Ontario Insurance Commission

Commission des assurances de l’Ontario

Neutral Citation: 2006 ONFSCDRS 124

FSCO A05–000513

BETWEEN:

MARIA ANDRE

Applicant

and

ING INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

John Wilson

Heard:

April 25, 26, and 27, 2006, in London, Ontario. Written submissions were received on May 12, 2006.

Appearances:

Monique Rae Bennett for Mrs. Maria Andre Brian Evoy-Smith for ING Insurance Company of Canada

Issues:

Mr. Andre was the "star" of Dr. Leslie's cancer clinic in London. In 1998 he had been diagnosed with cancer of the pancreas and had undergone lengthy surgery as well as follow-up radiation and chemotherapy.

Despite pancreatic cancer's reputation as leading inevitably to a quick end, Mr. Andre recovered. In addition he stayed alive, and apparently healthy for a period of five years following the surgery. He was able to resume his normally active life. He was involved again with his church and family. He appeared to live a full life, appropriate to his age and status. Dr. Leslie continued to monitor him on a regular basis over the years, with frequent MRI's and other tests, none of which indicated a return of the cancer. Then on March 16, 2003 Mr. Andre was injured in a motor vehicle accident. He suffered serious injuries, and was treated at hospital for 9 days. He was then discharged to home, where he remained an invalid, only leaving the house for medical appointments.

He was re-admitted to hospital on September 17, 2003 for "jaundice & hx of pancreatic ca," and then finally on September 18, 2003, he died in hospital. The proximate cause of death was sepsis; an infection that probably arose in the biliary duct leading from the pancreas, and which then spread. The clinical progress note for September 18, 2003 observed: "Passedaway ~ 1520 hrs due to sepsis 2* cholcugitis from obstruction in biliary tree." No autopsy was ever performed. No definitive final diagnosis was ever made.

Given Mr. Andre's history with cancer, and the decidedly poor prognosis for those diagnosed with pancreatic cancer, the Insurer took the position that Mr. Andre died from the complication due to a recurrence of cancer. In this it was supported by inferences of a return of the cancer drawn by various medical practitioners. Indeed Dr. Kenneth Leslie, the surgeon who had performed the "Whipple" resection on December 21, 1998, and who had followed Mr. Andre since, stated in an opinion letter that "His cause of death was from his pancreatic cancer, though it is quite rare to recur so late."¹

The Andre family, however took the view that Mr. Andre had steadily declined from the accident, and that his death was the culmination of a long series of events which arose due to the motor vehicle accident of March 16, 2003. At the very least, the motor vehicle accident shortened his life, and led to a premature demise. Consequently, in the view of the family, Mr. Andre's spouse was entitled to death benefits pursuant to section 25 of the Schedule.

The death benefit claim was rejected. The parties were unable to resolve their dispute through mediation, and Mrs. Andre applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mrs. Maria Andre entitled to payment of a death benefit arising from the death of her husband, Mr. Herculano Andre?

2. Is Mrs. Maria Andre entitled to payment of funeral benefits?

3. Is Mrs. Maria Andre entitled to a Special Award?

Result:

1. Mrs. Maria Andre is entitled to payment of a death benefit.

2. Mrs. Maria Andre is entitled to payment of funeral benefits.

3. Mrs. Maria Andre is not entitled to a Special Award.

EVIDENCE AND ANALYSIS:

This arbitration invokes section 25(1) of the Schedule which provides that an insurer "shall pay a death benefit in respect of an insured person if he or she dies as a result of an accident." It also raises issues about causation, where multiple factors may have led to a person's demise, the nature of medical diagnosis, and its differences with legal causation, and whether the acceleration of someone's death due to a motor vehicle accident can constitute a death "as a result of an accident."

As noted above, the fact situation giving rise to this arbitration is relatively straightforward. There is no controversy that Mr. Andre was diagnosed with pancreatic cancer, was operated on by Dr. Leslie, (who performed a whipple procedure) and was treated appropriately for his cancer.

Likewise, there is no dispute that Mr. Andre appeared to recover, and survived many years beyond the expectation for persons with pancreatic cancer. Indeed he was approaching the five year anniversary of his cancer treatment when he succumbed to sepsis and died. Although, given his age and health status, Mr. Andre was not free of health problems in this five year period,² monitoring by his family physician and Dr. Leslie did not precipitate a concern about the return of cancer such as to generate renewed cancer treatment.

