Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2012 ONFSCDRS 116

FSCO A11-001844

BETWEEN:

HAN YU Applicant

and

SECURITY NATIONAL INSURANCE CO./ MONNEX INSURANCE MGMT. INC. Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Fred Sampliner

Heard: July 3, 2012, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Paul Caprani for Mr. Yu Michael Kennedy for Security National Insurance Co./ Monnex Insurance Mgmt. Inc.

Issues:

Security National Insurance Co./Monnex Insurance Mgmt. Inc. (“Security”) contends that Mr. Han Yu was not injured in a March 7, 2010 motor vehicle accident and he is not entitled to accident benefits under the Schedule.¹ The parties’ mediation did not resolve this dispute, and Mr. Yu 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:

Did Mr. Yu suffer impairment as a result of an accident on March 7, 2010?

Result:

Mr. Yu suffered impairment as a result of an accident on March 7, 2010.

EVIDENCE AND ANALYSIS:

The Accident:

Mr. Han Yu was a full-time sophomore student living at the University of Western Ontario at the time of the March 7, 2010 accident. Mr. Yu’s initial written statement to Security states he was driving back to London from Toronto on Highway 401 near Woodstock at approximately 5:00 a.m., when an unknown object (possibly a small animal) crossed the road and hit his front end. Mr. Yu smelled burning, noticed the engine oil light flashing and stopped to inspect his car at the roadside. He saw no damage in the darkness, but could not re-start the engine.

The car was towed to BMW London, where the dealer found it was not economically reparable due to mechanical problems. Mr. Yu claims he suffered soft tissue injuries and emotional distress as a result of the accident.

An accident is an incident in which the use or operation of an automobile directly causes an impairment.² Security contends Mr. Yu did not hit another vehicle or object on March 7, 2010, based on the opinion of its engineering expert.

Mr. Raffi Engeian, a mechanical engineer specializing in accident reconstruction, testified and his report was filed. He inspected the BMW at the dealership on April 21, 2010, and found it had sufficient oil. Mr. Engeian stated that the BMW’s computer automatically shuts the engine down when it senses insufficient oil pressure. The computer record shows no automatic shut down on March 7, 2010. Based on the oil level and computer diagnosis, Mr. Engeian concluded that the oil leak did not cause or contribute to the engine failure. He testified the damage to the oil cooler could have resulted from a simple kick or minor parking lot collision.

However, Mr. Engeian acknowledged there was oil spray covering the underside of the vehicle at the time of his inspection. He further admitted that the physical damage is consistent with Mr. Yu’s claim he ran over an object at high speed.

Mr. Engian’s admission is consistent with the opinion of the property appraiser, who told Security that the damage is consistent with a high speed collision. The appraiser’s opinion and Mr. Engeian’s candid admission seriously undermine his conclusion the car was not damaged while Mr. Yu drove on the highway that night. I give Mr. Engeian’s opinion little weight.

There is no evidence to support Security’s speculation the damages occurred earlier in a parking lot incident. Mr. Yu’s evidence is that in early 2010 he took his car in to the BMW dealer to get an estimate for a couple of minor parking lot scratches, but no evidence suggests the car had repairs, maintenance or mechanical problems before March 7, 2010. I give no weight to Security’s speculation.

Security’s second position is that Mr. Yu gave inconsistent information about the accident that indicates a collision did not occur. Security has not argued Mr. Yu violated his duty to provide information to the Company.³

The property damage adjuster, Ms. Wamie Leung, testified that Mr. Yu denied several times that he hit anything or he suffered an injury during their initial telephone conversation the day after the accident. Ms. Leung and Mr. Yu spoke English in these conversations because they understand different versions of Chinese. There was no interpreter.

Evidence tends to show Mr. Yu misunderstood Ms. Leung because English is not his first language. Mr. Yu had an interpreter present during his examination under oath in May 2010, and during the same period he was examined by a psychologist who comments in her report that Mr. Yu misunderstood English words during the interview. The OPP officer’s summary of Mr. Yu’s accident report also notes he spoke poor English. On this evidence, I reasonably infer that Mr. Yu was not English proficient in March 2010.

