S.F. v. Allstate Canada, 2019 CanLII 94120

Licence Appeal Tribunal

Tribunal File Number: 18-005001/AABS

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:

S.F.

Applicant

and

Allstate Canada

Respondent

AMENDED - PRELIMINARY ISSUE DECISION

ADJUDICATOR: Robert Watt

For the Applicant: K. Yazdani Counsel

For the Respondent: Diana M. Oliveira Counsel

Heard: In Writing March 28, 2019

OVERVIEW

1The applicant’s husband, (MG), was a 49 year old father who was involved in an automobile accident on May 28, 2017 and passed away on June 5, 2017. The application is brought on behalf of his wife, who made a claim to Allstate for death and funeral benefits pursuant to the Statutory Accident Benefits Schedule – Effective June 1, 2016 (the ''Schedule''). The applicant was denied certain benefits by Allstate on the basis that the applicant’s death was not caused by the accident as defined by the Schedule.

ISSUES IN DISPUTE

Preliminary issue

2The respondent raised the following preliminary issue:

i. Was the incident an accident pursuant to section 3(1) of the Schedule? In particular, did MG die as a result of the motor vehicle accident?

RESULT

3I find that MG’s death was not caused by the accident.

BACKGROUND

4On May 28, 2017, MG was driving north on lower Jarvis Street in Toronto. He had stopped at an intersection when his car was hit from behind. No air bag was deployed. He was transferred to St. Michael’s Hospital where he was treated and released the same day. He advised the police that “he had chest pain, felt like hit by hammer from behind, had a sore neck and body, and feeling dizzy for a few seconds”.

5The Ambulance Call Report indicated that the damage was minimal and the speed of the impact low¹.The report indicated that MG complained of slight chest heaviness which radiated to his shoulders and left hand. The report also noted that MG indicated “that he had these chest pains several times before, but never visited a hospital to have it checked out.” Further, he had not hit his head and had no current bleeding. There was no diagnosis of any concussion.

6The St. Michael Hospital Emergency Nursing Assessment Report dated May 28, 2017 noted that MG reported no injuries but had some pain in his shoulders which the applicant rated on a scale of 10 being 4/10.²

7On June 1, 2017, MG was admitted to Major Mackenzie Hospital in Richmond Hill and was transferred to the Intensive Care Unit for blood pressure control. He was pronounced dead on June 5, 2017, at the hospital.

Medical History

8MG had a pre-accident history of Diabetes and Hypertension³. On June 24, 2015, he had one episode of Supraventricular Tachycardia (SVT).⁴ He attended at the emergency department at Humber River Hospital and reported chest pains and dizziness. He underwent an Electrocardiogram which results were abnormal. The diagnosis was SVT.” Dr. Tiong recommended AV blocking agents and to consider an ablation.

9MG attended on July 20, 2015 at the Cardiology Clinic at Humber River Hospital and saw Dr. Tiong. The doctor noted that MG’s past medical history included hypertension and new onset narrow complex tachycardia.⁵

10MG saw Dr. Tiong on May 9, 2016. Dr. Tiong prescribed Losartan for elevated blood pressure and Bisoprolo to control his blood pressure. MG did not accept the suggested medical treatment recommended by his doctor, Dr. Tiong⁶

11On June 1, 2017, three days after the accident, MG was not feeling well and fell on the way to the washroom. His son called 911 and he was taken to the Emergency Department at Mckenzie Health Hospital in Vaughan. A CT scan of his head showed a bleed on the Right Thalamus and an x-ray of his chest showed a slightly enlarged heart. His blood pressure was assessed as high and remained high despite the medication given to him. He was admitted to ICU for blood pressure control.⁷

12On June 2, 2017, MG had another CT scan showing an unchanged bleed and a CT angiogram which was normal.⁸

13On June 5, 2017 MG did not feel well and had difficulty breathing. He was placed on a non-rebreather mask with 100% oxygen. His blood pressure dipped. An ECG and chest x-ray were done and were unremarkable. He had a bradycardiac arrest and was put on life support measures.⁹

14The Hospital prepared a Discharge/Death Summary which indicated that his level of consciousness deteriorated and he became short of breath due to a possible expansion of a bleed or PE (pulmonary embolism) and that he went into cardiac arrest and could not be revived.¹⁰

15The Coroner’s Report dated June 7, 2017 noted the cause of death being pulmonary thromboemboli as a consequence of bilateral deep vein thrombosis due to recent immobility because of an acute hemorrhage in the right thalamus.¹¹

16Dr. Sharma on October 18, 2017 prepared a Death Determination Opinion based on a file review. He opined that MG’s cause of death was due to his right thalamic bleed and that the cause of death was directly related to his condition of poorly controlled hypertension.¹²

ANALYSIS

17For the reasons that follow, I do not find that the motor vehicle accident caused MG’s death.

