E.J. v. Economical Insurance, 2022 CanLII 23405

Citation: E.J. v. Economical Insurance, 2022 ONLAT 20-008287/AABS

Licence Appeal Tribunal File Number: 20-008287/AABS

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

Between:

[E. J.] A minor represented by her litigation guardian, [A. J.]

Applicant

and

Economical Insurance

Respondent

DECISION

ADJUDICATOR: Lindsay Lake, Vice Chair

APPEARANCES:

For the Applicant: David Levy, Counsel

For the Respondent: Jason Frost, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1On March 15, 2015, [A. J.], father of [E. J.], the applicant, and the applicant’s two older brothers were involved in a motor vehicle accident. The vehicle in which they were travelling was hit from behind by another vehicle travelling 90 kilometers an hour.¹ After the impact, the other vehicle caught fire and [A. J.] extracted his two sons from their vehicle.² The applicant, who was almost eight months old at the time, was not in the vehicle at the time of the accident.

2Four years later, the applicant sought accident benefits as a result of the accident from Economical Insurance, the respondent, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule).³

3On April 17, 2019, the respondent wrote to the applicant, acknowledged receiving her completed Application for Accident Benefits form (OCF-1), and set out various categories of benefits that the applicant was eligible for which included medical and rehabilitation benefits.⁴ The respondent, however, denied the applicant’s claims for a psychological assessment, after having the applicant attend for an Insurer’s Examination (IE), and for lost educational expenses. As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

4In its response, the respondent raised the preliminary issues of whether the applicant was involved in an accident and whether the applicant was an “insured person” for the purposes of the Schedule.

5Following the case conference held on November 27, 2020, the matter was scheduled for a written hearing to determine both the preliminary and substantive issues.

PRELIMINARY ISSUES IN DISPUTE

6The following preliminary issues are to be decided:

(i) Was the applicant involved in an “accident” as defined by s. 3(1) of the Schedule?

(ii) Is the applicant an “insured person” as defined by s. 3(1) of the Schedule?

SUBSTANTIAL ISSUES IN DISPUTE

7The following substantial issues are to be decided:

(i) Is the applicant entitled to $2,250.00 for a psychological assessment recommended by Dr. Irina Valentin in a treatment plan (OCF-18) dated October 3, 2019?

(ii) Is the applicant entitled to $1,761.95 for lost educational expenses submitted by way of an expense claim form (OCF-6) dated August 21, 2019?

(iii) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

8I find that the applicant:

(i) Was not involved in the March 15, 2015 accident;

(ii) Is an insured person as defined by the Schedule and, therefore, is entitled to accident benefits under the Schedule;

(iii) Is entitled to $2,200.00 of the October 3, 2019 OCF-18 plus interest in accordance with s. 51 of the Schedule; and

(iv) Is not entitled to payment for the August 21, 2019 OCF-6 in the amount of $1,761.95.

ANALYSIS

The Applicant was Not Involved in an Accident

9Section 3(1) of the Schedule defines an “accident” as “an incident in which the use or operation of an automobile directly causes an impairment […].” The applicant concedes that she was not in the vehicle when the accident occurred.⁵ There is also no suggestion that she witnessed the accident or was otherwise involved in the accident. As a result, I find that the applicant was not involved in an accident for the purposes of the Schedule.

The Applicant is an Insured Person

10Section 2(4) of the Schedule provides that benefits are payable under the Schedule to insured persons. The definition of an “insured person” includes a dependent, who was not involved in an accident, but who suffers psychological or mental injuries as a result of an accident in or outside Ontario that resulted in a physical injury to their parent, a named insured of a particular motor vehicle policy.⁶ Therefore, the applicant may still be eligible to receive accident benefits if she is an “insured person” as defined in s. 3(1).

11The respondent does not dispute that the applicant is the daughter, and a dependent, of [A. J.] who was involved in the March 15, 2015 accident. The respondent also concedes that [A. J.] is an insured person as defined in the Schedule.⁷ Further, the Motor Vehicle Accident Report⁸ confirmed that the accident occurred in Ontario. Therefore, the remaining disputed criteria of whether the applicant is an “insured person” person as defined in the Schedule are:

(i) Whether the applicant suffered psychological or mental injuries as a result of the accident; and

(ii) Whether the accident resulted in physical injury to [A. J.], the applicant’s father and named insured.

