Licence Appeal Tribunal File Number: 24-006245/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:
Paul Joseph
Applicant
and
Optimum Insurance Company
Respondent
DECISION
ADJUDICATOR: Timothy Porter
APPEARANCES:
For the Applicant: Jennifer Hoffman, Counsel Angela Broccolini, Counsel
For the Respondent: Amanda Lennox, Counsel
Court Reporter: Shaeda Lugg (April 2, 2025) Ann Sergeant-Slowly (April 3, 2025)
Heard by Videoconference: April 2-3, 2025
OVERVIEW
1Paul Joseph, the applicant, was involved in an automobile accident on March 1, 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, Optimum Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule in s. 3.1(2)?
ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
3For the reasons that follow I find that the applicant, on a balance of probabilities, has sustained a catastrophic impairment as a direct result of the subject accident.
4The applicant has not established a basis for an award and therefore no award is due.
ANALYSIS
The applicant has sustained a catastrophic impairment as a result of the accident
5For the reasons that follow I find that the applicant, on a balance of probabilities, has sustained a catastrophic impairment as a direct result of the subject accident.
6Under 3.1(1)2(iii) of the Schedule, an insured person is catastrophically impaired when an accident causes a severe and permanent alteration of the prior structure and function of one or both legs as a result of which the insured person’s score on item 12 of the Spinal Cord Independence Measure, applied over a distance of up to 10 metres on an even indoor surface, is 0 to 5.
7A 3.1(1)2(iii) assessment begins with a determination of whether the accident has caused a severe and permanent alteration to the structure and function of one or both legs. The applicant bears the burden of demonstrating on a balance of probabilities that he meets the test in s. 3.1(1)2(iii).
8The parties agree that the applicant has suffered an amputation of his leg above the knee and that this meets the s. 3.1(1)2(iii) catastrophic impairment test; however, the respondent disputes that the subject accident is the cause of the amputation.
9The applicant submits that the subject accident was the cause of trauma to his leg which was then invaded by Group A streptococcal bacteremia and necrotizing fasciitis which eventually caused the amputation of his left leg. The applicant relies on the Sault St. Marie Hospital care records and the expert testimony and report of Dr. Sergio Borgia, infectious diseases specialist.
10The respondent submits that the accident is not related to the applicant’s strep infection which caused the amputation and points to reports of a strep infection in the throat as the culprit.
11Causation is a factual determination made on a balance of probabilities which means it must be a necessary cause of the impairment, not the “only” cause.
12It is well established law that the appropriate test to determine causation in accident benefit cases is the “but for” test, which was confirmed by the Divisional Court in Sabadash v. State Farm et al., 2019 ONSC 1121, 2019 ONSC1121. To satisfy this test, the applicant must prove on a balance of probabilities that “but for” the accident he would not have suffered the impairments which form the basis for his application for CAT status. The Court in Sabadash sets out that the accident need not be the only cause of the impairment but a necessary cause.
13The applicant’s knee was injured in the subject accident. Following the subject accident of March 1, 2021, the applicant first interacted with medical professionals on March 8, and on a return visit March 9, 2021, presenting at the Sault St. Marie Hospital first complaining of neck and left knee pain; the applicant is noted to have left knee range of motion of 25-80 degrees, average knee extension and flexion is 0-135 degrees, with an abnormal build-up of fluid under the skin. Upon the return visit on March 9, 2021, the applicant complained of flu-like symptoms with a sore throat, body pain and general malaise with an elevated heart rate and shallow breathing. Following this the applicant next attended the hospital by ambulance on March 13, 2021, complaining of general pain, most severe in his left knee and hip, and he denied a sore throat. I have not been pointed to any active disease or alternative trauma that the applicant had or suffered leading up to or following the subject accident. Taken together, on a balance of probabilities, the applicant’s knee was injured, and the subject accident is the cause of the injury.
