Licence Appeal Tribunal File Number: 23-002411/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:
Tan Tai Huynh
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR: Rachel Levitsky
APPEARANCES:
For the Applicant: Steven Sieger, Counsel
For the Respondent: Rocky Wang, Counsel
HEARD: By way of written submissions
OVERVIEW
1Tan Huynh, the applicant, was involved in an incident on January 21, 2022, 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, Security National Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
Preliminary Issue
2The preliminary issue in dispute is:
i. Was the applicant involved in an “accident” as defined in s. 3(1) of the Schedule?
Substantive Issues
3The substantive 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 (“MIG”) limit?
ii. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from March 18, 2022, to date and ongoing?
iii. Is the applicant entitled to $2,787.39 for physiotherapy services, proposed by Total Wellness Clinic in a treatment plan submitted April 2, 2022?
iv. Is the applicant entitled to $4,327.09 for physiotherapy services, proposed by Total Wellness Clinic in a treatment plan submitted August 19, 2022?
v. Is the respondent liable to pay an award under s. 10 of 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
4The applicant was involved in an “accident” as defined in s. 3(1) of the Schedule.
5The applicant’s injuries are not predominantly minor as defined in s. 3 of the Schedule and he is therefore not subject to the $3,500.00 funding limit in the MIG.
6The applicant is not entitled to an IRB, the treatment plans in dispute, or interest.
7The respondent is not liable to pay an award.
PROCEDURAL ISSUE
8The Case Conference Report and Order of September 27, 2023 (“CCRO”), stipulated that the preliminary issue shall be heard together with the substantive issues. However, the respondent submits that I need only decide the preliminary issue in dispute, and if I find that an accident occurred as denied by s. 3(1) of the Schedule, the respondent will subsequently address the substantive issues based on the merits of each issue.
9I do not accept the respondent’s suggestion that I should not be making a decision on the substantive issues in dispute during this hearing. The respondent has not provided any explanation as to why I should deviate from the CCRO. The applicant was able to address both the preliminary and substantive issues in his submissions, and I do not see why the respondent could not have done so as well. I will accordingly be making a decision on both the procedural and substantive issues in dispute at this hearing.
ANALYSIS
Preliminary Issue
10I find that the applicant was involved in an “accident” as defined by s. 3(1) of the Schedule.
11On June 15, 2022, the applicant attended an Examination Under Oath and gave the following evidence regarding the circumstances of the incident:
i. The applicant had moved the vehicle in his driveway away from a pile of snow so that his wife could more easily get into the vehicle. He stopped the vehicle, but the engine was still running.
ii. The applicant stepped out of the vehicle to retrieve boxes from the right-sided rear seat and bring them into the house. He had planned to take the boxes into the house and then return to his vehicle to take it in for service and take his wife to an appointment.
iii. The applicant picked up a box in his left hand and used his right hand to close the door. He made one step and slipped and fell.
iv. He was not sure whether the door had completely closed when he fell. He believed his hand was not holding onto the door when he turned around, otherwise he would not have fallen.
12On July 25, 2022, the applicant’s counsel wrote to the respondent’s counsel to correct one of his answers. He clarified that his hand was still holding the door at the time he began to fall, but the force of the fall made him lose his grip. As he struck the ground, he was no longer touching the door.
13Section 3(1) of the Schedule defines “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 his injuries.
14Pursuant to the decisions in Greenhalgh v. ING Halifax Insurance Company, 2004 21045 (“Greenhalgh”) and Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ON CA), [2002] OJ No. 3135 (“Chisholm”), the applicant is required to satisfy the following tests in order to prove that an incident was an “accident” as defined by the Schedule:
i. The purpose test: for what purpose was the automobile being used or operated at the relevant time? Did the incident arise out of the ordinary and well-known activities for which automobiles are used?
ii. The causation test: did such use or operation of an automobile directly cause the impairment?
15The Court in Greenhalgh indicated that the following considerations may provide useful guidance in ascertaining whether the causation test has been met:
i. The “but for” test can act as a useful screen;
ii. In some cases, the presence of intervening causes may serve to break the link of causation where the intervening events cannot be said to be part of the ordinary course of use or operation of the automobile; and
iii. In other cases, it may be useful to ask if the use or operation of the automobile was the dominant feature of the incident; if not, it may be that the link between the use or operation and the impairment is too remote to be called “direct”.
The Purpose Test
16I find that the applicant has satisfied the purpose test.