12For the reasons that follow, I find that applicant is an “insured person” as defined in the Schedule as the accident caused both a physical injury to the applicant’s father, [A. J.], and psychological injuries to the applicant. As a result, the applicant is entitled to accident benefits under the Schedule.

a) The Accident Caused Physical Injuries to Adam Jones

13On May 6, 2015, [A. J.] was diagnosed with a closed head injury by Dr. Donna Ouchterlony, physician, as reported in the Head Injury Ambulatory Consult Report.⁹ There is no evidence before me to refute this diagnosis. As such, I find that [A. J.] sustained a physical injury as a result of the accident.

b) The Applicant Suffered Psychological Injuries as a Result of the Accident

14The applicant submitted that she sustained a psychological impairment as a result of the accident. Indeed, the applicant was diagnosed with anxiety disorders by assessors for both the applicant and the respondent. Dr. Irina Valentin, psychologist, diagnosed the applicant with generalized anxiety disorder in the April 7, 2020 Medico-Legal Psychological Assessment Report¹⁰ and Dr. Stephanie Wiesenthal, psychiatrist, diagnosed the applicant with separation anxiety in the November 25, 2019 IE Psychiatric Assessment Report.¹¹

15The respondent’s position, however, is that the applicant’s psychological symptoms were not directly caused by the use or operation of a motor vehicle. Rather, the respondent submitted that the applicant’s psychological impairments were indirectly caused by the intervening effects of her father and brother’s aggressive physical and verbal assaults on her following the accident.¹² The respondent also submitted that because the applicant’s psychological symptoms first arose more than three years after the accident, such symptoms cannot be considered a “direct” result of the use or operation of a motor vehicle such that her claim does not meet the “direct” causation requirement.¹³ Respectfully, this is not the test to establish causation.

16The applicable test in determining whether impairments were caused by the accident is the “but for” test: whether the applicant would not have had her psychological impairments but for the accident.¹⁴ The accident is not required to have been “the cause” – that is, the accident need not be the sole cause or have been sufficient in itself to have caused the applicant’s psychological impairments as suggested by the respondent. Rather, the accident need only to have been a “necessary cause.”¹⁵

17It is only the respondent’s submissions, which are not evidence, that suggest that the accident did not cause the applicant’s psychological injuries. Dr. Wiesenthal, the respondent’s expert witness, diagnosed the applicant with a separation anxiety disorder as a direct result of the accident.¹⁶ Dr. Wiesenthal’s opinion in and of itself supports a finding that but for the accident, the applicant would not have sustained her psychological impairments. Indeed, the respondent even conceded in its submissions that the accident indirectly caused the applicant’s psychological impairments.¹⁷

18I also disagree with the respondent’s position that the applicant’s experience of physical and verbal assaults by her father and brother is an intervening event such that the accident was not the cause of her psychological injuries. The respondent noted in its submissions that Mr. Barry Brown, social worker, reported in his March 20, 2019 Social Emotional Assessment Report of the Jones’ Family¹⁸ that the applicant’s father has had difficulties with his emotions since the accident which included being short tempered and yelling at his children, including the applicant, which were described as “screaming rages, terrifying them.” Mr. Brown also noted the applicant’s brother’s physical assaults on her only started post-accident. Therefore, while the post-accident actions of the applicant’s father and brother have clearly contributed to the applicant’s psychological impairments, which was also confirmed by Dr. Wiesenthal, the actions of the applicant’s father and brother would not have arisen but for the accident. As such, the applicant’s psychological injuries would not have arisen but for the accident which caused her father and brother’s post-accident difficulties.

19Moreover, the case law relied upon by the respondent to support its position is distinguishable on the facts from this matter. First, the Financial Services Commission of Ontario (FSCO) decision of Elena Acosta v. Motor Vehicle Accident Claims Fund¹⁹ concerned a claim for accident benefits by a spouse of an unnamed insured. Here, there is no dispute that the applicant’s father is a named insured. Second, the applicant in the decision of Liberty Insurance Company of Canada v. Chantal Areal²⁰ was seeking accident benefits for a physical injury that she sustained as a result of her son’s accident-related injuries. Here, the applicant is not seeking benefits for any physical injuries. Third, the respondent relied upon several decisions that addressed the issue of whether an incident qualifies as an “accident.”²¹ There is no dispute that an accident as defined in s. 3(1) of the Schedule occurred in this matter. As such, these decisions are irrelevant to the issues before me.

20The respondent’s position, quite frankly, is based on an incorrect legal test regarding causation, is in direct opposition to the opinion of its own expert witness and is contrary to all of the other evidence that is before me.

21On the evidence, I find that the applicant sustained psychological impairments as a result of the accident.

22As the applicant is, therefore, entitled to accident benefits under the Schedule, I must now determine the substantive issues in dispute between the parties.

23Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

24The October 3, 2019 OCF-18 was completed by Dr. Valentin and sought funding for a psychological assessment, completion of the OCF-18, and $50.00 for “psychological assessment disbursements.” The goals of the treatment plan were to determine the applicant’s current psychological status and diagnoses, as well as to provide specific recommendations for psychological support and treatment needs.

