Citation: Walker v. Certas Home and Auto Insurance Company, 2026 ONLAT 24-012064/AABS

Licence Appeal Tribunal File Number: 24-012064/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:

Danielle Walker

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Christine Boulos, Counsel

For the Respondent:

Diana Oliveira, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Danielle Walker, the applicant, was involved in a motor vehicle accident on October 25, 2019. On December 19, 2019, she submitted a completed and signed Application for Accident Benefits to the respondent, Certas Home and Auto Insurance Company, seeking benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016 (the “Schedule”). On January 15, 2022, the applicant passed away. On April 26, 2024, an Application for Death and Funeral Benefits (“OCF-4”) was submitted on behalf of the applicant claiming funeral and death benefits which was denied by the respondent. The applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to $5,639.39 for a Funeral Benefit submitted on April 26, 2024?

ii. Is the applicant entitled to $20,000.00 for a Death Benefit submitted on April 26, 2024?

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

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

RESULT

3I find that the applicant is not entitled to a Death or Funeral Benefit, interest or an award.

ANALYSIS

Background

4The applicant was involved in the subject accident on October 25, 2019. She submitted her Application for Accident Benefits (“OCF-1”) to the respondent on December 19, 2019.

5On January 15, 2022, the applicant passed away due to a combination of mixed ethanol, prescribed medication and an illicit substance toxicity according to the Coroner’s Report.

6On April 26, 2024, an OCF-4 was submitted by the applicant’s counsel requesting Funeral and Death Benefits.

7The respondent denied the OCF-4 on September 21, 2024, based on its position that the death of the applicant was not a result of the subject accident.

8On September 27, 2024, the applicant’s counsel submitted an application to the Tribunal to dispute the denial of the Death and Funeral Benefits.

9While the issues before me pertain to Death and Funeral Benefits claimed by the applicant, the decision before me hinges on whether the applicant’s death was caused by the subject accident.

The Law

10Section 2(3) of the Schedule provides that its benefits “shall be provided in respect of accidents that occur in Canada or the United States of America, or on a vessel plying between ports of Canada or the United States of America, while “accident” is defined in s. 3(1) of the Schedule as “an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prothesis or other medical or dental device.”

11I find that it is well established law that the appropriate test to determine causation in accident benefits cases is the “but for” test, which was confirmed by the Divisional Court in Sabadash v. State Farm et al, 2019 ONSC 1121. To satisfy the test, the applicant must prove on a balance of probabilities that “but for” the accident she would not have suffered the impairments which form the basis of the claim for accident benefits. The Court in Sabadash sets out that the existence of pre-existing medical issues does not negate an insurer’s liability, and that the accident need not be the only cause of the impairment but must be a necessary cause.

Pre-Existing Medical Conditions

12The applicant submits that prior to the accident, she saw her family doctor once for anxiety. On December 3, 2018, she advised that she had anxiety but was doing much better when taking Cipralex. She did not see any specialists or counselors for this anxiety. She further submits that prior to the accident, she suffered from ovarian cysts and endometriosis and was prescribed Dilaudid for this. On the day of the accident, she was on her way to the hospital for surgery which was ultimately rescheduled to November 27, 2019. The applicant claims that prior to the accident, she took her medications without incident and never mixed it with excessive amounts of alcohol.

13The respondent submits that the applicant has a pre-existing history of depression, anxiety and some obsessive-compulsive symptoms since age 11. She saw a psychiatrist at Ross Memorial Hospital in 2010 after a traumatic loss. On November 20, 2018, she was assaulted and had accompanied headaches, vomiting, numbness in the right arm, fourth and fifth fingers. She was taking Cipralex and Trazadone pre-accident as needed for anxiety and insomnia. The prescription summary shows that the applicant was initially prescribed Diaudid on October 9, 2019, 17 days before the accident by her gynecologist.

