R.D. v. Wawanesa Mutual Insurance Company, 2017 CanLII 69453

Licence Appeal Tribunal

Date: 2017-09-28

Tribunal File Number: 16-001535/AABS

Case Name: 16-001535 v Wawanesa Mutual Insurance Company

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

R. D.

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Ruth Gottfried

APPEARANCES:

For the Applicant: Michael Wade, Morse Shannon LLP

For the Respondent: Lori Castellucci, Bell Temple LLP

HEARD in person: March 21, 2017

REASONS FOR DECISION AND ORDER

OVERVIEW:

1On September 16, 2013, the applicant’s husband (“H.S.”) was involved in a motor vehicle accident. A car coming in the opposite direction made a left hand turn in front of H.S.’s car. He had no opportunity to avoid the collision and his car was struck on the front driver’s side, causing it to roll over. The air bags were deployed.

2Following the accident, he did not seek medical attention at the scene. He arranged to have his car towed to an auto repair shop where he met with his brother-in-law, G.N. G.N. left H.S. for a few moments to speak with the auto repair staff and when he returned, he found H.S. “face up on the ground” and “unresponsive”. An ambulance was called and H.S. died at the hospital within approximately one hour of his arrival.

3A post-mortem examination was performed and it was discovered that H.S. had a 95% occlusion in the proximal left anterior descending coronary artery.¹ The Coroner’s report stated, among other things, that the cause of H.S.’s death was Atherosclerotic Coronary Artery Disease (“CAD”).

4H.S.’s wife, R.D. (the “applicant”), and children, A.D. and S.D., submitted a Death and Funeral Benefits Application (OCF-4) to the respondent, Wawanesa Mutual Insurance Company (“Wawanesa”), on November 10, 2015. Wawanesa denied the benefits in correspondence dated November 18, 2015. It confirmed the denial in an explanation of benefits sent to the applicant dated November 23, 2015.

5On July 13, 2016, the applicant filed an Application for Auto Insurance Dispute Resolution at the Licence Appeal Tribunal (the “Tribunal”) with respect to the denied request for statutory accident benefits. A case conference was held on October 20, 2016. As the parties were unable to resolve the issues, this hearing was scheduled.

THE ISSUES IN DISPUTE:

6The issues in dispute are:

a. Was H.S.’s death a direct result of an accident as defined in section 3(1) of the Statutory Accident Benefits Schedule — Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”).

b. Is the applicant entitled to spousal death benefits?

c. Are H.S.’s children, A.D. and S.D., entitled to dependant death benefits?

d. Are funeral benefits payable?

e. Are the applicant, A.D. and S.D. entitled to interest on all overdue benefits calculated pursuant to section 51 of the Schedule?

f. Is the applicant entitled to her costs of this application?²

g. Is Wawanesa entitled to its costs of this application?³

7At the hearing, Wawanesa advised that it does not dispute the date of the accident or that H.S. died a few hours after the accident. They also advised that if there is a decision that his death was a result of the accident, they do not dispute the payment of the amount of the benefits.

THE POSITIONS OF THE PARTIES:

8Both parties admit that CAD was listed as the cause of death on the Coroner’s report. It is the applicant’s position that H.S. had an underlying and previously asymptomatic and untreated CAD, which was triggered by the extreme stress caused by the accident. The applicant argues that since the accident is the triggering event that caused the death, H.S.’s family is entitled to death and funeral benefits as his death is a direct result of the accident.

9It is Wawanesa’s position that the death of H.S. did not result from an incident in which the use or operation of an automobile directly caused an impairment, as per section 3(1) of the Schedule. Its position is that H.S. “would have inevitably suffered from a cardiac event independent of the MVA, due to the widow-maker’s lesion”.⁴ As such, the death does not meet the requirement of sections 26 and 27 of the Schedule and the applicant is not entitled to the death and funeral benefits claimed.

RESULT:

10For the reasons below, I find that:

a. the death of H.S. was a direct result of the accident on September 16, 2013;

b. the applicant, A.D. and S.D. are entitled to death and funeral benefits as provided in the Schedule;

c. the applicant, A.D. and S.D. are entitled to interest on the above-noted benefits pursuant to the Schedule; and,

d. neither the applicant or Wawanesa are entitled to costs.