In his evidence, Mr. Yu did not recall the adjuster asking if he hit anything. He stated he understood the word “injury” to mean the appearance of blood. Based on Mr. Yu’s limited English proficiency in 2010, I accept he likely did not fully understand Ms. Yeung’s questions or appreciate how to accurately respond. Consequently, I give little weight to Mr. Yu’s initial report to Security he did not hit anything and his denial of an injury.

Mr. Yu made a telephone report of the accident to the Ontario Provincial Police post in Tilsonburg on March 24, 2010. He explains that the three-week delay is due to his understanding, from previous driving experience in China, that accident reports are required only for multiple vehicle collisions. This is Mr. Yu’s first accident experience in Canada, and I am willing to accept his misunderstanding of his reporting obligation.

Mr. Yu provided Security with a written description of the accident, dated March 19, 2010, in accordance with his obligation under subsection 32(1.1)a of the Schedule. In May 2010, he submitted to an examination under oath by Security’s lawyer, in accordance with his duty under section 33 of the Schedule. His descriptions of the accident in his statement and examination are relatively consistent.

Mr. Yu’s evidence that he struck something on the highway that caused his car’s mechanical failure is corroborated by reliable records. The BMW roadside assistance call report, the tow truck company receipt and BMW work order with photographs showing the front bumper damage and the punctured oil cooler are clearly consistent with Mr. Yu’s version of the event.

Mr. Yu’s reliably verified version of the event bears sufficiently greater weight, on balance, than Security’s expert opinion and Mr. Yu’s initial report to the adjuster. I find that Mr. Yu’s BMW was struck by an unknown object on March 7, 2010 near Woodstock on Highway 401, which damaged the front bumper, punctured the oil cooler and led to the mechanical engine failure.

The Injury:

Security argues that, even if the car hit an object, Mr. Yu was not injured. The Schedule uses the term “impairment”, which is defined as being weakened, damaged or diminished.⁴

I explained to the parties at the commencement of the hearing that I was not prepared to make a specific determination of Mr. Yu’s impairments because that is the subject of his entitlement hearing. My finding relates to whether there is sufficient evidence to establish he sustained any impairment as a result of the accident.

Mr. Engeian stated that Mr. Yu’s injuries are unexpected from the damage he inspected on the car. However, he is not qualified in any health care field and I give his opinion no weight.

Mr. Yu admits he went back to China after the accident for four or five months to visit his sick grandfather and see other family members. He produced his travel record to Security, but I was not provided with the time period, and draw no inference from his trip.

Mr. Yu testified he visited the hospital or the campus health clinic three days after the accident for a fever, but there are no institutional records to document his visits. Mr. Yu also admits he did not obtain further treatment until starting physiotherapy about three weeks post-accident, and there is no evidence he took prescription medicine.

While I can accept Mr. Yu’s explanation that the treatment delay was due to his studies during the usual March university examination period, he submitted no evidence to support his contention that his academic performance suffered due to his injuries. The lack of evidence Mr. Yu sought medical assistance during the first three weeks after the accident and the absence of corroborative evidence he had post-accident academic problems indicates his injuries were relatively minor.

A disability certificate prepared by the rehabilitation clinic Mr. Yu attended in late March 2010 states he had various muscle strains, headaches, dizziness and insomnia. In May 2010, Security’s examining physiotherapist confirms that Mr. Yu’s symptoms are consistent with a whiplash associated disorder. She partially approved funding for his treatment, and Mr. Yu gave evidence that he attended treatment sessions. Based on the disability certificate and the opinion of Security’s examiner, I find that Mr. Yu suffered an impairment as a result of the accident.

Mr. Yu’s arbitration hearing is scheduled to commence on December 10, 2012. His injury was relatively minor and I strongly recommend that the parties consider their settlement options before they expend further time, money and effort in bringing this matter to a full hearing.

EXPENSES:

On Mr. Yu’s success, I exercise my discretion to award him his expenses incurred in this preliminary issue hearing. The one-day hearing was conducted expeditiously and efficiently. I fix Mr. Yu’s expenses at $500, inclusive of disbursements and HST.

July 20, 2012

Fred Sampliner Arbitrator

Date

Financial Services Commission of Ontario