that Dr. Martinez admitted that he should have considered the MRI results and the possibility of that condition as causing the appellant’s symptoms before making his diagnosis. 26 The trial judge noted that the evidence of Dr.

Sommer was that the appellant’s symptoms were more consistent with spinal stenosis than with TOS. He then concluded as follows (at para. 81): It is at least equally consistent with the evidence the Plaintiff suffers from Spinal Stenosis. There is the lengthy passage of time before a diagnosis of TOS is made. The history of the Plaintiff to Gerard and Martinez is inconsistent with the medical records as well as fails to include many potentially relevant facts. There is a MRI report which corroborates Spinal Stenosis and a complete lack of corroborating diagnostic tests for the diagnosis of TOS.

A diagnosis of TOS is not substantially the most probable of the possible view[s] of the facts in this case. The Appellant’s Position 27 The appellant’s position was that the medical qualifications of both Dr. Gerard and Dr. Martinez were superior to those of Dr. Sommer, and that both Drs. Gerard and Martinez had considerable experience diagnosing and treating patients with TOS while Dr. Sommer did not. He argued that the trial judge erred by not only giving Dr. Sommer’s opinions equal weight to the opinions of Drs. Gerard and Martinez, but by preferring his opinion over theirs.

He also argued that the trial judge misconstrued the evidence and erred by placing undue weight on Dr. Sommer’s statement that a neurogenic TOS was a “disputed diagnosis,” without any explanation or evidence to support that statement. He pointed out that both Drs. Gerard and Martinez , who were experts, believed in that diagnosis, and he referred to 41 Canadian cases in which the courts accepted a diagnosis of TOS. The Respondent’s Position 28 The respondent takes the position that there was ample evidence to support the trial judge’s conclusions that Dr.

Gerard had become an advocate for the appellant and that his evidence was not reliable. She pointed out the evidence to which the trial judge referred in coming to those conclusions, and to other evidence not specifically referred to by the trial judge that also supported the trial judge’s conclusions. 29 As regards Dr. Martinez, the respondent takes the position that there were two serious problems with his diagnosis. Firstly, Dr.

Martinez did not have the evidence that supported the differential diagnosis of cervical disease when he made his diagnosis and wrote his report, and he said that, if he had had that evidence, he would have sent the appellant to a neurosurgeon for a full evaluation of

that condition before making any diagnosis. Secondly, the appellant’s medical history had not been reliably related by the appellant. According to the respondent, Dr. Martinez acknowledged that, if the history given by the appellant was not correct, the accuracy of his diagnosis would be less reliable.

The respondent argued that the trial judge correctly recognized both of these issues in coming to his conclusion as regards the diagnosis of the appellant’s medical condition. 30 The respondent also argued that the diagnostic testing and the appellant’s medical history, as set out in the many medical records, supported Dr. Sommer’s diagnosis of cervical disease, while certain of the documented symptoms were inconsistent with TOS.

The respondent took the position that the trial judge considered the evidence as it related to the conflicting theories and determined that the appellant had not proved, on a balance of probabilities, that he suffered from TOS. She argued that the appellant had not pointed to any errors, but was inviting this court to reweigh the evidence to come to its own conclusion, which would not be appropriate. The Law 31 This court has recently dealt with the issue of conflicting experts’ reports in Knock v. Dumontier et al. , 2006 MBCA 99 , 208 Man.R. (2d) 121 .

That case involved the determination of the origin of a house fire, which would depend on which expert’s evidence was accepted. The unsuccessful party appealed, arguing that the evidence did not support the trial judge’s finding. On the weighing of expert evidence, Steel J.A., for the court, stated as follows (at para. 20): I agree with the trial judge that this case is dominated by dueling experts. The trial judge accepted the theory of the origin and cause of the fire put forward by the plaintiff’s expert, Tom Gillman. Whether or not this court would have accepted the same evidence is irrelevant.

The trial judge was entitled to make the findings or inferences from the evidence that she did as long as there was some evidence to support her preferences: …. 32 Steel J.A. concluded as follows (at para. 73): This is a fact-based case, heavily reliant on determinations by the judge as to the credibility of the two experts as well as Mr. Monkman and Mr. Dumontier. Her factual findings regarding the origin of the fire and her acceptance of Gillman’s theory of arc tracking were the linchpins of her analysis.

Where both parties at trial present conflicting expert evidence, the trial judge must assess the theories of each expert against the physical evidence and the evidence of the other witnesses and adopt the theory which is most consistent with that evidence. There is evidence to support the judge’s findings. I do not see palpable and overriding error on the findings of facts or inferences from those facts that would justify appellate intervention.

The appeal is dismissed. 33 The following three factors, which are particularly relevant to an assessment of expert evidence, are well known, but worth repeating: - the qualifications and impartiality of the expert (that is, whether he or she appeared to favour the party who called him or her); - the substance and reliability of the evidence on which the expert relied in coming to his or her opinion – with the caution that, the more that an expert relies on facts not proved in evidence, the less weight should be given to his or her testimony; and - the process followed by the expert in arriving at his or her opinion. (For a helpful

summary of the application of the law in this area, see L. Smith & J.C. Bouck, Civil Jury Instructions , Updated 2nd ed. by The Honourable Mr. Justice R. Dean Wilson, The Honourable Mr. Justice Christopher Grauer & The Honourable Madam Justice Lauri Ann Fenlon, looseleaf (Vancouver: The Continuing Legal Education Society of British Columbia, 2011) at 4.20-1 to 4.20-19.

