M.A. v. TD General Insurance Company, 2020 CanLII 12730

Citation. M.A. vs. TD General Insurance Company, 2020 ONLAT 18-005141/AABS

Tribunal File Number: 18-005141/AABS

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:

[M.A.]

(By Litigation Guardian, [S.A.])

Applicant

and

TD General Insurance Company

Respondent

AMENDED REASONS FOR DECISION AND ORDER

ADJUDICATOR: Sandeep Johal

APPEARANCES:

Counsel for the Applicant: Samia M. Alam

Kasia Grzybowski (Paralegal)

Counsel for the Respondent: Kevin Temple

Heard in writing on: July 22, 2019

OVERVIEW

1The applicant was injured in an automobile accident on December 28, 2012 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant applied for a non-earner benefit (“NEB”), which was denied by the respondent. He disagreed with this decision and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3The respondent’s position is that the applicant’s injuries were not caused by the accident, but rather, by a pre-existing psychiatric condition.

ISSUES TO BE DECIDED

4The following are the issues I must decide as per the Tribunal’s Order of January 27, 2019:

i. Is the applicant entitled to receive an NEB in the amount of $185.00 per week for the period of November 28, 2013 to date and ongoing?

ii. Is the applicant entitled to interest on any overdue payment of benefits?

5In reviewing the parties’ submissions, I recognize that the respondent has raised the issue of causation and whether the applicant’s injuries were a result of the accident. Therefore, in addressing the central issue above, I will also address the issue of causation.

RESULT

6Based on the totality of the evidence before me, I find that the accident was not a necessary cause of the applicant’s injuries and therefore the applicant is not entitled to an NEB or interest.

POSITION OF THE PARTIES ON CAUSATION

7The applicant submits that he had one episode of psychosis a couple of months prior to the accident but a formal diagnosis of his psychosis was not made until 2013, when his psychosis escalated following the accident and he had multiple hospitalizations.

8The applicant further submits that his s. 25 assessor, Dr. Waisman notes that the accident directly led to the development of a major depressive disorder.

9The respondent submits that the applicant has not provided any reliable evidence showing a link between the subject accident and any worsening of his pre-existing psychiatric condition or causation of new injuries.

ANALYSIS

Causation

10Based on the evidence, I find that, on a balance of probabilities, the accident was not a necessary cause of the impairments from which the applicant is suffering.

11The test to determine causation is the “but for” test, one that provides that causation is a factual determination made on a balance of probabilities.² The applicant must show that he would not have suffered the injuries “but for” the accident. The cause meeting that test need not be the major cause.³

12The respondent submits that, prior to the accident, the applicant was admitted to St. Joseph’s Healthcare in Hamilton between October 22 and 31, 2012, presenting with psychosis with differential between manic episode and schizophreniform disorder.⁴

13The respondent further submits that the applicant has not provided any reliable evidence showing a link between the accident and any worsening of his pre-existing psychiatric condition or the causation of new injures. According to the respondent, the applicant also did not seek any medical attention after the accident and, when the applicant filed the OCF-1 (Application for Accident Benefits) in February 2014, no injuries were specified. The applicant also did not mention the accident to his family doctor until July 2015.

14In reply, the applicant submits that linking the accident to the worsening of his pre-existing psychiatric condition is evident when examined on a whole as there was one hospitalization prior to the accident for one week and all other major hospitalizations occurred after the accident in rapid sequence and for longer periods.

15The applicant further submits that causation was discussed by Dr. Waisman’s report, which notes that the accident directly led to the development of a major depressive disorder.

16I disagree with the applicant for the following reasons.

17According to the Discharge Summary from St. Joseph’s Healthcare, the applicant was more isolated and did not want to go out for three-to-four months prior to his first admission to the hospital in October 2012. He stopped playing soccer, had to leave high school, and seemed stable between October 2012 and May 2013, when he saw friends and played soccer but seemed distractible and did not return entirely to baseline.⁵ The applicant was diagnosed with psychosis NOS, likely bipolar affective disorder or schizoaffective disorder.⁶

18There is no mention of the accident in either of the Discharge Summary reports from St. Joseph’s Healthcare on December 15, 2014 or September 11, 2015. Likewise, neither mentioned the possibility that the symptoms the applicant was experiencing may be related to, or have been exacerbated by the accident.

19Dr. Velikonja, Psychologist, completed a Neurocognitive Competency Assessment Report dated November 21, 2016. In that report, Dr. Velikonja noted that there was no documentation of any objective accounts pertaining to the collision, including any ambulance call reports and/or acute medical records for review.⁷

20Her report notes that the applicant describes hitting his head and developing memory difficulties following the accident but, given insufficient medical records and his vague description of symptoms following the accident, she found it difficult to confirm a concussive injury.⁸ Dr. Velikonja goes onto to state that the applicant demonstrated poor scores across many measures and cognitive domains, including those used to assess crystallized abilities that would not be generally affected by a potential concussion.⁹

21Dr. Velikonja concludes that the applicant’s reported personal history does not match the history described in the medical records or the information provided by his sister. Dr. Velikonja found him to be an unreliable historian.¹⁰ The report concludes that the applicant’s psychological/psychiatric symptoms are most likely significant contributors to his observed cognitive challenges.

