22-000947/AABS - A

Licence Appeal Tribunal File Number: 22-000947/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:

Colleen Buma

Applicant

And

TD Insurance Meloche Monnex

Respondent

AMENDED DECISION

ADJUDICATOR:

Gareth Neilson and Sandra Driesel

APPEARANCES:

For the Applicant:

Colleen Buma, Applicant

Arthur Camporese, Counsel

For the Respondent:

TD Insurance Meloche Monnex, Representative

Olga Elmanova, Counsel

Irina Sfranciog, Co-Counsel

HEARD: by Videoconference:

June 12, 2023

OVERVIEW

1Colleen Buma, the applicant, was involved in an automobile accident on September 11, 2021, 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, TD Insurance Meloche Monnex, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The respondent raised a preliminary issue in response to this application. The preliminary and substantive issues in dispute are all subject of this hearing.

PRELIMINARY ISSUE:

3Does the incident that caused the applicant’s psychological injuries meet the definition of “accident” as defined in the Schedule?

SUBSTANTIVE ISSUES IN DISPUTE

4The issues in dispute are:

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

ii. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from September 2, 2022 to date and ongoing?

iii. Is the applicant entitled to $2,200.00 for psychological services, proposed by Kaplan and Levitt in a treatment plan/OCF-18 (“plan”) submitted October 12, 2021 and denied December 23, 2021

iv. Is the applicant entitled to $6,783.68 for psychological services, proposed by Kaplan and Levitt in a plan submitted February 25, 2022 and denied March 18, 2022?

v. Is the respondent liable to pay an award under s. 10 of O. Reg. 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

5We find:

i. The applicant’s psychological injuries were not caused by an ‘accident’ as defined in the Schedule and therefore she is not entitled to accident benefits related to this impairment.

ii. The applicant’s accident-related injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG.

iii. The applicant is not entitled to an income replacement benefit.

iv. The applicant is not entitled to the psychological services in dispute.

v. The applicant is not entitled to an award under s. 10 of Regulation 664.

vi. Because no benefits are found payable the applicant is not entitled to interest.

PRELIMINARY ISSUE

BACKGROUND

6The parties agree there was an “accident” as defined by s. 3(1) of the Schedule and they agree that the applicant suffered physical injuries as a result of the MVA. She was designed by the insurer to be treated for these injuries within the MIG.

7The applicant claims that in viewing a video of the MVA provided her by a bystander, she recognized a house in the background of the accident scene where she once resided and where she was a victim of abuse. The applicant submits her seeing this video triggered a resurfacing of psychological trauma that has exasperated existing psychological issues. Her position on her entitlement to benefits is that if not for the MVA, she wouldn’t have experienced the trauma and therefore the MVA is the cause of her current impairments.

8The respondent argues that the psychological injury was not caused by the MVA and therefore, the applicant is not entitled to benefits pursuant to the Schedule in respect of that injury.

ANALYSIS

The psychological injuries were not caused by an “accident”

9Section 2(3) of the Schedule provides that the benefits set out in the regulation shall be provided in respect of “accidents”. Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment.”

10The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused her injuries.

11In Economical Mutual Insurance Company v. Caughy¹, 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; and

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

The Purpose Test

Did the incident arise out of the use or operation of an automobile?

12As set out in Greenhaigh v ING Halifax Insurance Company, 2004 CanLII 21045 (ONCA) (“Greenhaigh”) at para. 11, the purpose test is a determination of whether the incident resulted from “the ordinary and well-known activities to which automobiles are put.

13As much as the subject accident can definitely be attributed to the use or operation of an automobile (that the applicant was driving), we find the actual “incident”, or “the viewing of the video by the applicant” is not an action or normal activity that arises out the use or operation of an automobile. It is not created from the operation of an automobile.

14The video was not claimed to be involved in the cause of the accident. We find, the creation of the video (the recording of the accident) and the viewing of the video is in no way connected to the normal use or operation of an automobile.

The Causation Test

Would the alleged psychological injuries have occurred “but for” the use and operation of the automobile?

15As set out in Greenhaigh, the causation test 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:

a. Whether the incident would have occurred “but for” the use or operation of the motor vehicle;

b. Whether there was an intervening cause that cannot be said to be part of the ordinary course of the use or operation of the motor vehicle;

c. Whether the use or operation of the motor vehicle was a dominant feature of the incident.²

16The but for test does not require that the accident be the only cause of the impairments the applicant is currently suffering. In Chisholm, Laskin J.A. put the “but for” concept this way, “When one thinks of direct causation one thinks of something knocking over the first in a row of blocks, after which the rest falls down without the assistance of any other act.” This issue was further explored in Sabadash v. State Farm et al., 2019 ONSC 1121 (“Sabadash”), where, at paragraph 39, the Divisional Court rejected the Director’s Delegate’s finding “that the accident in issue must be sufficient in itself to have caused the impairment: that it must be “the cause” as opposed to “a necessary cause.” Applying Sabadash, the applicant needs to show that the accident was a necessary cause of her mental/behavioural impairments.

