Reheleh Pourkhodayar v. The Personal Insurance Company, 2023 CanLII 128291

Licence Appeal Tribunal File Number: 22-012094/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:

Reheleh Pourkhodayar

Applicant

and

The Personal Insurance Company

Respondent

DECISION

ADJUDICATORS:

Deborah Neilson Teresa Walsh

APPEARANCES:

For the Applicant:

Reheleh Pourkhodayar

Adam R. Little, Counsel

Karen Vigmond, Counsel

For the Respondent:

Madeline Grady, Claims Representative

Philippa Samworth, Counsel

Court Reporter:

Prashanth Thambipillai

Heard by Videoconference:

October 30 and 31, 2023

OVERVIEW

1Reheleh Pourkhodayar, the applicant, was involved in an incident on October 10, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, The Personal Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant became partially paralyzed on October 10, 2020, after travelling in a vehicle for a number of hours, both as a passenger and a driver. The paralysis was the result of a congenital condition (malformation) within the applicant’s spine. The parties disagree on whether stress experienced during the drive caused the applicant’s blood pressure to become elevated which led to a ruptured aneurysm and hemorrhaging within her spine, and if so, whether this amounts to an “accident” as defined in the Schedule.

ISSUE IN DISPUTE – PRELIMINARY ISSUE

3The parties agree that the preliminary issue in dispute is:

i. On October 10, 2020, was the applicant involved in an “accident” as defined by s. 3(1) of the Schedule?

4At the hearing, the applicant withdrew the substantive issues in dispute for medical benefits under three treatment plans, a s. 10 award under Reg. 664 and interest on any overdue payment of benefits.

RESULT

5On October 10, 2020, the applicant was not involved in an “accident” as defined by s. 3(1) of the Schedule.

PROCEDURAL ISSUE

The respondent’s request to adjourn the hearing was denied

6During the hearing, the respondent sought an adjournment on the basis that the applicant’s neurosurgeon expert, Dr. Mahmood Fazl, testified during his examination-in-chief that he had assessed the applicant in person, in March 2022. Dr. Fazl did not disclose this assessment in any of his three expert reports.

7The respondent objected to the applicant not having disclosed her in-person assessment by Dr. Fazl prior to Dr. Fazl commencing his testimony. The respondent requested an adjournment of the hearing to further consider the issue and make submissions.

8The respondent’s adjournment request was denied. We found that an adjournment was not warranted to address any possible prejudice to the respondent. We noted that the assessment, and the fact it had not been disclosed in advance of Dr. Fazl’s examination-in-chief, could be addressed during this expert’s cross-examination. Also, if necessary, the respondent’s closing submissions could address the weight it recommends be given to his evidence.

ANALYSIS

Events of October 10, 2020

9In the early afternoon of October 10, 2020, the applicant was reportedly the front-seat passenger in a motor vehicle (the “vehicle”) being driven by her ex-spouse (“NM”). The couple’s then six-year old daughter was in the rear seat of the vehicle. The family had left Tobermory, Ontario for Toronto a few hours earlier.

10According to the applicant’s description in her application for accident benefits (OCF-1), as the vehicle approached or had just entered onto Highway 400, NM:

… became agitated by a group of motorcyclists weaving in and out of traffic around us. [NM] pulled over and started to … exit the vehicle in an agitated state. I held on to him while belted in the passenger seat, and sustained an injury to my spine as a result.

11During her examination under oath (“EUO”) conducted on April 13, 2021, and at the hearing, the applicant provided the following account of the events. She testified that two of the motorcyclists pulled in front of the vehicle, leaving little space between them and the vehicle. It was her impression that the group was trying to stay together. NM became angry with the motorcyclists, trying to get away from them and avoid letting them move in front of the vehicle. The applicant got really scared that something was going to happen, and she asked NM to pull the vehicle over. NM continued to drive in an agitated state. The applicant began to cry as did the couple’s daughter. The applicant twisted herself in her seat to put her arm on her daughter’s leg. About one to two minutes after first encountering the motorcycles, NM pulled the vehicle over to the shoulder of the highway. Because NM was very upset, the applicant was not sure if he was going to exit the vehicle safely, so she twisted toward him while still seat belted and tried, unsuccessfully, to hold him back. The applicant assisted her daughter to exit the rear of the vehicle and walked with her daughter to where NM was standing. The applicant told NM she would drive. About five minutes after NM had pulled off the highway, the applicant helped her daughter back into the vehicle. She got into the driver’s seat and NM sat in the front passenger seat.