14Group A streptococcal bacteremia and necrotizing fasciitis entered the knee as a result of the subject accident. Dr. Gravel, of the Sault St. Marie Hospital, upon re-evaluation of the left leg and knee on March 13, 2021, noted pain out of proportion with the physical exam and worsening swelling and dark red discolouration centrally which he suspected as necrotizing soft tissue. Upon review of Dr. Gravel’s care records, Dr. Borgia testified that, based on years of experience, and in standard medical terminology Dr. Gravel was outlining his investigation and what he believed to be the likely cause, that the knee was the site of an infection. Taken together, on a balance of probabilities, the left knee is the entry point for Group A streptococcal bacteremia and necrotizing fasciitis.
15Dr. Borgia also testified that the Group A streptococcal bacteremia and necrotizing fasciitis exists almost everywhere in the world around and on us, that if a host is infected, the infection will generally localize in an area of the body where there is already damage, and that the infection can enter the body through cuts, microscopic tears in the skin or through trauma such as bruising. Group A streptococcal bacteremia can cause infections that range from “strep throat” to “flesh-eating disease” with the determining factors being the virulence of the bacteremia and the defenses of the host. Dr. Borgia’s report and testimony highlighted his opinion that the traumatic event that led to the infection is the subject car accident, and that the clinical timeline is entirely consistent with the knee being damaged in the car accident, and with the infection taking hold in the following 2-5 days.
16I find that the Group A streptococcal bacteremia and necrotizing fasciitis is the cause of the left leg amputation above the knee. Over the course of a month, the applicant underwent several surgeries to the left leg, debriding tissue to get ahead of the advancing infection. In and around April 17, 2021, it was determined that the left leg needed to be amputated to stop the advancing infection as several debridement attempts had not been successful. The amputation was carried out. Taken together, and on a balance of probabilities, the necrotizing fasciitis was the cause of the applicant’s left leg amputation.
17I cannot accept the third-party report of a medical opinion which is not supported by medical evidence. The respondent points to the report of a sore throat identified in the March 9, 2021, Sault St. Marie Hospital care records and the statement by Jessica Joseph, daughter of the applicant, to one of the respondent’s adjusters that an unidentified doctor had told her that strep throat was likely the cause of necrotizing fasciitis of the left knee. Ms. Joseph’s statements in this regard, as the unidentified doctor remains unknown, are hearsay with very low probative value and very high prejudicial value. Ms. Joseph does not recall this report but does not deny speaking with an adjuster. I have not been pointed to any opinions or evidence in the Sault St. Marie Hospital care records that corroborate the statement by Ms. Joseph.
18Strep throat is unlikely to be the cause of the Group A streptococcal bacteremia and necrotizing fasciitis of the left knee. I have been pointed to no medical evidence that the applicant was diagnosed with or was suspected of having “strep throat”. The “sore throat” symptom reported in the March 9, 2021, care record does not appear again as a symptom. In contrast, left knee pain is identified on March 8, 2021, and again on March 13, 2021, and these care records indicate impairment of functionality. Dr. Borgia has testified that it is extremely unlikely that “strep throat” could lead to Group A streptococcal bacteremia and necrotizing fasciitis of the left knee; stating “you do not cut your finger and get necrotizing fasciitis in your ankle, its not how this infection works”. On a balance of probabilities “strep throat” did not lead to Group A streptococcal bacteremia and necrotizing fasciitis of the left knee.
19The applicant had his left leg, above the knee, amputated on April 17, 2021. I find that the subject accident was a necessary cause of a severe and permanent alteration to the structure and function of one leg.
Award
20The 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. The applicant provided no specifics upon which to base an award decision. Therefore, no award is due.
ORDER
21I find that the applicant, on a balance of probabilities, has sustained a catastrophic impairment as a direct result of the subject accident.
22The applicant is not entitled to a s. 10 award.
Released: May 30, 2025
Timothy Porter Adjudicator