In addition, although the Insurer initially put Mr. Andre's family to the proof of Mr. Andre's continuous disability in the period following the accident, pursuant to section 25(1)(b) of the Schedule at the commencement of the hearing it conceded this issue and led no evidence on that subject. Consequently, for the purposes of this death benefit claim Mr. Andre is considered to have been continually disabled due to the motor vehicle accident for the period from March 16, 2003 to September 18, 2003.

For the purposes of understanding the dynamics of Mr. Andre's passing, it is useful to review his experiences and the treatment he received in the period from the motor vehicle accident to his death the following September.

From someone who was mobile, socially active, and reasonably functional, the motor vehicle accident transformed him into an invalid.

The ambulance call report states that he struck a hydro pole head-on, with massive damage to the front of the car. The paramedic noted that there were no airbags. He observed a Mr. Andre who was "pt conscious, mildly confused." The report contains a long list of injuries, with the principal problem being "multi-system trauma."

The trauma team report entered in Mr. Andre's chart noted a variety of superficial injuries, including scalp, nose and extremities. X-Ray examination revealed "a wide mediastinum, questionable left-sided fractures." CT scans showed:

a sternal fracture and multiple bilateral rib fractures; he had fractured left ribs 1 through 4 and right side 3 through 7. He had a large left pneumothorax He also had a sternal fracture with a small underlying hematoma in the mediastinum related to this. His aortic arch and great vessels appeared to be normal with no evidence of arching. CT of his abdomen revealed small amount of free fluid, which was questionably blood at the initial, however we compared it to previous films from follow up of his pancreatic cancer, and this was felt to be likely chronic ascites and not acute blood.

Because of the pneumothorax, Mr. Andre was intubated. There was also pleural drainage.

On April 11, 2003, subsequent to discharge he was noted as having "bilateral leg edema and bilateral DVT." This was attributed to his lack of anticoagulant "for a period of time."

The note continued:

massive bilateral edema with erythema. He was unable to get up onto the examining table due to pains in his legs and difficulty moving.

The same report also noted a "non-occlusive femoral vein thrombosis which we hadn't documented previously."

By April 25, 2003, Mr. Andre seemed to be responding to treatment. While he still suffered from edema and erythema, he was noted as doing relatively well.

A report dictated May 9, 2003, commented that "his legs are doing about as well as they were doing two weeks ago which is better than four weeks ago." He was doing "reasonably well."

During this same period, the testimony of Ms. Dina Andre, his daughter, was that Mr. Andre was basically confined to his bedroom, only going out for medical appointments and tests. In addition he was having great difficulty dealing with solid food, and was apparently losing weight.

By June 17, 2003, Mr. Andre's condition was becoming more complex. He was once again admitted to hospital, on June 18, 2003, this time to surgery, for a gastric outlet obstruction. He had been complaining of recurrent nausea and vomiting, as well as a prolonged decrease in energy and appetite.

On admission he was given a thorough work-up including a CT scan. The team noted:

an existing mass in the pancreatic head was relatively unchanged from its appearance in March 2003. There was some suggestion by Dr. Yoshy that the mass had slightly increased in size, however, given the rate of increase, it would have been unusual for recurrent disease to appear in this manner. The soft tissue thickening noted around the celiac access extending along the SMA may have been slightly increased from March 2003. The remainder of the exam was relatively unchanged. The cystic mass was interpreted as being possibly a loop of bowel at the anastomosis or a potential pseudocyst.

He continued to experience recurrent nausea and vomiting and developed diarrhea. In the course of an endoscopic operation by Dr. Panych they observed a "polypoid mass obstructing the other lode" ( at the duodenal cap). Samples were taken of this mass for biopsy. Dr. Panych and his colleagues concluded: "Likely gastric outlet obstruction related to recurrence of tumour."

The biopsies of the tissue removed by Dr. Panych showed "small bowel type mucosa with slight edema and chronic inflammation, negative for malignancy."

