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Insurance - Auto - Causation

. Abdi v. TD General Insurance Company

In Abdi v. TD General Insurance Company (Div Court, 2023) the Divisional Court considered an auto insurance SABS LAT appeal on the issue of 'catastrophic impairment'. In these quotes the court considers issues of causation, touching upon pre- and subsequently-developed post-injury impairments:
CAUSATION

[27] I will now turn to the issue of causation. The Appellant argues that the Adjudicator erred by applying an unduly restrictive test. In para. 69 of the Decision, the Adjudicator stated that: “…the GOS-E must be based on TBI injuries alone”. The Appellant argues that the word “alone” is not found in the GOS-E Guidelines or the legislation. The Appellant submits that he need only prove the TBI was a necessary (“but for”) cause of the impairment. He states that the Adjudicator erred in discounting psychological and physical disabilities that were not solely caused by the TBI.

[28] While the Adjudicator did refer to “TBI injuries alone”, this statement must be understood as it appears in the context of the decision as a whole. In paras. 32 and 37, the Adjudicator explained what she meant when she said that the GOS-E must reflect “only the effects of the brain injury”:
[32] According to the GOS-E Guides, the disability must be a result of the TBI and not other psychological or physical injuries. The GOS-E Guides state that the injury is an event that has occurred at a particular time, but not all changes that have taken place following the event will be due to the injury. Thus, if a patient is capable of performing the activity but does not do it for some reason, they are not considered disabled…

....

[37] I find that to determine catastrophic impairment under the GOS-E, the Schedule requires the assessor to assign a GOS-E that reflects only the effects of the brain injury. Otherwise, the Schedule would not incorporate the GOS-E Guidelines. Nor would the Schedule refer to "brain injury," but would have retained the wording "brain impairment" that was in place prior to the June 1, 2016 amendments. Further, in keeping with the Schedule's purpose of consumer protection, psychological injury is already considered together with other injuries under s.3.1(1)8 and on its own under s.3.1(1)7 of the Schedule. There are TBIs that, because of what part of the brain was injured and due to the severity of the injury, cause psychological impairments or physical impairments. In those cases, the disability resulting from those impairments will be considered in the GOS-E. If the effect of other types of physical or psychological injury cannot be parsed out from the effects of the TBI, then in accordance with the GOS-E Guidelines, 19 they are to be considered in administering the GOS-E. Otherwise, for the reasons given above, I agree with the respondent that psychological and physical impairments that are not related to or caused by the TBI are not considered in the GOS-E. [Emphasis added.]
[29] It is apparent from these passages that the Adjudicator did not restrict her consideration to impairments exclusively or solely attributable to the TBI. She contemplated that physical and psychological impairments caused by or related to the TBI were to be considered in administering the GOS-E. While she did not refer to the “but for” test by name (see Pucci v. Wawanesa Mutual Insurance Company, 2019 ONSC 1706, aff’d 2020 ONCA 265), her approach effectively incorporated the essential elements of that test. If an injury (impairment) was related to the TBI and could not be parsed out from the effects of the TBI, it was to be considered.


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Last modified: 27-07-23
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