Licence Appeal Tribunal File Number: 21-002186/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:
Aneta Strajch
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Samia Alam, Counsel
For the Respondent:
Kristen Ogden, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Anita Strajch (“A.S.”), the applicant, seeks a determination that she is entitled to medical benefits as a result of physical injuries which resulted from caring for her husband after he was involved in an accident on April 7, 2015. She sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). A.S. was denied benefits by the respondent, Intact, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2The preliminary issue to be decided is whether A.S. suffered injuries as a result of an accident under s. 3(1) of the Schedule.
ISSUES
3The issues in dispute are:
a) Is Intact liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to A.S.?
b) Is A.S. entitled to interest on any overdue payment of benefits?
RESULT
4A.S.’s injuries did not result from an “accident” as defined in s. 3(1) of the Schedule.
5A.S. is not entitled to an award, no interest is payable.
BACKGROUND
6A.S.’s husband was involved in an automobile accident on April 7, 2015, when he was a pedestrian crossing at an intersection. He suffered several fracture injuries and upon discharge, required attendant care services. The attendant care benefit was paid and then subsequently stopped effective May 1, 2016.
7Due to a deterioration in his cognitive functions, by December 2019, the level of attendant care required by A.S.’s husband increased to 24-hour care requirements. A.S. became her husband’s caregiver on a full-time basis. She performed a variety of duties including lifting him in and out of bed, toileting/bathing, dressing, driving, cooking/cleaning and ensuring that he did not sustain falls, as he was deemed an absolute fall risk.
8On March 30, 2020, A.S.’s husband was deemed catastrophically impaired by Intact. However, due to COVID restrictions, A.S. continued to assume attendant care duties.
9A.S. alleges that in caring for her husband, she began experiencing physical symptoms including neck, arm, back and leg pain.
Was A.S. involved in an “accident”?
10For the following reasons, I find that A.S. was not involved in an “accident” as defined by s. 3(1) of the Schedule.
Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment.”
11A.S. bears the onus to establish on a balance of probabilities that the use or operation of an automobile directly caused her injuries.
12The Court of Appeal established the two-part test to determine whether an incident is an “accident” in Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 as follows:
a. Purpose test: did the incident arise out of the use or operation of an automobile? and
b. Causation test: did the use or operation of an automobile directly cause the impairment?
13The 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), 2004 CanLII 21045 (ONCA). Put another way, for what “purpose” was the vehicle being used at the time of the incident?
14The causation test then requires the adjudicator to determine if these “ordinary and well-known activities” were the direct cause of the applicant’s impairments by focusing on the following considerations:
The “but for” consideration;
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 vehicle; and,
Finally, when faced with a number of possible causes, the “dominant feature” consideration focuses on whether the ordinary and well-known activity is what “most directly caused the injury”.
15For the following reasons, I find that the incident in which the applicant was involved did not arise out of the use or operation of an automobile. Nor was the applicant’s impairment directly caused by the use or operation of an automobile. On the facts of this case, the test in Greenhalgh is not met. The incident causing the applicant’s impairment does not fall within the definition of an “accident” under the Schedule.
The Purpose Test
16I find that A.S. has not met the purpose test, because, according to s. 3(1) of the Schedule, her injuries did not arise out of the ordinary and well-known activities for which automobiles are put.
17In A.S.’ case, the incident which caused her injuries did not arise out of the use or operation of an automobile at all. It arose over time as she cared for her hsuband.
The Causation Test
Would A.S.’s injuries have occurred “but for” the use or operation of the automobile?
18I find that A.S. would not have sustained these injuries “but for” her husband being injured in an accident. However, the “but for” test does not conclusively establish legal causation, which is the key in whether there is legal liability. As Laskin J.A. noted in Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA) (“Chisholm”) the purpose of the “but for” test of causation is an exclusionary test which serves to “eliminate from consideration factually irrelevant causes. It screens out factors that made no difference to the outcome […] the but for test does not conclusively establish legal causation.”
19Since the “but for” test does not conclusively establish causation, I now turn my analysis to whether there was an intervening act that broke the chain of causation.
Was there an intervening act?
