Hamid v Intact Insurance, 2023 CanLII 103792 (ON LAT) reminds us that where an Applicant applies for accident benefits under s.3(1)(a)(ii) of the SABS, they must meet the double onus of showing not only that the Applicant sustained a psychological injury but also that the person involved in the accident sustained a physical injury.
On March 28, 2015, the Applicant’s husband lost control of his vehicle and struck a guardrail. The Ambulance Call Report noted mild facial droop, right sided neglect, and right arm paralysis. The Applicant’s husband was taken to hospital where it was determined that he had suffered a stroke.
Two days later on March 30, 2015, the Applicant’s husband went into cardiac arrest and fell into a coma.
The Applicant failed to prove she sustained psychological injury
The Applicant applied for accident benefits under s.3(1)(a)(ii) claiming that she had sustained psychological injuries in the accident but did not direct the tribunal to the medical evidence supporting those injuries. The Applicant relied on the OCF-1 which listed her injuries as: “psychological, emotional distress, sleeping difficulty, depression and anxiety.”
The LAT found that even if it were to accept the Applicant sustained psychological injury, there was no evidence to prove that her husband sustained a physical injury in the accident.
The Applicant failed to prove her husband’s cardiac arrest and coma were caused by the accident
The LAT found that the Applicant had not proved that her husband had sustained an injury in the accident as she had not obtained a medical opinion from her husband’s treating practitioner which connected the cardiac arrest or coma to the accident.
Although the Applicant’s counsel submitted medical literature to support how an motor vehicle accident could cause strokes and heart attacks, the LAT found that these articles were not a substitute for a medical opinion.
The Applicant is not an “insured person” under s.3(1)(a)(ii) of the SABS
The LAT was unable to conclude that the Applicant’s husband sustained a physical injury as a result of the accident and therefore was unable to find that the Applicant was an “insured person” under the SABS.
Read the full decision here: https://www.canlii.org/en/on/onlat/doc/2023/2023canlii103792/2023canlii103792.html
