Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 223

FSCO A13-003076

BETWEEN:

SUKHDEV SINGH RANDHAWA

Applicant

and

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY

Insurer

Before: Isoken Osunde

Heard: August 11, 12, 13, 14 2014 and June 29, 2015, at the offices of the Financial Services Commission of Ontario in Toronto.Written submissions were completed on October 16, 2015

Appearances: Michael Wolfe and William Wolfe for Mr. Randhawa

Robert S. Franklin for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Sukhdev Singh Randhawa, was injured on September 18, 2011. He applied for statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ State Farm denied his application for benefits. The parties were unable to resolve their disputes through mediation, and Mr. Randhawa 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:

Was Mr. Randhawa injured as a result of an “accident” as defined in section 3(1) of the Schedule?
Which party is entitled to its expenses of the preliminary issue hearing?

Result:

Mr. Randhawa was not injured as a result of an “accident” as defined in section 3(1) of the Schedule.
There is no order on the issue of expenses. The parties are encouraged to resolve this issue on their own failing which I may be spoken to on it within 30 days of this decision.

BACKGROUND:

The events that led to this preliminary issue arbitration hearing were very tragic. On September 18, 2011, the Applicant, Mr. Randhawa suffered a very serious impairment as a result of a fall —an impairment which left him paralysed and confined to a wheelchair. To the extent that Mr. Randhawa is now catastrophically injured as a result of the fall, there is clearly no dispute. The issue which I must decide is whether the fall of September 18, 2011 involved the use of an automobile, in which case it would fall within the meaning of an “accident” as defined in Section 3(1) of the Schedule.

Law:

Section 3(1) of the Schedule states that:

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

Parties Positions:

There were 2 dominant theories canvassed by the parties in this case. Mr. Randhawa’s theory on the one hand, was that he fell while exiting his Acura through the passenger door on September 18, 2011. According to him, only he and his friend, Harinder, witnessed the actual fall. State Farm’s theory on the other hand is that Mr. Randhawa did not fall while exiting his Acura. For the reasons that follow, I find that Mr. Randhawa’s version of events is not supported by the evidence. Therefore, I conclude that Mr. Randhawa was not injured as a result of the use or operation of an automobile as defined by Section 3(1) of the Schedule.

EVIDENCE AND ANALYSIS:

Mr Randhawa’s case was complicated by the different versions of the events surrounding his fall on September 18, 2011. On the one hand, there was the documentary evidence comprising of various hospital reports created at different times by different individuals which contained different versions of how the fall occurred. Most of these reports suggest that Mr. Randhawa was the only eye witness to his fall and that he was found later by his wife, Rajinder. On the other hand, there was the testimony of Mr. Randhawa and his family and friends. The general theme in their testimonies was that the only eye witnesses to the fall were Mr. Randhawa and Harinder and that Mr. Randhawa fell while exiting his Acura.

The Events Leading up to the Fall:

To the extent that Mr. Randhawa was visiting his friend’s house ² on September 18, 2011 between 6:30 and 7:00pm and that he drove himself there, there is no dispute between the parties. In addition, there is no dispute that Mr. Randhawa consumed some alcohol at Harinder’s house.

The documentary accounts of the circumstances surrounding Mr. Randhawa’s fall:

As stated earlier, there were different accounts of the circumstances surrounding Mr. Randhawa’s fall. The 911 call recording³ indicates that Mr. Randhawa had been drinking when he fell. It states that Mr. Randhawa was not drunk but that he fell “in a hill beside his driveway” and he had been laying in there for half an hour before, his wife, Rajinder found him.

The Ambulance Call Report dated September 19, 2011⁴ indicates that Mr. Randhawa was dropped off at home at approximately 9:30pm on September 18, 2011. It further states that Mr. Randhawa felt dizzy prior to falling into a ditch at the front of his house and that he was found by his wife approximately an hour and a half later. The ambulance call report indicates that the 911 call was received at 1:31am on September 19, 2011.