While this case does not involve a jury, the explanation of the law in that text is equally as relevant for judges as for jurors when carrying out the fact-finding role of determining the weight to be given to expert evidence.) 34 To conclude on the law, the degree of expertise of an expert witness, which includes his or her qualifications, is only one of the factors to be taken into account in determining the reliability and weight to be given to the opinion of an expert.

There is certainly no principle of law that states that the opinion of the expert with the best qualifications must be accepted, or even should be accepted, because the level of expertise is only one of the factors to be considered. Analysis 35 I will deal first with Dr. Gerard. The trial judge heard a significant amount of evidence explaining this witness’s expertise in neurology and imaging, and he acknowledged that expertise in his decision. He also explained clearly why he was not accepting Dr.

Gerard’s evidence, the reasons being: - the doctor was testifying in April 2009 regarding events in late 2003 and early 2004 without the contemporaneous notes that he made, because his file had been inadvertently destroyed; - the doctor insisted that he had examined the appellant before he wrote his first report, but it was clear from other evidence that the examination came after that report, and that he made his initial diagnosis entirely from reading the selected medical reports that were sent to him without having access to all of the available reports, without seeing or speaking to the appellant and without carrying out any diagnostic tests; - the doctor testified that TOS would not cause any symptoms below the waist, that the appellant told him that he had not had any symptoms in his feet or legs and that, when he examined him, he found no neurological signs below the belt – yet the medical records to which he had access included reports by the appellant of numbness and tingling in his toes over the years; - he said that he quickly rejected a diagnosis of spinal stenosis and concluded that the doctor who read a MRI report that referred to spinal disease was a student and had misread the images, even though Dr.

Gerard did not have access to the actual images – other evidence proved that the doctor who read the images was not a student, but a senior and well-respected expert in the field of radiology;

and - Dr. Gerard later agreed that the appellant suffered from moderate to moderately severe spinal stenosis. 36 The trial judge also concluded that Dr. Gerard had assumed the role of an advocate for the appellant. This was a reasonable conclusion that could be drawn from the contents of an email message from Dr. Gerard to the appellant’s counsel, in which he stated as follows: Therefore if he [Dr.

Martinez], on his exam alone, was of the opinion he had TOS, then a nerve conduction EMG would not be essential, although, if positive, would be useful, but if negative, makes proving the case even a bit harder, because then it has to be explained how one can have TOS symptoms and still, as it is not uncommon, have a negative nerve conduction EMG. 37 Dr.

Gerard confirmed this statement during cross-examination, saying that it would be difficult or impossible to explain to even an experienced layman how someone could have a condition and that a diagnostic test for the condition could be negative. 38 While the trial judge did not refer specifically to this email, he did note that Dr.

Gerard mentioned that an ERG or MRI would be useful in confirming whether TOS existed, but did not ask the appellant to undergo either test, as is stated in the email. 39 While the appellant took issue with the trial judge’s conclusion about the reliability and weight to be given to Dr. Gerard’s evidence, there was ample evidence to support the trial judge’s findings, and I do not see any palpable and overriding error on the findings of fact, or the inferences that he drew from those facts, that would justify appellate intervention. 40 As regards Dr.

Martinez, the trial judge heard evidence about his expertise and qualifications, and he confirmed that expertise in his decision. He explained clearly why he had misgivings about Dr. Martinez’s opinion that the appellant suffered from TOS, being that Dr. Martinez did not investigate the differential diagnosis of cervical disease. The trial judge noted that Dr. Martinez was not shown Dr. McClarty’s report on the 1999 MRI before he made his diagnosis and prepared his report. In that report, Dr. McClarty concludes that the appellant had several issues with his cervical spinal cord. He notes that Dr.

Martinez testified that, if he had seen the MRI, he would have sent the appellant to see a neurosurgeon to determine if the condition of the appellant’s spine was causing the symptoms. He found that Dr. Martinez “readily admitted that the MRI revealed a medical condition that should have been considered in finalizing that diagnosis [of TOS]” (at para. 73). 41 As with Dr. Gerard’s evidence, while the appellant took issue with the trial judge’s conclusion about the reliability and weight to be given to Dr.

Martinez’s evidence, there was ample evidence to support the trial judge’s findings, and I do not see any palpable and overriding error in the findings of fact, or the inferences that he drew from those facts, that would justify appellate intervention. 42 Finally, I will deal with Dr. Sommer’s evidence. The trial judge heard the evidence of Dr. Sommer’s qualifications and expertise and set them out correctly in his decision. He recognized that he was at a disadvantage, compared to Drs.

Gerard and Martinez , because he had neither spoken to nor examined the appellant. 43 The appellant argued that the trial judge erred by placing undue weight on Dr. Sommer’s statement that a neurogenic TOS was a “disputed diagnosis,” and that, in so doing, he misconstrued the evidence. He states that both Dr. Gerard and Dr. Martinez believed in the diagnosis, and that Dr. Sommer believed in a neurogenic TOS that was supported by objective evidence. He stated that, since Dr.

