Volume. 9 Issue. 9 – March 12, 2025
Tribunal Rules Again on Matter Referred Back by the Court
This week we examine a matter wherein the Tribunal originally decided that the Applicant was not involved in an “accident”, only to have the matter referred back by the Court, after finding that there was in fact an “accident”. The Tribunal then went on to determine whether the incident satisfied the definition of “accident”, and if so, whether there were impairments that required the claim for disability and various treatment plans. There were also some curious renderings as to whether medical reasons are or are not required when the basis for denial is not upon medical grounds.
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Tribunal Tries Again – The Applicant Jiang, in 21-003797 v Co-operators, was involved in an incident involving an automobile in June 2019. Jiang alleged that she and her husband argued as she drove the car. He grabbed and pulled her hair and smashed her head into the driver’s side window. She further alleges that she subsequently veered to the right to avoid other cars and mounted a curb at which point she sustained an additional head injury. The Tribunal, in an earlier hearing, found that the intervening event of the assault was the dominant feature of this incident and the direct cause of the alleged injuries.
Court Ruling
Jiang appealed the Tribunal’s decision to the Divisional Court. The court found that the Tribunal erred in finding that Jiang was not in an accident because the intervening act of the alleged assault did not break the chain of causation. The ruling set out that “I would allow the appeal to the extent that the appellant claims entitlement to accident benefits sustained as a result of her loss of control of her vehicle following the assault. The issues of whether and to what extent the appellant’s injuries were sustained as a result of her loss of control of her vehicle following the assault remain to be determined at a hearing.” Therefore, the Court returned this matter to the Tribunal for a new hearing to determine if Jiang was entitled to accident benefits for any alleged injuries sustained after the assault when she drove and lost control of her vehicle.
Tribunal Rules on “Accident”
Despite the court seemingly having confirmed such, the Tribunal nevertheless embarked upon an analysis as to whether Jiang was in fact involved in an accident. The Tribunal disagreed with the assertion of Co-operators that there was no evidence to support Jiang’s version that following the assault, her car veered to the right, mounted the curb, and stopped in the grassy area. The Tribunal pointed to numerous instances in the evidentiary record in which there was confirmation of Jiang having been involved in an accident. The Tribunal did take note of the fact that Jiang did not apply for accident benefits until a year after the accident. To this, Jiang confirmed in an EUO that she thought car insurance only covered vehicle repairs, and that only after speaking with friends in June of 2020 she learned her car insurance also covers medical rehabilitation. While noting that the resultant delay was somewhat irregular, “engaging in uncommon behaviour is not a clear indication that the applicant lacks credibility. Consequently, I accept the applicant’s explanation as there is no substantive basis to doubt her.” The Tribunal found “on a balance of probabilities, that the applicant has given a credible account of the events that took place on June 9, 2019. I further find that the incident meets the purpose test because it took place while the applicant was driving her car, and therefore, arose out of the ordinary use of an automobile.”
Accident Reconstruction
The Tribunal then turned its attention to whether Jiang had sustained a concussion in the MVA. It was noted that both parties secured accident reconstruction reports which comment on the likelihood of Jiang’s head striking the interior of the car as it mounted the curb. The expert for Co-operators said that “there was a one percent chance of a concussion occurring. However, this estimate is based on the assumption that her vehicle was travelling 30 to 37 km/h. This is about half the speed reported by the applicant, who said that she was travelling 60 km/h, the posted speed limit…”. This was based upon there having been no apparent damage to the tires, inference being that mounting the curb at 60 km/h would have caused tire damage. However, the Tribunal found that ultimately the reliance upon there being “no damage”, as Jiang had so indicated, leading to an assumption of a much lower speed was “not well founded and for this reason I give little weight to these reports.”
The expert for Jiang “concluded that the accelerations from the applicant’s impacts into the rigid side of the roof would have been capable of causing a concussion. To be clear, Mr. Young does not conclude that the applicant sustained a concussion. Instead, he finds that the mechanics of the accident make it possible for the applicant to have sustained a concussion.”
Concussion?
