Day v. Belair Direct Insurance Company, 2022 ONLAT 20-005063

Facts of the Case

In April 2016, Morag Day (“the Applicant”) was injured in a single-vehicle automobile accident. After swerving to avoid an animal on the road, the Applicant’s vehicle rolled over, causing her to sustain injuries. The Applicant’s right lateral tibial plateau fracture required surgical treatment. Additionally, the injured car accident survivor sustained a left fifth metacarpal fracture of the left hand and profound mental health issues during her recovery.   

After being injured in the motor vehicle accident, the Applicant submitted a claim to her insurance provider, BelairDirect Insurance Company (“the Respondent”), requesting benefits for psychological treatment, chiropractic treatment, the costs of examination, and catastrophic impairment determination for a mental or behavioural disorder.  

However, since the Applicant had a history of psychological impairments prior to sustaining injuries in the car accident, her insurance provider denied that her mental or behavioural disorders were, in fact, caused by the motor vehicle accident. They claimed that the injury-causing accident had no adverse effects on her pre-injury psychological state. As such, the Respondent denied Ms. Day various benefits and compensation for injury-related costs. 

Issues in the Case

When the insurance company denied her benefits, Ms. Day applied to the License Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”). During the Tribunal, adjudicator Deborah Neilson considered the following issues: 

• Whether the Applicant had sustained a catastrophic impairment, per the definition in the Ontario Statutory Accident Benefits Schedule (“the Schedule”) 
• Whether the Applicant was entitled to attendant care benefits 
• Whether the Applicant was entitled to the costs of social work and psychological services proposed in her treatment plan 
• Whether the Applicant was entitled to chiropractic services outlined in multiple treatment plans 
• Whether the Applicant was entitled to the costs of recommended assistive devices 
• Whether the Applicant was entitled to the costs of an occupational therapist’s cognitive assessments 

Decision

The Tribunal’s adjudicator, Deborah Neilson, determined that the Applicant’s catastrophic impairments were, in fact, caused by the effects of her accident. The adjudicator found that the Applicant was entitled to attendant care benefits for which she had applied, as well as some of the other costs she had claimed for chiropractic and psychological services. 

Reasons

Since the motor vehicle accident in question occurred before revisions to the Schedule’s definition of catastrophic impairment took effect in June 2016, the definition included in the previous version of the Schedule applied here. Accordingly, Ms. Day was required to prove on a balance of probabilities that, as the result of a mental or behavioural disorder, she had sustained one marked or extreme impairment in at least one of the following functional fields: 

• Activities of daily living 
• Social functioning 
• Concentration, pace, and persistence  
• Adaptation in the workplace 

Although the Respondent agreed that the Applicant had one Class 4 marked impairment relating to a mental or behavioural disorder, it was their position that the impairment existed pre-accident and was not related to the accident. The Respondent cited her significant pre-existing history of mental health disorders as proof that the Applicant had not sustained additional impairments as a result of her accident. 

Pre-Existing Psychological Impairments

The Applicant testified that, before the accident, she had issues with depression and anxiety for some time.  In 2014, her psychological issues required her to take medical leave from her job as a personal support worker and she began psychiatric treatment. The Respondent used her pre-existing psychological impairments, including a diagnosis of bipolar disorder, to submit that the Applicant was experiencing the same mental health issues after her car accident as she had before sustaining her injuries. 

However, according to the Applicant’s testimony and medical file, even though her psychological issues required her to take time away from work, they did not impact her abilities to socialize, perform routine housekeeping duties, undergo regular personal care, travel, enjoy hobbies, and interact with family members.  Furthermore, her treating psychiatrist’s clinical notes indicated that her condition was showing signs of improvement and that the Applicant was making plans to rejoin the workforce. 

After being injured in the accident, though, her psychiatrist reported that her condition was worsening. Exacerbated by the chronic pain she was experiencing as well as her decreased range of motion, the Applicant’s anxiety and panic disorder began to take hold of her daily functions. The Applicant developed psychiatric functional impairments, including insomnia, dysphoria, a driving phobia, panic attacks with agoraphobia, and major depressive disorder.  

Before her accident, the Applicant still socialized, went grocery shopping, and took pleasure from cooking when she needed to relieve some stress.  In contrast, however, according to her testimony, post-accident, “every day is a pyjama day.” The Applicant had no desire to leave her house. She experienced serious weight loss after eating poorly following the accident; she had yet to regain the weight. The Applicant also testified that she contemplates suicide.  

The Applicant’s testimony was corroborated by her husband, whom the adjudicator found to be a credible witness. Her testimony was also corroborated by collateral interviews conducted by her neuropsychologist with the Applicant’s children, neighbour, husband, and friend. They all agree that, despite her psychological issues, she was able to function adequately before the accident. However, after being injured in her car accident, she relies on daily alcohol use and can no longer function adequately.  

Upon weighing the evidence provided and hearing testimonies from experts and other witnesses, the Tribunal’s adjudicator found that, had it not been for the injury-causing car accident, the Applicant would not have a class 4 marked impairment in her adaptation to the workplace or work-like setting. Therefore, the adjudicator determined that Ms. Day had sustained a catastrophic impairment as a result of the car accident in which she had been involved. 

Attendant Care and Other Benefits

The Tribunal’s adjudicator determined that the Applicant’s insurance company is responsible for paying all reasonable and necessary injury-related expenses she has incurred for attendant care services. After assessing what would constitute a reasonable and necessary personal support regimen, the arbitrator found that attendant care expenses sought after the date of the hearing should be provided by the Respondent.

Furthermore, the arbitrator determined that the Respondent should be required to compensate the Applicant for the accident-related costs she has incurred for reasonable and necessary chiropractic and psychological services. 

Summary

Despite the insurance company’s attempt to diminish the severity of their policyholder’s accident-related impairments, by working with Preszler Injury Lawyers, a catastrophically impaired accident survivor was able to gain access to the benefits she deserved and contracted for. Even though the Respondent tried to blame her current impairments on conditions developed before her accident, Jeffrey Preszler and Aron Zaltz were able to prove that her catastrophic impairments were, indeed, a result of her involvement in the motor vehicle accident. As such, she is now receiving the benefits she deserves.

Source Consulted: Day v. BelairDirect Insurance Company, 2022 ONLAT 20-005063