Martinez testified that he performed objective tests on the appellant and found objective evidence of TOS, there could have been no dispute as to the diagnosis, even by Dr. Sommer’s definition. 44 In his decision, the trial judge stated as follows (at para. 48): The diagnosis of TOS is further complicated by the fact that neurogenic TOS is a disputed or controversial diagnosis in the medical community. This was acknowledged by one of the Plaintiff’s experts, Dr. Gerard and by the Defendant’s expert Dr. Sommers [ sic ]. The other expert called by the Plaintiff, Dr.

Martinez testified that TOS is [a] very difficult syndrome to diagnose. Because of the controversial nature of diagnosing TOS, a trial judge should evaluate the reliability of the underlying theory and technique of the diagnosis. The burden of establishing the reliability of the underlying theory and technique lies on the Plaintiff. 45 Dr.

Sommer explained the “disputed diagnosis” statement in his report as follows (at p. 18): Consequently, one must distinguish between true neurologic TOS, arterial vascular TOS and venous TOS, which are universally recognized to be rare lesions, with characteristic clinical and laboratory presentations, and the more controversial diagnosis of disputed neurologic TOS.

Whereas true neurogenic TOS is associated with objective findings such as sensory loss, focal motor weakness, muscle wasting and positive electrodiagnostic findings, disputed neurologic TOS is less objectively quantified by its use of provocative maneuvers with poor specificity and reliance on symptoms, even in the absence of objective signs . [emphasis added] 46 As can be seen in the report, Dr. Sommer explained what he meant by a “disputed diagnosis,” which was not every diagnosis of TOS, but one, such as in this case, where there was no objective evidence. Further, Dr.

Sommer stated in his report that there is controversy in the literature between true and disputed TOS. 47 The appellant argued that Dr. Martinez performed objective tests on the appellant and found objective evidence of TOS, so it could not be a “disputed diagnosis.” In his report, Dr. Sommer stated that Dr. Martinez’s diagnosis was based on various provocative maneuvers (as opposed to objective electrodiagnostic tests), which are associated with poor specificity. The electrodiagnostic tests referred to by Dr. Sommer (such as EMG) were not carried out, at least in part, because Dr.

Gerard recommended against them, as noted

at paras. 36 to 38 above. Dr. Sommer also stated that the symptom complex documented by Dr. Martinez is non-specific and can be linked to other neurologic disorders, including the documented cervical disc herniation with spinal stenosis. 48 Dr. Sommer’s comments are consistent with Dr. Gerard’s report. In his first report (at p. 4), Dr. Gerard stated that the tests like those performed by Dr. Martinez are positive less than 50% of the time in patients with surgically confirmed TOS. In his second report (at p. 4), Dr.

Gerard stated, at one place, that TOS is difficult to diagnose and, at another, that it is very difficult to make a diagnosis. 49 There was clearly evidence on which the trial judge could rely to conclude that the diagnosing of TOS was controversial and that, in determining the reliability of such a diagnosis, a trial judge should evaluate the underlying theory and technique of the diagnosis. 50 The appellant also argued that a diagnosis of TOS had been accepted in 41 Canadian cases, which he provided to the trial judge, showing that courts have accepted this condition.

He argued the trial judge should have taken judicial notice of those cases. Dr. Sommer did not say that the condition of TOS does not exist – in fact, he explained the condition in his report, with diagrams. Whether a particular person has been proven to have that condition is determined by the evidence that is accepted by the fact-finder in that case.

The fact that other courts have accepted that a party had TOS in other cases is irrelevant to the findings in this case, and those decisions are of no assistance in this case. 51 For the reasons set out above, there is no basis on which to find that the trial judge erred either in finding that the evidence was equally consistent with a diagnosis of spinal stenosis, or in accepting the opinion of Dr. Sommer over that of Drs. Gerard and Martinez to come to that conclusion. 2.

Did the trial judge err in rejecting the lay witnesses’ evidence of the appellant`s TOS symptoms between the years 1987 and 1990? 52 The appellant called his wife and four other lay witnesses to testify as to the nature of his complaints and what they had observed regarding how he was able to function, particularly as it related to his complaints of tingling and numbness in his arms and hands, during the time period from January 21, 1988, to May 12, 1990.

The appellant testified that these symptoms have continued, on an intermittent basis, since the accident in 1987, but the medical records do not contain any record of the appellant having described these symptoms to any of his caregivers during this time period. This evidence is relevant to both the diagnosis of the medical reason for the appellant`s symptoms and to the issue of causation.

The Trial Judge’s Decision 53 In his decision, the trial judge stated as follows regarding these witnesses (at paras. 88-91): There were non-medical witnesses who testified about the Plaintiff expressing concern over tingling in his hands. The Plaintiff’s wife testified that the Plaintiff has consistently complained about back pain, neck pain, his ham string and numbness in his hands but would not seek out medical attention. While I don’t doubt her recollection, she has lived with the Plaintiff’s condition for 22 years. It is not denied that he complained of these types of symptoms prior to 1988 and after 1990.

I am not convinced she is able to recollect the specifics of the Plaintiff’s complaints in any specific year. The court also heard from Mr. Hoydalo who worked with the Plaintiff in 1988. Hoydalo indicated the Plaintiff had difficulty working overhead. Mr. Gudm[u]ndson indicated in 1987-1988, the Plaintiff worked on his basement and had difficulty working overhead. Mr. Vanderhorst indicated that in 1988, the Plaintiff complained of itchy tingly hands when working for him. Mr.

