Why LAT is reconsidering an accident benefits claim after an auto accident

A decision in which a woman whose psychological trauma was triggered after she viewed the dashcam footage of an auto accident she was involved in — and spotted a house in the background where she’d lived and was the victim of abuse — has been reconsidered for accident benefits by the Ontario Licence Appeal Tribunal. 

A LAT adjudicator decided to rehear the accident benefits case in its entirety, even though both parties originally agreed the woman was entitled to benefits for her physical injuries under the Minor Injury Guideline (MIG).  

One lawyer commenting on the matter finds the decision to rehear unrelated to the original decision. 

“The argument [by the initial adjudicators] is, is the later psychological trauma when she’s looking at this video cam causally related to the physical accident that occurred once earlier?” says Dutton Brock LLP partner Philippa Samworth at the 2024 Ontario Insurance Adjusters Association (OIAA) Claims Conference. 

“The LAT [during the rehearing] says the issue is whether or not there was an accident as defined in the Statutory Accident Benefits Schedule (SABS), despite the fact that it’s agreed between the parties that there was an accident,” says Samworth during her Top 10 AB Cases of 2023 seminar. “And the LAT concludes there was no accident, because watching a video cam isn’t an accident — but that’s not what the point is.” 

 

The initial dispute 

In the original decision, Buma v. TD Insurance Meloche Monnex 2023, LAT found the woman suffered physical injuries because of her auto accident. However, the woman claimed that her later viewing of the dashcam footage triggered psychological trauma that exacerbated her pre-existing psychological issues, after she spotted the house she’d once lived in and had been abused in. 

While both the woman and the insurer, TD Insurance Meloche Monnex, agreed there was an “accident,” the insurer argued the psychological injury was not caused by the accident. 

The adjudicators deemed the viewing of the video that caused the woman’s psychological injuries did not meet the definition of an “accident” per SABS. Their measure for deciding this was through a causation test, which considers the following: 

• Whether the incident would have occurred “but for” the use or operation of the motor vehicle; 
• Whether there was an intervening cause that cannot be said to be part of the ordinary course of the use or operation of the motor vehicle; 
• Whether the use or operation of the motor vehicle was a dominant feature of the incident. 

“We have determined the ‘incident’ causing the trauma to the applicant was in fact the viewing of a video, which we have determined not to be related to the use or operation of an automobile,” the adjudicators decided. 

The woman’s physical injuries were deemed “predominantly minor” by the original adjudicators and were subject to the Minor Injury Guideline’s (MIG). She was not entitled to an income replacement benefit (IRB) or any psychological treatment plans. 

 

The reconsideration 

In March 2024, the woman requested reconsideration of the decision. 

“In her reconsideration submissions, the applicant submits that the Tribunal erred in the decision by applying the legal test for determining whether an incident constitutes an ‘accident,’” reads the decision by LAT vice chair, E. Louise Logan. 

“The applicant submits that the test for determining if an insured person was involved in an accident is different from the legal test for determining if an insured person’s injuries were caused by an accident.” 

But TD argues the causation test was correct, and there’s no error of law in the original decision.  

The insurer specifically argues that “even if there was an error, which it denies, [LAT] would not have reached a different decision because the applicant did not provide evidence or legal argument that her injury is related to the accident.” 

Yet Logan sided with the woman and determined there was an error of law in the original decision.  

Specifically, Logan agreed that the framing of the issue, as well as the causation test, were both made in error in the original decision.  

“[The original adjudicators’] findings are based on the Tribunal’s analysis that the incident of viewing the dashcam was not an ‘accident’. Therefore, I find the outcome of the decision would likely have been different had the error not been made,” Logan said.  

“For clarity, I make no finding as to whether the applicant is entitled to the benefits in dispute. My finding is that the Tribunal’s error of law is such that the Tribunal would likely have reached a different result had the error not been made.” 

The woman requested that the LAT cancel its findings in relation to the MIG and treatment plans. She also requested a rehearing of whether her psychological impairment was caused by the accident, and whether she’s entitled to IRB. 

In her decision, Logan ordered a rehearing of “all the issues in dispute,” by a different adjudicator. 

The rehearing takes place within 90 days of March 22, 2024, which is the date the reconsideration decision was released.  

 

Feature image by iStock.com/Michał Chodyra