14I find that the applicant’s submissions fail to acknowledge her significant pre-accident psychological history which is relevant to the issues in dispute. The applicant has submitted that the subject accident was the cause of her psychological impairments and pre-accident she only saw her family doctor once for anxiety and she did not see any specialists or counselors for anxiety. I find that the report of Dr. Leon Steiner, psychologist, dated March 12, 2020, notes that the applicant reported an assault as a young child, which she has been dealing with for the past 10-15 years through counsellors on and off. She stated that she was diagnosed with depression and anxiety since the age of 11 and has been on anti-depressants since she was a teenager. She reported seeing multiple counsellors as allotted by her work benefits as well as at women’s help facilities. She also saw a psychiatrist at Ross Memorial Hospital in 2010 after a traumatic loss. I therefore find that the applicant had a significant pre-accident psychological history.

15Despite this finding, as the Court in Sabadash concluded that the existence of pre-existing medical issues does not negate an insurer’s liability, I will continue to analyze the issue of causation based on her post-accident impairments and function.

Post-Accident Impairment and Functioning

16The applicant submits that prior to the accident she was a single mother of two children and worked two jobs as a registered nurse practitioner at Coburg Extended Care and a night shift at Caressant Care. On December 21, 2019, she wrote to her employer at Coburg Extended Care advising that due to her accident-related injuries, she was resigning due to her inability to perform the physical tasks of her job. With respect to her second job at Caressant Care, on August 11, 2020, the applicant submits that her family physician, Dr. Prashant Chaudhari, wrote a letter “To Whom It May Concern”, advising that her anxiety and depression following the accident required her to remain off work until at least December 19, 2020. The applicant submits that she remained off work at the time of her death.

17The applicant submits that she was diagnosed by Dr. Leon Steiner, psychologist, in his report dated March 12, 2020, with Major Depressive Disorder and Features of Posttraumatic Stress Disorder as a result of the accident. The applicant submits that at the time of her death, she was actively involved in psychological counselling and had admitted to excessively drinking alcohol to cope with her depression. She had sold her home and moved to BC to help her mental health struggles. Her children had been placed into foster care. She also suffered ongoing pain in her right knee and had been prescribed Dilaudid. The applicant relies upon the clinical notes and records (“CNRs”) of Dr. Chaudhari, Dr. Li Ming Huang and her counselling records from Michael Gowland, which confirm that she continued to complain of accident-related problems up until the day before her death.

18It is the applicant’s position that the accident commenced a chain of events that ultimately led to her death. Her mental health had declined so rapidly following the accident that it caused her to turn to alcohol, leading her to lose custody of her children. She argues that the respondent’s position to withhold treatment and delay removing her from the MIG, further contributed to her death as her injuries went untreated for a very long time. She further argues that she was continuously disabled at the time of her death. The applicant relies upon the decisions in D.D. v. Lambton Mutual Insurance Company, 2019 CanLII 76868 (ON LAT) and Andre v. ING Insurance Company of Canada, 2006 ONFSCDRS 124, for the position that the accident does not have to be the only cause of death, and it can be the result of a chain of events precipitated by the accident.

19The respondent submits that the applicant has not proved that her death was caused by the accident. It argues that there is no evidence in this matter that “but for” the accident, the applicant would not have overdosed. It further argues that a lot happened in the applicant’s life, unrelated to the accident, that precipitated her use of alcohol and drugs as set out in the CNRs of Michael Gowland. The respondent has provided a detailed summary of the CNRs of Michael Gowland in its submissions. The respondent relies upon the decision in Lafontaine v. State Farm Mutual Automobile Insurance Co., 2017 Carswell Ont. 8900, where the arbitrator found that there was no evidence that “but for” the accident, the insured would not have overdosed on sleeping pills.

20I find that the applicant has not proved that “but for” the accident she would not have died.

21With respect to the cases referred to by the parties, I am not bound by previous Tribunal decisions as each decision is be decided on a case-by-case basis. I therefore have focused my analysis on the test set out by the Divisional Court in Sabadash.

