Sharon Allen v. Commercial Union Assurance Company, 1997 ONICDRG 179

Neutral Citation: 1997 ONICDRG 179

OIC A96-000914

ONTARIO INSURANCE COMMISSION

BETWEEN:

SHARON ALLEN

Applicant

and

COMMERCIAL UNION ASSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Issue:

The preliminary issue in this case is whether the Applicant, Sharon Allen, was injured in an "accident," within the meaning of the Schedule¹ and is accordingly entitled to statutory accident benefits.

Section 1 of the Schedule states:

"accident" means an incident in which, directly or indirectly, the use or operation of an automobile causes an impairment or causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.

Ms. Allen claimed that on October 21, 1995, she was riding her bicycle on Gerrard Street East, east of Broadview Avenue, when she collided with a cube van insured by Commercial Union. She claims that as a result of the accident, she sustained neck and back injuries.

Commercial Union denied Ms. Allen was involved in an "accident" with its insured vehicle. It maintains that the incident Ms. Allen described did not occur; and that, in any event, the use or operation of the van did not cause Ms. Allen an impairment.

For Ms. Allen to come under the Schedule, she must prove, on a balance of probabilities, that an incident involving the "use or operation" of the van caused her an impairment,² directly or indirectly.

Having considered all of the evidence in this case, I find that the use or operation of the van did not cause Ms. Allen an impairment.

Evidence and Analysis:

Ms. Allen testified at this hearing. In support of her claim, she filed into evidence two Health Practitioner's Certificates (HPCs) and two estimates of repair to the bicycle. She called no other evidence.

Commercial Union called Mr. Kwong Choy Choo, the driver of the van in question and two eyewitnesses: Mr. Bak Yeu Chan, the person who guided Mr. Chow backing up his van, and Mr. Julio Lee, a bystander who observed the event. In addition, Commercial Union filed into evidence a five-page statement signed by Ms. Allen on December 1, 1995, two reports of the Collision Reporting Centre, photographs and a map of the scene of the alleged incident, photographs of Ms. Allen's bicycle, and an Application for Accident Benefits completed by Ms. Allen on December 4, 1995.

This is a case where the credibility of the witnesses is central to the determination of the issue in dispute. The testimony of the witnesses called by Commercial Union was diametrically opposed to that of Ms. Allen. All three witnesses called by the Insurer testified that at the time of the alleged incident Mr. Choo was operating his van in the location described by Ms. Allen and that a female cyclist was also present in the area. However, they denied that there was any contact, direct or indirect, between the cyclist, her bicycle and the van. They testified that the woman cyclist, the only cyclist in the area around the time of the "accident,"passed the van without incident. However, they testified that Ms. Allen, who was present in the hearing while they testified, was not the cyclist at the scene.

Ms. Allen would succeed in her application if both of the following questions are answered in the positive: Was there a collision between Ms. Allen's bicycle and the van? Did Ms. Allen sustain an impairment as a result of the collision?

Was there a collision between the van and Ms. Allen's bicycle?

Ms. Allen testified that at approximately 4:30 p.m. on Saturday, October 21, 1995, she was riding her bicycle westbound on Gerrard Street East, just east of Broadview Avenue. Gerrard Street has two lanes in each direction at this point. She was riding "more towards the left lane" as the right lane was blocked by parked vehicles. She testified that she observed in front of her, about 100 feet away, a cube van backing up in her direction. The van was "completely in the curb lane facing west," but it was straddling the westbound centre lane by about 18 inches "because the truck was so wide." She stated that there was not enough room for a cyclist to pass the truck on its right side. She maintained a distance of approximately three feet north of the centre line dividing eastbound and westbound traffic and continued to cycle, at approximately 10 kilometres per hour. Her intention was to pass the van on its left side.

Ms. Allen testified that the van continued to back up straight towards her. As she started to pass the van on the left side, she "realized the [van] was moving to [her] left, in what looked like a southbound direction." She did not slow down or take any evasive action because she saw "no need for concern." The van "moved to [her] left as it was making its turn," still in a rearward movement. The van was moving at approximately 10 kilometres per hour. She claims that when the left side of her bicycle was adjacent to the left side of the van, the corner of the van's left rear bumper struck the left side of her bicycle while the truck was making the turning manoeuvre. At the time of the collision, her bicycle was to the left of the truck, still three feet north of the centre line. Both vehicles were still facing west.

Ms. Allen described the impact as light. Her body did not come into contact with any part of the van. On impact, her bicycle was "tipped somewhat," but did not fall to the ground. She did not lose control of her bicycle. The bicycle remained in contact with the van for about 10 seconds after the impact.

