Tribunal File Number: 16-000142/AABS
Case Name: 16-000142 v TD Insurance Meloche Monnex
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
D.O.
(By her Litigation Guardian, S.A.)
Applicant
and
TD Insurance Meloche Monnex
Respondent
REASONS FOR DECISION AND ORDER
Adjudicator: Claudette Leslie
Written arguments/evidence provided by:
The Applicant: D.O. by her Litigation Guardian, S.A.
Counsel for the Applicant: Kwaku Bona
Representative for the Respondent: Bonnie Redden, Claims Specialist
Counsel for the Respondent: Rory Wasserman
Written Hearing: December 23, 2016
Overview:
On July 19, 2014 the applicant, then a fetus was involved in a motor vehicle accident when a car driven by her mother, S.A., was rear-ended while stopped at a traffic light. S.A. was 6 months pregnant at the time. The Applicant was born, prematurely, 2 months later on September 15, 2014.
The applicant was discharged from hospital neonatal care approximately 3 weeks after birth. The applicant submits that sometime following her discharge from the hospital, she experienced difficulties when swallowing food and liquid and choking episodes.
The applicant’s symptoms were diagnosed at Sick Kids hospital as being Gastroesophageal Reflux Disease (GERD) in December of 2014. As a result, the applicant submitted that she required constant attendant care assistance/supervision as her mother had concerns that her symptoms may have been life-threatening.
Through her guardian/mother, the applicant seeks to have the respondent insurer, TD Insurance Company, pay benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). She submits that the accident caused or contributed to her premature birth; and consequently, the GERD condition resulted from her premature birth.
Specifically, the applicant seeks an order from the Tribunal requiring the insurer to pay attendant care costs in the amount of $3,000.00 per month for the period covering the date after she was discharged from the hospital in October 2014, to June 2016. The applicant also seeks accrued interest on the payment of any outstanding balance.
The respondent insurer takes the position that the accident did not cause or contribute to the premature birth, or that the applicant’s premature birth caused the GERD she later developed. The insurer further claims that even if there were reasons to believe the accident caused or contributed to the premature birth, or that her GERD condition was a result of her premature birth, her disorder did not require any attendant care services, as contemplated by the Schedule.
Considering all of the relevant evidence provided, I find the applicant has not met her burden to prove that, on a balance of probabilities, as a consequence of the accident she was born prematurely, or that she developed GERD impairment as a result of her premature birth, and by extension, the accident. The applicant is therefore not entitled to the attendant care benefit and interest claimed.
Preliminary issues
Both parties raised preliminary issues in their submissions. The applicant - claims she submitted the claim for attendant care benefits to the insurer on October 15, 2015; and it was denied by the insurer on November 6, 2015. For this reason,the Applicant also claims that the insurer failed to comply with the mandatory provisions of section 42 (6), to “begin payment of attendant care benefits within 10 business days after receiving the assessment of attendant care needs…”
The insurer denies the applicant’s claim on the grounds that she did not submit a valid attendant care benefits claim form, or proof of incurred expenses. The insurer states that the applicant’s claim could not be considered as it was based on the identical form and supporting documentation previously and separately submitted by her mother and denied by the insurer. The form had initially been submitted by her mother claiming the same attendant care benefits for herself.
Events surrounding this application as detailed below under the subheading “Background”, reveal that the applicant’s mother filed an application with the Tribunal, claiming similar attendant care benefits, for the period covering July 20, 2014 to May 2, 2016. She later withdrew the application.
Furthermore, in keeping with the provisions of section 42, the insurer states it had a right to refuse to pay the benefit claimed because the applicant not only failed to provide the required form/documentation, but the applicant failed multiple times to submit to scheduled IEs arranged by the insurer.
The respondent - for its part, claims that as per the provisions of section 55 of the Schedule, the applicant is prohibited from initiating the proceedings before the Tribunal, as she failed to provide proper notification of circumstances giving rise to her claim; and because she failed to comply with and submit to scheduled insurer’s examinations.
The insurer maintains that the Occupational Therapist assessment/report received in support of the minor applicant’s application, was conducted in respect of her mother; there have been no incurred expenses by the applicant submitted for consideration; and the insurer was not aware of any proof of incurred Attendant Care expenses on the applicant’s behalf until it received this application and the materials submitted to the Tribunal in May of 2016.
