Krista Haddy v. Certas Home and Auto Insurance Company, 2024 CanLII 28826

Citation: Haddy v. Certas Home and Auto Insurance Company, 2024 ONLAT 22-012290/AABS

Licence Appeal Tribunal File Number: 22-012290/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:

Krista Haddy

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATORS:

Dagmara Szczudlo

Taivi Lobu

APPEARANCES:

For the Applicant:

Nick de Koning, Counsel

For the Respondent:

Benjamin Lee, Counsel

Heard by Videoconference:

February 5, 2024

OVERVIEW

1Krista Haddy, the applicant, was involved in an automobile accident on May 25, 2002, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 (the “Schedule”) and transitional provisions outlined in s. 38 and s. 44 of the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016). The applicant was denied benefits by the respondent, Certas Home and Auto Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The respondent designated the applicant catastrophically impaired as a result of the automobile accident.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to $39,377.30 for fertility expenses incurred with One Fertility and submitted on a claim form (OCF-6) submitted November 5, 2020, and denied November 14, 2020?

ii. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

iii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4The applicant is not entitled to $39,377.30 for fertility expenses incurred with One Fertility as the applicant has not demonstrated on the balance of probabilities that the need for fertility treatments was causally related to the accident.

5The respondent is not liable to pay an award under Regulation 664.

6No interest is payable pursuant to s. 51 of the Schedule.

ANALYSIS

Background

7The applicant suffered serious trauma in a 2002 motor vehicle accident, requiring multiple surgeries in her pelvic and abdominal region. The applicant later had difficulty conceiving her first child and in 2015 she and her husband self-funded fertility treatments. After stopping treatment, they conceived naturally and their first child was born in late 2016. In 2018, they again started fertility treatments to enhance the likelihood of conceiving. Their second child was conceived with the aid of IVF treatment and was born in February 2020 by cesarian section.

8The obstetrician-gynecologist who conducted the 2020 cesarian section, Dr. Yvonne Leong, documented the following in the operative report: “When inspecting for tubes and ovaries, the left tube and ovary were visualized; however, due to dense adhesions on the right-hand side, the right tube and ovary were not seen.”

9Upon learning of Dr. Leong’s observations when conducting the 2020 cesarian section, the applicant took the position that the IVF treatment was causally related to adhesions caused by medical procedures from her motor vehicle accident. She is seeking payment from the respondent of $39,377.30 for expenses incurred for fertility treatments between 2015 to 2016; and again from 2018 to 2019.

The subject accident and post-accident sequela did not cause the applicant’s difficulties in conceiving her children

10The panel finds that evidence presented by the applicant is insufficient to demonstrate that the fertility treatments were reasonable and necessary as a result of the accident.

11The burden of proof is on the applicant to show on a balance of probabilities that the need for fertility treatments was causally linked to the accident. Pursuant to what has been referred to as the “but for” test for causation affirmed by the Divisional Court in Sabadash v. State Farm et al., 2019 ONSC 1121, the applicant must demonstrate that there would not have been a need for fertility treatment had it not been for the accident.

12The applicant relied on evidence from her family physician, Dr. Shazia Alavi, specifically two letters dated March 22, 2022, and July 11, 2023. Dr. Alavi states that extensive adhesions were found in her pelvis and that a “gynecologist advised that her difficulty conceiving was likely related to all these adhesions” arising from post-accident surgeries. Dr. Alavi further states that abdominal adhesions “have likely contributed to her fertility issues”.

13The respondent submits that evidence from the applicant’s family doctor, Dr. Alavi, should not be relied upon in determining causation and sought to exclude these letters from the hearing evidence.

14The respondent submitted that fertility is in the domain of obstetrics and gynecology, that Dr. Alavi is a family physician and has offered no evidence of her training in fertility or that she has experience in carrying out cesarian sections. The respondent also submitted that Dr. Alavi’s comment of the gynaecologist having advised that the applicant’s “difficulty conceiving was likely related to all these adhesions” was hearsay.

