Citation: [G. K] v. Wawanesa Mutual Insurance Company, 2023 ONLAT 21-000458/AABS

Licence Appeal Tribunal File Number: 21-000458/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:

[G. K]

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Terry Prowse

APPEARANCES:

For the Applicant: [G. K], Applicant [M. K], Parent Jeffrey A Preszler, Counsel

For the Respondent: Alex Amigud, Adjuster Jason H Goodman, Counsel Nicole A. Dowling, Counsel

HEARD: by Videoconference: December 1, 2, 5, 6 and 7, 2022

OVERVIEW

1On October 30, 2016, the applicant was involved in a motor vehicle accident with his parents and brother. He was 12 days old. On his behalf, his mother, [M. K], sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).

2The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”), for a resolution of the dispute.

ISSUES

3The issues in dispute initially included whether the applicant sustained a catastrophic impairment as defined in the Schedule, whether two medical/rehabilitation treatment plans were reasonable and necessary, an award and interest.

4At the start of the final day of the hearing, the applicant announced that the claims for the medical/rehabilitation treatment plans would be withdrawn, which would effectively remove the claims for an award and interest. The respondent consented. Therefore, the only issue remaining in dispute is whether the applicant sustained a catastrophic impairment as a result of the October 16, 2016 accident.

RESULT

5I find that the applicant did not sustain any injuries as a result of the October 30, 2016 accident, and therefore, did not sustain a catastrophic impairment. The application is dismissed.

ANALYSIS

6The applicant did not sustain a catastrophic impairment, as defined in the Schedule.

7The applicant bears the onus to prove, on a balance of probabilities, that he is catastrophically impaired. Pursuant to section 3.1(1) of the Schedule, an impairment is catastrophic if an insured person sustains a physical or psychological impairment(s) in an accident that occurs on or after June 1, 2016, that results in a specific degree of functional losses.

8Therefore, the applicant would first need to establish that he was involved in an accident. He would then need to show that he sustained injuries/impairments from the accident. Finally, as it applies to this claim, he would need to demonstrate that the severity of the impairment(s) causes functional limitations that meet the criteria for being deemed catastrophic, under section 3.1 of the Schedule.

9The parties agree that the applicant was in the back seat of his parents’ vehicle at the time of the accident. Where they do not agree is whether he sustained any impairments because of it, let alone a catastrophic impairment.

10The applicant’s mother describes that she was sitting in the backseat of their vehicle, between her two sons when the accident occurred. The other vehicle was traveling approximately 40km/hr when it struck their vehicle head on, causing approximately $1,500.00 in damage. She described that the applicant woke up and vomited shortly thereafter. She called 911 and they were taken to the hospital by ambulance. The mother testified that the attending physician only performed a cursory examination, was dismissive of her concerns and did not provide a diagnosis related to the applicant. The applicant was discharged from the hospital, the mother picked up her stepchildren and went home.

11The mother testified that over the next few days, she observed that the applicant was vomiting and missing feeds. She took him to their pediatrician, Dr. Yue You, described the accident and was instructed to monitor the applicant for worsening symptoms. The mother contends that Dr. You mentioned to her that the applicant had a concussion and had tied it to the 2016 accident. The mother described that her son had developmental delays and was receiving support, including at school from a teacher’s helper. She submits that the impairment is the result of the October 30, 2016 accident. She relies on various medical notes and records that describe her son sustaining a concussion during the 2016 accident.

12The respondent’s position is that the applicant did not sustain an injury in the accident, and therefore, did not incur a concussion/traumatic brain injury. The respondent observes that the family’s stopped vehicle is the heaviest production SUV, yet only sustained $1,500.00 damage. The respondent argues that there is no objective evidence of the applicant sustaining a concussion during the accident, let alone being diagnosed with one. The respondent points to the medical records following the accident, observing that the ambulance and hospital staff had no concerns with the applicant’s health. The respondent also refers to the notes of Dr. You, who saw the applicant two days after the accident, to show that Dr. You did not make a diagnosis of a concussion or traumatic brain injury.

13The respondent notes that the applicant’s other son, who is 18 months older, also has developmental issues. The respondent submits that any developmental issues the applicant has are not the cause of impairments sustained from the accident but are genetic in nature. The respondent further claims that information in the medical records, where the writers describe the applicant sustaining a concussion in 2016 came from the applicant’s mother, not from objective medical sources.