18Section 26 of the Schedule requires the insurer to pay a death benefit in respect of an insured person, if he or she dies as a result of an accident. Section 3(1) of the Schedule defines accident as an incident in which the use or operation of an automobile directly causes an impairment.

19The applicant’s position is that the accident triggered the death of MG by adding stress to MG’s current medical problems, which resulted in his death.

20The respondent’s position is that the accident did not cause MG’s death. MG would have suffered from a cardiac event independent of the accident because of his medical history.

21Section 3(1) of the Schedule defines the term “accident” as follows:

“accident” means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture hearing aid, prosthesis or other medical or dental device.

22The two-part test to determine whether the applicant was involved in an accident was originally set by the Supreme Court of Canada in Amos v Insurance Corporation of British Columbia (1991) 3 S.C.R. 405. The two part test includes a purpose test and a causation test.

23The purpose test asks: did the accident result from the ordinary and well known activities to which automobiles are put? In Amos, a direct or proximate casual relationship was not necessarily required between the plaintiff’s injuries and the ownership or use or operation of a vehicle. However the test in the SABS today requires a direct cause between the insurer’s injury and the use and/or operation of a vehicle.

24The causation test asks: Was the use or operation of the vehicle a cause of the injuries? If the use or operation of a vehicle was a cause of the injuries, was there an intervening act or intervening acts that resulted in the injuries that cannot be said to be part of the ordinary course of things? In that sense can it be said that the use or operation of the vehicle was a “direct cause “ of the applicant’s injuries?¹³

25Based on the recent decision of the Divisional Court in Sabadash v State Farm¹⁴, a proper understanding of causation means that it is not correct for an adjudicator to simply choose between the “but for” test or the “material contribution test” or apply both of them without saying which one applies over the other depending on the facts of a benefits dispute. Rather, as Justice Thornton makes clear, the primary test to be applied in determining causation is the “but for test” and only in rare and exceptional circumstances is the material contribution test applied. I am bound by this decision and the “but for” test remains the legal test for causation at this time.

26There is no dispute between the parties with regard to the purpose test. It is not disputed that the accident occurred from the ordinary use of the vehicle. The issue that remains is whether the operation of the vehicle was a direct cause of the applicant’s injuries.

27MG fell on the way to the washroom on June 1, 2017. There are no specific details provided by the applicant surrounding the fall. However, the hospital records for the first time show a bleed in the right thalamus. This is part of the Coroner’s Report and the Report of Dr. Sharma, as part of the reasons for the death of the applicant. There are no medical reports indicating any bleed resulted from the accident. The applicant admitted that he did not hit his head in the accident.

28I find that the applicant’s medical history clearly indicates, along with his fall, an intervening and dominant cause of the applicant’s death.

29I draw the same conclusions as set out in both the Coroner’s report and Dr. Sharma’s report that the MG’s death was a result of his pre-accident medical issues, and the bleeding which occurred from the fall on June 1, 2017.

30The applicant left the car after what appeared to be a low impact accident with minimal damage, as set out in the Ambulance Call Report. The applicant was released from the hospital the same day.

31The applicant’s medical history is important as it shows that the applicant had diabetes, hypertension, chest pains and onset narrow complex tachycardia pre-accident. The Coroner’s report and Dr. Sharma’s report did not relate the death of MG to the accident, but related the death as a consequence of bilateral deep vein thrombosis due to recent immobility because of an acute hemorrhage in the right thalamus. The applicant did not hit his head in the accident but ended up with an expansion of a bleed or PE (pulmonary embolism) in his head. This would be a result from his health issues, including the fall. There is not enough evidence, on a balance of probabilities before me to show that the applicant’s death was a result of the stress of the accident, which is the argument of the applicant.

32I accept the medical findings of the Coroner’s report and of the report of Dr. Sharma as to the cause of death. There is no other medical evidence before me to show otherwise.

33I make no order as to costs, as there is no evidence before me that any party has acted unreasonably, frivolously or in bad faith, as required by the LAT Rules, Rule 19.

ORDER

34The application is therefore dismissed.

Footnotes

1. 1Ambulance Call Report
2. 2Emergency Record Joint Brief
3. 3Discharge (Death) Summary dated June 6, 2017Joint Brief
4. 4Supraventricular tachycardia (SVT) is an abnormally fast heart rhythm arising from improper electrical activity in the upper part of the heart.
5. 5Clinical notes and records of Dr. Mohammady.
6. 6Ibid
7. 7Emergency Consultation report of Dr. Plenk dated June 1 2017
8. 8CT of Head and CT Angiogram dated June 2, 2017
9. 9Coroner’s report dated June 7, 2018
10. 10Discharge (death) Summary dated June 8, 2017
11. 11Coroner’s Report dated June 7, 2017
12. 12Report of Dr. Sharma dated October 18, 2017
13. 13Downer v The Personal Insurance Company, 2012 ONCA 302, 2012ONCA 302
14. 14Sabadash v State farm et al. ONSC 1121 a proper test