22However, the psychological and psychiatric symptoms were pre-existing injuries,¹¹ and there is no assessment from any medical practitioner of whether these symptoms were caused by the accident or even if they were exacerbated by the accident.

23The applicant also relies on the report of Dr. Waisman, who opines that the applicant has developed a chronic pain disorder, and that the accident led the applicant to collapse his defences and develop a major depressive episode, moderate to severe and somatic symptom disorder with predominant pain, persistent, and severe.¹²

24I place less weight on the report of Dr. Waisman for the following reasons. The report was completed more than five years after the accident and places a lot of emphasis on the self-reports of the applicant. The other medical evidence¹³ consistently notes that the applicant was not a reliable historian, was difficult to communicate with, and had no insight into his condition. The other reports also relied on an interpreter or collateral interviews with either the applicant’s mother or sister to in order to illicit any information about the applicant. Dr. Waisman’s report does not mention if there was an interpreter or whether the applicant’s mother or sister were present in order to gather the information that would form the basis of his opinion.

25Dr. Waisman’s report offers no discussion about causation other than to state that the accident resulted in physical and emotional injuries. However, as mentioned above, the report is more than five years after the accident and is not clear what other medical information Dr. Waisman refers to in arriving at this conclusion. My review of the medical records submitted as evidence for this hearing calls into question the causation conclusions of Dr. Waisman.

26Furthermore, there does not appear to be any complaints from the applicant regarding the accident in any of the applicant’s medical practitioners’ notes, nor are there recommendations for treatment. I am also not directed to any evidence to show that the applicant sustained these injuries as a result of the accident or that his pre-existing condition was exacerbated by the accident.

27According to Sabadash, the accident does not need to be “the cause” of the injuries, but at least “a necessary cause.”¹⁴ I am not presented with or directed to any evidence that the pre-existing injuries of the applicant were necessarily caused by or worsened by the accident. With the onus being on the applicant, he has not satisfied me on a balance of probabilities.

28As a result of the above, it is my finding that the evidence does not establish on a balance of probabilities that that applicant would not have suffered the injuries “but for” the accident.

29Even if I were to find that the applicant satisfied the “but for” causation test as per Sabadash, it is my finding that the applicant does not meet the test to qualify for an NEB.

Does the applicant meet the requirements for a non-earner benefit?

30It is my finding that the applicant has not satisfied his onus to prove that he suffers from a complete inability to carry on a normal life for the following reasons.

31The test for entitlement for a NEB is for the applicant to show that he sustained an impairment as a result of the accident and that he suffers a complete inability to carry on a normal life as a result of and within 104 weeks of the accident.¹⁵

32In Heath,¹⁶ the Ontario Court of Appeal outlined the proper approach to apply the test for NEBs. The key principles from Heath are as follows:

I. There must be a comparison of the applicant’s activities and life circumstances before the accident to those post-accident.

II. The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident, the duration of which will depend on the facts of the case.

III. All of the applicant’s pre-accident activities must be considered, but greater weight may be placed on activities that were more important to the applicant’s pre-accident life.

IV. The applicant must prove that his/her accident-related injuries continuously prevent him/her from engaging in substantially all of his/her pre-accident activities. This means that the disability or incapacity must be uninterrupted.

V. “Engaging in” should be interpreted from a qualitative perspective. Even if an applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as “engaging in” that activity.

VI. If pain is the primary reason that an applicant cannot engage in former activities, the question is whether the degree of pain practically prevents the applicant from performing those activities. The focus should not be on whether the applicant can perform those activities.

33In order for me to assess the applicant’s claim for NEBs, he must show what his life was like before and after the accident.

34The applicant relies upon the following to show he has a complete inability to carry on a normal life:

i. Dr. Velikonja, Psychologist report dated November 21, 2016, which states that the applicant has significant memory problems, difficulty with concentration, worsening English skills, being socially isolated and not socializing with friends anymore.

ii. Dr. Waisman’s report, dated February 21, 2018, which states that the applicant is unable to fulfill his pre-accident roles and demands, including his basic needs and chores, and that his condition limits his ability to carry out many activities that defined who he was.

iii. The applicant’s catastrophic impairment reports dated April 2019, including the in-home examination by occupational therapist, Julian Amchislavsky, who reports on the applicant’s pre-accident and post-accident level of function.