Warniski also indicated that after the 1987 accident, the Plaintiff would not go up the ladder and could only work overhead for four to five hours. I did not find this evidence helpful. The relevant time was over 20 years ago, the evidence was very vague which is to be expected. There is also a period of time between the accident of August 1987 and the end of January 1988 where the Plaintiff did make complaints as to tingling in his hands which are recorded in the medical records.

Although I accept what these witnesses say, I am not satisfied that the complaints about the hands took place after the end of January 1988 and before May of 1990. The Plaintiff complained to Dr. Wong of tingling in his hands after having been painting for two weeks on May 14, 1990. This was just after having attended the Concordia Hospital with a funny feeling in his hands after a football incident two days earlier. The Plaintiff did not mention the two weeks of painting at the Concordia Hospital on May 12, 1990. The Plaintiff did not mention the football incident to Dr. Wong two days later.

Even more surprising is that the Plaintiff made no mention [of] tingling in his hands at all when he was examined by Dr. Longstaffe about the 1987 accident on May 8, 1990. If the incidence of the tingling and parathesia was as commonplace as the Plaintiff and his other witnesses have testified to between January 1988 and May of 1990, I have no doubt that the Plaintiff would have advised his health care professionals of it and they would have recorded the complaints in the medical records. The absence of any complaints of parathesia or numbness between January 1988 and May 1990 is significant.

The Appellant’s Position 54 The appellant argued that the trial judge’s position regarding the evidence of these witnesses was in error as the witnesses were firm in their dates, and had good reason to know the dates, as follows: - Mrs. Posthumus testified that the symptoms had been ongoing since the accident, but were most prevalent when the appellant was working around the house that they built starting in 1989, and especially when he was doing overhead work; - the witnesses Mr. Warniski, Mr. Gudmundson and Mr. Hoydalo all worked on the house and corroborated Mrs. Posthumus’s evidence;

- Mr. Vanderhorst testified that he observed these symptoms when the appellant wired his basement in 1988; - Mr. Warniski also worked with the appellant and testified that he recalled the accident date because the appellant came to work with a neck collar and could not do overhead work, which was done by the appellant’s brother and Mr. Warniski; - Mr. Hoydalo played football against the appellant in 1988 and recalled that he observed that the appellant could not lift his arms overhead anymore while playing; and - Mr. Gudmundson recalled that the appellant did work on Mr.

Gudmundson’s house in late 1987 or early 1988 and also had done work for Mr. Gudmundson’s company since 1987, and he observed the appellant’s symptoms of pain and numbness in his hands and arms “right from day one.” The Respondent’s Position 55 The respondent takes the position that the appellant has misstated the evidence. She points out as follows: - while Mr. Warniski did work with the appellant at the time of the accident in 1987, his reference to the appellant wearing a neck brace refers to the period immediately following the accident, and not in 1988; - according to Mrs.

Posthumus, they were building their home from 1989 until the fall of 1990, when they moved in even though the house was not finished – Mr. Warniski was never asked whether his observations of the appellant’s symptoms were made before or after the football accident in May 1990; further, he said that he was helping because the overhead work “became uncomfortable” for the appellant, but he did not say whether there were complaints specifically about the appellant’s hands; - Mr.

Hoydalo played on the same football team as the appellant in 1990, but he was not asked and did not specify whether his evidence related to the period before or after the May 1990 football accident; - Mr. Gudmundson purchased his home in September 1987 and testified that “almost immediately” the basement was renovated – he estimated that the appellant worked on it in late 1987 or early 1988, so that the work could have been done before January 21, 1988; and - the appellant did the wiring in Mr.

Gudmundson’s basement two or three years after the home renovations, which could have been after May 12, 1990, and into 1991. 56 The respondent takes the position that the trial judge heard and assessed these witnesses. She argues that the trial judge was correct to conclude that their testimony did not establish that the appellant experienced any symptoms in his hands between January 21, 1988, and May 12, 1990. Further, it was also open to him to find that he was not convinced that Mrs. Posthumus was able to recall the appellant’s complaints in any given year.

As a result, it would not be appropriate to interfere with his findings. Analysis 57 I agree with the trial judge that Mrs. Posthumus often lumped together many complaints, referring to the appellant’s complaints about pain in his back, hands, neck and legs. It was clearly open to the trial judge to make the findings that he did – that is, that the appellant complained about physical pain for the 22 years of their marriage, and that Mrs. Posthumus was not able to remember the specifics of his complaints in any specific year. 58 Mrs.

Posthumus did refer to one specific incident of hand and arm numbness that was supported, to some extent, by the medical evidence. Her evidence was that the appellant was doing overhead painting for about two weeks in May 1990, and complained of arm and hand symptoms. She said that she told him to take a break from the painting and play some football, which turned out to be the game on May 12, 1990, when he hit his head and went to the hospital. Even this evidence is somewhat unclear, as the appellant spoke of the hit to his head and the hand and arm symptoms at the hospital, but when he went to see Dr.