14The respondent relies on several medical records immediately following the accident, showing that medical personnel had no concerns about the applicant’s health. The respondent also points to hospital records two days later, when the mother described that the applicant was acting normally, and a consultation report 5 days after the accident, when Dr. Sangeet Kathuria, pediatrician, wrote, “As far as the MVA is concerned, the chances of having an injury or internalist injury is extremely low as five days have passed and the baby is clinically doing really well”. Four years later, Dr. Ervin Johnson, pediatric neurologist, was asked to determine if headaches and a developmental delay were sequelae of the 2016 accident, or another that the applicant was involved in, in 2018. Dr. Johnson dismissed the 2016 accident as a reason for the applicant’s clinical picture. Subsequent assessments by medical professionals in 2019, 2020 and 2021, including from s.44 insurance examination assessors, have not supported the claim that the applicant sustained impairments from the 2016 accident.

15First, I find that the accident was minor. The applicant was in the back seat of the family’s SUV in a rear-facing infant car seat, beside his mother. The SUV was at a full stop, at a traffic light. The accident involved one vehicle hitting another, with the second vehicle drifting into the front of the applicant’s family’s SUV. The airbags did not deploy and the vehicle was driveable afterward. Damage to the vehicle was estimated at approximately $1,500.00, which would reflect a very minor repair.

16The ambulance report does not reveal any objective concerns with the applicant. Upon arriving at the hospital, he was triaged by the hospital staff, who listed no concerns. He underwent an examination, again with no issues being identified by the assessing physician. He was discharged shortly thereafter. None of the medical reports immediately following the accident reflected concerns with the applicant’s functioning, let alone suspicions or diagnoses of a head injury.

17There is also no objective evidence of the applicant being suspected of having, or being diagnosed with, a head injury afterward. The applicant’s mother attended Dr. You’s office two days later. Dr. You was their pediatrician. While the applicant asserted that it was Dr. You who first mentioned a concussion diagnosis to her, that is not at all reflected in the doctor’s notes from the visit. Dr. You wrote that the applicant was involved in the car accident two days prior, attended the ER and was discharged with no concerns. Her own examination showed no issues and she suggested that the issue with the applicant throwing up could be reflux.

18The mother attended the hospital on November 4, 2016 with complaints that the applicant had persistent vomiting. He was assessed by Dr. Sangeet Kathuria, who wrote that an ultrasound of the applicant’s head and axis of his skull were all negative for bleeds or skull fractures. His examination showed no issues with the applicant but told the mother that she was spending too much time breastfeeding him on one side. He diagnosed the applicant with “…physiological reflux, a bit of overflowing milk”. Specific to the MVA, Dr. Kathuria stated that the chances of the applicant having an injury or internal injury was extremely low, given the amount of time that elapsed. He wrote that the applicant was “clinically doing really well”. The remainder of the medical evidence is silent of any clinical diagnoses of a head injury to the applicant, due to the 2016 accident.

19However, the medical record does contain numerous opinions from several medical professionals over the years, who opined or concluded that the applicant did not sustain a head injury in the 2016 accident. They also opined or concluded that his developmental difficulties were genetic in nature, and/or that functional difficulties reported by his mother reflected normal functioning of a child his age.

20For example, Dr. Ervin Johnson, a treating neurologist, testified that he received information about the applicant’s functional difficulties from the mother, but even then, did not feel that the 2016 accident was the cause of functional issues the applicant’s mother was reporting. Dr. Jeffrey Kobayashi, a s. 44 assessor, conducted a catastrophic impairment analysis in February 2022. Dr. Kobayashi testified that the applicant’s physical examination was normal and not out of keeping with children of his age. The doctor concluded that the applicant did not sustain a concussion during the 2016 accident.

21Apart from there being no objective evidence of the applicant sustaining a head injury, I was not at all compelled by the testimony of the applicant’s mother. First, her testimony did not correlate with the medical record on several points. That includes the very important fact of whether her pediatrician made a diagnosis of a concussion related to the 2016 accident, as she asserts. The issue could have been quickly resolved by simply asking Dr. You to testify about her diagnosis, but the applicant did not call the doctor as a witness. I draw a negative inference on this point. Second, when she was questioned on various medical reports where she stated the applicant was fine, she denied it and blamed the writers for incorrectly recording what she said. Third, she testified of being told things by various physicians that are not reflected in their reports. Finally, when provided with school reports of her son doing well and meeting milestones, she denied that was the case and blamed the reports on the school’s desire for the children to feel they are succeeding.

22Given the significant discrepancies between the mother’s testimony and the reports of several medical professionals, I find that her testimony was not at all reliable and should not be afforded any evidentiary weight on the issue of causation. Her impetus may well have been concern for her son’s well-being and development. However, her concerns were addressed by the medical professionals who objectively assessed the applicant over the years and concluded that he did not sustain a head injury during the 2016 accident.

23After considering the evidence and arguments, I conclude that there is no evidence to reasonably support the applicant’s claim. I find that he has failed to demonstrate that he sustained a head injury during the 2016 accident, and therefore find that he is not catastrophically impaired, as defined in the Schedule.

ORDER

24The applicant is not catastrophically impaired. The application is dismissed.