17I accept the applicant’s evidence that he was in the process of retrieving items from his car and closing the door when he slipped and fell. The respondent has not provided me with any reason to disbelieve the applicant’s version of events, including the clarification email.
18The respondent submits that the applicant had completely exited his vehicle and closed the car door before he fell, and that holding a box outside of a car is not an ordinary and well-known automobile use, and therefore he was not “using” his car at the time. I disagree. As indicated above, I accept that the applicant was still in the process of closing his car door at the time of the incident, as his hand was on the door when he started to fall. He was not simply holding a box next to his car. I find that closing a car door is an ordinary and well-known activity for which an automobile is used.
The Causation Test
19I find that the applicant has satisfied the causation test.
20I find that the applicant would not have sustained his injuries “but for” his use of the vehicle, as he slipped in the process of retrieving items from his car and closing the door. However, as noted in Chisholm, the “but for” test does not conclusively establish legal causation. It acts as an exclusionary test. I must now turn my analysis to the other aspects of the causation test.
21The respondent submits that the slip and fall on ice constituted an intervening act that cannot be said to be a part of the ordinary use or operation of the vehicle. It argues that the slip and fall was a risk associated with walking, rather than a risk associated with using the vehicle. For the following reasons, I disagree.
22The Court in Chisholm stated that an intervening act may not absolve an insurer of liability for accident benefits if it can fairly be considered a normal incident of the risk created by the use or operation of the car. In other words, if it is “part of the ordinary course of things”.
23I note that both parties rely on various Tribunal and Financial Services Commission of Ontario cases to make their arguments. I am not bound by those decisions. While Tribunal cases can certainly be illustrative, this is a highly fact-specific exercise, and none of the cases presented by the parties are identical to the one before me.
24I am bound by Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107 (“Porter”), which the respondent relies on. However, the Court did not engage in an analysis with respect to whether there was an intervening act. Although I will discuss Porter further below, I find that it does not assist the respondent at this stage of the analysis.
25I am also bound by Madore v. Intact Insurance Company, 2023 ONSC 11 (“Madore”). The insured was inspecting and cleaning the top of a trailer when he fell and injured himself. The reason for the fall was unknown. The Court held that “slipping and falling off a trailer that is 12 feet high must be seen as a normal incident of the risk created by such use and is reasonably foreseeable.” There was no significant lapse of time between the use of the trailer and the fall, nor did the ordinary use or operation of the trailer cease prior to the fall. There was no evidence to suggest that the fall was caused by any unforeseen event disconnected from the risks associated with cleaning and inspecting his trailer’s roof, and therefore the causal link was not broken.
26I accept that operating a vehicle in a winter climate includes a risk that the ground surrounding the vehicle will be slippery. I find it reasonably foreseeable that someone might slip while in the process of operating their vehicle in slippery conditions. The applicant was in the process of closing his door and unloading boxes from his vehicle when he fell, both of which in my view involved using his vehicle. Like in Madore, the applicant slipped in the process of using his vehicle, there was no significant lapse of time between the slip and the use, and the slip was not an unforeseen event disconnected from the risk associated with operating a vehicle in the winter. I accordingly find that the applicant slipping was not an intervening act separate from the use or operation of his vehicle.
27Further, I disagree with the respondent’s submission that the dominant feature of the incident was the icy ground, and that the use of his motor vehicle was ancillary.
28In Porter, the insured was walking to a Lyft car she had ordered that was parked halfway up an icy driveway. She put her hand out to touch the hood of the car to help stabilize herself on the ice. Before she was able to get into a position to open the car door, she slipped and fell on the ice. The Court held that the dominant factor that physically caused the insured’s injuries was the icy, snow-covered driveway. The operation of the Lyft car was “at best ancillary”.
29Porter did not establish a rule that in all cases involving slipping and falling, the slippery conditions will always be the dominant factor. In Davis v. Aviva General Insurance Co., 2024 ONSC 3054 (“Davis”), the insured reached out to unlock her car door with an electronic key fob when she slipped and fell on black ice. She landed with her left leg under the car. The Divisional Court distinguished the case from Porter, and stated that where there is a series of events that connects the direct use of the car to the injury, ice will not have played the dominant role or served as an intervening event. It found that the use of the electronic key fob was a part of the use of a motor vehicle, and she was so proximate to completing the entry of the vehicle that her leg came to rest under the car. The presence of the key fob was a fact that supported the finding that the use of the car was the direct cause of her fall, not the ice beneath her feet.