35The test for an NEB as mentioned above requires the applicant to show that he suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. (emphasis added)

36Leaving aside the issue of causation, the other issue I have with the applicant’s evidence is that all the evidence is past the 104-week mark and does not mention whether or not the injuries were within the 104-week mark. Other than pre-existing injuries the applicant has and Dr. Waisman’s report on the applicant having chronic pain (which I place less weight on as described above), I am not directed to any other corroborating evidence of what injuries the applicant actually suffered as a result of the accident, what the applicant’s pre-accident activities were and whether as a result of the injuries is he unable to perform them post-accident within the 104-week mark. There are no medical documents noting the accident or the injuries that were sustained as a result of the accident until a notation of an accident by his family doctor on July 15, 2015 that he gets a headache and difficulty concentrating at times, but with no other details.¹⁷

37Occupational Therapist, Julian Amchislavsky notes that the applicant’s main barriers are his psychological impairments.¹⁸ However, he does not provide an assessment on whether it was exacerbated as a result of the accident and whether he suffers a complete inability to carry on a normal life as a result.

38The applicant’s sister reported to Dr. Veilikonja that, prior to the accident, the applicant was healthy, physically and socially active, and that after the accident he developed psychiatric symptoms, became socially isolated, preferred to stay in his room and not able to continue his schooling.¹⁹ The applicant submits that the main areas of activities that were important to him prior to the accident were, socializing with friends, taking care of himself, helping take care of the family and playing sports.

39In accordance with the Heath analysis, I find three issues to be problematic. First, based on the medical evidence, there appear to be inconsistencies in the evidence of the applicant’s sister in describing his pre-accident activities. Dr. Cebrain’s discharge summary report from St. Joseph’s Healthcare dated September 11, 2015 notes that the applicant was more isolated and not wanting to go out three-to-four months prior to his first admission into the hospital in October 2012. That would have been five-to-six months pre-accident. During this time, he stopped playing soccer and had to leave high school.²⁰ In my opinion, this creates a doubt as to whether the applicant’s accident-related injuries continuously prevent him from engaging in these pre-accident activities.

40Second, submissions alone are not evidence and I have no evidence of the applicant’s activities that were most important to him. The applicant relies upon a collateral interview conducted by Dr. Velikonja of the applicant’s sister of his pre-accident and post-accident activities,²¹ however I place less weight on the information from this interview because it is being relied upon through a 3^rd party, the report of D. Velikonja and not directly through an affidavit.

41Furthermore, according to Dr. Cebrain’s discharge report dated September 11, 2015 from St. Joseph’s Healthcare, it was noted that:

in meetings where the applicant was present, his mother’s account of his symptoms varied significantly in an attempt to avoid the applicant’s anger. The applicant’s eldest brother did not seem to understand the extent of his symptoms. His mother and sister were the best historians when they were in a position to be forthcoming.²²

42Based on Dr. Cebrain’s discharge report, the applicant’s sister’s evidence may not be reliable based on whether or not the applicant was in the room with her. According to the report of Dr. Velikonja, it is not clear whether the applicant was in the room during the time the interview and a result I am not convinced on a balance of probabilities on the reliability of this evidence and accordingly, place less weight on it.

43Third, the evidence the applicant is relying on does not address the NEB test in two ways. There is no discussion on whether the applicant’s impairments present a complete inability to carry on a normal life as a result of the accident and second, whether the impairments were within 104 weeks of the accident.

44As a result of the above and on a balance of probabilities, I find that the applicant has not met the test to be entitled to a NEB.

Is the applicant entitled to interest?

45As there are no overdue payment of benefits, accordingly no interest is payable by the respondent.

CONCLUSION

46For the reasons outlined above, I find that the applicant is not entitled to a NEB and accordingly no interest is payable.

Released: January 28, 2020

___________________________

Sandeep Johal, Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2Sabadash v. State Farm et al., 2019 ONSC 1121 at para. 31 (“Sabadash”).
3. 3Ibid at para. 36.
4. 4Written Submissions of the Respondent, Part III, Exhibit F, Psychiatry Consult Report dated September 19, 2013 at page 78.
5. 5Written Hearing Submissions of the Applicant, Tab 2 Discharge Summary of Dr. Cebrain at page 3.
6. 6Ibid at page 1.
7. 7Written Hearing Submissions of the Applicant, Tab 4 at page 2.
8. 8Ibid at page 11.
9. 9Ibid
10. 10ibid
11. 11Supra Note 4.
12. 12Written Hearing Submissions of the Applicant, Tab 5 at page 12-13.
13. 13St. Joseph’s Healthcare Discharge Reports dated December 2014 and September 2015 and the report of Dr. Velikonja dated November 21, 2016
14. 14Sabadash at para. 39.
15. 15Section 12(1) of the Schedule
16. 16Heath v Economical Mutual Insurance Company, 2009 ONCA 391. (Heath)
17. 17Written Submissions of the Respondent Part III, Exhibit E.
18. 18Written Submissions of the Applicant, Tab 8, Part 3 at pages 14-15.
19. 19Ibid, Tab 4 at page 7.
20. 20Supra Note 5 at page 3.
21. 21Written Hearing Submissions of the Applicant, Tab 4 at page 7
22. 22Supra Note 5 at page 5.