Neutral Citation: 2005 ONFSCDRS 69

FSCO A03-001718

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

CECILIA M. PANGOLINO

Applicant

and

TTC INSURANCE COMPANY LIMITED

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Edward Lee

Heard:

February 11, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Jonathan Franko for Ms. Pangolino

Patricia Matusiak for TTC Insurance Company Limited

Issues:

The Applicant, Cecilia M. Pangolino, was involved in an incident that occurred on July 25, 2002. She applied for statutory accident benefits from TTC Insurance Company Limited ("TTC"), payable under the Schedule.¹ TTC claims that Ms. Pangolino was not involved in an "accident" as defined under the Schedule. The parties were unable to resolve their disputes through mediation, and Ms. Pangolino applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue is:

1. Was Ms. Pangolino injured as a result of an "accident" as defined in section 2(1) of the Schedule?

Result:

1. Ms. Pangolino was not injured as a result of an "accident" as defined under the Schedule.

2. Ms. Pangolino shall pay TTC Insurance Company Limited its expenses in the amount of $500.00.

EVIDENCE AND ANALYSIS:

Evidence:

The facts of the incident are in dispute. Ms. Pangolino did not testify before me in her examination-in-chief. Instead, her agent asked to file a sworn statement that had been given by Ms. Pangolino on December 13, 2004. This request was somewhat irregular, but TTC's counsel did not object, provided that she be given a full opportunity to cross-examine the witness on her statement. The sworn statement of December 13, 2004 was entered as Exhibit A-1.

Ms. Pangolino then rested her case and TTC proceeded to cross-examine Ms. Pangolino. TTC also filed Exhibit-2, a transcript of a statement Ms. Pangolino had given to Jim Bailey, a claims adjuster with the TTC, on October 16, 2002. It is noteworthy that Ms. Pangolino was represented at that interview by Mr. Jonathan Franko, who also represented her at this preliminary issue hearing. Ms. Pangolino's agent had received the transcript well in advance and had no objection as to its accuracy. TTC also entered four other documents: Exhibit-3, a Functional Abilities Evaluation report, dated November 18, 2002; Exhibit-4, a report prepared by Seiden Health Management Inc., dated November 11, 2002; Exhibit-5, a Psychiatric Assessment prepared by Seiden Health Management Inc. on November 14, 2002; and Exhibit-6, an In-Home Occupational Therapy Assessment Report prepared by Rosemount Medical Assessment Centre on September 30, 2002.

At the conclusion of TTC's cross-examination, Ms. Pangolino was allowed a redirection. Neither TTC nor Ms. Pangolino called any other witnesses and I then heard submissions on the issue.

It was not disputed that Ms. Pangolino was at the Kipling Subway Station on July 25, 2002 at approximately 7:00 a.m. She had arrived at the station on the subway train, had exited the subway and was riding up the escalator when she saw the Route #45 Express Bus waiting at the bus platform. The bus was stationary at all times during the incident, and as she approached the rear doors of the bus, the doors closed. Ms. Pangolino then proceeded toward the front doors. As she was moving toward the front doors, a woman collided with her from behind and Ms. Pangolino fell. The fall caused an injury to Ms. Pangolino. The parties are in dispute as to what occurred after the woman collided with Ms. Pangolino.

The crux of the factual dispute arises from apparent contradictions found in the statements given by Ms. Pangolino in Exhibit-2, Exhibit-3, Exhibit-4, Exhibit-5, Exhibit-6; and with the statement she gave in Exhibit A-1.

In Exhibit-2, page 1, Ms. Pangolino described her fall in the following way:

Then when I was in the ah...ah...in the escalator, I look at my watch it's about 2 minutes to 7 and then I saw the ah, Express Kipling bus was still there so I....I started walking going to the ahm...the rear door, but the rear doors closes so I slowly walk, going to the front of...and it comes somebody I heard was running and...and then pushed me to the bus and I protected my head from banging to...to the bus so I fell flat on the floor and then when some... I heard somebody help me...a guy...and that...that lady approached me, asking me how ah...am I doing.