30I agree with the respondent that in Davis, the presence of the key fob alone did not establish causation; the use of the key fob preceded the driver’s action of entering and driving the vehicle rather than being a mere presence. I also agree with the respondent that in cases where an insured is interacting with a vehicle, the interactions no longer make the ice the “dominant feature”.
31However, the respondent’s main argument stems from its erroneous assertion that the applicant had already closed the door and walked away, and was therefore not interacting with the vehicle at the time of the slip and fall. As I have indicated above, the evidence is that the applicant was interacting with the vehicle at the time since he fell while he was still in the process of closing the car door. I do not agree with the respondent that the operation of the vehicle had already concluded. I find that, like in Davis, as the applicant slipped while he was interacting with his vehicle, the ice cannot be considered the “dominant feature” of the incident.
32As the applicant was using his vehicle at the time of the incident, and the ice was not an intervening event or the dominant cause, I find that the applicant was involved in an “accident” within the meaning of the Schedule.
Substantive Issues
Application of the Minor Injury Guideline
33I find that the applicant does not belong in the MIG.
34Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
35The applicant sustained a fractured left elbow requiring open reduction and internal fixation surgery in the accident. The definition of the MIG does not include a fracture, and I accordingly find that the applicant has proven that he does not belong in the MIG.
Income Replacement Benefit
36I find that the applicant is not entitled to an IRB.
37To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
38To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.
39The applicant submits that prior to the accident, he worked as a manager at a restaurant, earning $1,500.00 gross every two weeks, which would entitle him to the maximum benefit of $400.00 per week. He submits that, after the accident, he was unable to return to work due to pain and restrictions on range of motion and strength.
40The applicant argues that, as the respondent has no contradictory medical evidence, he should be paid an income replacement benefit from one week post-accident to date and ongoing. However, it is not enough to point to the absence of contradictory evidence. The applicant has the burden of proving that he meets the test for entitlement to the benefit.
41The only medical evidence before me is an x-ray report from April 1, 2023, and an OCF-3 dated February 19, 2022. The x-ray report states that there was a previous open reduction internal fixation of the proximal ulna, and there was overlying soft tissue swelling. No acute abnormality was noted. This document does not provide me with any information regarding the applicant’s ability to work and I find it does not assist the applicant in proving his entitlement to an IRB.
42The OCF-3 was completed by Dr. Dino Moriana, chiropractor. A box was checked indicating that the applicant was substantially unable to perform the essential tasks of his employment, however no further elaboration was provided. Dr. Moriana noted that the anticipated duration of the disability was 9-12 weeks. I am not persuaded by a checked box in a single OCF-3 without additional details to explain why the applicant is substantially unable to complete the essential tasks of his employment.
43The applicant also relies on the transcript of his examination under oath of June 15, 2022. He explained that his responsibilities at work were to help out with everything including handyman tasks, repairs, cleaning, and sometimes cooking if an employee is sick. He deposed that he had not returned to work or received any paycheques following the accident. He stated that the reason he had not returned to work is that his hand is very painful. Further, his doctor and physiotherapist had not allowed him to go back to work yet as they advised him not to lift more than 10-20 pounds.
44I am not persuaded by the transcript on its own. The applicant’s description of his doctor’s and physiotherapist’s opinions are not stand-ins for their actual opinions. I find that no compelling medical evidence has been led to establish the extent of the applicant’s accident-related impairments, or their duration. I accordingly find that he has not proven on a balance of probabilities that he is entitled to an IRB.
45I find that the applicant is not entitled to the treatment plans in dispute.
46To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
47The applicant’s only submission regarding these treatment plans is that the respondent has not paid any amount for treatment to date which he has incurred. He did not provide me with copies of the treatment plans in dispute. He has not explained what kind of treatment was proposed in these treatment plans, or what the treatment providers’ hourly rates were. I cannot make a determination that the treatment plans are reasonable and necessary without knowing what they are proposing. I accordingly find that the applicant has not met his burden of proving, on a balance of probabilities, that the treatment plans in dispute are reasonable and necessary.
Interest
48Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are overdue, I find that interest is not applicable.
Award
49The 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. As no benefits are payable, I find the applicant is not entitled to an award.
ORDER
50The applicant was involved in an “accident” as defined in s. 3(1) of the Schedule.
51The applicant’s injuries are not predominantly minor as defined in s. 3 of the Schedule and he is therefore not subject to the $3,500.00 funding limit in the MIG.
52The applicant is not entitled to an IRB, the treatment plans in dispute, or interest.
53The respondent is not liable to pay an award.
Released: December 18, 2024
Rachel Levitsky Adjudicator