12The applicant testified that as she began to drive, she felt an “excruciating pain in her back.” She drove for about 20 to 25 minutes, during which time her back pain worsened. She pulled into a plaza near York Mills Road and Yonge Street, exited the vehicle and started to walk around. As she walked, the applicant started feeling “pins and needles” in her legs. The applicant took two pills, one for pain and the other for anxiety, but her condition did not improve. After being outside the vehicle in the plaza for about five minutes, the applicant told NM that she needed to go to a hospital. NM drove to Sunnybrook Health Sciences Centre (the “Hospital”) with the applicant in the front passenger seat. When the applicant tried to exit the vehicle at the Hospital, she could not walk, nor could she move or feel any sensation in her legs.

13During her hearing testimony, the applicant provided new details of the events. She stated that at one point, a motorcyclist looked into the passenger window of the vehicle and that it felt like an altercation, even though there was no personal contact or contact between any of the motorcycles and the vehicle. The applicant also described for the first time feeling trapped.

Medical evidence regarding applicant’s condition following the October 10, 2020 events

14After the applicant was admitted to the Hospital, she had a spinal MRI. Subsequently, a spinal angiogram was performed. The MRI showed a hemorrhage within the applicant’s upper thoracic spine and suggested an associated spinal arteriovenous malformation (“AVM”). The angiogram confirmed the spinal AVM with a “suspected” aneurysm.

15An AVM is, in simple terms, a congenital, “abnormal tangle of blood vessels”. It is a rare abnormality, particularly in the spine. An aneurysm is a bulge in a blood vessel wall, which, the experts agreed, over time causes weakening of the vessel wall.

16In March 2018, the applicant sought medical attention relating to back pain with some loss of sensation in her legs. The applicant’s expert, Dr. Fazl, testified that these symptoms were likely related to the AVM, although the AVM was not diagnosed at that time.

17At the hearing of this matter, there was no dispute between the parties’ respective neurosurgeon experts that, on October 10, 2020, there likely was an actual, as opposed to a “suspected”, aneurysm with the AVM. Further, the parties’ experts agreed that, at the very least, either the AVM or the aneurysm ruptured on October 10, 2020, causing hemorrhaging within the applicant’s spine. The hemorrhage in turn led to weakness and numbness in the applicant’s legs. The experts disagreed on whether it was the AVM or the aneurysm rupture that precipitated the hemorrhaging and ultimately, the lower limb paralysis.

18The applicant currently has lower limb, incomplete paraplegia. She testified that she can stand and can walk with difficulty, although she continues to experience loss of sensation and weakness in her legs.

The applicant was not in an “accident” on October 10, 2020

19For the following reasons, we find that the applicant was not involved in an “accident” as defined by s. 3(1) of the Schedule.

20Section 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 onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused her injuries.

21In Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226, the Ontario Court of Appeal confirmed the two-part test to determine whether an incident is an “accident” as follows:

a. Purpose test: did the incident arise out of the use or operation of an automobile?

b. Causation test: did the use or operation of an automobile directly cause the impairment?

22The purpose test is a determination of whether the incident resulted from “the ordinary and well-known activities to which automobiles are put” (see Greenhalgh v. ING Halifax Insurance Company, 2004 CanLII 21045 (ON C.A.)).

23The causation test requires a determination of whether these “ordinary and well-known activities” were the direct cause of the applicant’s impairment. Depending on the particular facts of a case, determining causation is assisted by one or more of the following considerations:

i. The “but for” consideration;

ii. the “intervening act” consideration, which may be used to determine if some other event took place that cannot be said to be part of the ordinary course of use or operation of the automobile; and

iii. if dealing with a number of possible causes, the “dominant feature” consideration addresses whether the ordinary and well-known activity is what “most directly caused the injury.”

