*Since the writing of this blog the decision has been affirmed by Ontario Divisional Court.

The claimant, D.O., was in utero at the time that the accident occurred. Prior to the accident, D.O.’s mother was noted to be at risk of a premature delivery due to the presence of a short cervix. Of note was that the damage to the insured vehicle was extremely minor, of approximately $700.00.

Although taken to hospital immediately post accident, D.O.’s mother was discharged with confirmation that there was no risk to or concerns regarding the fetus.

Two months post accident, S.A. was taken to hospital and the claimant was born eight weeks prematurely. No developmental issues or deficiencies were noted in the hospital records. D.O. spent three weeks in the neonatal unit and was then discharged home to her mother’s care.

S.A. became concerned with what she perceived to be increasing episodes of reflux and choking while eating. D.O. was assessed by a litany of health professionals and was determined to be healthy. The only condition noted was reflux, which was determined to be part of a normal developmental history and was expected to spontaneously resolve. S.A. was advised to try a variety of sleeping positions to minimize the complaints.

D.O. subsequently submitted an application to the LAT, asserting that the reflux she had been experiencing was a result of the motor vehicle accident, and sought payment of attendant care benefits, in the amount of $3,000.00 per month, up to 104 weeks after the accident.

After assessing all of the evidence, the Adjudicator found that the claimant did not suffer a premature birth as a result of the accident. Further, the Adjudicator did not find the evidence tendered persuasive to confirm that the reflux condition was a result of the accident. Adjudicator Leslie found that reflux was a common condition experienced by many newborns, and that there was no evidence to suggest that the reflux that D.O. experienced was anything other than a common unexplained condition.

On the basis of these findings, Adjudicator Leslie found that no attendant care benefits could be owing.

Of note, there was no evidence provided that suggested that D.O. required any specialized care as a result of the reflux she experienced. In fact, all of her treating practitioners, except for the occupational therapist that completed the Form 1, confirmed that D.O. was developing normally, and was not experiencing any adverse affects of experiencing reflux symptoms.

The Adjudicator pointedly noted that it was curious that S.A. had initially submitted claims for attendant care benefits, withdrew same, and then resubmitted the same expenses on behalf of D.O. As well, the Adjudicator noted that D.O. was claiming for items such as dressing, undressing, and feeding, all tasks that a newborn child would not have been able to carry out on their own in any event.

It is also interesting to note that missing from the analysis was any discussion of the cases that address the matter of en ventre sa mere (literally, in his/her mother’s belly).

The seminal FSCO decision of Royal Insurance and Christo, OIC P95-00049, September 11, 1996 considered the long standing “legal fiction” that has developed in the law to deal with the “unfairness that would result if a child could not seek compensation in tort for an injury he or she suffered en ventre sa mere.” It was agreed that if the fetus required care while in utero as a result of injuries sustained in the accident, there was no doubt the mother would have been entitled to benefits. Thus, it was found that the child subsequently born in Christo was an “insured person” entitled to benefits.

This position was strengthened by the decision in Virk and Liberty Mutual¸ FSCO P04-00027, July 5, 2005. Director’s Delegate Makepeace confirmed that absent exclusionary language, the concept of en ventre sa mere should apply to provide those benefits to an unborn child later born alive that they would have been entitled to had they been alive at the time of the accident.

Later decisions have also confirmed that the mother cannot claim benefits that would have required the fetus to be considered “born” at the time of the accident (see for example Princz and State Farm, FSCO A06-002122, March 26, 2007). If the benefit is not a right of the child or the fetus, then the benefit cannot be extrapolated to fit into the exception of the historical fiction and provided to the mother (or father).

Although Adjudicator Leslie did not acknowledge the acceptance of the en ventre sa mere fiction, it is possible that the parties agreed prior to the hearing that D.O. was an insured person. Had the Adjudicator found a causal connection between the accident and the complaints of reflux, it is clear that the Adjudicator would have had to find that D.O. was entitled to benefits that may have arisen as a result of same. However, the scope of attendant care benefits sought was clearly beyond the needs of the child based on age.

The causal connection is thus extremely important for an insurer to investigate with respect to these types of claims. Where a child in utero may sustain injuries that are not known for some time after birth, an insured will want to assess carefully the medical documents provided and evaluate the possible risk of exposure.

If you have a question about this blog or a similar file, please contact Eric Grossman at 416-777-5222