Dr. Leslie inserted a "G tube" and a "J tube" with no major complications³ on June 23, 2003. This involved opening up Mr. Andre, and gave Dr. Leslie an opportunity to manually explore the problem areas. Dr. Leslie reported:

His cystic lesion is around his pancreatic anastomosis and certainly felt all soft. When I was going to take the loops off the liver, it just felt that things were just a little more indurated and hard through here and I thought that I was going to end up damaging something and then something needing to be repaired. When you feel his gastrojejunostomy, it does not feel bad. If anything there is no tumour here. We went ahead and since it was so stuck underneath the liver I just elected to do a side-to-side gastroduodenostomy onto the posterior wall of the stomach that we had freed up. We did this with a TLC-75 and a TX-60 and imbricated the corners with #3-0 Vicryl. We then put in a G-tube, used a #20 French Foley with a 30 cc balloon and did this in a same-type fashion. We then closed the mesenteric defect again where the loop of jejunum came up and then downstream to this, we put in a #12 French red rubber as a feeding tube. We did this in Whipple fashion and brought this out. Both of these came out to his left side. We then irrigated his abdomen thoroughly. We put in a couple of #19 Blake drains- one at the edge of the liver and one at the lesser sac, behind our anastomosis. This was mostly because things were oozy.

I think that this will again relieve his symptomatology. It was a little unfortunate that he was so stuck underneath his liver. I still wonder about his afferent loop although he does not have any pain and certainly, he is not defunctioned. There could be tumour way back here that we cannot appreciate but around our gastric J I think it is more ulcer disease.

A post-surgical gastrostomy tube check was performed by radiology on July 11, 2003. Dr. Kribs, the reporting radiologist reported the possibility of "a high grade obstruction or complete occlusion at the site of the previous duodenal-jejunostomy."

A follow-up for the thrombosis treatment on August 13, 2003 reported that Mr. Andre was progressing well. Indeed a follow-up some three months hence was recommended. Interestingly, however, the identification of problems facing Mr. Andre now listed "gastric outlet obstruction secondary to cancer June 2003." This stands in contrast to the findings of the pathologist that the tissue samples showed no signs of malignancy, and the post-operative report of Dr. Leslie which detailed his difficulties in finding any concrete evidence of cancer.

While Mr. Andre's cancer history always formed part of the "problems" listed for consideration in his chart the August 13, 2003 report seems to have been the first formal linkage of the gastric outlet obstruction with a resurgence of Mr. Andre's cancer.

While it is possible that the observation was inadvertent, or mistaken, the more plausible explanation is that it derives from the need to develop a working diagnosis to direct treatment. It is clear that Mr. Andre's declining condition baffled some of the experts. There was no obvious single diagnosis. Still there was a necessity to develop at least a hypothetical determination of what was at issue in order to explore appropriate treatment strategies.

Medical diagnosis has been described as follows:

Diagnoses are the entities or facts of medicine and they are based upon three sources of evidence, namely the history, the physical examination, the test results or investigations and upon the process of logical analysis which is differential diagnosis.⁴

The same author describes differential diagnosis as:

... a list of the different potential diagnoses which could explain the accumulated evidence. It is recognized that a diagnosis is always an assertion of likelihood and a list of the differential diagnoses will range from the most likely to that which is least likely. This represents a hierarchy of potential diagnoses and should contain all of the conditions which arise out of the accumulated evidence and which, to varying degrees, can account for it.

As Dr. Leslie pointed out in his testimony, a differential diagnosis should explore those conditions which cannot be ruled out.

In Mr. Andre's case, given his history of cancer, and indeed cancer of an especially virulent variety, cancer could not easily be ruled out, and would, necessarily form part of the differential diagnosis.⁴

That is not to say that a resulting diagnosis necessarily equates with legal causation. In the case of death benefits, the crucial phrase used is "as a result of an accident." The absence of any modifier such as "direct"⁵ suggests that the accident in question need not be the only cause of death⁶ or even the cause in fact. Such an approach has been recognized by the Supreme Court in Athey v. Leonati,⁷ and adopted by arbitrators at the Commission since that time.⁸ It is now generally accepted that a "material contribution" by an accident to a death or disability may be sufficient to invoke liability for payment of statutory accident benefits under the Schedule.

