Infant fails to prove premature birth and GERD diagnosis result from car accident

April 19, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

16-000142 v TD: Accident Benefits; SABs guidelines; premature birth and subsequent diagnosis of choking and GERD; Attendant care benefits; failure to meet burden of proof that injuries were caused by the accident

Date of Decision: Febuary 23, 2017
Heard Before: Adjudicator Claudette Leslie

Overview:

On July 19, 2014 the applicant, then a fetus was involved in car accident when a car driven by her mother, S.A.,  was rear-ended while stopped at a traffic light. S.A. was 6 months pregnant at the time.  The Applicant was born, prematurely, 2 months later.  The applicant was discharged from hospital neonatal care approximately 3 weeks after birth.  The applicant submits that sometime following her discharge from the hospital, she experienced difficulties when swallowing food and liquid and choking episodes.

The applicant was diagnosed with Gastroesophageal Reflux Disease (GERD) in December of 2014. As a result, the applicant submitted that she required constant attendant care assistance/supervision as her mother had concerns that her symptoms may have been life-threatening. Through her guardian/mother, the applicant seeks to have TD Insurance Company, pay benefits pursuant to the SABs. She submits that the accident caused or contributed to her premature birth; and consequently, the GERD condition resulted from her premature birth. Specifically, the applicant seeks an order from the Tribunal requiring the insurer to pay attendant care costs in the amount of $3,000.00 per month for the period covering the date after she was discharged from the hospital in October 2014, to June 2016. The applicant also seeks accrued interest on the payment of any outstanding balance.

TD takes the position that the accident did not cause or contribute to the premature birth, or that the applicant’s premature birth caused the GERD she later developed.  The insurer further claims that even if there were reasons to believe the accident caused or contributed to the premature birth, or that her GERD condition was a result of her premature birth, her disorder did not require any attendant care services, as contemplated by the Schedule.

The Arbitrator considered the law, and  all of the relevant medical evidence provided, and found the applicant has not met her burden to prove that, on a balance of probabilities, as a consequence of the accident she was born prematurely, or that she developed GERD impairment as a result of her premature birth, and by extension, the accident.  The applicant is therefore not entitled to the attendant care benefit and interest claimed.

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