In Exhibit A-1, page 2, Ms. Pangolino described her fall as follows:

As a result of the hit I lost my balance and was falling towards the bus, knowing that I was going to hit my head on the side of the bus, so my reaction was to protect my head with my left hand and I did so, and fell forward hitting the side of the bus, and bounced off the side of the bus and I fell to the ground, and as I result of the said fall I felt that my left hand and arm had been hurt very badly.

The clear difference between the two versions of the story is that in Exhibit-2, Ms. Pangolino does not explicitly state that she "fell forward hitting the side of the bus and bounced off the side of the bus...." Instead, she never mentions hitting the bus, and states only that she fell "flat on the floor...." Ms. Pangolino was presented with this excerpt from Exhibit-2, and asked if it was an "accurate reflection of what happened." Ms. Pangolino answered "yes" to this question.

Ms. Pangolino was cross-examined further in regard to this portion of the Exhibit-2 transcript.

Q. ...This statement was taken three months after the accident. It doesn't seem like you told Mr. Bailey that you hit the side of the bus either in that statement. It says that you fell flat on the floor. Would you agree with that? Yes or no, ma'am?

A. Yes.

Ms. Pangolino was then asked about the account of the fall as given in statement Exhibit A-1:

Q. Ma'am, wouldn't you agree with me that that's significantly different than all the other statements that you've given to Mr. Bailey, to Dr. DeBeau, to Dr. Syden, Ms. Mack, Mr. Conception? You never told anybody before this date that you hit the side of the bus?

A. But I will say that this is really what happened, I really hit the bus with my left hand. When I put my left hand on my head to protect me and then I was falling down on the bus, I exactly hit the bus.

Q. Ma'am, when you gave your statement to Mr. Bailey approximately three months after the accident, were you under any duress when you were telling the details of the incident? Did anyone stop you from telling the truth or tell you what to say, ma'am, when you gave your statement to Mr. Bailey?

A. No.

Q. So you were free to tell all the details of the accident as they happened. Is that correct, ma'am?

A. Yes.

Q. But you didn't tell Mr. Bailey that you bounced off the side of the bus, is that correct?

A. I don't remember telling him, but the truth is really I hit the bus with my left hand when I protected my head.

Analysis:

As there were no other witnesses to the event, the question as to whether Ms. Pangolino hit and bounced off the side of the bus turns solely on her credibility as a witness. I am convinced that Exhibit A-1 and Exhibit-2 are inconsistent accounts of the same event. At no point in Exhibit-2 does Ms. Pangolino ever explicitly state that any part of her body came into physical contact with the bus. Instead, she speaks only of falling "flat on the floor...."

Ms. Pangolino was also questioned in regard to statements contained in Exhibit-3 to Exhibit-6. These were reports prepared by doctors and other medical specialists who examined Ms. Pangolino between July 2002 and November 2002. Each of these reports give a history or account of the incident in question, but the persons who prepared the histories were not called as witnesses and the reports were not sworn statements. TTC pointed out that none of the histories mentioned that Ms. Pangolino had struck the bus with her body. Instead, they stated that she had fallen on the floor. Ms. Pangolino responded by saying that she had mentioned that she had indeed struck the bus, but that the doctors and specialists had neglected to report or had misunderstood her statements. I find it unusual that the histories made no mention of her striking the bus, but the persons who prepared the reports did not appear before me, and were not subject to cross examination. Nor is there evidence that the report makers were attempting to record a verbatim statement. I find that Ms. Pangolino was able to provide a reasonable explanation for the apparent discrepancies in Exhibit-3 to Exhibit-6.