Ms. Allen testified that immediately after the collision, she "voluntarily" got off her bicycle and inspected the damage to it. She found a dent in the collapsible metal basket on the left side of the bicycle, some scratches on the left side near the fork and a hole in the fabric on the left side of the seat. The damage to her bicycle was restricted to the left side. She saw no damage on the right side of the bicycle.

Ms. Allen testified that after she looked at her bicycle, she walked to the front of the van and attempted to speak to the driver. She said to him,"Look what you did to my bike!" She was angry and she threw an insulting remark at him. The driver remained in his van. He asked her if she was all right. The exchange lasted 15 to 20 seconds; however, they could not communicate well due to a language problem. A passing motorist shouted, "You hit her, you hit her." She told the motorist that she was "O.K." and that she was only worried about her bicycle. The motorist drove away; she did not take down his name or license plate number. She left the scene shortly thereafter; however, she wrote down the plate number of the van prior to departing the scene.

The following day, approximately 30 hours after the accident, she attended at a Collision Reporting Centre with her bicycle and reported the "accident." The bicycle was inspected by an officer who noted, under the heading "Damage to Vehicle: left rear basket-scratches." There was no mention of a hole in the fabric of the seat or any other damage to the bicycle.

I find Ms. Allen's testimony illogical. She was adamant that when she attempted to pass the van on the left side, both vehicles were facing the same westward direction. She denied attempting to pass the van on the right side. Yet, she steadfastly maintained that it was the left side of her bicycle that touched the left side of the van. She attributed the damage on the left side of her bicycle to this collision.

I find that Ms. Allen's account of the "accident" fails to explain the inconsistency between the respective positions of the vehicles at the time of impact and the damage allegedly sustained on the left side of her bicycle. If she was attempting to pass the van on the left side, it would be the right side of her bicycle that would come into contact with the left side of the van. In order for the left side of the bicycle to come in contact with the left side of the van, either the van or the bicycle would have had to turn around and face the opposite direction, effectively making a 180 degree turn. However, there was no evidence to indicate that this was what happened. Ms. Allen was adamant in her evidence that the van was facing west as it was reversing in an easterly direction, and only veered somewhat to the south as she approached the rear left side of the van. She took no evasive action that could have caused her bicycle to face the opposite direction. I find Ms. Allen's description of the "accident" implausible.

In addition, according to Ms. Allen, she was on her bicycle at the time of impact and for about 10 seconds after that. Notwithstanding her evidence that there was no contact between the van and any part of her body, she testified that the van ripped a hole in the seat she was occupying. Ms. Allen did not explain this discrepancy.

Ms. Allen filed into evidence two repair estimates for damages on her bicycle which she said were caused as a result of the alleged collision. The first estimate, prepared on October 31, 1995, was for $182. It listed the parts to be repaired as "rear wheel, basket and saddle." The second estimate, dated December 12, 1995, indicates that the bicycle needed to be disassembled and reassembled, sandblasted and painted, and the rear wheel, one basket, the seat and handle bar grips required replacement. This estimate was $613. Ms. Allen testified that the condition of her bicycle on October 31, 1995 and December 12, 1995 was the same as it was just after the accident. I also find it significant that there is no mention of a hole in the fabric in the Collision Report. The discrepancies between the two estimates, and the damages noted in the Collision Report, however, were not explained.

It is also noteworthy that Ms. Allen testified in examination-in-chief that the right side of the bicycle did not sustain any damages before or after the accident, except for minor scratches from normal use. However, photographs of the bicycle, taken by Commercial Union's representative on December 1, 1995, show a hole in the fabric on the right side of the seat and scratches near the fork, on the right side. This evidence is not consistent with Ms. Allen's description of the damage.

I do not find Ms. Allen's description of the incident plausible. I find much of her testimony inconsistent and contradictory.

In contrast, I find the testimony of the witnesses for Commercial Union to be credible. Mr. Choo, the driver of the van, received a call from a police officer about three weeks after the incident. After attending at the Collision Reporting Centre and filing a report denying Ms. Allen's claim, he returned to the area to look for witnesses. (The Collision Report stated: "no visible damages" to the van) Mr. Choo is a farmer by occupation, and at the time of the alleged incident, he was delivering produce to a store on Gerrard Street East, near Broadview. He went to the store where he found witnesses who had seen him operating his van at the time and location in question.