22I find that the CNRs of Dr. Chaudhari relied on by the applicant are limited and do not refer to any psychological issues suffered by the applicant post-accident. Only the CNR dated November 1, 2019 was provided by the applicant for my review, which notes the applicant’s reported musculoskeletal complaints for which she was prescribed Dilaudid 1 mg M, Toradol and Pantoloc. While the applicant submits that Dr. Chaudhari’s letter dated August 11, 2020 notes she cannot work due to her anxiety and depression, upon review of the letter it states, “Danielle is medically unfit and unable to work from aug 19/2020 until at least dec 19/2020”. No medical reason was given. A letter “To Whom It May Concern”, dated July 4, 2024, was prepared by Dr. Chaudhari after her death, which notes that the applicant was prescribed hydromorphone after the accident in the Emergency Room on October 25, 2019, and that he saw her on November 1, 2019, with respect to her musculoskeletal injuries. He further notes that as per his CNRs, the applicant mainly complained of endometriosis related pain at further visits and was prescribed hydromorphone. She complained of persistent right knee pain post accident on January 7, 2021.

23The respondent has provided the complete CNRs of Dr. Chaudhari from November 2, 2018 to August 25, 2020. I find that on August 10, 2020, the applicant reported “++ anxiety and stress – mainly work related – co worker harassing her, insomnia, increased fatigue, mentally and physical exhausted.” She was diagnosed with anxiety and depression.

24I find that the CNRs of Dr. Chaudhari do not support the applicant’s ongoing psychological complaints post-accident as there is only one CNR which mentions psychological complaints which she attributed to work related stress. There are no further CNRs where she reported psychological issues. I further find that while Dr. Chaudhari mentions persistent right knee pain on January 7, 2021, a copy of this CNR was not provided by the applicant and there are no further CNRs provided which discuss her right knee impairment. I therefore do not find that these records support a continuous physical or psychological disability.

25The CNR from Dr. Huang dated January 14, 2022, notes the applicant’s history of depression, anxiety and endometriosis and her involvement in an accident two years ago. It notes that her right knee pain is getting worse. Dr. Huang assesses her right knee as tender without any swelling or redness and ROM is good. There is mention that the applicant is going to start work as a nurse soon. She was advised to “continue with Cipralex, exercise, refill Dilaudid for now, reduce pain med use.” I find that other than this CNR, no further records were provided to the Tribunal from Dr. Huang. I do not find that this CNR supports the applicant’s ongoing psychological impairment as it only notes her history of depression and anxiety. There is no discussion of any functional limitations and in fact, the CNR notes that the applicant is going to start work soon as a nurse. While the applicant notes right knee pain, Dr. Huang found that there was no swelling or redness, and ROM is good.

26I accept the applicant’s submission that she was diagnosed by Dr. Steiner in his report dated March 12, 2020, with Major Depressive Disorder and Features of Post-traumatic Stress Disorder. I further accept that the applicant reported at the time of the assessment that the accident precipitated a downward spiral and that she feels her depression has returned in full force despite significant gains made prior to the accident. I find that following this diagnosis, the applicant began attending for social work sessions with Michael Gowland on July 7, 2020. I therefore do not agree with the applicant’s submission that the respondent’s delay in removing her from the MIG prevented her from seeking treatment following the accident.