In this matter, the question underlying this arbitration then is not whether the fatal sepsis that felled Mr. Andre was directly caused by the accident, but whether the motor vehicle accident and Mr. Andre's resulting injuries materially contributed to his demise in September of 2003.

Dr. Leslie, in his letter of June 21, 2004, first framed this issue when he commented:

In terms of his gastric outlet obstruction being related to his accident, it could be possible, though I suspect what happened was that due to his critical illness from his car accident, that put his immune system out of balance and allowed his tumour to grow quicker and ran into problems shortly thereafter his car accident. I suspect that without the car accident we would have seen the recurrence of the cancer, but it would have been over a much longer period of time and that he would not have run into problems in June, so shortly after his car accident.

In his letter of March 24, 2006, Dr. Leslie re-affirmed his position that the cause of death was from his pancreatic cancer "though it is quite rare to recur so late." He also repeated that:

My feeling is that without the MVA, we would not have seen the cancer come back so early and I suspect the stress caused by the trauma and the weakening of his system due to the trauma caused the tumour to recur earlier then (sic) it naturally would.

In April 15, 2005, Dr. Dorli Herman, Mr. Andre's treating family physician, summarized her opinion:

Overall, in my opinion there was a definite decline in Mr. Andre's emotional and physical status as a result of the motor vehicle accident. I believe that the stress added to his fragile medical status caused him to die sooner than expected.⁹

No-one on behalf of the plaintiff argued that the accident had directly caused the recurrence of the cancer. Rather, the injuries caused by the accident created the conditions necessary for the cancer to propagate and grow, resulting in a much earlier death than would have been anticipated. This position, of course, gives rise to other serious problems. Does the acceleration of a death by an accident make that event one that materially contributed to death? What was the outlook for Mr. Andre just prior to the motor vehicle accident?

The parties had two very different viewpoints on both these questions, as well as the principal question of whether the accident had any affect on Mr. Andre's death in September 2003.

Dr. Nazim Damji, a Toronto oncologist who reviewed Mr. Andre's chart on behalf of the Insurer, made the point that in his opinion, "the pancreatic cancer was recurring as far back as July, 2001" and that:

The cancer had demonstrated gradual progression over time and eventually became clinically significant when due to its location it caused biliary obstruction. The biliary obstruction could not be immediately relieved and he therefore developed the complication of ascending cholangitis and septic shock from which he subsequently expired.

Dr. Damji emphasized that the statistics supported a conclusion that Mr. Andre died from the normal progression of his pancreatic cancer. After all, he reported:

The natural history of pancreatic cancer is one of recurrence and the overall survival for all stages is less than 4%. Even when the disease is able to be completely resected as in the case of Mr. Andre the overall five year survival rate is less than 10%. In very good prognostic subset with negative resection margins, no invasion of blood vessels or lymph nodes there can be an improvement in five year survival rate after surgical resection but even here the five year survival rate is in the order of around 20%. Therefore the majority of the patients even after surgical resection for pancreatic cancer with curative intention will succumb to recurrent cancer and progression within a five year time span.

While I accept that Dr. Damji's statistics likely reflect the averages for the outcomes of a large group of patients, there was no expert in statistical analysis available to translate and apply those statistics to the individual case before us.

Dr. Leslie was asked to comment on the statistical outcomes. His reply was essentially that the only outcome that mattered, was the one specific to Mr. Andre. He acknowledged the poor prognosis for pancreatic cancer patients in general, but noted that "it is quite rare to recur so late."

From a very practical appreciation of statistics I accept Dr. Leslies' caution about directly translating general statistical probabilities to Mr. Andre's case. By Dr. Damji's analysis Mr. Andre should have been dead well before September 2003. Hence Dr. Leslie's emphasis on Mr. Andre as the exceptional patient. Even without further expert evidence, I accept that averages can be misleading. One can drown in a river with an average depth of less than one metre, since at any particular place on that river, the depth can be two metres or more, without disproving the validity of the average depth of one metre.

Despite Dr. Leslie's lack of direct confirming evidence, and his failure to identify cancerous growths in his exploratory surgery, he was open to accepting that Mr. Andre likely died from a recurrence of cancer. Statistically it was likely to happen at some time.¹⁰ He could not rule out cancer. Given his history, it would necessarily be high on a differential diagnosis.

