"But For" Test used to establish entitlement to IRBs - Applicant and Aviva Insurance Canada, 2018 CanLII 39463 (ON LAT 16-004312)

June 25, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant and Aviva Insurance Canada, 2018 CanLII 39463 (ON LAT 16-004312)

Date of Decision:     2018-03-13
Heard Before: Adjudicator Cezary Paluch, Member

IRBs: "But For Test" used to establish entitlement to IRBs; applicant makes case that but for accident impairments would not have occurred; applicant entitled to IRBs and interest

The applicant was injured in a motor vehicle accident on November 15, 2015 when she was a front seated passenger of a car that was rear ended and rolled over.  The applicant’s aunt and her two younger kids were also in the car. She applied for and received benefits under the SABs including an IRB.

Aviva terminated the applicant’s IRB on July 11, 2016 taking the position that she did not meet the test for entitlement. The applicant disputes the termination taking the position that she should be paid an IRB in the amount of $319.26 per week from July 11, 2016 and to date and on-going. The quantum of the weekly IRB is not in dispute.

At the time of the hearing the applicant was 31 years of age (and was 29 at the time of the accident) having immigrated to Canada when she was 14 years old from Sierra Leone.

Issues:

1. Is the applicant entitled to receive a weekly income replacement benefit in the amount of $319.26 per week for the period July 11, 2016 and on-going entitlement in accordance with the Schedule?
2. Is Aviva liable to pay an award under Regulation 664 of the Insurance Act (“Regulation 664”) because it unreasonably withheld or delayed payments to the applicant?
3. Is the applicant entitled to interest for the overdue payment of benefits?

Result:

1. The applicant is entitled to receive IRBs for the period sought.
2. The applicant’s claim for an award pursuant to s. 10 of Regulation 664 is dismissed.
3. Aviva shall pay interest on all overdue amounts in accordance with the Schedule.

Procedural Issues:

At the hearing onset Aviva applied to have video surveillance and another witness admitted into evidence. The Arbitrator determined that the notie to use the evidence was served late and not in compliance with the Tribunal’s Order and Aviva’s motion was denied.

The applicant’s counsel sought the exclusion of three expert reports (of physicians who were not called to testify by Aviva) because he would not have an opportunity to cross examine the writers of these reports and this would not be fair. The Arbitrator declined to do so at the hearing because the Order of Adjudicator Kowal dated March 3, 2017, specifically allowed for evidence including the evidence of all experts to be provided via reports.

The test for entitlement to payment of an IRB within 104 weeks after the accident is found the Schedule. The applicant must prove on a balance of probabilities that that she was employed at the time of the accident and suffers a substantial inability to perform the essential tasks of her employment as a general labourer.

Causation

It is uncontested that the applicant was employed at the time of the accident as a general labourer at an employment agency where working 40 hours a week at a warehouse packing and shipping products. Her job required her to stand eight or nine hours non-stop, and to lift boxes that were very heavy. She testified that because of her back pain and inability to carry boxes she could not return to her former job.

In the accident the applicant hit her head, may have lost consciousness and suffered a concussion.  She was vomiting, her face swelled up and was taken to the hospital by the ambulance. She was released the same day and went to a walk-in clinic the next day complaining of chest pain, lower back pain, shoulder and knee pain.  A few days later on November 24, 2015 she went to the doctor complaining of headaches, chest pain, shoulder pain, upper body and lower back pain.

The applicant testified that prior to the accident she was healthy and did not have any psychological or emotional problems. After the accident, she experienced severe headaches two or three times a day and although her headaches were improving she was referred by her family doctor to a chronic pain clinic. Lower back pain makes it difficult for her to stand or sit for long periods of time, and she was unable to return to work as her job requires her to carry heavy boxes and pack them. Her workplace could not accommodate her injuries. She is sad every day and has poor sleep and nightmares.

In cross examination, the applicant’s evidence was unchallenged for the most part. The one area of contention was that the Ambulance Call Report did not reference MR losing consciousness or vomiting at the accident scene and the airbags deploying. Overall, the Arbitrator found the applicant to be candid and credible in providing her testimony at the hearing. Her evidence was also very consistent with her medical evidence. Her family doctor concluded that she has not been able to return to work as a result of her accident. A psychologist concluded that as a direct result of the accident, the applicant suffers from severe level of depression and anxiety.

Aviva submits that the applicant’s injuries are not a result of the November 15, 2015, accident but due to prior traumas in her life which caused her the psychological and sleep difficulties that she is complaining about. In its final submissions, Aviva cited the FSCO Director’s Delegate appeal decision in State Farm and Sabadash for the proposition that in accident benefit cases causation is established by the “but for test” which found that the “but for” test is “paramount” in determining causation in accident benefits cases (and an adjudicator cannot simply choose between the “but for” test and a “material contribution to risk” test).  This decision was cited by Aviva in their submission.

The Arbitrator was persuaded by the reasoning and the case law cited in Sabadash that the proper test for causation is the “but for” test. The “but for” test requires the applicant to prove that but for the motor vehicle accident she would not suffer an impairment which causes the complaints she puts forward as the basis for her claim for income replacement benefits. This is more stringent than the material contribution test. The material contribution test requires the applicant to prove that the motor vehicle accident materially contributed to the impairment which causes the complaint she puts forward as the basis for her IRB claim. The applicant has proven causation on either standard.

By all accounts, the evidence demonstrated that before the accident the applicant was healthy, worked full time and was relatively pain free.  The Arbitrator was comfortable inferring that the intervening act of the motor vehicle accident is responsible for the alleged impairments, and therefore is satisfied that on a balance of probabilities whatever injury or impairment the applicant has sustained or endured was caused by the motor vehicle accident. In other words, but for the motor vehicle accident she would not suffer the impairments which cause the complaints she puts forward as the basis for her claim for the IRB.

Having reviewed the evidence the Arbitrator found that the applicant, on a balance of probabilities, has established that she is substantially unable to perform the essential tasks of her employment.

For the reasons outlined above the applicant is entitled to IRBs according to the Schedule and the time period as agreed to by the parties. The applicant is also entitled to any interest on the unpaid amount of the benefits.

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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.