Wong two days later, he referred to his hand and arm symptoms and attributed them to the painting, with no reference to the hit to his head two days earlier. 59 According to Dr. Sommer, both the overhead painting and the football hit could have caused arm and hand symptoms. He said that neither scenario was inconsistent with a diagnosis of cervical stenosis, and that the overhead painting causing the arm and hand symptoms is the type of nerve impingement that can occur if there is cervical stenosis – it is very consistent with cervical stenosis. 60 On a review of the totality of Mrs.

Posthumus’s testimony, there was ample evidence to support the trial judge’s findings in relation to the reliability of her evidence, and I do not see any palpable and overriding error in the findings of fact, or the inferences that he drew from those facts, that would justify appellate intervention. 61 With respect to the appellant’s other lay witnesses, again, there was ample evidence, some of it touched upon by the respondent as set out above, on which the trial judge could find that the testimony of these witnesses did not establish that the appellant suffered from any tingling in his hands between January 1988 and May 1990.

I do not see any palpable and overriding error in the findings of fact, or any inferences that he drew from those facts, that would justify appellate intervention. 3. Did the trial judge err in concluding that Dr. Sommer was a reliable witness, given that he changed his evidence regarding the diagnosis of spinal stenosis as between his report and his testimony? The Appellant’s Position 62 The appellant raised this issue for the first time at the appeal hearing. His position was that Dr. Sommer did not diagnose the

appellant as having spinal stenosis in his report, but he changed his position on the stand to say that the spinal stenosis was caused by the football injury in May 1990. He argued that Dr. Sommer said that the spinal stenosis started with the football injury, but that key information, being the imaging report completed immediately following that injury, did not show any stenosis. The Respondent’s Position 63 The respondent stated that, in his report, Dr. Sommer looked at the medical history and at the two diagnoses – TOS and spinal stenosis. Dr.

Sommer then said, in his report, that spinal stenosis and disc herniation often occur in the absence of trauma, and that the degenerative findings on the appellant’s imaging studies were medically probably the result of a chronic process that developed over time, rather than an acute event. The respondent argued that there was no suggestion that spinal stenosis is not a degenerative condition. 64 Finally, she argued that Dr.

Sommer’s point at trial was not that spinal stenosis was caused by the football injury, but that, due to the gap of two years before 1990, he thought that the injuries complained of after 1990 were from the football injury and not from the 1987 accident. Analysis 65 The appellant raised some issues about Dr. Sommer’s testimony that were not put to him in either direct or cross- examination. For example, he argued that Dr. Sommer said that the May 12, 1990 injury is the start of the spinal stenosis, but that the x- ray report dated May 12, 1990, does not show any stenosis. Dr.

Sommer was never asked to comment on that document, so there is no way of telling what Dr. Sommer’s opinion was about the findings in that report. 66 Dr. Sommer did not change his testimony to say that the football injury was the start of the stenosis. In his report, he said that cervical spinal stenosis was the medically probable diagnosis and that cervical spinal stenosis and disc herniation commonly occur in the absence of trauma.

He also said that the degenerative findings documented on the appellant`s imaging studies are medically probably the result of a chronic process that developed slowly over time rather than an acute event. Finally, he said that trauma is not a significant factor in the development of this radiographic and clinical presentation. He concluded that, on a balance of probabilities, it is medically improbable that the 1987 accident caused the appellant’s clinical condition. 67 Dr. Sommer maintained this opinion in his testimony. For example, he stated as follows during his direct examination: Q. Okay.

The first question for you, Dr. Sommer, what’s your opinion as to the probable cause of the symptoms being experienced by Mr. Posthumus? A. They are most consis tent with cervical spinal stenosis. Q. Okay. And what’s your opinion as to the probable cause of how Mr. Posthumus acquired spinal stenosis, if my language is correct, whether he acquired it – how did – sorry. A. The most common cause of acquired spinal stenosis is nature, wear and tear changes that occur in the wrong place gradually over time, and those wear and tear changes spurs, thickening of ligaments, occur for no good reason other than spontaneous.

They’re generally atraumatic, not related to specific focal events. While they can contribute that possibly the – the most common presentation is there isn’t a cause, people just get it, and it gradually occurs, just like many degenerative changes we get. We don’t get a cause for wrinkles and grey hair, they happen, some get more, some get less, but there’s no cause that’s a focal incident that leads to it, and suddenly you get it, and it’s not necessarily something that causes a problem.

The same thing happens to the bones and the joints, they get rough around the edges, some more than others, the weight bearing joints do more, and it’s possible that, you know, there are trauma related factors in spine, but the most common cause is that it just happens. 68 In commenting on the appellant’s history as it relates to his diagnosis, also in direct examination, Dr. Sommer stated as follows: ....

The fact that this appears over time to be going like this, and getting more intense suggests that the stenosis is gradually progressing over time, so whereas in the, in the 80s no one was thinking spinal stenosis, really, because it was short-lived and symptoms disappeared quickly.

You know, as we got into the 90s it’s becoming a little more obvious, and as we get into the late 90s they’re thinking of doing surgery for this because its getting more – it’s interfering with function now, it’s lasting longer, and it’s sounding more serious, and that to me looks like the natural history of many patients with spinal stenosis that at some point there’s just not enough threshold for recovery anymore, and you get either longer lasting symptoms, or more severe symptoms, and signs meaning objective evidence of dysfunction. 69 There was a series of questions put to Dr.