Having determined that the applicant failed to establish that the accident had an impact on her premature birth or that her GERD condition constitutes an impairment resulting from the accident, I find it unnecessary to decide either of these preliminary issues.
However, I will address the applicant’s request for a special award and the parties’ requests for costs in their respective submissions, later in this decision.
Background:
The applicant’s mother initially submitted a claim to the insurer for similar attendant care benefits in the amount of $3,000.00 monthly due to her accident-related injuries/condition after the birth of the applicant. The insurer declined the claim initially because she did not submit the required, completed Form 1, the accompanying Personal Support Worker (PSW) Certificate was unsigned; and later based on the outcome of an Insurer’s Examination (IE) report indicating that her mother’s condition did not warrant such attendant care services.
The applicant’s mother subsequently filed an application with the Tribunal, requiring the insurer to pay, among other things, attendant care benefits. The application was scheduled to be heard with the applicant’s application. The applicant’s mother withdrew her application days before a scheduled case conference before the Tribunal to discuss potential resolution.
Preceding both the applicant’s and her mother’s applications are the following undisputed, chronology of events.
At the applicant mother’s request for help on the grounds that she was having difficulty caring for the then infant applicant, on a good faith basis and without any medical evidence or proof of incurred expense, the insurer agreed to fund a Personal Support Worker (PSW) to watch the infant for 24 hours per week for eight weeks, November 12, 2014 to January 7, 2015 (totalled $2,880.00).
The applicant’s mother submitted an additional claim for caregiver benefits covering the period from December 2014, January and February 2015, (over $7,000.00), which excluded the good faith payments previously made by the insurer for PSW services.
The applicant’s mother then submitted a claim to the insurer for caregiver services for the period of October 2014 to October 2015, involving 2 different caregivers, seeking a total amount of over $89,000.00. The insurer notes that the caregivers’ services and the periods in question are duplications of each other. The applicant’s mother’s claim was denied by the insurer in March and April of 2015.
The applicant’s mother’s claim for attendant care followed. In attendant care forms documenting similar services provided by, NO and ED for the period from October 2014 to October 2015, notes the service providers as “Domestic Workers.” When this claim was denied, her mother applied to the Tribunal in June 2016 for resolution of the issue. Both the applicant’s and her mother’s applications were scheduled to be heard together in early September 2016; both claiming similar attendant care benefits. Her mother withdrew her application a few days before the scheduled case conference.
Issues to be decided:
- The issues before me are as follows:
i. Is the applicant entitled to attendant care benefits in the monthly amount of $3,000.00 from the date she left the hospital in October 2014, to an unspecified date in June 2016?
ii. Is the applicant entitled to interest on overdue payment of the above benefit?
iii. Is the applicant entitled to a payment as a result of the insurer allegedly unreasonably withholding or delaying payments pursuant to section 10 of Ontario Regulation 664?
iv. Are either party entitled to costs?
What are Attendant Care benefits and what are the requirements?
The Schedule authorizes attendant care benefits to pay for reasonable and necessary expenses incurred to hire someone to help with self-care activities that an insured person is unable to perform, as a result of accident related injuries. Such activities are understood to include bathing, grooming, dressing, meal preparation/eating, ambulating and toileting.
The Schedule requires that the applicant must have sustained injuries as a result of the motor vehicle accident that prevent them from doing self-care, activities such as those noted above. A registered nurse or occupational therapist must certify that: attendant care is required; the type and cost of care required; and the duration of the services required.
The provisions also stipulate a maximum of $3,000 per month, if the insured person did not sustain a catastrophic impairment as a result of the accident. The documents provided include an application for accident benefits (OCF-1) dated May 29, 2015, as well as an incomplete application for determining catastrophic impairment (Form OCF-19), dated November 11, 2015.
A medical Assessment of Attendant Care Needs, Form 1, completed by a registered nurse or an occupational therapist, must accompany an application for attendant care benefits. The Form 1 provided is dated September 28, 2015 and is completed by occupational therapist Jalap Bode. The type of assistance indicated in the Form 1 is well beyond the capabilities of a one-year old infant before or after the accident in question. The activities noted include, dressing, undressing and feeding.