20A.S. submits that there was there was no other intervening forces or other dominant features of A.S.’s physical impairments other than the injuries that arose as a result of caring for her husband. She relies on Wawanesa Mutual Insurance Company and Webb (FSCO Appeal P11-00015, July 18, 2012), p. 6 in support of her position that a “motor vehicle does not have to be the instrument of injury.” She further relies on Chisholm, where the Court of Appeal commented that even if an intervening act is found to be a “normal incident of the risk created by the use or operation of the car – if it is part of the ordinary course of things”, accident benefits will be triggered. (Chisholm at para. 29)
21A.S. submits that providing care to a family member which results in physical impairments as a result of that care, is a normal incident of the risk created by the use or operation of a vehicle; that it is in the ordinary course of things and foreseeable as a consequence of an automobile accident. She furthers submits that the continuity of events show that her impairments could reasonably be foreseen as arising out of her husband’s accident.
22Intact argues that in order for A.S. to be defined as an “insured person”, she would have had to be directly involved in the accident or, if she was indirectly involved, she must suffer a psychological or mental injury as a result of the injuries her husband sustained, to be considered eligible for benefits. In support of its position, Intact relies on Miller v. Motor Vehicle Accident Claims Fund (MVACF), 2021 CanLII 19425 (ON LAT).
23In Miller, the Tribunal found that the applicant’s injuries were as a result of the trauma of witnessing her spouse in an injured state, not the automobile accident. In the Tribunal’s view, connecting the accident and related injuries and the applicant’s encounter with her spouse later in the hospital as a single incident expanded the scope of the term beyond what is reasonable. The Tribunal concluded that the impairments did not arise out of the use or operation of an automobile. The impairments did not arise from the ordinary and well-known activities to which automobiles are put.
24I find Miller persuasive and similarly find that A.S.’s injures were not a consequence directly caused by the use or operation of an automobile.
25Instead, I find that her injuries resulted from providing care for her husband, who was injured as a result of an accident. In providing attendant care services, there is an assumed risk, that the care provided could lead to injuries to the care giver. In my view, A.S.’s impairments arose from completely different circumstances that were entirely separate from being as a result of an “accident” as defined in the Schedule. A.S.’s injuries were as a result of the care provided to her husband, not as a result of the accident itself. Thus, the chain of causation is broken in that the condition of her husband caused her injuries, and not the accident.
Was the use or operation of the automobile a dominant feature of A.S.’s injuries?
26As described in Greenhalgh, the “dominant feature” consideration requires an adjudicator to determine what element of an incident is “the aspect of the situation that most directly caused the injuries.” For instance, in Greenhalgh, the incident involved the insured person suffering from severe frostbite after getting her vehicle stuck on a country road. In dismissing the claim of an “accident” Justice Labrosse found, that “the ‘dominant feature’ of the insured’s injuries could be best characterized as exposure with the elements, and that the use of the motor vehicle was ancillary to that injury.”
27Notably, A.S. does not specifically address this aspect of the Greenhalgh test. However, in her submissions she comments that a vehicle does not have to be directly involved.
28I find that the use or operation of an automobile was not a “dominant feature” of her injuries. In fact, the automobile played a role that was secondary or peripheral to the A.S.’s injuries.
29The evidence that this decision turns on, is compelling when considering the factors laid out in Greenhalgh:
a) There was no automobile present while A.S. was providing care for her husband;
b) A.S. did not have any physical contact with the vehicle involved in the accident; and
c) The use or operation of the vehicle had ceased at the time A.S. suffered impairments in providing care for her husband.
30The factors that caused A.S.’s impairments are too far removed from the automobile accident to arrive at a conclusion that A.S. was directly involved in an accident and suffered impairments as a result.
31Accordingly, I find that her injuries are not as a result of an “accident” as defined under s. 3(1) of the Schedule.
32Consequently, A.S. is not entitled to claim accident benefits.
Interest
33Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. No payment of benefits are overdue in this case, therefore, no interest is payable.
Award
34The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
35Having found that A.S. did not suffer injuries as a result of an accident and that there are no benefits in dispute, Intact cannot have withheld or delayed any payments.
36An award is not appropriate.
ORDER
37A.S.’ injuries are not as a result of an accident.
38The application is dismissed.
Released: May 8, 2023
Derek Grant
Adjudicator