Sommer in cross-examination about the May 12, 1990 incidents as they related to the appellant’s symptoms and spinal stenosis. The appellant’s counsel asked Dr. Sommer whether it was possible that the 1987 accident aggravated the pre-existing asymptomatic stenosis such that the symptoms were caused by the 1987 accident. Dr. Sommer stated that it was possible that the 1987 accident temporarily aggravated it. He said that a temporary aggravation is a change of condition that could resolve over time, so that a traumatic event would cause a blip in the condition which would come back to the baseline.

He said that it was quite possible that the 1987 accident could have caused a temporary change in the presentation of the condition that resolved back to its usual baseline, where it was going anyway were it not for the 1987 accident. 70 The appellant’s counsel then asked how the May 12, 1990 football incident worked into the stenosis and the ongoing signs thereafter, and Dr. Sommer stated that, following that incident, there was an episode of symptoms that occurred and, from the lack of reporting, appeared to settle down and then flare back up again around the time of Dr. Gomori’s assessment.

He stated that, whether the trigger was painting with a roller overhead or the football trauma, those are two potential factors that could have caused nerve impingement and swelling that could have lasted for a period of time and then self-recovered as well. He said that patients with spinal

stenosis often come in with episodes of aggravation of nerve symptoms because it is narrow. Simpler things, such as trauma or just waking up the wrong way, lead to nerve symptoms which heighten, and when the swelling reduces, they go back to their baseline again. 71 On a detailed review of Dr. Sommer’s evidence, it is clear that he did not change his evidence, as suggested by the appellant; therefore, there was no basis for the trial judge to find, as was alleged by the appellant, that Dr. Sommer was unreliable or on which the trial judge should have rejected Dr. Sommer’s testimony. 4.

Did the trial judge err when he assumed that Dr. Martinez did not know of the 1986 motor vehicle accident? The Trial Judge’s Decision 72 The trial judge stated as follows (at para. 94): Martinez admitted the Plaintiff had not told him of the 1986 car accident, the 1990 football injury, of falling off a ladder in 1992 or of his electrocution in 1996 while at a job site. Martinez indicated that all of these unrelated incidents complicated the analysis of the cause of the TOS symptoms. In light of the new information, Martinez felt he would need to reassess his opinion on causation.

The Appellant’s Position 73 The appellant argued that the trial judge found it significant that Dr. Martinez had not been told about the 1986 accident, and that this was an error affecting his decision, because, in fact, Dr. Martinez was told about the 1986 accident. This was one of the issues that was raised for the first time at the appeal hearing. The Respondent’s Position 74 The respondent pointed out that the trial judge was correct in stating that Dr. Martinez did not know about these events until they were disclosed to him in cross-examination.

Analysis 75 The trial judge was correct as it is clear, from the cross-examination, that Dr. Martinez was never told of the events referred to by the trial judge before he prepared his report, and he was never given the medical reports and other documents related to those events. They were clearly disclosed to him for the first time at the end of the cross-examination.

When asked if the 1990 football injury could have been the cause of the symptoms that followed, he said that “you have a total different ball game,” and that, with the addition of other injuries, the question of causation was a tough analysis to do. He was then advised of the 1986 accident, and stated that he was never told of that event either. He agreed that he would have had to do a detailed analysis of all of these events before providing an opinion on causation. 76 The appellant’s counsel referred Dr.

Martinez to his first report, in which he stated, “It is quite clear to me that the patient did not have any of these medical clinical manifestations prior to the injury of August of 1987.” Counsel then asked him whether his opinion changed, knowing that the appellant had a prior accident, but there were no consequences, neurological or otherwise, to which he replied, “No, no, it doesn’t change. I believe this was the causative injury that led into the symptoms.” There was no redirect on the other events referred to by the trial judge that were not disclosed to Dr. Martinez prior to the cross-examination. 77 Dr.

Martinez was not given any time to review any of the many documents related to these other, recently disclosed events or to consider how they might affect any of the opinions that he held. In cross-examination, he was referred to one event and asked whether that affected his opinion. At that point, at the end of a full day on the stand, it is not surprising that he held to the opinion in his reports. It was also open to the trial judge to accept Dr. Martinez’s evidence on direct examination that the unrelated events would complicate the analysis and require him to reassess his opinion.

In coming to that conclusion, I do not see that the trial judge committed any palpable and overriding error in any findings of fact or any inferences related to Dr. Martinez that would justify appellate intervention. 5. Did the trial judge err in his analysis of Dr. Gerard’s evidence because he did not take into account his second report? The Appellant’s Position 78 The appellant argued that the trial judge referred only to Dr. Gerard’s first report, dated December 11, 2003, in his decision and not to his second, which led to an error in his analysis of Dr. Gerard’s evidence.

He argued that the first report was only a provisional report, which was finalized after he examined the appellant in January 2004. This, as well, is an issue that was raised for the first time at the appeal hearing. The Respondent’s Position 79 The respondent took the position that, while the trial judge did not refer to Dr. Gerard’s second report by date, he must have been aware of and considered that report in coming to his decision because the information in para. 58 of his decision related to Dr. Gerard’s second report.

