19-003688/AABS

Released Date: 09/29/2020

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:

S.V.

Applicant

and

Certas Home and Auto Insurance Company

Respondent

AMENDED DECISION

ADJUDICATOR:

Jesse A. Boyce

APPEARANCES:

For the Applicant:

Clifford Singh, Counsel

For the Respondent:

Rose Bilash, Counsel

Heard by way of written submissions

OVERVIEW

1S.V. was involved in an accident on November 20, 2017.

2Twelve days later, on December 2, 2017, S.V. suffered a cardiac arrest. He was resuscitated and taken to hospital, where he remained for an extended period of time. The heart attack caused anoxic brain damage, resulting in behavioural changes, poor memory and concentration, depression, anxiety and communication issues to date and ongoing.

3As a result, S.V. sought removal from the Minor Injury Guideline (“MIG”) and various benefits and assessments from the respondent, Certas, including income replacement benefits and attendant care benefits, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule'').

4Certas denied entitlement to these benefits on the basis that S.V. did not meet the causation test necessary for entitlement to accident benefits. It submits that S.V.’s well-documented history of advanced coronary artery disease, combined with the twelve-day gap between the accident and his cardiac arrest, supported its position that the accident was not the cause of his life-changing impairments.

5S.V. disagreed and applied to the Tribunal for resolution of the dispute, submitting that his heart issues were stable prior to the accident and that the resulting increase in stress post-accident directly led to his cardiac arrest. Therefore, S.V. submits that he is entitled to benefits under the Schedule as his injuries are not minor, he is unable to work and requires significant ongoing care.

ISSUES IN DISPUTE

6The following issues are in dispute:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule, subject to treatment within the $3,500.00 limit in the MIG?

ii. Is the applicant entitled to receive an income replacement benefit in the amount of $400.00 per week for the period of December 18, 2017 to date and ongoing?

iii. Is the applicant entitled to attendant care benefits in the amount of $3,000.00 per month for the period of January 10, 2018 to date and ongoing?

iv. Is the applicant entitled to payments for the cost of examinations recommended by Novo Medical Services in the amount of:

a. $1,696.25 for an In-Home Assessment, submitted in a treatment plan on February 20, 2019 and denied by the respondent on March 5, 2019?

b. $2,200.00 for a Neurological Assessment, submitted in a treatment plan on January 21, 2019 and denied by the respondent on March 5, 2019?

c. $34,461.00 for CAT assessments, submitted on December 19, 2019 and denied by the respondent on January 16, 2020?

v. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

result

7With great respect and empathy, I find S.V. is not entitled to payment for any of the benefits in dispute as he has not demonstrated that his impairments were caused but for the accident. Accordingly, S.V.’s accident-related impairments are subject to treatment within the MIG.

ANALYSIS

Causation

8While it is not disputed that S.V.’s impairments are significant and the Tribunal recognizes the truly unfortunate reality that S.V. and his family are now faced with, on the evidence, I am unable to conclude on a balance of probabilities that he has satisfied the causation test to prove that, but for the accident, he would not have suffered the cardiac arrest that has resulted in his ongoing impairments.

9The Divisional Court has confirmed that the “but for” test is the correct test to be used when determining causation in accident benefits cases.¹ Under the “but for” test, the accident need not be the sole cause nor the primary cause; however, it must have been necessary to bring about the injury.² S.V. bears the burden of proving on a balance of probabilities that the accident was a necessary cause of his heart attack.

10S.V.’s medical history is positive for coronary artery disease and a previous heart attack with a stent insertion in 2008. S.V. has a history of hyperlipidemia, hypertension and Type 2 Diabetes and he was monitored and treated for these conditions up to the date of the accident. According to medical records in evidence, S.V. was considered to have chronic coronary artery disease without symptoms since 2008. In the months prior to the accident, his condition was stable, as he had no reported chest pain, no shortness of breath and was in compliance with his medication. While he submits that he suffered a shoulder injury, was shaken up and anxious immediately following the accident, the crux of S.V.’s position on causation is that in the twelve days post-accident—and, critically, as a direct result of the accident—he “began to experience a drastic increase in stress which was exacerbating his pre-existing heart condition,” leading to his cardiac arrest.