In retrospect, despite the failure of MRI imaging to show the tell-tale traces of cancer in follow-up, other earlier problems such as clotting, thrombosis, and the gastric blockage were not inconsistent with the progress of a cancer. His reports reflected this open-mindedness to these and other matters.

Hence his candid finding that: "(H)is cause of death was from his pancreatic cancer, though it is quite rare to recur so late." Dr. Leslie did not however believe that Mr. Andre was somehow fated to die from cancer on September 18, 2003.

While much of Dr. Damji's statistical analysis and file critique were not necessarily inconsistent with Dr. Leslie's testimony, his findings on the normal progression of Mr. Andre's cancer, and the virtual statistical predetermination of his death cannot be reconciled with Dr. Leslie's opinion that the motor vehicle accident significantly hastened Mr. Andre's death.

Dr. Damji, it should be noted, at the time he wrote his opinion on March 9, 2006, was not fully cognizant of the degree to which Mr. Andre was completely and continuously disabled by the motor vehicle accident in the period between March and September 2003.

The file review which he performed gave him no insight into the daily life of Mr. Andre, and his struggle to perform the most mundane tasks. Indeed this issue was not conceded by the Insurer until the beginning of the hearing. Consequently, his opinion that "the motor vehicle accident was not the cause of Mr. Andre's death, and he died from his recurrent pancreatic cancer" is not necessarily a stumbling block to accepting Dr. Leslie's position that the effects of the motor vehicle accident likely accelerated Mr. Andre's death and that "his fragile medical status caused him to die sooner than expected." Both doctors are speaking and opining based on different information.

Dr. Leslie had a longitudinal view that was extraordinary. He had performed the original lengthy operation and had followed Mr. Andre for almost five years. When he inserted the G and J tubes, he had the opportunity to explore the site of the problem that ultimately killed Mr. Andre. He had met family members who took Mr. Andre to and from his appointments. He wrote the notes about the margins, that Dr. Damji and Dr. Booth attempted to parse. Despite Dr. Damji's comments in cross that a treating physician's objectivity would be compromised by the bonding effect of a long term physician-patient relationship, I find that Dr. Leslie's opinions and testimony at the hearing appear to reflect a dispassionate analysis of the evidence before him and displayed a noticeable lack of partisanship.

Despite his evident respect for Mr. Andre and his family, Dr. Leslie was not willing to offer an unconditionally favourable opinion. He was willing to revise his earlier observations about the lack of evidence of cancer on the MRI's, or during the operation to insert the G and J tubes, and conclude that the biliary duct obstruction was secondary to a recurrence of cancer, even when such a conclusion might not support the family's belief that the accident triggered Mr. Andre's cancer. As noted earlier, where the opinions on causation and timing and causation of death differ between Drs. Leslie, Damji¹¹ and Booth, I prefer Dr. Leslie's opinion.

Acceleration of death:

If we accept Dr. Leslie's opinion that the fragile medical status of Mr. Andre following the motor vehicle accident accelerated his death, is that sufficient for a finding that the motor vehicle accident substantially contributed to his death?

The Schedule does not specifically define the manner of timing of a death that is compensable. By including sections 25(1)(a) and (b), however, which specifically provide for deaths before and after the 180 day mark, the legislation implicitly accepts that there are no specific temporal limits on the timing of death, provided that the prerequisites are met.

It is, as noted earlier, self-evident that Mr. Andre was going to die sometime in the relatively near future, from one natural cause or another. Both Drs. Leslie and Herman state clearly that this date was advanced significantly, either by the stress of the accident or through a weakening of his immune system, as the case may be.

As well, from a non-scientific summary of the evidence of Mr. Andre's functionality, if one were to put his relative health on a time graph, it would abruptly descend from a higher, if varied level prior to the accident, at a very steep rate of descent, with virtually continued dysfunction for the period between the accident in March and his death in September. Such a visualization of Mr. Andre's progress would strongly support a linkage to the accident as a key trigger to his decline, at least from a temporal point of view.

The concept of a direct linkage of trauma to a fatal decline in health is not unheard of in jurisprudence. Besides appealing to a common-sense notion of causation,¹² such a linkage appears in several legal contexts.