ANALYSIS:

11Current jurisprudence references a two-part test to determine whether an incident is an “accident” as defined in the Schedule. The two-part test involves a purpose test and a causation test.⁵

12The applicant must establish that the incident arose from the ordinary use or operation of the vehicle (the purpose test); and that there was no intervening act(s) that resulted in the injuries that cannot be said to be part of the ordinary course of things. In other words, the question (under the causation test analysis) is whether it could be said that the use or operation of the vehicle was a “direct cause” of the applicant’s injuries.

13There is no apparent dispute between the parties with regard to the purpose test. It is not disputed that an accident occurred during the ordinary operation of a vehicle. The parties’ dispute arises under the causation analysis: whether or not H.S.’s death was as a direct result of the ordinary use of a vehicle. [emphasis added]

14Justice Labrosse, in Greenhalgh,⁶, suggests a three-prong test that can be useful guidance in determining the issue of causation:

15Prong 1: the “but for” test. Under the “but for” test, Wawanesa relies heavily on the reports of the Coroner and on the expert report submitted by Dr. Robert Myers, a cardiologist. Dr. Myers states, “it is clear that H.S. would have inevitably suffered from a cardiac event independent of the MVA.”⁷

16Dr. Harry Rakowski, a cardiologist retained by the applicant, provided an expert report, an affidavit, as well as oral testimony in relation to the cause of death of H.S. Dr. Rakowski pointed out at the hearing that Dr. Myers’ statistical information is without reference to any scientific papers.

17Dr. Myers writes several paragraphs about statistical longevity after a heart attack, which is not relevant to this case as H.S. did not suffer a prior heart attack⁸. Dr. Myers also relates that H.S. complained of neck pain prior to the MVA. He notes, “this is a symptom compatible with unstable angina. If [emphasis added] the symptom was angina, the likelihood of sudden death was even greater in the absence of the MVA.”⁹

18Dr. Myers has based his argument on a faulty premise, and unfortunately, Wawanesa has relied on it. I accept as a true fact that neck pain is a symptom compatible with unstable angina. However, as Dr. Rakowski stated at the hearing, neck pain has many causes and if it were angina, it would have had to be an atypical symptom. In men, chest pain or shortness of breath with exertion would be more typical presentations of angina – none of which was identified in H.S.’s medical records.

19Wawanesa submits that due to H.S.’s underlying condition of CAD, he was likely to experience sudden death regardless of the accident. As support for this proposition, it cites the Coroner’s findings that H.S. died of “natural causes” and sustained no other significant traumatic injuries. Wawanesa also submits that the Coroner “confirmed that there was no direct causal relationship between the accident and H.S. death.”

20I find Wawanesa’s quotations from the Coroner’s report to be somewhat disingenuous. A more fulsome reading of the report¹⁰ notes the Coroner found hemorrhagic gastropathy present during the autopsy,¹¹ indicating recent stress. Under the heading of “contributing factors”, the Coroner has listed “stress from recent motor vehicle traffic crash”.¹² The Coroner concludes with the statement: “[a]lthough the motor vehicle accident did not cause significant traumatic fatal injuries, it may have played a role in inducing stress, as confirmed by the hemorrhagic gastropathy, however a direct causal relationship cannot be established.”¹³.

21Dr. Rakowski addressed this issue at the hearing by stating that a coroner cannot make inference statements about life – because an autopsy only views tissue after death. It seems to me that the Coroner’s words are important in this context. He has not said that there is NO direct causal connection as Wawanesa suggests. Rather, the Coroner has actually said he cannot establish one because he cannot opine on the amount of stress H.S. suffered and how it affected him.

22It is Dr. Rakowski’s opinion¹⁴ that “[o]n the balance of probabilities, the stress that [H.S.] sustained at the time of and following his collision triggered myocardial ischemia (inadequate blood flow to the heart) and a fatal arrhythmia.”

23During his testimony, Dr. Rakowski explained that, under resting conditions, H.S. would have been receiving enough blood flow from the other arteries that supply the heart muscle so he would not experience angina or a heart attack – under resting conditions, there is enough blood flow. “However, if your heart rate and blood pressure go up, which would happen in a motor vehicle accident, especially when you have air bags deploy – there are increased demands of the heart muscle, which leads to ischemia (insufficient supply of blood to the heart muscle). This ischemia can show up as chest pain.”¹⁵

24G.N. testified that H.S. had complained of some chest pain that he [H.S.] thought had been caused by the deployment of the air bag.