Mr. Bak Yeu Chan, the person who guided Mr. Choo as he was backing up his van, was an employee of the store where Mr. Choo delivered produce. Mr. Julio Lee owns a store on Gerrard Street near the location of the incident. At the time in question, Mr. Lee was returning to his store after buying coffee from a nearby shop. He was standing on the sidewalk, on the north side of Gerrard Street, waiting to cross the street. Although Mr. Choo was known to both witnesses, both witnesses denied any personal relationship with Mr. Choo. Each witness testified with the others excluded. I find Mr. Lee and Mr. Chan to be independent witnesses.

Mr. Chan and Mr. Lee testified that they recalled observing a female cyclist and Mr. Choo in the same time frame and at the same location described by Ms. Allen. All three witnesses testified that they remembered the event clearly because of the unusual behaviour of the female cyclist. However, their testimony, which is essentially consistent, is fundamentally different from Ms. Allen's testimony.

Mr. Choo testified that at the time of the alleged incident, his 14-feet long, 7-feet wide cube van was parked in a laneway just east of the store, south of Gerrard Street, while he was making his delivery. The van was facing south. After completing his delivery, Mr. Choo asked Mr. Chan to guide him in backing up his van north on to Gerrard Street. His intention was to drive westbound on Gerrard Avenue East.

Mr. Chan testified that he stood in the middle of Gerrard Street while guiding Mr. Choo. When traffic was clear, he waved to Mr. Choo to back out. Mr. Choo reversed his van and drove directly north. Mr. Chan was to the left of Mr. Choo's van, visible to Mr. Choo in his left side mirror. Mr. Choo backed out of the laneway in one continuous movement, and brought the van to a stop approximately one foot from the north curb of Gerrard Street. The laneway continues on the north side of Gerrard Street and the sidewalk at this point is "level with the street." He was stopped in this position for about one minute, waiting for traffic on either side of the street to clear before manoeuvring his van to proceed westward.

At this time, according to the testimony of all three witnesses called by the Insurer, a female cyclist riding westbound on Gerrard Street approached the van from the left (the east). The van was still facing directly south, preventing the flow of westbound traffic.The front of the van was just past the yellow line dividing eastbound and westbound traffic. Mr. Choo testified that he maintained eye contact with the cyclist until she disappeared behind his stationary van. He then saw her emerge on the other side of the still stationary van within seconds of going behind it. Mr. Choo testified that the cyclist went to the corner of Broadview and Gerrard and then returned to take down his plate number. The woman did not attempt to speak to him. He denied that there was any contact between his van, the bicycle or the cyclist.

Both Mr. Lee and Mr. Chan corroborated Mr. Choo's evidence. They testified that they saw the cyclist ride on the sidewalk behind the van, without an incident. The van and the bicycle were several feet apart. They denied seeing any contact between the two vehicles. They said the cyclist left after taking down the plate number of the van. They did not see her attempting to speak to Mr. Choo. The witnesses stated that Mr. Choo resumed and completed his manoeuvre to proceeded westbound after the cyclist left.

All three witnesses for Commercial Union were adamant that Ms. Allen was not the female cyclist they saw at the scene. They described the female cyclist as "non-Caucasian," and taller than Ms. Allen. They were also quite strenuous in their assertion that only one cyclist, the female cyclist they described, passed the van at the time of the alleged incident.

Having considered the circumstances of this case, I find it unlikely that two female cyclists passed or attempted to pass the van in the same window of opportunity of less than one minute, and both cyclists got off their bicycles and wrote down the plate number of the van. I find it more likely that there was only one female cyclist who was involved in an "incident" with the van, in the time frame in question.

It is not necessary for me to make a finding on the identity of the female cyclist the three witnesses saw at the scene. If Ms. Allen was indeed the female cyclist, I prefer Mr. Choo's account of the "incident," as corroborated by the two independent witnesses. I find that there was no collision between Ms. Allen's bicycle and the van. My conclusion would remain the same even if the female cyclist was someone other than Ms. Allen and I disregard the evidence of the witnesses. I find Ms. Allen is not a credible witness, and her uncorroborated testimony is incapable of discharging the onus of proof.

Did Ms. Allen sustain an impairment?

Ms. Allen in her testimony, stated that she felt a little discomfort in her back immediately after the accident, and that she felt increased pain in her back and neck as soon as she went home after the accident. This account contrasts with her December 1, 1995 statement that it was 10 days after the "accident" that her back and neck started to bother her. It further contrasts with the Collision Report signed by her on October 22, 1995, which indicates that she reported no injuries as a result of the accident.