Evidence/Submissions:
There is no dispute that the applicant’s mother was involved in 2 previous motor vehicle accidents on August 9, 2012 and on September 24, 2013. The applicant argues that her mother was recovering from the latter accident and was vulnerable at the time she became involved in the accident in question on July 19, 2014. The evidence provides no indication that the unborn fetus was impacted by the accident in question.
Pre- accident ultrasound evidence of June 19, 2014 notes the applicant’s mother as being at risk of premature birth because of a short cervix. This is also confirmed by her mother’s gynecologist, Dr. Hew, in a note prior to the accident in question.
The insurer submits that the accident was a “minor fender bender.” The vehicle was rear-ended at low speed while at a stop; and according to their file, there was only a scratch to the vehicle, the cost for repair was $703.20 and replacement parts cost $32.09.
The applicant’s mother was taken from the scene of the accident by ambulance to Brampton Civic Hospital where she was assessed and discharged from the hospital. On two subsequent occasions on July 21 and 22, 2014 the applicant’s mother returned to hospital for assessment due to pregnancy related concerns; and was discharged as there were no risks/concerns assessed regarding the then, unborn applicant.
On September 15, 2014, the applicant’s mother was taken to hospital again by ambulance due to ongoing pregnancy issues. The applicant was born at “2252” (10:52 p.m.) on that occasion, 2 months before her due date. Other than a notation that the applicant was born prematurely (projected birth date was November 4, 2014), there are no deficiencies or developmental issues noted in hospital records provided. The applicant spent approximately 3 weeks in neonatal care before joining her mother at home.
The applicant’s mother became concerned about recurring episodes of swallowing, and what her mother believed to be choking when the applicant, who was breast-fed, consumed formula or other solids.
Due to her mother’s concern about the above symptoms, the applicant was examined by various health care providers, including gastroenterologist(s). On December 19, 2014, the applicant was assessed by health care practitioners at Sick Kids Hospital. There is no indication that the health practitioners were concerned about her condition or that they related it to the accident which had occurred 2 months before her birth.
During the visit to Sick Kids Hospital, the applicant was observed while feeding to have “spitting up, reflux.” A diagnostics imaging report notes that the applicant’s “gastric contour is within normal limits, and the stomach emptied readily into a normal-appearing pylorus and duodenal bulb.” The report notes that no further visits to the hospital were necessary.
In June of 2015, the applicant travelled with her mother to Nigeria to visit an ailing grandparent. There is no evidence of there being concerns about the applicant’s condition during her 2-month visit. In September of that year, the applicant’s pediatrician, Dr. Stuart Gordner, recommended continued Personal Support Worker (PSW) assistance. He also notes that the applicant’s mother refused medication for GERD and that despite the condition “she (the Applicant) appeared to be normal in all areas of activities, weight gain, development.”
The respondent point outs that the record shows that after her birth the applicant was assessed by her pediatrician on October 2, 2014. She was found to be healthy, and her mother was assessed as being without any after birth deficiencies or abnormalities.
As well, the Sick Kids Hospital GERD diagnosis of December 2014 indicates there were no worrying signs of “aspiration (choking, twisting of intestine, coughing or distress).” Her hospital discharge recommendations were to consider increased dosage of Domperidone to 7 mg. and “perhaps use a wedge to elevate the head of her bed.”
The respondent also points out that the evidence presented shows that since the diagnosis of GERD, the applicant’s condition has remained non-serious, not requiring medication or treatment. The GERD has not impacted her growth, development or milestones and she has consistently been found to be healthy child by all of her doctors and assessors.
For example, documents provided include an April 13, 2015 neonatal follow-up assessments by Dr. Mennie which indicates the applicant was “doing well developmentally…;” the natural evolution of GERD over time is explained; and August 31, 2015 notes indicate there was no need for concern about sudden death syndrome as it was uncommon in children of the applicant’s then age.
In March 16, 2016 the applicant was taken to North York General Hospital due to concerns about vomiting and reflux related issues. She was assessed by a pediatric surgeon, and discharged with a prescription for medication to address her symptoms. The North York General Paediatric Surgeon also explained that the applicant’s symptoms “should resolve spontaneously as she gets older.”
