V1101 – A Dialysis Refusal Leads to Death: A Review of the Definition of an “Accident”
What is an accident for the purpose of an accident benefits claim in Ontario? This question has been addressed at the courts, FSCO, and the LAT on many occasions.
Cases that involve the definition of an accident tend to involve interesting facts. For example, such claims may include slip and fall injuries, vehicular related suicides or homicides, injuries suffered in the course of assaults, injuries involving high-risk driving and stunt activities, and injuries involving off-road or other motorized vehicles.
As defined in section 3 of the Statutory Accident Benefits Schedule, an “accident” is an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device. So long as this definition is met, then accident benefits can be paid in relation to the accident. This coverage is available to people regardless of who bears the fault for the accident.
In 18-001597, D.D. and Lambton Mutual Insurance Company, the LAT was asked to consider whether Mr. D.’s death was as a result of an accident. If the death was confirmed as being directly resulting from an accident, then the family would be able to access a claim for death and funeral benefits.
The facts of the case were such that Mr. D. was driven to hospital in a wheelchair transport van on April 11, 2017. When disembarking from the van, the wheelchair lift was not elevated and Mr. D. fell backwards. He hit his head and his back on the pavement when he fell. He attended at the emergency department for back pain and concussion and he was subsequently admitted. The hospital records from April 11th onward detail profound back pain and thoughts of mortality. Mr. D. refused his dialysis. He died on April 20, 2017.
Although the parties agreed that the operation of the vehicle was the cause of the fall, and thus the resulting injury to head and back, they did not agree that Mr. D.’s actual death was directly caused by the accident. Accordingly, the insurer refused to pay the claim for death and funeral benefits.
Mr. D. had significant pre-accident health issues. As detailed in the decision:
“Mr. D. was 72 when he died, and had a lengthy history of medical issues. He had been receiving dialysis three times a week in Sarnia since 2005 because of end stage renal disease caused by diabetes. He had a leg amputated in each of 2009 and 2014. His past medical history also included peripheral vascular disease; hypertension; obesity; previous cardiac arrest secondary to infective endocarditis; chronic obstructive pulmonary disease; deep vein thrombosis in 2005; upper GI bleeds in 2005 and 2015 secondary to peptic ulcer disease; atrial fibrillation; septic shock in July 2015; and, MRSA bacteremia in April 2016.”
In the decision, the adjudicator reviewed the causality for the death from the perspective of the “but for” test; she considered whether the death would have occurred “but for” the use or operation of the vehicle. Counsel for Mr. D.’s family submitted that the accident did not have to be the only cause of the death. It was argued that the accident set into motion Mr. D.’s pain, which resulted in his refusing dialysis, which in turn resulted in his death. The insurer, in contrast, argued that had Mr. D. continued his dialysis he would not have died; the insurer noted that Mr. D. did not die from his pain and noted also that there were improvements to pain noted in the hospital record. The insurer argued that Mr. D. chose to end his life by suicide given that he believed he had no quality of life.
In her decision, Vice-Chair Dawn J. Kershaw confirmed she did not accept the insurer’s arguments; she did not accept that Mr. D. chose to commit suicide nor did she accept that the death was too remote from the fall. She stated as follows:
“…while the respondent pointed to an improvement in Mr. D’s pain as of April 12, 2017…this was the only occasion on which there was any reference to his pain improving. It is clear from the hospital records that Mr. D was in pain from the time of the fall and that he had little relief… if his pain was controlled, he would continue dialysis…Mr. D referred to the fall as being the “straw that broke the camel’s back”. He refused dialysis on April 18 and died on April 20. Given that Mr. D had said he would continue dialysis if his pain was controlled, I find that he refused dialysis because of his pain from the fall, which was not controlled.
As a result, I find on a balance of probabilities that the fall was a direct cause of Mr. D’s death, and that the decision not to undergo dialysis was not an intervening act, but part of a continuous chain of events…”
In confirming the causality of the death due to “accident”, Vice Chair Kershaw ordered the insurer to issue payment of the previously refused death and funeral benefits.
As a general rule, any incident involving a vehicle that leads to, or appears to lead to, injury or death should be considered for the possibility of an accident benefits claim. We should not dismiss injuries as being too remote from an accident without first giving the situation careful consideration. If you or a loved one has been hurt as a result of an incident involving a vehicle, we would invite your contact for further review.
18-001597, D.D. and Lambton Mutual Insurance Company