Section 226 of the Criminal Code recognizes such a direct connection between the actions of a person in shortening the life, of another, making such an action the equivalent of killing a person directly.¹³

Courts have long been willing to attribute causation of an illness, fatal or otherwise, to accidental circumstances. As early as the case of Brintons Limited v. Turvey,¹⁴ the House of Lords upheld a finding that death by way of anthrax was due to a workplace accident. While the "cause in fact was contact with and infection by anthrax bacilli, the overall cause was a workplace accident involving contact with anthrax laden wool in the workplace."

In Ontario, the courts have also accepted that an illness could be precipitated by an accident. In Mitchell v. Fidelity¹⁵ Meredith CJCP accepted that a latent tuberculosis could become active and incapacitating as a result of an accidental fall. More recently, in Cotic v. Gray,¹⁶ the Court of Appeal accepted that mental illness and a suicide some sixteen months after a motor vehicle accident was attributable to an accident. Such a linkage is also associated with the thin-skull principle which has been an accepted part of the common-law. It has been well-established that just as a tortfeasor takes his victim as he finds him,¹⁷ so does an accident benefit insurer take the risk that its insured may suffer from a condition that made him or her particularly vulnerable to the effects of an accident. In Mr. Andre's case, the previous cancer diagnosis, or perhaps an ongoing dormant malignancy, not to mention the accumulated infirmities of the latter part of life, could have made him particularly vulnerable to the shock and stress of the accident and the resulting injuries.

More importantly, the scheme of the Schedule pointedly allows for a significant delay between injury and death, and inferentially, a difference between the direct causation and legal causation in the case of death benefits.¹⁸

The science of medicine has changed much since the early twentieth century cases noted above.¹⁹ What has not changed is the role of a court or an arbitrator faced with competing and credible scientific opinions.

Lord Reid in McGhee v. National Coal Board²⁰ commented that where a finding of fact on causation could not be made with scientific certainty, a broader view of causation must be taken.

But it has often been said that the legal concept of causation is not based on logic or philosophy. It is based on the practical way in which the ordinary man's mind works in the every-day affairs of life.

While some tort cases differentiate between death pure and simple, and the acceleration of an inevitable death, such a distinction relates to the assessment of damages alone.²¹ Since accident benefit death benefits are fixed, and no specific damages need be pleaded, such a distinction is irrelevant in this sector.

In Mr. Andre's case, the direct cause of death was not cancer but sepsis. There was no autopsy and no conclusive evidence of what was at work within him when he died. He was asymptomatic for active cancer prior to the accident. Frequent monitoring showed up nothing to set off the alarm bells. Cancer, however, cannot be ruled out due to its history. As Dr. Damji noted, some of Mr. Andre's afflictions, such as the DVT and the ulcerative problems that might have been attributed merely to an ageing body, could also be potentially consistent with a resurgent cancer.

While the evidence was that there was persistent infection at the sites of the G and J tubes prior to the final hospitalization, none of the medical witnesses were attracted by suggestions that the sepsis could have originated from this source. As a cause for the fatal sepsis, this infection remains speculative. I have difficulty finding evidence that would suggest a mechanism other than recurrent cancer that could account for Mr. Andre's sudden decline and demise.

It should be remembered that no-one is arguing that the motor vehicle accident caused Mr. Andre to have cancer. Dr. Leslie's theory is that the motor vehicle accident weakened Mr. Andre's endurance and immune system and created the conditions for any cancer that might have been present to grow virtually unchecked.

Dr. Leslie was clear that, given Mr. Andre's pre-accident condition, the failure to detect evidence of new cancers on the series of MRI's, and the length of time since the operation, with no recurrence, he would not have anticipated so fast a decline, nor a death so soon. I also note that the pre-accident DVT incidents, relied upon by Drs. Booth and Damji, while consistent with a developing cancer, were also consistent with other sources and do not clearly demonstrate an active pre-accident cancer.

I note as well Dr. Damji's comments that "there was no evidence of massive metastatic pancreatic cancer but he had complications related to the local recurrence that ended in septic shock causing death." At the very least this observation lends some credence to Dr. Leslie's theory of Mr. Andre as a weakened and vulnerable individual subsequent to the accident, so weak that he succumbed to the complications of a very local recurrence.