27The applicant has provided excerpts from the CNRs from Michael Gowland but the dates of the CNRs were not indicated. The respondent in contrast has provided a complete summary of the entire records. I find that the applicant has submitted excerpts without providing details of the complete entry to allow a full picture of what the applicant was reporting in the sessions. Upon review of the CNRs, the applicant was first seen on July 7, 2020. She reported experiencing daily physical pain as a result of the accident. The goals of the sessions are noted as to talk about the applicant’s stress that she is experiencing and a return to participating in activities that she finds meaningful. The subsequent CNRs note that she feels an overall increased level of happiness and less anxiety. She discusses that in the long-term she would be happier if she moved back to British Columbia. There are then subsequent entries where the applicant reports losing her job for stealing narcotics, discussing her daughter stealing pudding and lying about it, an assault by her mother, the possibility of losing her nursing licence and having to provide a statement about a previous assault from her childhood. I find that there is no evidence provided that these issues reported and discussed were accident related. I find that the CNR dated March 27, 2021, notes that her sleep and appetite have both improved and she feels she can finally move on to the next chapter of her life. On June 1, 2021, she reports that life in BC is everything she hoped it would be, and her life has changed very positively for her. The June 24, 2021visit notes that she reported that moving to BC was a good decision and she noticed an improved mood, sleep and energy levels.

28I find that there is then a lapse in records. In the CNR dated November 26, 2021, the applicant reports that she did not call back the therapist for several months because she has been drinking excessive amounts of alcohol daily since July 2021. She notes that her excessive alcohol use has increased her anxiety and she is experiencing panic attacks. On January 6, 2022, she reported that she stopped drinking alcohol and that her kids have been placed in foster care.

29While I agree that the applicant suffered a psychological impairment as a result of the accident, based on Dr. Steiner’s report, dated March 12, 2020, I find that the applicant’s psychological impairments as a result of the accident improved in the summer of 2020 when she reported happiness. While her subsequent life difficulties she experienced with her daughter and mother, losing her job, and dealing with her past assault, may have affected her psychological state, these were not related to her involvement in the subject accident. I find that the applicant made no accident-related psychological complaints in the year prior to her death. In fact, she reported in June 2021 CNRs that she was doing well in BC and that her life had changed positively. I find that there is then a lapse in records until the applicant reported on November 26, 2021, that she was drinking excessive amounts of alcohol which has caused her increased anxiety and panic attacks. No further particulars are provided as to why she began drinking. I therefore do not find persuasive evidence that at the time of the applicant’s death, she was suffering a psychological impairment as a result of the accident that contributed to her drinking and overdose. I further do not find persuasive evidence that the applicant suffered a continuous physical or psychological disability following the accident.

30For the reasons outlined above, I do not find that the applicant has proved on a balance of probabilities that “but for” the accident she would not have died on January 15, 2022.

Entitlement to Death and Funeral Benefits

31Section 26(1) of the Schedule provides that the insurer shall pay a death benefit in respect of an insured person who dies as a result of an accident, (a) within 180 days after the accident; or (b) within 156 weeks after the accident, if during the period the insured person was continuously disabled as a result of the accident.

32Section 27(1) of the Schedule provides that the insurer shall pay a funeral benefit in respect of an insured person who dies as a result of an accident.

33As I have found that the applicant has not proven on a balance of probabilities that her accident-related injuries caused her death, I find that she is not entitled to a Death Benefit or a Funeral Benefit.

Interest

34Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have determined that no benefits are overdue, the applicant is not entitled to interest.

Award

35The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

36The applicant submits that she is entitled to an award because the respondent’s actions, or lack-there-of, contributed to the applicant being continuously disabled leading up to her untimely death. She argues that the respondent ignored medical information advising of the serious extent of the applicant’s medical condition and withheld and delayed payment of various treatment plans as well as the Death and Funeral Benefit.

37I find based on the evidence submitted that the applicant has not provided persuasive evidence that the respondent unreasonably withheld and delayed payment of medical benefits or the Death and Funeral Benefit. The issue of the applicant’s entitlement to medical benefits is not before the Tribunal. Further, as I have found that the applicant is not entitled to Death and Funeral Benefits, I find that the respondent was reasonable in denying entitlement to the issues in dispute before me.

38For the reasons outlined above, I find that the applicant is not entitled to an award.

ORDER

39For the reasons outlined above, I find that the applicant is not entitled to a Death or Funeral Benefit, interest or an award.