Analysis 80 I do not agree with the respondent that the reference to a report in para. 58 of the decision is of assistance on this issue. First, Dr. Gerard does not refer to the imaging tests or the related reports in either of his reports. Second, the reports referred to in para. 58 are the reports that were prepared by the radiologists in relation to the imaging tests, not Dr. Gerard’s reports. 81 In his reasons, the trial judge referred specifically and at some length to Dr. Gerard’s first report, but there is a reason for

this. He began his consideration of Dr. Gerard’s opinion and testimony by considering his overall credibility and reliability as a witness. The circumstances of the preparation of the first report were important to this issue, and the trial judge made reference to the first reportin that context. In cross-examination, Dr. Gerard insisted that he had seen and examined the appellant before issuing the first report,which was clearly not the case. The physical examinations all took place in January 2004, about a month after Dr. Gerard finished thefirst report, which was dated December 11, 2003. Dr.

Gerard also insisted that the history, as provided by the patient, was key and moreimportant than the charts, yet he issued the first report after having reviewed some of the reports and charts, but with no patient history. These two discrepancies in Dr. Gerard’s evidence were significant to the trial judge’s finding related to Dr.

Gerard’s credibility andreliability, and it is for these reasons that reference was made to the first report, and why the first report was particularly important. 82 There is no need for a trial judge to refer to each and every piece of evidence and every document that was filed in court inhis or her reasons. This was commented upon by the court in Waxman as follows (at para. 343): …. The failure to consider relevant evidence can amount to a palpable error if the evidence was potentially significant to a materialfinding of fact. The appellants bear the onus of demonstrating a failure to consider such evidence.

The mere absence of any reference toevidence in reasons for judgment does not establish that the trial judge failed to consider that evidence. The appellants must point tosomething in the trial record, usually in the reasons, which justifies the conclusion that the trial judge failed to consider certain evidence. 83 The appellant has not pointed to any basis to conclude that the trial judge did not take into account Dr. Gerard’s secondreport, other than that it was not specifically referred to. The trial judge referred, on a couple of occasions, to Dr.

Gerard’s “initialdiagnosis,” suggesting that he was aware that there was a later diagnosis, which would be the one in the second report. 84 Having concluded that Dr. Gerard’s evidence was worthy of little weight, it is not surprising that the trial judge did not referat length to the substantive contents of the reports. Having failed to demonstrate any basis in the trial judge’s reasons to lead to theconclusion that he failed to consider Dr. Gerard’s second report, this ground of appeal must fail. 6.

Did the trial judge err in misconstruing the evidence regarding a myelopathy (swelling of the spinal column), a cervical stenosis(an all-around “noose like” narrowing of the spinal column), a radiculopathy (nerve root compression in the neck), a neuropathy(local damage to nerve endings), and bladder incontinence to find that they were all evidence of cervical stenosis? 85 The appellant argued that the trial judge was in error in accepting Dr.

Sommer’s testimony and opinion over that of Drs.Gerard and Martinez on these medical issues and by attributing all of the appellant’s neurological and non-neurological issues to acervical stenosis as postulated by Dr. Sommer. I have already reviewed the trial judge’s decision as it relates to the reliability andcredibility of the evidence of these experts and found no error in his decision to prefer the evidence and opinion of Dr. Sommer over thatof Drs.

Gerard and Martinez. 86 On this issue, the appellant has challenged a number of the trial judge’s specific findings regarding the medical evidence, andargued that he should have accepted other evidence or come to different conclusions. The findings and conclusions which are beingchallenged by the appellant are all findings of fact and credibility. Each doctor explained his position and how he came to thatconclusion, and the trial judge was entitled and required to make factual findings as to which opinions he accepted.

On the evidence as awhole, there was ample support for the findings made by the trial judge and it was open to the trial judge to come to the conclusions thathe did regarding the medical evidence and the medical cause of the appellant’s symptoms. 87 As a result, I do not see any palpable and overriding error in the findings of fact, the inferences drawn from the facts, or theconclusions of the trial judge that would justify appellate intervention on this issue. 7. Did the trial judge err in failing to consider the “material contribution” causation test of Athey v.

Leonati, (SCC), [1996] 3 S.C.R. 458, for any post-MVA incidents and the “but for” test for any pre-existing asymptomatic conditions heidentified as potentially causative? 8. Did the trial judge err in determining (in the alternative) that, if the appellant does, in fact, suffer from TOS, he did not prove, ona balance of probabilities, that the 1987 accident was the cause of the TOS?

The Appellant’s Position 88 The appellant argued that the material causation test in Athey was applicable to the facts in this case in the following factualscenarios: - if he was injured in the 1986 accident, there were no ongoing symptoms until that injury was aggravated by the 1987 accident, atwhich time the pre-existing symptoms reappeared; and - alternatively, if he was injured in the 1987 accident, but was asymptomatic until he was painting for two weeks prior to the May 12,1990 football injury, then, at that time, the pre-existing, but asymptomatic injury was aggravated and became symptomatic and the 1987accident materially contributed to those symptoms. 89 The appellant argued that, in either event, the trial judge should have found that the 1987 accident caused the symptoms onthe basis of the “material causation” test in Athey.

The Respondent’s Position 90 The respondent’s position is that there was no evidence at trial that supported either of the appellant’s above-noted theories.

91 On the issue of causation, the respondent argued that the trial judge found that the only evidence that linked the appellant’s symptoms to the 1987 accident was that of Drs. Gerard and Martinez , which the trial judge found unreliable and based on deficient information. The respondent took the position that, having rejected these opinions, there was no other evidence which could link the symptoms to the 1987 accident, leaving no basis for a finding of causation. The Trial Judge’s Decision 92 The trial judge did not mention the Athey decision in his reasons.