For lack of any other credible explanation, I accept as credible Dr. Leslie's opinion that some sort of recurrent pancreatic cancer likely had a role to play in the development of the gastric outlet problem, and that the sepsis was likely secondary to the progression of that cancer. I also accept his evidence that the recurrence developed quickly subsequent to the accident.

Neither Dr. Leslie nor Dr. Herman put a specific number to the advancement of Mr. Andre's death. Nor should they have. I am satisfied that the extra time Mr. Andre would have been expected to live would not have been a trivial or a minimal period of time. I would accept that Mr. Andre would have likely lived at least a period of months longer had the accident not occurred, if not longer.

While Mr. Andre died a little more than 180 days after the motor vehicle accident, I note the Insurer's concession that he was continuously disabled as a result of the accident for the period up to his death. I also accept that, even had the Insurer not made such a concession, the uncontradicted testimony of Maria Andre and Dina Andre would have supported such a conclusion.

Consequently, I find that Mr. Andre died as a result of an accident, in that the motor vehicle accident caused debilitating injuries which never resolved prior to his death, and contributed substantially to his death by weakening his constitution and compromising his immune system, so significantly accelerating the timing of Mr. Andre's ultimate death on September 18, 2003.

Funeral Benefits

Mrs. Andre also claimed reimbursement of funeral benefits pursuant to section 26 of the Schedule. The statement of account from the funeral home lists a total of $6,848.55 owing for Mr. Andre's funeral arrangements. Section 26(2)(a) limits this claim to $6,000.

Since the criterion for the reimbursement of funeral expenses is "in respect of a person who dies as a result of an accident," essentially the same as in the case of a death benefit, I find that for the reasons enunciated above, Mr. Andre died as a result of an accident, and, consequently, Mrs. Andre is entitled to reimbursement of her expenses up to the statutory maximum of $6,000.

Special Award

Although Mrs. Andre requested a special award pursuant to section 282(10) of the Insurance Act by reason of the Insurer's unreasonable withholding of the payment of the death benefit, I do not think such an award is appropriate in this matter.

While payment of the death benefit has definitely been delayed substantially in this matter, it is only in retrospect that the rationale for such a payment is self-evident. This was a case where even the Insured's own physician stated that Mr. Andre died from cancer. On the face of it, such a death is not compensable.

It would appear that it was only with the development of this case, its preparation for trial, and specifically, the balanced testimony of Dr. Leslie over the period of some two days, that the reasonableness of a death benefit became apparent. Under the circumstances, delay in recognizing the obligation to pay was both reasonable and understandable. While the payment of the death benefit alone will likely never address the totality of the loss to Mrs. Andre and her family, I find that there are no grounds to support a special award.

EXPENSES:

Having been successful in pressing her claim for death benefits and funeral expenses, and having been advised of no offers to settle or other circumstances relating to an award of expenses, I find that Mrs. Andre has a prima facie entitlement to an expense order in her favour.

If the parties are unable to agree on the amount of the expense order, I may be spoken to on the issue of expenses.

July 21, 2006

John Wilson Arbitrator

Date

Ontario Insurance Commission

Commission des assurances de l’Ontario

Neutral Citation: 2006 ONFSCDRS 124

FSCO A05–000513

BETWEEN:

MARIA ANDRE

Applicant

and

ING INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Mrs. Maria Andre is entitled to payment of a death benefit. Consequently, ING shall forthwith pay to Mrs. Maria Andre the sum of $25,000 as a death benefit pursuant to section 25 of the Schedule, plus accrued interest at the rate of 2 per cent per month, compounded monthly calculated commencing September 18, 2003, and continuing on an ongoing basis until the death benefit is paid in full.

2. Mrs. Maria Andre is entitled to payment of funeral benefits in the amount of $6,000 plus accrued interest at the rate of 2 per cent per month, compounded monthly, calculated commencing September 18, 2003, and continuing on an ongoing basis until the funeral benefit is paid in full.