It was noted that Jiang sought medical attention on the day after the accident, and that she attributed her head injuries to the assault, with no indication that she also hit her head on the interior of the car after the assault. In her statement to the Ontario Disability Support Program (ODSP), dated September 3, 2019, she attributed her post concussion syndrome to the assault and did not mention the car accident. The Tribunal did not accept Jiang’s testimony that certain details were left out at the suggestion of a friend as they were “distracting”. The Tribunal noted that in both instances, Jiang failed to mention hitting her head in the car after the assault, and “this is inconsistent with the actions of someone who believes that they sustained a head injury in a motor vehicle accident…I give weight to the fact that the applicant did not discuss the head injury in two instances that are contemporaneous to the accident. Consequently, I find that she did not hit her head inside the car after the assault.” In addition, Jiang had “not established, on a balance of probabilities, that she has an accident related impairment because she led no medical evidence that shows she sustained a concussion after the assault.”
Psychological Injury
It was Jiang’s testimony that she heard a loud bang when her car mounted the curb. She thought her car exploded and that she might have died. When the car stopped, she realized she was still alive, but felt nauseous. She exited the car and vomited. The “medical evidence shows that the accident exacerbated the applicant’s pre-existing psychological conditions. In particular, her pre-existing impairments of poor sleep and anxiety became worse after the sudden and frightening experience of mounting the curb and believing her car exploded and that she may have died. The preceding assault was also traumatizing but, in my view, cannot be characterized as an intervening event, nor a dominant feature that caused an increase in the severity of the applicant’s psychological injuries. This is because there is no medical evidence before me which shows that the assault somehow cancels or overrides the trauma caused by the applicant perceiving the incident as a near death experience.”
Therefore, the Tribunal found “on a balance of probabilities, that the applicant sustained psychological impairments while operating a motor vehicle and that the operation of the automobile is the dominant feature that caused her psychological injuries. For these reasons, I also find that the applicant has established that the incident meets the causation test. Having found that the incident meets the requirements of the purpose and causation tests, I also find that the incident is an accident pursuant to s. 3(1) of the Schedule.”
Substantive Issues
MIG
Noting that neither party made submissions on this issue, the Tribunal found that Jiang’s documented pre-existing psychological disorders were exacerbated by the accident, thus warranting removal from the MIG as the injury was psychological in nature.
IRB
Jiang submitted that her accident-related depression and anxiety were impediments to employment, and further that Co-operators was required to pay the IRB until it had a medical opinion on whether she suffered a substantial inability to work. In response, Co-operators submitted that there was no expert report that supported that Jiang is unable to work, and further that the ODSP records confirm that she had been unable to work for three years due to unrelated health matters. There were as well suggestions that she had in fact worked post MVA, with to date unexplained income in 2020 not accounted for. The Tribunal disagreed with Jiang’s submission that she could not work because of her accident related injuries and would automatically be entitled to an IRB until the respondent obtained a medical report that said otherwise. It found that she failed to establish that the MVA caused her to suffer a substantial inability to perform the essential tasks of her pre-accident employment.
Treatment Plans
Medical Reasons Required for Non-Medical Denial?
Jiang did not contest as to whether the various plans were reasonable and necessary, rather relying upon the fact that Co-operators did not provide medical reasons for the refusal. Curiously, the Tribunal then ruled that “the denial letters of the respondent do not provide medical reasons for the denials of the treatment plans and that providing medical reasons for the denials is a requirement in section 38(8) of the Schedule. Under these circumstances, section 38(11) of the Schedule applies.” The Tribunal then goes on to state that “as the hearing has occurred, the applicant may incur the treatment and it is payable if I find that the plans are reasonable and necessary. However, as noted above in paragraph 60, the applicant does not argue that the treatment plans are reasonable and necessary. Therefore, the applicant has provided no basis for me to find that she is entitled to these treatment plans.”
Award
Citing a number of matters, Jiang’s initial contention in support of an award was based upon Co-operator’s failure to properly open and adjust her claims for benefits for more than five years post MVA. The Tribunal noted that “it is not clear to me that the respondent is to blame for the passage of time or that it acted unreasonably. The applicant was in an accident that she did not report to the police. She also did not report it to the insurer until a year after the accident took place. Given these circumstances, it was reasonable for the insurer to investigate to determine if an accident took place.”
Medical Reasons Not Required for Non-Medical Denial
Citing, as well, the failure to provide medical reasons for the denial of the treatment plans, the Tribunal now found that “the requirement to provide medical reasons under s. 38(8) was not engaged because medical reasons to deny benefits are not needed if an accident has not taken place and the applicant would not be entitled to rehabilitative benefits under such circumstances.” Given that there were no benefits found payable, it is presumed that the Tribunal went through this exercise solely for the sake of completeness.
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