Volume. 6 Issue. 14 – April 13, 2022
This week we review the LAT’s decision with respect to the claim of a minor Applicant, 8 months old on the date of loss who sought funding for a psychological assessment four years post accident.
The Tribunal considered both the definition of ‘insured person’ as well as the interpretation of the appropriate ‘causation’ test before determining whether the psych assessment was reasonable and necessary. You will have to refer to your SABS s3.1 (Definition and Interpretation) regarding “insured person” to follow along with this one.
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5 Year Old Child Subject of IE
Eight Month Old Entitled to Benefits – EJ was eight months old on the date of loss who four years later sought funding for a psychological assessment. In EJ in v Economical (20-008287) , following the results of an IE, Economical denied funding for same.
Upon EJ’s filing of an application with the Tribunal, Economical, in its response raised the preliminary issues of whether EJ was involved in an accident and whether EJ was an “insured person” for the purposes of the Schedule. In the accident in question, EJ’s father and two brothers were injured. With EJ confirming she was not in the subject vehicle, and there being no suggestion she witnessed or was otherwise involved in the accident, EJ was found not to have been involved in an accident for the purposes of the Schedule.
With Economical accepting that EJ was an insured person as defined in the Schedule, what remained to be determined in establishing if she was an “insured person” as defined in the Schedule was whether EJ sustained psychological or mental injuries as a result of the accident, and whether said accident resulted in physical injuries to EJ’s father.
Dealing firstly with the latter, the Tribunal confirmed EJ’s father sustained a physical injury, having been diagnosed with a closed head injury. As for the former, the Tribunal noted that EJ was diagnosed with anxiety disorders by assessors for both the EJ’s and Economical.
However, the position taken by Economical was “that the applicant’s psychological symptoms were not directly caused by the use or operation of a motor vehicle. Rather, the respondent submitted that the applicant’s psychological impairments were indirectly caused by the intervening effects of her father and brother’s aggressive physical and verbal assaults on her following the accident.” In addition, Economical submitted “that because the applicant’s psychological symptoms first arose more than three years after the accident, such symptoms cannot be considered a “direct” result of the use or operation of a motor vehicle…”.
The Tribunal however noted that “It is only the respondent’s submissions, which are not evidence, that suggest that the accident did not cause the applicant’s psychological injuries.” To that end it was noted that the expert witness commissioned by Economical diagnosed the EJ with a separation anxiety disorder as a direct result of the accident. This opinion “in and of itself supports a finding that but for the accident, the applicant would not have sustained her psychological impairments. Indeed, the respondent even conceded in its submissions that the accident indirectly caused the applicant’s psychological impairments.”
The Tribunal also disagreed with the further position of Economical that “the applicant’s experience of physical and verbal assaults by her father and brother is an intervening event.” It was noted that EJ’s father experienced difficulties with his emotions since the accident, and that her brother’s physical assaults upon her also began post-accident. Therefore, “the actions of the applicant’s father and brother would not have arisen but for the accident. As such, the applicant’s psychological injuries would not have arisen but for the accident which caused her father and brother’s post-accident difficulties.” Further concluding that the accident need only to have been a “necessary cause” of her psychological impairments.
The positioning of Economical was found to be “based on an incorrect legal test regarding causation, is in direct opposition to the opinion of its own expert witness and is contrary to all of the other evidence that is before me.” Therefore, the suggestion by Economical that the proposed psychological assessment was not reasonable and necessary because an assessment would not provide any benefit was deemed as untenable. The very fact that Economical’s expert diagnosed EJ with a psychological disorder was itself sufficient to establish the reasonableness and necessity of a similar such assessment by EJ’s assessor.
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