Ms. Allen testified that she did not see or call Dr. Aziz, her family doctor of eight years, about the accident. Instead, she made an appointment with Dr. A. Taverniti, a chiropractor she looked up in the Yellow Pages. The medical evidence she filed consists of the two HPCs, signed by Dr. Taverniti. These records indicate that Dr. Taverniti first saw Ms. Allen on November 16, 1995. There is no evidence to indicate that Ms. Allen sought any medical treatment between October 21 and November 15, 1995. Since November 15, she has seen a massage therapist in Dr. Taverniti's establishment, and a psychologist he referred her for counselling. The HPC dated November 16, 1995 states, under primary diagnosis: "acute lumbosacral joint dysfunction with associated muscle strains," and under secondary prognosis: "acute cervical joint dysfunction with associated muscle strains." The HPC dated December 11, 1995 states: "Sharon extremely affected mentally: anxiety, apprehension, depressed mood, displaying illness behaviour."

Ms. Allen testified that as a result of the accident, her overall exercise routine has been disrupted because she is unable to ride her bike due to back problems. She said: "I do not see any purpose for living anymore." Ms. Allen stated she has been seeing a psychologist for her condition.

Given Ms. Allen's testimony that the impact of the collision was very light, that she remained on her bicycle at all material times, that she was able to control her bicycle and did not take any evasive action to avoid the collision, and that no part of her body came into contact with the van, the question of how her neck and back injuries were caused by the "accident" required an explanation. This was not provided by Ms. Allen or by any medical evidence.

Accordingly, I am unable to conclude that the collision described by Ms. Allen, if it occurred, caused any impairment to her, other than perhaps the temporary frustration she might have experienced by what she perceived to be an inconsiderate motorist blocking her right of way.

I am not persuaded that a nexus has been established between the alleged incident and the neck and back injuries claimed by her.

In the result, I find that the automobile insured by Commercial Union did not, directly or indirectly, cause Ms. Allen's impairment.

Expenses:

Commercial Union has asked that I deny Ms. Allen her expenses of the arbitration proceeding. Given my findings, it is clear that Ms. Allen's claim has no merit. Accordingly, I exercise my discretion to deny her expenses incurred in respect of this arbitration proceeding.

Order:

1. Ms. Allen was not injured in an accident. She is not entitled to statutory accident benefits.

2. Ms. Allen is not entitled to her expenses of the arbitration proceeding.

September 30, 1997

Asfaw Seife Arbitrator

Date

APPENDIX

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on March 27, 1997, before me, Asfaw Seife, Arbitrator.

The exchange and filing of written submissions was completed on April 10, 1997. The proceedings were recorded by Louise Perkins of Rosenberger Weir, Court Reporters.

Ms. Isabel Wong of OmniCom provided interpretation services in the Cantonese and Mandarin languages.

Present at the Hearing:

Applicant: Sharon Allen

Ms. Allen's Representative: Brent Vickar Barrister and Solicitor

Commercial Union's Representative: Nan Diaram Barrister and Solicitor

Commercial Union's Officer: Wendy Hillier

Witnesses: Sharon Allen Applicant

Kwok Choy Choo Driver

Julio Lee Eyewitness

Bak Yeu Chan Eyewitness

Exhibits:

1. Exhibits Brief submitted by Insurer containing 10 tabs: Tab. 1. Data Map 52H-111
2. Collision Report signed by Sharon Allen on October 22, 1995, consisting of 3 pages
3. Collision Report signed by Kwok Choy Choo on November 10, 1995, consisting of 4 pages
4. Original handwritten statement signed by Sharon Allen on December 1, 1995, consisting of 5 pages
5. Photograph showing the alley on the south side of Gerrard, east of Broadview
6. Photograph showing east view of Gerrard Street East
7. Two photographs showing the west view of Gerrard Street East
8. Photograph showing the east view of Gerrard Street East
9. Two photographs of TREK bike taken on December 1, 1995
10. Application for Accident Benefits dated December 4, 1995.

2 Estimate of Bike Repair from Spinning Wheels 3 Estimate of Bike Repair from DiSalle Bicycle Company 4 HPCs signed by Dr. Antonia Taverniti, chiropractor, on November 16, 1995 and December 11, 1995

Footnotes

1. 1The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94 and 781/94. It is called the Statutory Accident Benefits Schedule- Accidents after December 31, 1993, and before November 1, 1996.
2. 2"Impairment" is defined in the Schedule as "a loss or abnormality of psychological, physiological or anatomical structure or function."