25In his testimony, Dr. Rakowski explained the timeline that was likely involved in H.S.’s death: a highly stressful situation (the accident) occurs and there is an increase in blood pressure and heart rate, which is a typical response to stress (fight or flight). As a result, there is a greater demand put on the heart muscle that cannot be supplied by the narrowed artery. Myocardial ischemia occurs when blood flow to your heart is reduced, preventing it from receiving enough oxygen. The heart becomes ‘irritable’ (electronically). In this scenario, ventricular fibrillation or ventricular tachycardia can occur. We know that H.S. had fibrillation before death. Then death occurs in a period of time afterward with chest pain. Dr. Rakowski went on to clarify that H.S.’s death was a “cascade” triggered by the accident. Further, degree of stress cannot be determined by an autopsy because an autopsy only views tissue after death.

26Wawanesa has relied on an incomplete reading of the Coroner’s report and Dr. Myers’ report, adopting the position that since H.S. suffered from CAD (although asymptomatic and undiagnosed) and had no other injuries as a result of the accident, H.S. does not meet the “but for” test, as he was likely to suffer a fatal heart attack anyway.

27I found Dr. Rakowski to be a helpful witness. He explained complex medical terminology and concepts in clear, lay terms. He submitted and quoted from several scientific papers dealing specifically with the issues in this case, and I gave more weight to his findings than to Dr. Myers’.

28Dr. Rakowski, Dr. Myers and the Coroner were in agreement that stress from the accident could cause H.S.’s death and that his death was temporally linked to the accident. As Dr. Rakowski pointed out: “if you get hit on the head with a hammer and die of brain injuries – being hit on the head with the hammer is temporally related to the brain injury.”

29For all of the above reasons, I agree with the applicant’s position that the accident directly caused the trigger that initiated the cascade of events ending with H.S.’s death. I believe that this case is an example of the “thin skull rule” in law and not the “crumbling skull”.

30Prong 2: an intervening cause that may serve to break the link of causation where the intervening events cannot be said to be part of the ordinary course of use or operation of the automobile.

31In its submissions, Wawanesa relies on the “Waters”¹⁶ case. In this case, Mr. Waters died after having a heart attack while driving. After suffering the attack, his car collided with a pole at a slow speed. Wawanesa points out that in the Waters case the heart attack “represents the intervention of a force that stems from a "new and independent source effectively breaking the chain of causation.”¹⁷

32I agree with Wawanesa‘s position on the Waters case. However, in the case before me, as the applicant shows, the facts in Waters are distinguishable. The fact that Mr. Waters had a heart attack while driving [emphasis added] does, in my opinion, constitute an intervening cause, not part of the ordinary course or use of operation of the automobile, that breaks the link of causation.

33The applicant argues that the motor vehicle accident and resulting stress triggered myocardial ischemia and a fatal arrhythmia. She also notes that neither party has claimed or put forward evidence that a myocardial ischemia occurred prior to the subject motor vehicle accident.

34I find that the applicant’s position is supported by the medical evidence and the testimony of Dr. Rakowski, and I agree.

35In Waters, the arbitrator applies the Black’s Law Dictionary definition of “direct cause”, which I believe more readily supports the applicant’s position in the case before me:

The active, efficient cause that sets in motion a train of events which brings about a result without the intervention of any force started and working actively from a new and independent source.¹⁸

36I believe the “train of events” referred to in the Black’s Law definition is analogous to the “cascade of events” referred to by Dr. Rakowski in his testimony.

37All of the evidence before me indicates that the accident occurred during the ordinary use and operation of a motor vehicle. There are specific notations by all doctors that there was no thrombosis [blood clot] causing a heart attack. As Dr. Rakowski illustrated, H.S.’s death had an unbroken causal chain as follows:

a. H.S. is involved in a car accident where his car actually rolls over;

b. on a balance of probabilities, it is unanimously accepted by Drs. Rakowski and Myer and the Coroner, that H.S.’s body goes into a stress response mode;

c. H.S. has evidence of hemorrhagic gastropathy indicating recent stress [a factor that Dr. Myer does not mention];

d. his heart requires more oxygenated blood, which it cannot get because the main artery is almost completely blocked, and that sets off a fatal arrhythmia.

38Therefore, on the second prong of the causation test, I do not agree with Wawanesa that there was an intervening event that broke the chain of causation. I find that the applicant has shown that the chain of causation ended with the arrhythmia and death and began with the motor vehicle accident.

