A recent decision by the Licence Appeal Tribunal (LAT) answers the question on whether or not an accident victim’s pre-existing condition prevents him or her
S.L., in the case called 16-000393 v Pembridge Insurance Company, was injured in a motor vehicle accident. As a result of the accident, S. L. claimed for medical and rehabilitation benefits with her insurer Pembridge Insurance Company.
The insurance company denied S. L.’s claims for medical and rehabilitation benefits, saying that S. L.’s injuries are not a result of the accident, but rather the result of her pre-existing conditions, specifically lumbar back condition and arthritis.
Due to Pembridge’s denial, S. L. submitted an application for arbitration with the LAT. On February 21, 2017, LAT Adjudicator Derek Grant decided in favor of S. L. Adjudicator Grant concluded that S. L. is entitled to the following benefits: chiropractic and physiotherapy treatments, pain management program, infusions, exercise program and occupational therapy assessment.
2 Accepted Tests for Determining Entitlement to Benefits
According to Adjudicator Grant, the following are the two accepted tests for determining entitlement to benefits and to establish causation:
- “But for” Test – which refers to the fact that an accident victim would not have suffered “but for” the accident; and
- “Material contribution” Test.
The appropriate test for this case, according to the adjudicator, is the material contribution test because of S. L.’s claim that the accident triggered pre-existing arthritis and back pain into chronic pain.
The Supreme Court of Canada defines material as more than the minimal. The Ontario Court of Appeal, meanwhile, defines “materially contributed” as “contributing factor is material”.
According to Adjudicator Grant, a pre-existing condition does not prevent an accident victim to claim for accident benefits, provided that the accident victim must establish that “it is more likely than not, that the injuries sustained in the accident were more than a minimal contribution to the impairment”.
"Considering the documentary evidence before me, there is sufficient evidence to support a finding that S. L. suffers from chronic pain. In my view this chronic pain is a result of the accident as S. L.’s conditions were mostly asymptomatic prior to the accident," Adjudicator Grant reasoned.