The York Region EMS Call Report dated September 19, 2011⁵ states that according to the patient’s family, the patient was out drinking with his brother the night before and was dropped off at home at approximately 9:30pm. It states further that Mr. Randhawa reported feeling dizzy prior to falling into a ditch near his front door and that he was found by his wife outside approximately an hour and a half later. It states further that Mr. Randhawa was walked into the house and laid down on the floor upstairs and that EMS was called approximately 4 hours after the initial episode.

The Etobicoke General Hospital triage report⁶ dated September 19, 2011 states that Mr. Randhawa was found in a ditch outside his house “this am” after being dropped off by his brother. It further states that Mr. Randhawa was out drinking with his brother and was feeling dizzy and that Mr. Randhawa fell at 9.30pm the night before.

The University Health Network — Toronto Western Hospital ER Triage Assessment Report,⁷ dated September 19, 2011, states that Mr. Randhawa was out drinking with family last night and had a syncopal episode. It states further that Mr. Randhawa fell striking his left shoulder on the pavement and was found later.

Mr. Randhawa’s Evidence:

The bulk of evidence in support of Mr. Randhawa’s theory of the events surrounding the fall comprised of his oral testimony and the testimony of his family members, his friend Harinder and Harinder’s son, Harnek. As stated earlier, the general theme in their testimony was that Mr. Randhawa and his friend, Harinder, were the only eye witnesses to his fall. Below, I have summarized their theory of the events surrounding the fall.

Mr. Randhawa’s theory is that Harinder drove him back home in his Acura after the visit. This was only done as a precautionary measure. Mr. Randhawa was not drunk. Mr. Randhawa sat in the passenger’s seat. Harnek, Harinder’s son, followed them shortly after in another car in order for Harinder to return home with him. Upon arriving at Mr. Randhawa’s house, Harinder parked Mr. Randhawa’s Acura on the right side of the end of the driveway because the entry to his driveway was impeded by other vehicles one of which belonged to Mr. Randhawa’s tenant’s visitor.⁸ Further, as Mr. Randhawa was about to exit the car from the passenger’s side, the door swung back at him because of the wind, causing him to lose control and fall backwards hitting his head on the curb. Harinder testified that he knew it was the wind that caused the door to swing back at Mr. Randhawa because, he felt the wind when Mr. Randhawa opened the passenger door to exit the car. After the fall and while Mr. Randhawa was still on the ground, Harinder knocked on the front door of Mr. Randhawa’s house to request help with assisting Mr. Randhawa to get up. Rajinder, Mr. Randhawa’s wife, opened the door and asked Robbie, Mr. Randhawa’s son who was the only other person at home at the time, to come outside and help. After Mr. Randhawa was put to lie down in his living room on the main floor of his house, Harinder asked Robbie to ask the tenant’s visitor to come outside and move his car. Harinder then parked Mr. Randhawa’s Acura properly and handed the keys back to Robbie and left.

Rajinder’s testimony is that she called Sumeet, Mr. Randhawa’s daughter, to come home immediately and that Sumeet arrived shortly after. Robbie and Sumeet then escorted Mr. Randhawa up the stairs to his room. Robbie left the house shortly after. Both Rajinder and Mr. Randhawa fell asleep (they both testified that they were not sure how long they were asleep for) and Rajinder was awoken by Mr. Randhawa that he needed her help to use the washroom. Rajinder waited outside the washroom while Mr. Randhawa used the toilet. While using the toilet, Mr. Randhawa’s neck fell forward and he was unable to get up. Rajinder screamed for Sumeet’s help and they both assisted Mr. Randhawa to lie down on the floor in front of the washroom. Sumeet then called 911. Robbie did not return back to the house until the next morning. Mr. Randhawa’s theory is that neither Harinder, Harnek nor his family members thought his injuries were serious at the time of the fall hence, they would have called 911 sooner.