Causation arguments:
The applicant takes the position that because of prior accidents including September 24, 2013, her mother was vulnerable, and the accident in question contributed to the applicant’s premature birth and subsequent development of GERD; even if in a minor capacity.
The applicant argues that as indicated in the submitted tort court decisions, causation should reasonably be inferred if there is no solid evidence, in a case such as this, where direct medical evidence is not available. Accordingly, the applicant claims the Tribunal must implement a common-sense approach, and consider the potential material contribution, as opposed to a strict scientific precision in determining causation. She also claims that the “but for” the accident test to determine her premature birth and subsequent GERD disorder is inappropriate in this case.
The respondent on the other hand denies the applicant’s claim, and maintains that the applicant failed to meet her burden of proof that on a balance of probabilities the motor vehicle accident is connected to or contributed to the premature birth or GERD. On the contrary, the respondent maintains that the evidence indicates the opposite. The respondent also disputes the applicant’s claim that causation should be inferred if there is no solid evidentiary connection; and it submitted case law to support its position.
In making my findings, I have considered both arguments, along with the relevant evidence in this decision.
Analysis:
Did the Accident of July 19, 2014 cause or contribute to the Applicant’s premature birth?
The applicant bears the burden of proving that on a balance of probabilities the accident of July 2014 caused her impairment – namely her premature birth and subsequent GERD condition. Having considered the relevant evidence provided, I do not find that on a balance of probabilities, the accident caused or contributed to the Applicant’s premature birth, 2 months later or the subsequent development of GERD impairment.
The evidence indicates that the applicant’s mother was medically examined and discharged after the accident in July 2014. There is no evidence that there were concerns about the health or development of the then unborn child; notwithstanding that her mother was directed to rest likely, to reduce potential risk of harm.
At birth, 2 months later, the applicant was noted as being a healthy child, there were no deficiencies or abnormalities, and from all accounts she continued to develop normally at the same level as her peers including in the area of weight gain.
The fact that the applicant was born two months after the accident instead of shortly thereafter does not imply nor support the likelihood that her birth was connected to or brought on by the accident.
An article written for an American medical journal in 2013, submitted by the applicant indicates pregnancy outcomes related to accidents are unknown. However, the article also goes on to state that, “motor vehicle crashes are a leading cause of serious trauma during pregnancy, but little is known about their relationships with pregnancy outcomes.”
A paper review report of October 2016 by obstetrician Pairaudeau provided, observes that there are many factors that contribute to premature birth. The report also points out that the consensus among obstetricians is that, if a motor vehicle accident is a contributing factor, premature birth would likely start “shortly after the event”, likely within days. At the same time, Dr. Pairaudeau indicates that the applicant’s mother’s short cervix may have been due to the motor vehicle accident. However, the pre-accident ultrasound evidence of June 19, 2014 noted above, assesses the applicant’s mother as being at risk of premature birth because of a short cervix.
Had the premature birth started within days of the accident, I would find the argument that the accident been may have been a contributing factor, to be the more persuasive. Especially since emergency hospital examination records immediately following the accident show no harmful effects on the pregnancy/the unborn applicant, who was born 2 months after the event.
Nothing in the evidence provided would lead me to believe that the applicant’s healthy, premature birth was any different from any other premature birth of children who were not involved in an accident during gestation. There is simply no evidence that her earlier than expected birth was connected to the motor vehicle accident.
In determining causation, the applicant rejects a strict “but for” approach in this case. The ‘but for’ test requires the applicant to prove that ‘but for’ the accident she would not have suffered the impairment which forms the basis of this claim for attendant care benefits. Instead, the applicant contends that the more reasonable test applicable here is that the accident ‘materially’ contributed to her premature birth, and consequentially the GERD impairment.
Based on the evidence before me, including the fact that the applicant was born 2 months after the accident, the applicant has not proven, on either the “but for” or “material contribution” test that her impairment was caused by the accident.
Was the choking and swallowing episodes (GERD) caused by the premature birth?
Nothing in the evidence before me would lead me to make a finding that the applicant’s GERD condition was an impairment which resulted, directly or indirectly from the accident.