17The applicant submits her psychological impairments would not have occurred but for the fact she reviewed a video, and she only viewed the video because she was involved in an accident that occurred as a result of the use or operation of her vehicle. In other words, but for the accident she would not have experienced this trauma.

18As noted above, we have determined the “incident” causing the trauma to the applicant was in fact the viewing of a video, which we have determined not to be related to the use or operation of an automobile.

19We therefore conclude the use or operation of the automobile was not a dominant feature of the applicant’s psychological injuries.

Conclusion regarding preliminary issue

20We find the incident that caused the psychological impairment, the viewing of the video, does not meet the definition of “accident” as defined in the Schedule and therefore conclude that the applicant is not entitled to accident benefits related to her psychological impairments.

SUBSTANTIVE ISSUES

Minor Injury Guideline (“MIG”)

21The applicant was placed in the MIG because of the physical injuries she sustained in the MVA. The applicant argues that she has sustained psychological injuries that require treatment that is in excess of the $3,500.00 imposed by the MIG.

22The respondent argues the applicant’s psychological impairment was not caused by the MVA and therefore she is not entitled to payment of any treatment plan related to this type of impairment. They also submit the applicant has failed to provide any evidence that her physical injuries cannot be treated with the MIG limits.

23As we have already determined the applicant’s psychological impairments were not caused by the MVA, and she has not submitted evidence to show she has sustained physical injuries that are not predominately minor, the application to be removed from with the MIG has no basis.

24We find the applicant has not met her onus to prove that she has sustained injuries which are not predominately minor as a result of the MVA and therefore she is subject to the MIG limit on medical and rehabilitation benefits.

Income Replacement Benefit (“IRB”)

25Since the applicant was unemployed at the time of the MVA, pursuant to s. 5(1) ii C of the Schedule in order to be entitled to an IRB the applicant must show that as a result of and within 104 weeks after the accident, she suffers a substantial inability to perform the essential tasks of employment in which the insured person spent the most time during the 52 weeks before the accident.

26The applicant submits she meets the test for IRB due to the physical and psychological injuries sustained as a direct result of the accident. She explains that she was unemployed at the time of the accident and was planning to return to work but because of injuries sustained in the accident she could not return to her employment.

27The respondent submits the applicant was unemployed at the time of the accident and contrary to her submissions the applicant had no intention of returning to work because she was pursuing ‘Short Term Disability’ just prior to the accident, citing her inability to return to work. In addition, the respondent argues the applicant has the burden to show that her accident-related impairments affect her ability to engage in any type of employment for which she is suited.

28We have determined that any psychological impairment the applicant current suffers from is not as a result of the accident. The applicant has failed to produce evidence so support her inability to work because of physical impairments. The records submitted from the applicant’s medical assessor reference psychological reasons for her inability to return to work and they rely on the applicant’s testimony that she was prepared to return to work but for the accident. Dr. Hosein, Physiatrist, assessed the applicant and found her to be physically able to perform her pre-accident work tasks. Further to this, although the applicant testifies her family doctor supplied a letter advising her employer she was returning to work before the accident, this document was never produced. Instead, we do find evidence that the applicant was in fact trying to get a short-term disability benefit instead of returning to work.

29We find the applicant has not met her burden to prove her entitlement to an IRB and therefore her application for this benefit is dismissed.

Psychological Services (Treatment Plans)

30The applicant is seeking payment of the following psychological related treatment:

1. $2,200.00 for psychological services proposed by Kaplan and Levitt.

2. $6,783.68 for psychological services proposed by Kaplan and Levitt.

31As noted above, we determined that any psychological impairment the applicant may have has not been proven to be as a result of the automobile accident. This decision means that (a) the insurer is not liable to pay these benefits and (b) we do not have to determine if these treatment plans in dispute are reasonable or necessary to the applicant’s recovery.

32We find the applicant is not entitled to the payment of these treatment plans.

Interest

33Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are found payable - the claim for interest is dismissed.

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. Since the applicant is not awarded any payment of benefits, there is no basis to order an award. The claim for an award is dismissed.

CONCLUSION AND ORDER

35The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.

36The applicant is not entitled to an income replacement benefit.

37The applicant is not entitled to the treatment plans in dispute as she has failed to demonstrate they are reasonable or necessary as a result of the accident.

38The applicant is not entitled to interest pursuant to s.51 of the Schedule.

39The applicant is not entitled to an award under s. 10 of Regulation 664.

40We dismiss the application in its entirety.

Footnotes

1. 1Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226.
2. 2Ibid at paras. 36-49.