Nevertheless, I did not find that Ms. Pangolino was able to reconcile the inconsistencies in Exhibit-2, her previous statement of October 16, 2002, with her statement in Exhibit A-1, given in December 2004. Her explanations and answers in cross-examination did not convince me that she could have reasonably neglected to mention that she had struck the bus in Exhibit-2. Further, she did not deny making the statement in Exhibit-2; or that it was an inaccurate transcript; or that she had been misunderstood.

In addition, she stated that she was free to give all details of the incident, and that she was not under duress. Exhibit-2 clearly shows that her agent was given an opportunity to ask further questions after the adjuster's questioning. The agent declined to ask further questions. The initial statement, Exhibit-2, was given in October 2002, only three months after the incident. The statement wherein she stated that she hit and bounced off the bus was made over two years later in December 2004. I find it difficult to believe that her recall would have improved over the intervening two-year period such that her later statement would contain important and compelling details not previously revealed. When presented with the conflicting statement, Ms. Pangolino answered that she did not remember telling the TTC claims adjuster that she had bounced off the bus.

By choice of her representative, Ms. Pangolino did not give evidence-in-chief apart from filing Exhibit A-1. I did not find that Ms. Pangolino was credible in regard to this part of her evidence concerning the incident. I was not convinced that she could leave out so salient a detail that she had struck and "bounced off the side of the bus" in her initial statement given to TTC in Exhibit-2. Accordingly, I find that as a result of the collision with the woman, she "fell flat on the floor" and did not have contact with the bus.

Ms. Pangolino also stated that she was approximately five feet away from any part of the bus when the collision took place and that she was moving away from the rear doors and toward the front doors. This evidence was consistent with the statement she gave in Exhibit-2.

The Test of Direct Causation

Section 2(1) of the Schedule defines "accident" as follows:

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

The term "accident" and the phrase "the use or operation of an automobile directly causes" have been considered in a number of recent Court and arbitral decisions.

In Chisholm v. Liberty Mutual Group², Justice Laskin made the following comment at paragraphs 27:

When one thinks of direct causation one thinks of something knocking over the first in a row of blocks after which the rest falls down without the assistance of any other act.

In Greenhalgh v. ING Halifax Insurance³, Labrosse, J.A., enunciated the direct causation test at paragraph 10:

Accordingly, the language of the provision itself sets out the test as involving a consideration of the following two questions:

3. Did the incident arise out of the use or operation of an automobile?

4. Did such use or operation of an automobile directly cause the impairment?

In Petrosoniak and Security National Insurance Company⁴, the arbitrator made the following statement concerning direct cause:

As I understand that definition, a series of events can be the direct cause of an incident, as long as there is no intervening agency or act. Consequently, if an unbroken chain of events involving the use or operation of an automobile leads to an injury, the injury can be said to have been directly "caused by" the incident.

Analysis:

In the present instance, the question to be answered is whether the use or operation of the automobile directly caused the injury suffered by Ms. Pangolino. I have already determined that Ms. Pangolino did not strike her hand or any other part of her body against the bus. It has also been determined that a young woman collided with Ms. Pangolino, knocked her to the ground, and that she was five feet away from the bus when this occurred.

The question as to when a passenger's use or operation of an automobile commences or ends has been considered in a number of arbitral decisions. In Fedrizzi and TTC Insurance Company ⁵, decided under the previous SABS - Accidents after December 31, 1993, and before November 1, 1996, which defined an accident as "...an incident in which, directly or indirectly, the use or operation of an automobile causes an impairment or causes damage... [emphasis added]", the arbitrator held that a woman who had fallen while she was approaching a streetcar which she intended to board had not been involved in an "accident."

In Fedrizzi, there was conflicting evidence as to exactly how far the Applicant had been when she actually fell (the Applicant testifying that she was two feet away, or five to ten feet away in a prior inconsistent statement), but the arbitrator made the following conclusions:

I find that the Applicant fell because of the generally humid and slippery condition of the platform, rather than a specific puddle or oily patch. I do not find the discrepancy significant. The important point is that the streetcar played no role in the incident except that it was the Applicant's destination when she fell (page 5).

