April 04, 2015, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Adjudicator Alan Smith
Date of Decision: December 4, 2014
Ms. Jasmine Ghabn was injured in a car accident on November 24, 1999 when she was struck by a motor vehicle as a pedestrian. She was 13 years old and in her first year of high school. Ms. Ghabn has been intellectually challenged since childhood. She sought accident benefits from Dominion, but when the parties were unable to resolve their disputes through mediation Ms. Ghabn applied for arbitration at the Financial Services Commission of Ontario.
The issues in this Hearing are:
Does Ms. Ghabn suffer from a catastrophic impairment caused by the motor vehicle accident?
Is she entitled to receive a medical benefit for a treatment and assessment plan for a multidisciplinary Catastrophic Impairment Determination Report?
Is she entitled to interest for overdue payment for the cost of the Catastrophic Impairment Determination Report.
Ms. Ghabn is suffering from a catastrophic impairment caused by the motor vehicle accident.
Ms. Ghabn is not entitled to receive a medical benefit for a treatment and assessment plan for a multidisciplinary Catastrophic Impairment Determination Report assessment
Ms. Ghabn is not entitled to interest for overdue payment for the cost of the Catastrophic Impairment Determination Report.
Ms. Ghabn was determined to have met the test for catastrophic impairment by Dr. Z, her psychiatrist who completed an OCF-19 October 1, 2009 and submitted it to Dominion on February 9, 2010. On March 11, 2010, Dominion advised Ms. Ghabn that she was to attend insurer examinations (IE) to determine whether she was catastrophically impaired. The IEs determined that Ms. Ghabn did not sustain a Catastrophic Impairment as a result of the motor vehicle accident of November 24, 1999.
Ms. Ghabn incurred the cost of a Catastrophic Impairment Determination Report in which the assessors determined she suffered from a “marked” impairment in social functioning and adaption, a “moderate to marked” impairment with respect to the ADL and a “moderate” impairment with respect to concentration, pace, and persistence. They concluded that she suffered a marked impairment overall.
Testimony from Ms. Ghabn’s assessor concluded that she had been mildly intellectually impaired prior to the accident. She had a history of sexual assault and that her condition had steadily deteriorated since high school. He indicated that Ms. Ghabn had suffered from pain since the accident, and diagnosed Ms. Ghabn’s present condition as chronic pain disorder manifesting itself in her ankle and leg leading to depression, neither of which she was experiencing before the accident. He indicated her case to be very complex but was confident the accident is a contributing factor to Ms. Ghabn’s catastrophic state. He noted that both his report and the IE report agreed Ms. Ghabn was suffering from pain, although the other differences were due to analytic methodology separated the Ms. Ghabn’s symptomology based on whether they were accident or non-accident related.
The IE concluded that Ms. Ghabn has a history of major depression, and anxiety related features as well as depressive features secondary to pain and difficulty with functioning. The report concluded the diagnosis is partially related to the index accident, ongoing conflicts with family and impaired level of functioning related to her intellectual difficulties. She did not meet full criteria for a diagnosis of posttraumatic stress disorder in relation to the index accident. However, she suffers from some posttraumatic stress disorder-type symptomatology in relation to the index accident.
It is Ms. Ghabn’s position that she suffers from a catastrophic impairment and that pursuant to the jurisprudence, in determining whether or not an Applicant is catastrophically impaired, “all of the evidence must be assessed, bearing in mind the well-established ‘material contribution’ test for causation”. Ms. Ghabn also argued that the case law is clear that, “An Applicant is not required to prove that the accident was the only cause of her mental or behavioural disorder. She is required to prove that the accident materially contributed to it”. The more onerous “but for” test set out by the Supreme Court of Canada in Resurfice Corp. v. Hanke is confined to cases involving negligence claims and not to cases involving statutory accident benefits. Ms. Ghabn also submitted that according to the decision of the Ontario Court of Appeal in Monks v. ING where a Claimant’s impairment is shown on either the “but for” or “material contribution” causation test to have resulted from an accident in respect of which the claimant is insured, the Insurer’s liability is engaged pursuant to the Schedule. Finally, Ms. Ghabn argued that again according to the decision in Monks, any causal factor outside the de minimis range would be found to meet the material contribution test.
Dominion argued that only the accident-related causal components of Ms. Ghabn’s present state should be considered and that she is not suffering a catastrophic impairment pursuant to the Schedule. In its submissions, the Insurer argued that the “material contribution” test as articulated by the Court of Appeal in Monks should be reconsidered in light of the subsequent decisions of the Supreme Court of Canada dealing with causation in accident negligence cases. The Dominion argued that the “but for” test endorsed by the Supreme even though decided in the context of tort liability, should also be applied to statutory accident benefit cases.
Dominion urged the Arbitrator to find that the “but for” test is applicable in the present circumstances in the sense of determining whether Ms. Ghabn’s injuries are directly caused by the accident.
The Arbitrator reviewed the SABs, the definitions contained within it. The Arbitrator concluded that using a holistic approach of assessing Ms. Ghabn and based on the assessments provided, the evidence given, and the definitions set out in the SABs, she is clearly catastrophically impaired pursuant to the Schedule. The Arbitrator rejected the ‘But for’ test endorsed by the Courts in accident negligence cases is to be applied to determinations of causation in the statutory accident benefit context.