I was not presented with any medical evidence connecting the GERD condition to the premature birth and by extension, the accident. The applicant argues that the Tribunal should infer from scientific literature and case law involving tort cases provided that her GERD condition was due to the premature birth.
In fact, the evidence indicates that GERD is an unexplained, common occurrence among infants, as a large percentage of infants tend to develop the condition, similar to that of the applicant.
The paper review IE Report by Pediatrician Marvin H. Gans, of August 19, 2016 indicates that GERD has been reported in 40-65 percent of healthy infants but decreased to 1% by one year of age. He states that the peak regurgitation problem period appeared to be at 6 months old. Dr. Gans also observes that “[m]ost infants outgrow this condition. Treatment options include reassurance, elevating the head of the bed, thickening feedings…The typical symptoms are spitting, some vomiting, choking.”
The applicant claims that that Dr. Gans’ report is not admissible because the applicant was not notified of the IE by the insurer. I reject this argument based on the insurer’s detailed, evidence indicating that the applicant failed to submit to multiple scheduled IEs although properly notified of same, and as a result the insurer had to resort to a paper review.
I am satisfied based on the evidence before me that the applicant was aware that the clinic notifications were for insurer examinations. The applicant cannot willfully circumvent the process by failing to undergo the examinations on the grounds that the notifications were not commissioned by the insurance company.
Therefore, to the extent that the assessment provides a general, medical understanding of GERD, I find it reasonable to consider Dr. Gans’ assessment in making my findings.
Additionally, various medical records provided indicate that the applicant continued to gain weight, develop normally, with occasional vomiting, choking without change of colour, and the medical prognosis was that she would likely outgrow the GERD condition. Her 18 month- assessment/ screening report indicates no deficiencies/concerns and that the applicant was developing normally, had gained weight was walking and could speak at least 20 words.
Medical evidence/tests of 2015 also indicate no abnormalities in the applicant’s intestines or digestive functioning and as predicted, for most infants diagnosed with GERD, the applicant has apparently outgrown the condition.
The only reasonable conclusion to be drawn here is that, similar to other healthy infants, the applicant, for no specific medical or scientific reasons, developed GERD which she eventually outgrew, similar to other children. I find no reasonable grounds for making a finding, that on a balance of probabilities, the applicant developed GERD as a result or her premature birth or that the condition is generally a consequence of premature birth.
Is the Applicant entitled to the Attendant Care benefits claimed?
I have already found no connection between the applicant’s premature birth and the subsequent GERD, to the accident.
Further, there is no evidence of medical practitioners or otherwise suggesting or requesting special attention, constant supervision or specialized care for the applicant beyond what was normally expected of the mother of an infant/new born with GERD conditions. The evidence provided indicates that sometime after the GERD diagnosis, the insurer provided a monitoring device; which in my view was adequate under the circumstances.
I find no evidence to support the applicant’s claim for attendant care benefits as contemplated by the Schedule
Special Award
- The applicant is seeking a payment as a result of the insurer unreasonably withholding or delaying payments pursuant to section 10 of Ontario Regulation 664. As I have found that no benefits are owing to the applicant, I do not need to address this claim.
Should costs be awarded?
Both parties are seeking costs in this matter.
The Licence Appeal Tribunal Rules of Practice and Procedure (the “Rules”) include a provision in Rule 19.1 for parties to request costs if they believe that the other party has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.4 sets out the requirements for that request, which must include the reasons for the request and the particulars of the alleged conduct.
The applicant has not provided any particulars of the respondent’s conduct that would warrant costs in this case.
With regards to the respondent’s claim, I have declined to order costs as the respondent has not provided any evidence that amounts to unreasonable, frivolous, vexatious, or bad faith conduct “within the proceeding” on behalf of the applicant.
Conclusions/Findings:
Based on the relevant evidence provided, I find no grounds that would lead me to make a finding that on a balance of probabilities, the applicant’s premature birth was caused by or contributed to, by the motor vehicle accident; or that the applicant’s GERD impairment is connected to her premature birth/the accident.
As such, I find no merit in the applicant’s claim that she is entitled to the benefit claimed in this application.
The Tribunal orders that:
- The application is dismissed.
Released: February 23, 2017
___________________________
Claudette Leslie, Adjudicator