Differing expert evidence regarding AVM or aneurysm rupture

24The applicant relies on the opinion of Dr. Fazl and submits that the events during the drive were an accident because they caused an increase in blood pressure leading to a ruptured aneurysm. The respondent relies on the opinion of Dr. Abdalla Shamisa, neurosurgeon, and submits that it is more likely that the AVM ruptured and the vehicle was just the location, not the cause, of the rupture.

25The applicant’s expert, Dr. Fazl, testified that the applicant’s aneurysm likely ruptured on October 10, 2020. Dr. Fazl based his opinion on the following:

i. An aneurysm can rupture due to elevated blood pressure;

ii. while there was no evidence as to whether the applicant actually experienced a blood pressure elevation on October 10, 2020, Dr. Fazl understood that the applicant became highly stressed and anxious during the encounter with the motorcycles that day;

iii. although the applicant was taking medication to control her blood pressure at the relevant time, even when controlled, blood pressure can spike and remain elevated due to a stressful situation for up to 20 or even 30 minutes; and

iv. during this period of blood pressure elevation, related, ongoing pressure on the aneurysm likely led to the aneurysm rupture just prior to the applicant arriving at the Hospital, resulting in lower limb paralysis.

26Dr. Fazl further testified that the initial aneurysm rupture could have caused the AVM to rupture. He emphasized, however, that the aneurysm rupture likely occurred first, due to the blood pressure elevation.

27The respondent’s expert, Dr. Abdalla Shamisa, acknowledged that he could not state with certainty whether the applicant’s AVM or her aneurysm ruptured on October 10, 2020. His opinion, however, was that it was the AVM that ruptured. He testified that AVM ruptures tend to occur spontaneously, without precipitating actions.

28Dr. Shamisa noted that spinal AVMs are rare and there is little known about factors that may contribute to their rupture. He added that inconsistent findings have been reported in the medical literature as to whether blood pressure spikes may increase the risk of brain AVM ruptures. Dr. Shamisa was unaware of any studies on the effect of blood pressure elevation on spinal AVMs.

29Dr. Shamisa accepted that an aneurysm rupture could be caused by ongoing, elevated blood pressure. However, he added that an aneurysm rupture would be expected to result in immediate, significant pain and other neurological symptoms. Dr. Fazl also testified that an aneurysm rupture would cause a rapid deterioration of the spine.

30Dr. Shamisa did not agree with Dr. Fazl that the applicant likely experienced an aneurysm rupture caused by ongoing, elevated blood pressure on October 10, 2020, based on the applicant’s report of:

i. Back pain for approximately 20 to 25 minutes while she was driving;

ii. followed by “pins and needles” in her legs after she exited the vehicle and walked; and

iii. minutes later, upon arriving at the Hospital, the inability to move or feel her legs.

31In Dr. Shamisa’s view, the evolving neurological symptoms reported by the applicant were more in keeping with a spontaneous AVM rupture than a blood pressure-induced aneurysm rupture.

The “incident” of October 10, 2020 likely evolved over half an hour

32We find that, based on the evidence, the incident in this case likely evolved over approximately half an hour, and mostly while the applicant was either a passenger in or driving the vehicle, before she arrived at the Hospital and was unable to move or feel sensation in her legs.

33The applicant submits that in defining the incident of October 10, 2020, it is not necessary to identify a specific moment in time, nor do the consequences need to be immediate (see State Farm Mutual Insurance Company v. Economical Insurance Company, 2018 ONSC 3496).

34In this case, the applicant describes the incident as commencing with the arrival of the motorcycles, while the applicant was a passenger in the vehicle. The applicant testified that NM pulled over onto the shoulder about one to two minutes later. The consequences of the incident – being the AVM or aneurysm rupture and hemorrhage – occurred several minutes or up to half an hour later.

35The respondent does not specifically disagree with the applicant’s description of the incident. Rather, the respondent’s focus is on the incident as encompassing an evolving situation, including the applicant’s first description of back pain while she was driving, followed about 20 to 25 minutes later with “pins and needles” in the applicant’s legs, and some minutes after that, the applicant’s inability to move or feel her legs.

36Regardless how the incident is described, for the reasons discussed below under the causation analysis, we find that that the incident involving the motorcycles was peripheral or ancillary to the primary, evolving AVM or aneurysm rupture incident and its unfortunate consequences.