15The applicant submitted that as per s. 15 of the Statutory Powers Procedure Act, R.S.O. 1990, the rules for admission of evidence at Tribunals are less stringent and the evidence should be admitted and weighed accordingly. The applicant also submitted that the respondent did not provide appropriate notice to disqualify Dr. Alavi as an expert witness as per Rule 10 of the Tribunals Ontario Common Rules of Practice & Procedure.

16The panel is unable to place weight on Dr. Alavi’s statement that the “gynecologist advised that her difficulty conceiving was likely related to all these adhesions.” Dr. Alavi did not testify, although she was on the applicant’s witness list. The circumstances around her receipt of such information from Dr. Leong is unclear. For example, the panel does not know the extent to which this opinion may have been based on Dr. Alavi’s interpretation of Dr. Leong’s operative note and there is no indication as to what information was available to Dr. Leong when such information was relayed to Dr. Alavi.

17With regard to Dr. Alavi’s ability to provide opinion evidence, the applicant submitted that the respondent did not provide appropriate notice to disqualify Dr. Alavi as an expert witness under Rule 10.4. However, the panel notes that the applicant did not present Dr. Alavi as an expert witness and has not complied with the requirements for an expert witness under Rule 10.2. No information about her education, training, scope of practice or other expert qualifications was given. The panel is not prepared to accept her as an expert witness with respect to fertility or surgery.

18Dr. Alavi is the applicant’s family physician. The panel was not directed to any evidence of her having treated the applicant for fertility issues or having participated in the cesarian section in which the adhesions were observed, nor did Dr. Alavi appear as a witness. As the opinions communicated by Dr. Alavi do not appear to be related to the treatment that she provided and as she has not been qualified as an expert to provide opinion evidence, the panel is unable to place weight on Dr. Alavi’s opinion relating to the applicant’s need for fertility treatment.

19The only other evidence advanced by the applicant to demonstrate the relationship between the adhesions to the need for fertility treatment was the operative note of Dr. Leong, who carried out the applicant’s cesarian section. The operative note does not state that the adhesions impaired function of the right fallopian tube and/or ovary, but that this part of the applicant’s anatomy was not observed due to the presence of adhesions.

20Dr. Leong was not called as a witness, nor was any expert evidence presented to address the medical implications of the operative observation of the adhesions.

21The panel is not positioned to make medical findings pertaining to causation in the absence of suitable medical evidence. The documentary evidence shows that there are factors other than the adhesions which may have relevance to the applicant’s need for fertility treatment. For example, the applicant was able to conceive a child in 2016 without the aid of fertility treatment. She had also been diagnosed with another condition which both Dr. Paul Strauss, a treating obstetrician/gynecologist, and Dr. Victor Akinsooto, her treating physician at the fertility clinic, indicated as relating to the ability to conceive. Neither Dr. Strauss nor Dr. Akinsooto were called as witnesses.

22Without adequate medical evidence addressing the effect of the observed adhesions on the applicant’s need for fertility treatments, the panel finds that the applicant has not met her onus of showing that the need for fertility treatment was causally related to her accident injuries.

The applicant is not entitled to $39,377.30 for fertility expenses incurred with One Fertility and submitted on a claim form (OCF-6)

23The panel finds that the applicant is not entitled to $39,377.30 for fertility expenses incurred with One Fertility, as the applicant has not established that the need for fertility treatments was caused by the accident.

24The respondent also took the position that it was not liable to pay for cost of the fertility treatments because the applicant had not submitted treatment plans (OCF-18s) for fertility treatments before incurring the expenses.

25As the panel has found that the applicant has not met her burden of proving that the expenses claimed are reasonable and necessary as a result of the accident, it is not necessary to address whether the respondent is liable to pay for treatments which took place without prior submission of treatment plans.

The applicant is not entitled to an award

26The applicant sought an award under section 10 of Reg. 664. Under section 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, there is no basis for an award.

The applicant is not entitled to interest

27As no benefits are overdue, no interest is payable pursuant to section 51 of the Schedule.

ORDER

28The applicant is not entitled to $39,377.30 for fertility expenses incurred with One Fertility.

29The applicant is not entitled to an award under Regulation 664.

30The applicant is not entitled to interest pursuant to s. 51 of the Schedule.