11To this end, S.V. submits that his stress increased following the accident and these complaints demonstrate that his cardiac arrest “was, at the least, partially caused by the ongoing stress” as a result of the accident. S.V. points to the April 2, 2018 letter from Dr. Selvananthan, which states that he was under a lot of stress in the time between the accident and his heart attack, a fact S.V. alleges was echoed by Dr. Seyone and reported by his wife. He directs the Tribunal to the report of Certas’ assessor, Dr. Dharamshi, who stated it was “unlikely” that his cardiovascular impairments were related to the accident, in order to argue that the term “unlikely” implies that it cannot be ruled out entirely. Further, S.V. cites to the opinion of Dr. Yadegari, who found that, while it was likely “the RAC [Right Coronary Artery] lesion almost certainly caused” the cardiac arrest, “that stressful events or situations can increase the likelihood of a heart attack through plaque destabilization and therefore it is possible that the events surrounding the accident caused the heart attack.” To put it simply, S.V. submits that the only significant event that occurred during a time of cardiac stability was the accident, which led to an increase in stress, which caused his heart attack and led to his decline over the last three years.

12On the medical evidence, which I find to be quite conclusive despite S.V.’s submissions otherwise, I find this argument to be unpersuasive for a number of reasons. First, the note from Dr. Kanagasabai, dated December 5, 2018, makes no reference to the accident as the cause of S.V.’s cardiac arrest. Second, the hand-written note from Dr. Selvananthan, dated April 2, 2018, or five months following the heart attack, simply states the facts (that there was an accident, then a heart attack) before claiming that S.V. was under a lot of stress, but does not provide any particulars to explain what the cause of the stress was, how it was affecting S.V. or provide reference to a visit or complaint of the alleged stressors in the twelve day period between the accident and the heart attack or any previous visits to Dr. Selvananthan at all. As Certas submits, the OHIP Summary confirms that Dr. Selvananthan did not even see S.V. during these time periods and the source of Dr. Selvananthan’s information is therefore unknown. Third, on the evidence, S.V. did not attend a hospital following the accident, did not see his family physician in the twelve-day period at issue, did not seek treatment of any kind and returned to full-time work duties and hours as a glass fitter one day later. As Certas submits, there is no documentation supporting S.V.’s submissions that he experienced “ongoing and severe chest pain and discomfort” following the accident or that stress “served to exacerbate his chest pain” as alleged. Indeed, it appears that all of these complaints were made in documentation prepared several months or years after S.V.’s cardiac arrest and some of these complaints are even attributed to S.V.’s spouse in reports where S.V. could not self-report himself.

13Fifth, even if there were documented evidence of an increase in stress, this would still not lead me to conclude on a balance of probabilities that but for the accident S.V. would not have had a heart attack based on the medical reports that specifically address this causation issue, which I find provide limited support for S.V.’s claim that it was the accident that increased his stress and therefore caused his cardiac arrest twelve days later.

14For instance, the report from cardiologist Dr. Yadegari dated December 6, 2017, on which S.V. relies, indicates the presence of multiple vessel heart disease with the primary lesion (occlusion) located in the RCA. While Dr. Yadegari opined in a letter to S.V.’s counsel that it was possible that stress could have led to the cardiac arrest, Dr. Yadegari explained that the cause of the RCA lesion was “cholesterol plaque buildup made worse by risk factors such as high blood pressure, cholesterol and diabetes.” I agree with Certas that Dr. Yadegari could not determine the accident’s role in the heart attack as anything more than a mere possibility, which does not assist S.V. in meeting his burden of proof. Meanwhile, cardiologist Dr. Makanjee wrote in a report dated December 7, 2017 that the ECG also showed significant disease in the Apex and the territory of the Left Anterior Descending coronary artery which may have led to scar-induced ventricular fibrillation. On January 2, 2018, S.V. was transferred to the Restorative Care Unit under the care of Dr. Peto, who indicated in a report dated January 9, 2018 that S.V. had advanced coronary artery disease.