The main points are that the Applicant fell in the LRT station because of the wet or slippery surface of the streetcar platform and for no other reason; that the fall occurred as she approached the streetcar intending to board it; and that at the time of her fall, she had not touched the streetcar or begun climbing the steps to board it (page 6).

If the Applicant had fallen before she entered the LRT station, there would be no dispute that the incident was not an "accident" as defined. If she had fallen after she boarded the streetcar, there would be no dispute that the incident was an "accident". As the previous arbitration and court decisions make clear, there are no hard and fast rules for determining exactly when, during the Applicant's progress from the station entrance to the door of the streetcar, her activities began to involve "directly or indirectly, the use or operation of an automobile" (page 6).

The Applicant testified that she was "walking toward" the streetcar when she fell. In my view, it does not matter whether the Applicant was several steps or several feet away from the streetcar at the time of her fall. The streetcar was her destination, but that was true even before she entered the LRT station, and there is no question that a fall before she entered the station would not be an "accident" as defined in section 1 (page 5). [emphasis mine]

It is noteworthy that Fedrizzi was decided using the definition of "accident" under the SABS - Accidents after December 31, 1993, and before November 1, 1996, wherein the test for causation was wider than that provided for in the current SABS - Accidents on or after November1, 1996.

In Pantazis and TTC⁶, decided under the current SABS, the arbitrator made the following ruling at page 3:

The legal issue in this case, therefore, is simple. The parties agree that if, as she states, Ms. Pantazis missed her step as she got off the bus, and stumbled and fell as a result, then the incident falls within the definition of "accident", and she is entitled to benefits under the Schedule. If, on the other hand, she simply tripped and fell over her own feet or for some other reason, as TTC suggests, after she got off the bus, then the use or operation of the bus cannot be said to lead to her injury, and no accident has occurred.

In the instant case, the Applicant never touched or had contact with the bus. At the time of her fall, she had not reached the steps or begun climbing the steps to board the bus. She was approximately feet five from any part of the bus. As in Fedrizzi, I find that the streetcar played no role in the incident except that it was the Applicant's destination when she fell. Nor did I find that the streetcar played any role in regard to the actions of the woman who collided with Ms. Pangolino.

The principle set out in the Pantazis decision is that an applicant cannot be found to have suffered an "accident" if the use or operation of the automobile has ended. Similarly, I find that an "accident" cannot occur if the use or operation of the automobile has never commenced.

Therefore, I find that the use or operation of the automobile did not directly cause the injuries suffered by Ms. Pangolino and she was not involved in an "accident."

Order:

Ms. Pangolino was not involved in an accident as defined in the Schedule.

EXPENSES:

Having regard to the criteria set out in the Expense Regulation, which include considering each party's degree of success in the outcome of the proceeding, I exercise my discretion to award $500.00 to TTC Insurance Company Inc. for expenses incurred in this preliminary issue hearing.

May 20, 2005

Edward Lee Arbitrator

Date

Neutral Citation: 2005 ONFSCDRS 69

FSCO A03-001718

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

CECILIA M. PANGOLINO

Applicant

and

TTC INSURANCE COMPANY LIMITED

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Ms. Pangolino was not injured as a result of an "accident" as defined under the Schedule.

2. Ms. Pangolino shall pay TTC Insurance Company Limited its expenses in the amount of $500.00.

May 20, 2005

Edward Lee Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA), [2002] O.J. No. 3135 (Ont. C.A.)
3. 3'Greenhalgh v. ING Halifax Insurance Company, 2004 CanLII 21045 (ON CA), [2004] O.J. No. 3485, (Ont. C.A.)
4. 4Petrosoniak and Security National Insurance Company, [FSCO A98-000198, November 2, 1998]
5. 5Fedrizzi and TTC Insurance Company Limited, [OIC A97-000839 March 25, 1998]
6. 6Pantazis and TTC Insurance Company Limited, (FSCO. A01-001564, September 16, 2002).