July 27, 2006

John Wilson Arbitrator

Date

Footnotes

1. 1Admittedly Dr. Leslie's diagnosis was somewhat more nuanced than the above statement would suggest. He concluded, while not backing off from his differential diagnosis of cancer "Obviously he had the right tumour biology that made him a long-term survivor. The recurrent tumour showed up very quickly in June after his MVA in March. My feeling is that without the MVA, we would not have seen the cancer come back so early and I suspect the stress caused by the trauma and the weakening of his system due to the trauma caused the tumour to recur earlier than it naturally would have."
2. 2Mr. Andre had been treated for diabetes, IBC thrombosis (July 2001) and a bleeding duodenal ulcer (January 2003)
3. 3These were to permit feeding by tube and drainage.
4. 4Dr. Henry Berry "The Merits of an Opinion and the Diagnosis of Diagnosis," The Advocates Society (Ontario), October 4-5, 1996
5. 5While in section 2(1) of the Schedule, "direct" is used in the context of the definition of accident, there is no controversy in this case about the nature of the accident, and the severity of the initial injuries resulting from the operation of a motor vehicle.
6. 6Indeed, apart from instantaneous death at the accident scene, an insured will usually die from complications arising from the original trauma.
7. 7Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] S.C.J. No. 102
8. 8See TTC Insurance Company Limited and Correia, (Appeal Order P00-00061, July 16, 2001)
9. 9While Dr. Herman had some difficulty pointing to any research underpinning her opinion as to causation, I accept that her CV shows considerable experience over an extensive career as a primary care physician, and I accept that her opinion reflects reliance on her experience and observation of the interaction of stressors and disease in her practice, rather than on any strictly scientific theories.
10. 10Something was bound to kill off Mr. Andre at some point in the not too distant future. 75 year-olds with imperfect health don't live forever.
11. 11I was less impressed with Dr. Damji's quick response to the information that Mr. Andre was bedridden and disabled for the period following the accident until his death. Notwithstanding comments in his report, that he appeared to rely on in his opinion that Mr. Andre showed recovery following the accident, he appeared to give no serious consideration to the changed circumstances when they were put to him in cross.
12. 12The common sense aspect of causation should not be ignored either. Speaking of the acceleration of an illness due to accident, Mackenzie J. stated: "I am alive to the principle that the causation test is not to be applied too rigidly. Causation need not be determined with scientific precision, but is essentially a practical question to be answered by ordinary common sense." Lipinski v. Mein, [2004] B.C.J. No. 2210 B.C.S.C.
13. 13"Where a person causes to a human being a bodily injury that results in death, he causes the death of that human being notwithstanding the effect of the bodily injury is only to accelerate his death from a disease or disorder arising from some other cause." Pre-criminal code, the common law required that the death occur within a year and a day for a jury to draw the conclusion that the action of a person accelerated the death of another, and so was guilty of manslaughter. see R. v. Dyson, [1908-10] All E.R. Rep. 136.
14. 14Brintons Limited v. Turvey, [1905] A.C. 230
15. 15Mitchell v. Fidelity Casualty Co. of New York, 1916 CanLII 645 (ON SCHCD), 37 O.L.R. 335
16. 16Cotic v. Gray (1981), 1981 CanLII 76 (ON CA), 33 O.R. (2d) 356
17. 17Denning J. observed in Marcroft v. Scruttons Ltd., [1954] 1 Lloyd's Rep. 395. "His constitutional weakness was such that, apart from an accident any other disturbing factor might have produced a similar result. Any illness or worry, or even loss of work might do it. None the less, in assessing damages we must, I think, disregard this factor, because a wrongdoer must take his victim as he finds them, with all his weaknesses, whether it be a thin skull or any other constitutional weakness."
18. 18Section 25 (1)(a) and (b) provide for payment of the death benefit when death occurs within 180 days and 156 weeks where "the insured person was continuously disabled as a result of the accident."
19. 19Riddell J. in Mitchell (supra) noted that "the advance of knowledge raises and will continue to raise novel contentions: and what is commonplace at one time becomes a matter of great controversy at another. Until very recently the main ground of dispute of liability here would not be thought of; or, if thought of, would have received scant consideration - but tempora mutantur et nos mutumar in illis. "
20. 20McGhee v. National Coal Board, [1912] 3 All E.R. 1008 (H.L.)
21. 21See Negretto v. Sayers, [1963] S.A.S.R. 313 (Australia)