The Purpose Test

37In considering the Ontario Court of Appeal’s analyses in both Greenhalgh and Caughy, we find that the applicant has met her onus in establishing that the incident likely arose out of an ordinary activity to which vehicles are put. The applicant was a passenger in and/or driving the vehicle when the incident took place.

38While the purpose test is satisfied if the applicant can establish that the incident involved an ordinary use of the vehicle, the applicant must also meet her onus in establishing that an ordinary use of the vehicle directly caused her impairment.

The Causation Test

The injury would have occurred regardless of the use or operation of the vehicle

39We find that the applicant has failed in her onus of establishing that, but for the use and operation of the vehicle, she likely would not have suffered a rupture and hemorrhage within her spine, followed by lower limb paraplegia.

40The applicant submits that in meeting her onus under this branch of the causation test, she needs to show that the incident was a necessary cause, although not the only cause, of her impairment. The applicant relies on the evidence of her expert, Dr. Fazl, in submitting that the stress and likely elevated blood pressure she experienced while a passenger in the vehicle due to the motorcycle encounter were necessary causes of her subsequent aneurysm rupture. This is supported by Dr. Fazl’s testimony that the aneurysm would rupture eventually, and that regular episodes of elevated blood pressure would likely hasten the rupture.

41The respondent points to the applicant’s hearing testimony that, due to NM being prone to anger and outbursts since being injured in a 2014 motorcycle accident, she was “always on guard” and “walking on eggshells.” Stress, in other words, was not uncommon in the applicant’s day-to-day life at the relevant time. The respondent submits that, while accepting Dr. Fazl’s evidence that stress and associated elevated blood pressure can cause an aneurysm rupture, it does not follow that, but for being in the vehicle on October 10, 2020, the applicant would not have suffered the rupture. We agree.

42The respondent further submits that, as its expert Dr. Shamisa testified, it was more likely that a spontaneous rupture of the applicant’s congenital AVM, and not an aneurysm rupture, occurred on October 10, 2020. The respondent submits that if Dr. Shamisa is correct, the AVM itself would be the “but for” cause of the rupture and subsequent lower limb paraplegia. The vehicle was simply the location where the incident and resulting injury occurred.

43We agree with the respondent that, given the reported evolving nature of the applicant’s symptoms over approximately half an hour, culminating in lower limb paraplegia, a spontaneous AVM rupture likely occurred. This evolving nature is not consistent with an aneurysm rupture, which both experts agreed would have an immediate effect. Both experts also agreed that the increase in blood pressure would not necessarily cause a ruptured AVM. Dr. Fazl’s opinion does not account for why the applicant had severe back pain for 30 minutes before “pins and needles” and then paralysis of her legs set in. Further, Dr. Fazl failed to state in his reports that he conducted an in-person assessment of the applicant and he failed to clearly state that he reviewed the angiogram imaging, in addition to the report of the procedure. We question whether he omitted other information. We, therefore, prefer Dr. Shamisa’s opinion. For these reasons, we find that the existence of the AVM was the likely cause of the applicant’s injury.

44However, even if the aneurysm ruptured, the fact of regular stress and likely associated elevated blood pressure in the applicant’s life provide further support that the vehicle was not the “but for” cause of the applicant’s injury. We find that the injury would not have occurred but for the existence of the AVM. The vehicle was simply the location where the injury occurred.

The feeling of being in an altercation is an intervening act

45We find that the applicant’s testimony of feeling as though there was an altercation while the motorcyclists were present and attempting to stay together, and NM was driving aggressively to get away from and prevent the motorcyclists from moving in front of the vehicle, establish there was an intervening act. That is, the aggressive driving of NM in response to the actions of the motorcyclists was not in “the ordinary course of things”. Further, the rupture of either the applicant’s AVM or aneurysm was not “a normal incident of the risk created by the use or operation of the car.”

46The applicant submits that the entire, unbroken chain of events, including the presence of the motorcycles, NM’s agitation, and NM’s aggressive driving, caused her stress which likely elevated her blood pressure and led her aneurysm to rupture. The applicant further submits that her reaction to the motorcycle incident and her subsequent aneurysm rupture were reasonably foreseeable risks of the vehicle use.