Having concluded that it was at least equally consistent with the evidence that the appellant suffered from spinal stenosis and that a diagnosis of TOS was not substantially the most probable of the possible views of the facts in this case, he began his discussion of causation as follows (at para. 82): It is not difficult to deal with the issue as to whether the accident of 1987 caused Spinal Stenosis. The evidence is the spinal stenosis from which the Plaintiff suffers is a progressive disease or condition. There were passing comments as to the accident of 1987 aggravating the condition.

There was no definitive opinion by any witness linking Spinal Stenosis to the accident of 1987 as a cause. 93 He reviewed some of the evidence regarding the appellant’s symptoms and the opinions of the experts on the issue of causation, and then concluded (at paras. 97-99): The onus to prove causation lies with the Plaintiff. Although his two experts attribute causation to the accident of 1987, it is evident that the patient history upon which they based their opinion was deficient for the absence of reporting a number of significant events.

There was a considerable time period where the TOS symptoms were simply not recorded in the medical records leaving the court with only anecdotal support of the Plaintiff’s claims. I appreciate it is difficult to reconstruct evidence in a credible manner 20 years after the fact, but that i[s] the task for which the Plaintiff bears the onus. I am not satisfied Gerard or Martinez had sufficient information upon which to conduct a meaningful analysis of the issue of causation of the TOS symptoms. The lack of full and complete background facts raises too many questions as to the reliability of their expert opinions.

I am also concerned with respect to the gap of reported symptoms for a significant period of time over 20 years ago which would be inconsistent with TOS. No explanation consistent with TOS for the lack of symptoms in this time period was put forward by the Plaintiff’s experts.

The Plaintiff has not met the onus on a balance of probabilities to establish that the accident of 1987 was the causal event for the TOS diagnosed by Gerard and Martinez. 94 He concluded that, based on the medical records, the appellant had established that he suffered some short-term injuries which resolved themselves within 12 to 18 months, and he awarded damages on that basis. Analysis 95 The symptoms for which the appellant is seeking compensation are long-term numbness and tingling to his hands and arms.

The trial judge did not get to the stage where he was required to consider the application of the Athey contribution principles referred to by the appellant to the ongoing symptoms alleged by the appellant because he did not find any connection at all between the 1987 accident and those symptoms. For example, he noted as follows: - the appellant complained to the chiropractor, Dr. Hawkins, the day after the accident that he had cold, numbness and tingling in his arms and hands, but both Drs. Gerard and Martinez stated that TOS symptoms do not appear immediately after an accident – Dr.

Gerard said that they would appear between two weeks to six months later, while Dr.

Martinez testified that they develop over several months, and that it would be rare for TOS symptoms to appear within the first 30 to 60 days of the triggering event; - the appellant had no complaints of TOS symptoms to any medical practitioners between January 23, 1988, and May 12, 1990, a period of over two years; and - the appellant experienced symptoms consistent with spinal stenosis and inconsistent with TOS, including the tingling and numbness in his feet and toes and bladder incontinence. 96 The immediate onset of symptoms in the arms and hands, followed by the lack of any symptoms for over two years, and the presence of non-TOS symptoms are all inconsistent with TOS.

Further, there was imaging evidence to support the diagnosis of spinal stenosis, but none that supported TOS. The evidence of Dr. Sommer was that spinal stenosis is a degenerative condition that develops over a number of years, unrelated to any traumatic event, and can cause intermittent symptoms like those experienced by the appellant. 97 As was stated in Athey , at para. 16 , causation is essentially a practical question of fact that can best be answered by ordinary common sense.

The findings and conclusions related to causation which are being challenged by the appellant are all findings of fact and credibility. Each doctor explained his position and how he came to his conclusion regarding causation based on his view of the underlying medical condition, and the trial judge was entitled and required to make factual findings in that regard. There was ample evidence to support his findings regarding causation, and I am unable to state that they were not consistent with the preponderance of the probabilities.

Having found no connection between the 1987 accident and the appellant’s symptoms, the contribution principles in Athey were not relevant. 98 As a result, I do not see any error in the findings of fact, the inferences drawn from the facts, the conclusions of the trial judge on the issue of causation, or the failure to refer to Athey or to either the material contribution test and/or the “but for” test that would justify appellate intervention on this issue. 9.

Did the trial judge err in his assessment of general damages and further err in failing to award past and future income loss? 99 The appeal of the damage award is based on the premise that the trial judge erred in his determination of the medical cause

of the appellant’s symptoms and his finding that they were not caused by the 1987 accident. There was no appeal of the damages that were awarded in relation to the injuries that the trial judge found had, in fact, occurred as a result of the 1987 accident. 100 Having found that the trial judge did not make any errors in his determination of the nature and extent of the injuries suffered by the appellant as a result of the 1987 accident, there is no basis before me on which to review his finding on damages. V.

CONCLUSION 101 For the reasons set out above, I find that the trial judge did not commit any error with regard to any of the issues raised on this appeal. As a result, I would dismiss the appeal, with costs to the respondent. ____________________________ J.A. I agree: ____________________________ J.A. I agree: ____________________________ J.A.