39Prong 3: was the use or operation of the automobile the dominant feature of the incident?The

40The applicant has the onus to prove that the use and operation of the vehicle was directly responsible for the injuries. Although neither party independently addressed this prong of the causation test, each has included their positions in their submissions on the other aspects of the causation test.

41I therefore find that based on my reasoning for the other portions of the causation test, the applicant has fulfilled her onus to prove that the use and operation of the vehicle was directly responsible for H.S.’ death.

COSTS:

42In the last paragraph [20] of her submissions, the applicant requested the recovery of costs for this hearing. In the last paragraph [39] of Wawanesa’s submissions, it requested a dismissal of the application with costs.

43Costs may be awarded under Tribunal rule 19.1:¹⁹

Where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs.

44Wawanesa did not make submissions on the issue of costs other than as noted above.

45The applicant argued that she should be entitled to costs for the following reasons:

a. Wawanesa did not present sufficient evidence to mount a genuine defence.

b. Wawanesa claimed H.S.’s death occurred independently of the subject motor vehicle accident.

c. Delivery of Dr. Myers’ report did not comply with Tribunal Rule 6.6.

d. The nature of Dr. Myers’ report is such that it provides irrelevant and misleading information.

46I find that none of the reasons provided by the applicant are indicative of unreasonable, frivolous, vexatious or bad faith behaviour on the part of Wawanesa. Further, the applicant has not shown that any prejudice arose out of the timeliness of the delivery of Dr. Myers’ report.

47I therefore do not award costs to either party.

CONCLUSION:

48In my view, there was a clear and distinct chain of events, forming one incident without an intervening act outside the normal use and operation of a motor vehicle.

49This distinguishes the applicant’s case from cases where death has occurred in a vehicle, prior to an accident.

50For all of the above reasons, I find that H.S.’s death was a direct result of a motor vehicle accident, as defined in section 3(1) of the Schedule. It therefore follows that the requirements of sections 26 and 27 of the Schedule have been met and H.S.’s widow and children are entitled to both death and funeral benefits as defined by the Schedule.

ORDER:

51Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs that:

52Wawanesa shall pay the following:

a. A death benefit to the applicant, A.D. and S.D, pursuant to section 26 of the Schedule.

b. A funeral benefit to the applicant pursuant to section 27 of the Schedule.

c. Interest on the above-noted benefits pursuant to section 51 of the Schedule.

53Neither party shall be awarded costs.

54If the parties cannot determine the amount of interest, either party may make a motion to the Tribunal under Rule 15 for a decision.

Footnotes

1. 1Report of Post-mortem Examination, page 3.
2. 2Raised by the applicant in her submissions dated February 17, 2017.
3. 3Raised by Wawanesa in its submissions dated March 3, 2017.
4. 4Wawanesa submissions, para. 18.
5. 5This two-part test was originally formulated in the Supreme Court case of Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (SCC), [1995] 3 SCR 405 (SCC) (“Amos”). The test required that both a purpose test and causal link must be applied to the analysis of an accident causing impairment. While the purpose test has remained relatively constant, the causation test has undergone substantive change. The current causal test was restated in Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA), [2002] O.J. No. 3135 and followed in most cases since Amos, particularly in three Ontario Court of Appeal decisions: Greenhalgh v. ING Halifax, 2004 CanLII 21045 (ON CA), (“Greenhalgh”), Martin v. 2064324 Ontario Inc., 2013 ONCA 7145 and Economical Mutual v. Caughy, 2016 ONCA 226.
6. 6Greenhalgh, para. 12.
7. 7Dr. Robert Myers, Cardiologist, Expert Report dated March 3, 2017, page 2.
8. 8Myers’ report, page 3.
9. 9Myers’ report, page 4.
10. 10Coroner’s Investigation Statement (“CIS”), dated March 4, 2014, page 2.
11. 11Autopsy performed September 17, 2013.
12. 12CIS, page 1.
13. 13CIS, page 2.
14. 14Report of Dr. Harry Rakowski, dated September 7, 2014, page 5.
15. 15Testimony at hearing, March 21, 2016.
16. 16Waters v. Royal & SunAlliance Insurance Company of Canada, FSCO A00-001143, October 18, 2001.
17. 17Wawanesa’s submissions, March 3, 2017, page 7, para. 34.
18. 18Waters, page 4.
19. 19Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016).