15Further, Certas obtained a causation report from cardiologist Dr. Melvin, who assessed S.V. on June 15, 2018. Dr. Melvin noted a pre-accident history of premature arteriosclerotic heart disease with diabetes, hyperlipidemia, hypertension and an “anterior wall myocardial infarction with percutaneous coronary intervention (PCI/stent) to the left anterior descending artery” in 2008. On review of the medical documentation, Dr. Melvin indicated that while S.V. had no cardiac symptoms prior to the accident, the results of cardiac investigations after his arrest were indicative of recurrent, severe and progressive arterial sclerotic heart disease. Dr. Melvin gave the opinion that, on a balance of probabilities, the heart attack of December 2, 2017 and resulting brain injury were not related temporally or causally to the accident. Dr. Melvin stated that while emotional stress posed a risk for cardiac decompensation, it could not be quantified or qualified and that, given the delay of twelve days between the accident and the heart attack, and S.V.’s significant pre-accident cardiac history, the causal connection between the accident and the heart attack could not be easily related. Dr. Melvin therefore concluded that there were no cardiac or cerebrovascular injuries directly related to the accident. I find the medical opinions speaking directly to causation to be very persuasive.

16Sixth, I also follow Certas’ submissions with regards to S.V.’s reliance on the opinion of Dr. Seyone, who is a psychiatrist and therefore not qualified to opine on the cause of a heart attack. In addition, I agree that Dr. Seyone’s report does not actually definitively link S.V.’s alleged increase in stress to the cardiac arrest, as alleged. Instead, Dr. Seyone’s report, which was authored February 20, 2020, or over two years post-accident, states that S.V. “seems” to have been under significantly increased stressors with it “possibly” culminating in a cardiac arrest.

17Respectfully, while there may be a number of possible causes of S.V.’s heart attack, I agree with Certas that the accident must be a necessary cause. In other words, S.V.’s heart attack and anoxic encephalopathy would not have occurred without the accident. On review of the medical opinions in evidence, I find there are no causation opinions provided by S.V. that meet this test, either from Dr. Yadegari or any of S.V.’s other treating cardiologists.

18In a similar vein, I reject S.V.’s argument that causation can be “inferred” due to the fact that his heart condition was stable at the time of the accident and that the accident was the only significant event prior to the heart attack. This position, in my view, does not account for the lack of reporting about stressors in the twelve-day period or, more importantly, the findings of various medical professionals who assessed S.V. during his hospitalization and found that S.V.’s heart condition had worsened significantly, though asymptomatically. The reports of treating cardiologists Dr. Yadegari, Dr. Peto and Dr. Makanjee reference multiple-vessel coronary artery disease which was discovered during a cardiac catheterization performed on December 6, 2017 and which required stenting and open-heart surgery, which occurred successfully on June 18, 2018. Accordingly, I find that S.V. has not satisfied his burden to prove that, on a balance of probabilities, but for the accident, he would not have suffered a cardiac arrest. I cannot find that the accident must have been necessary to bring about the injury.

19For completion and with regards to S.V.’s status in the MIG, I find that S.V.’s accident-related impairments were limited to a right shoulder injury and that this injury is not the cause of his inability to work, his need for attendant care, nor the assessments claimed. Certas had Dr. Dharamshi assess S.V. on May 14, 2018 to determine the extent of his physical accident-related injuries. The applicant presented with complaints of right shoulder pain and bilateral hand numbness, the latter having developed more than four months following his discharge from hospital. While S.V. was noted to be significantly impaired due to mental incapacity and neither of Certas or the Tribunal disputes this, his actual, physical accident-related impairments were soft-tissue in nature and belong within the MIG. Dr. Dharamshi indicated that S.V. did not suffer a substantial inability to perform the essential tasks of his employment as a result of accident-related injuries. On the evidence, I have no basis to depart from his determinations.

CONCLUSION

20S.V. is subject to the MIG and is not entitled to payment for any of the benefits in dispute as he has not demonstrated that his impairments were caused but for the accident.

Footnotes

1. 1Sabadash v. State Farm Mutual Insurance Co., 2019 ONSC 1121, [2019] OJ No 788 (Div. Ct. February 15, 2019).
2. 2Clements v. Clements, 2012 SCC 32, [2012] 2 SCR 181.