47The respondent submits that the applicant’s AVM was the intervening event and its rupture, or the associated aneurysm rupture, was not reasonably foreseeable due to the preceding events involving aggressive driving of the vehicle and the stress reportedly experienced by the applicant.

48Reasonably foreseeable risks related to operating a motor vehicle will not break the chain of causation. It is not an intervening act if it can fairly be considered a normal incident of the risk created by the use or operation of the vehicle or if it is “part of the ordinary course of things.” The intervening act analyses by the Ontario Court of Appeal in leading cases are instructive (see Chisholm v. Liberty Mutual Group (2002), 2002 CanLII 45020 (ON CA), 60 OR. (3d) 776 (C.A.) and Greenhalgh). In Chisholm, gunshots fired at and causing serious injury to the driver of a car were found by the Court of Appeal to be the intervening act and not a normal incident of the risk created by the use or operation of the car. In Greenhalgh, the female driver of a car got stuck after taking a wrong turn on a cold night. After hours of walking to look for help, she became disoriented, fell into a river and lost her boots. She suffered severe frostbite requiring finger and below knee leg amputations. The Court of Appeal found that none of the unfortunate occurrences between getting stuck and suffering the injuries was “a normal incident of the risk created by the use or operation of the car.” Rather, each occurrence was found to be an intervening act.

49We do not agree with the respondent that the presence of the AVM was an intervening act. It is a pre-existing medical condition. We do agree with the respondent that if the sequence of events involving the motorcyclists and NM’s aggressive driving caused the rupture of either the applicant’s AVM or aneurysm, it was not a normal incident of the risk created by the use or operation of the vehicle. The rupture and the applicant’s resulting paraplegia were not reasonably foreseeable risks of the sequence of events involving the motorcyclists.

50Accepting the applicant’s evidence that the motorcycle incident felt like an “altercation” even though there was none, situates this case in line with “assault” cases. The Tribunal and the courts have consistently held that a verbal or physical assault on an applicant while operating or in a vehicle is an intervening cause. An accident is found only where the vehicle itself is the instrument of the applicant’s injuries. Therefore, even if we accept the applicant’s altercation argument, it fails based on the long line of cases finding that an assault is not an accident.

The use or operation of the vehicle was not a dominant feature of the applicant’s injury

51We find that the use or operation of the vehicle was not, on a balance of probabilities, the dominant feature of the applicant’s injury.

52The “dominant feature” of an incident is the aspect that most directly caused the injury. In Greenhalgh, the Ontario Court of Appeal found that the dominant feature of the insured’s injuries (frostbite requiring amputation) could be best described as exposure to the elements, and that the use of the car was “ancillary to that injury.” In Chisholm, the gunshots were the dominant feature of the insured’s injuries; the fact that the insured was driving at the time was ancillary.

53The applicant submits that this case is distinguishable from Greenhalgh and Chisholm. She submits that the motorcycle incident was instrumental in provoking her anxiety, causing her to feel trapped and scared, and causing her blood pressure to spike, leading to an aneurysm rupture.

54The respondent submits that, as with the other branches of the causation test, the AVM was the dominant feature, the aspect that most directly caused the applicant’s paraplegia. The respondent relies on the evidence of both Dr. Fazl and Dr. Shamisa, who agreed that the aneurysm or the AVM would have ruptured eventually. The respondent submits that this evidence made it clear that the vehicle was ancillary to the paraplegia injury, when it did occur.

55We agree that the existence of the congenital AVM, and the consensus opinions of the parties’ experts that it (or the associated aneurysm) would eventually rupture, was the dominant feature of the applicant’s injury. The vehicle was ancillary.

CONCLUSION

56It is indisputable that the applicant’s injury was serious, negatively impacting her life. We are, however, bound by the wording of s. 3(1) of the Schedule, which requires that the use or operation of an automobile be the direct cause of an applicant’s impairment. As noted by the Ontario Court of Appeal in Chisholm, the causation requirement is stringent. The causation requirement has not been satisfied on a balance of probabilities in this case.

ORDER

57On October 10, 2020, the applicant was not involved in an accident as defined by s. 3(1) of the Schedule.

58The application is accordingly dismissed.