25I find that the applicant has met her burden of proving that the proposed psychological assessment was reasonable and necessary on a balance of probabilities. Dr. Valentin recommended the psychological assessment based upon the findings of Mr. Brown’s findings in the March 20, 2019 Social Emotional Assessment Report of the Jones’ Family. Dr. Valentin highlighted the following excerpt in the OCF-18 from Mr. Brown’s report:

Since the accident, Everly’s father has had difficulty controlling his emotions and often becomes explosive and verbally aggressive towards her [Everly] and her family. Sometimes in response to his verbal tirades, Everly will hysterically yell back…her self-worth has been diminished and markedly damaged. Everly’s brother, Griffin, has also started to become physically and verbally aggressive with her…which is further destabilizing her home environment and mental state…[Everly] experiences significant sadness, anxiety, insecurity, and is highly needy and clingy of her parent’s attention at school and at home.

26Despite the respondent’s denial of the proposed psychological assessment, the applicant underwent the psychological assessment with Dr. Valentin who, as discussed above in paragraph [14], diagnosed the applicant with a generalized anxiety disorder and made recommendations for various treatments.²²

27I find the respondent’s position that the proposed psychological assessment was not reasonable and necessary because an assessment would not provide any benefit untenable. The respondent’s expert witness, Dr. Wiesenthal, diagnosed the applicant with a separation anxiety disorder as a direct result of the accident. Despite Dr. Wiesenthal’s opinion that treatment for a child of the applicant’s age would be for the parents and not the child, it is reasonable that the applicant has her own psychological assessment to determine treatment recommendations. As psychological treatment is not a disputed issue in this matter, I make no findings on such entitlement. Nevertheless, the fact that the applicant was diagnosed with a psychological disorder by Dr. Wiesenthal is, in my opinion, sufficient to establish the reasonableness and necessity of the proposed psychological assessment for the applicant by her own assessor.

28For these reasons, the applicant is entitled to $2,200.00 of the October 3, 2019 OCF-18 as no information was provided to support the reasonableness and necessity of the $50.00 fee for “psychological assessment disbursements.”

Lost Educational Expense

29The applicant is not entitled to the August 21, 2019 OCF-6 in the amount of $1,761.95 for tuition for Dogwood Acres Forest School as these expenses are not lost education expenses reimbursable under the Schedule.

30Section 21(5) defines “lost educational expenses” as expenses incurred before the accident for tuition, etc. The August 21, 2019 OCF-6 states that the tuition amount being claimed was from September 2019 to June 2020, which is not prior to the accident. As a result, the applicant is not entitled to this amount.

Interest

31The applicant is entitled to interest on the amount of $2,200.00 of the October 3, 2019 OCF-18 in accordance with s. 51 of the Schedule.

CONCLUSION

32For the reasons outlined above, I find that the applicant:

(i) Was not involved in the March 15, 2015 accident;

(ii) Is an insured person as defined by the Schedule and, therefore, is entitled to accident benefits under the Schedule;

(iii) Is entitled to $2,200.00 of the October 3, 2019 OCF-18 plus interest in accordance with s. 51 of the Schedule; and

(iv) Is not entitled to payment for the August 21, 2019 OCF-6 in the amount of $1,761.95.

Footnotes

1. 1May 6, 2015 Head Injury Ambulatory Consult note by Dr. Donna Ouchterlony, physician, page 1, Applicant’s Document Brief, tab 2.
2. 2March 19, 2019 Social Emotional Assessment of the Jones’ Family by Mr. Barry Brown, social worker, at page 1, Applicant’s Document Brief, tab 4.
3. 3O. Reg. 34/10 as amended.
4. 4Applicant’s Document Brief, tab 6.
5. 5Written Submissions of the Applicant, para. 1 and Written Reply Submissions of the Applicant, para. 3.
6. 6Schedule, s. 3(1), “insured person,” para. (a)(ii).
7. 7Respondent’s Submissions, para. 25.
8. 8Applicant’s Document Brief, tab 1.
9. 9Supra note 1.
10. 10Applicant’s Document Brief, tab 11, page 8.
11. 11Applicant’s Document Brief, tab 10, page 9.
12. 12Respondent’s Submissions, paras. 7 and 25.
13. 13Respondent’s Submissions, para. 35.
14. 14Sabadash v. State Farm et al., 2019 ONSC 1121.
15. 15Ibid. at para. 39.
16. 16Supra note 11 at page 9.
17. 17Respondent’s Submissions, paras. 15, 48 and 49.
18. 18Supra note 2.
19. 19FSCO A-02-001618, Respondent’s Book of Authorities, tab 2.
20. 20P04-00034, Respondent’s Book of Authorities, Tab 3.
21. 21Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (SCC), Respondent’s Book of Authorities, tab 4; Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA), Respondent’s Book of Authorities, tab 5; Downer v. The Personal Insurance Company, 2012 ONCA 302, Respondent’s Book of Authorities, tab 7; Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), Respondent’s Book of Authorities, tab 6.
22. 22Supra note 10 at pages 8-9.