State Farm’s Evidence:

Mr. Sam Kodsi:

In support of State Farm’s theory, Mr. Sam Kodsi, a Mechanical Engineer testified on its behalf. At the hearing, he was qualified as an expert witness in the area of reconstruction engineering.⁹

On August 3, 2012, Mr. Kodsi conducted an accident reconstruction investigation at Mr. Randhawa’s house. Mr. Kodsi testified that with the testing vehicle parked in the same manner that Mr. Randhawa’s Acura was parked at the time of the incident as described by Mr. Randhawa, and with wind similar in magnitude but going in a more favourable direction towards closing the door on September 18, 2011, the door did not move at all. Therefore, he concluded that the door did not close due to the wind as testified by Mr. Randhawa. Overall, I did not find Mr. Kodsi’s evidence of much help in making this decision.

First, Mr. Kodsi was not qualified as a meteorologist at the hearing. Much of his conclusions with regard to the weather conditions at Mr. Randhawa’s house on September 18, 2011 lacked certainty because they were based on weather reports taken at the top of the hour specifically at 10:00pm and derived from the four closest weather stations¹⁰ to Mr. Randhawa’s house. Mr. Kodsi did not explain convincingly how he arrived at the methodology he employed in determining the weather conditions. There is also no evidence to support the fact that the fall occurred at exactly 10:00pm. In fact, most of the reports indicate that the fall occurred at around 9:30 pm. In addition, Mr. Kodsi admitted under cross examination that wind conditions can also be affected by structures on the land around the area where the incident occurred. In this case, it was established that behind Mr. Randhawa’s house is an open field. In the circumstance, in the absence of an opinion from a qualified meteorologist to support Mr. Kodsi’s conclusions on the weather conditions, I cannot accept his opinion. In any event, I did not find the weather conditions at Mr. Randhawa’s house on September 18, 2011 of any assistance in making my determination as to whether Mr. Randhawa’s fall directly involved the use of an automobile.

Second, Mr. Kodsi was unable to determine conclusively whether it was possible that Mr. Randhawa could have fallen backwards toward the curb as testified by Mr. Randhawa as opposed to back into the car after being hit by the car door. In his report, he stated that there was not enough physical evidence for him to make this conclusion.

Karen Southwood and Eddy Castillo

Ms. Southwood and Mr. Castillo, both paramedics with York Region testified on State Farm’s behalf. Both Ms. Southwood and Mr. Castillo attended at Mr. Randhawa’s house on September 19, 2011 after the 911 call was made by Sumeet. For the reasons that follow, I give some weight to their testimony.

Ms. Southwood testified that the patient history information noted in the Ambulance Call Report¹¹ was the information she and Mr. Castillo obtained on scene from Mr. Randhawa’s family and that it was Mr. Castillo who filled in the information contained in the Ambulance Call Report.

Both Ms. Southwood and Mr. Castillo testified that upon arriving at Mr. Randhawa’s house and obtaining the patient history, they applied the protocol for suspected cardiac arrests as opposed to spinal injuries because they suspected that Mr. Randhawa was suffering from a cardiac arrest. For the first time at the hearing, it became apparent to them that Mr. Randhawa had suffered a spinal injury and not a cardiac arrest.

Overall, although Ms. Southwood and Mr. Castillo both appeared to have some independent recollection of the events that occurred on September 19, 2011 after they arrived at Mr. Randhawa’s house, I give no weight to the portions of their testimonies that are inconsistent with the evidence in this case because, both Ms. Southwood and Mr. Castillo testified that since September 19, 2011, they have attended to over 1000 calls each. Therefore, I am not persuaded that some of the information they provided, as it relates to their independent recollection of the events that occurred on September 19, 2011 after they arrived at Mr. Randhawa’s house, might not have been conflated with other emergency calls. However, to the extent that they testified that the information entered into the Ambulance Call Report was provided by Mr. Randhawa’s family, being Sumeet and Rajinder, I accept their testimony. Albeit there might have been some inaccuracies in the Ambulance Call Report such as the fact that it was noted that Mr. Randhawa fell into a ditch when in fact, there is no ditch in front of his driveway, I do not find these inaccuracies particularly harmful to the crux of State Farm’s theory which is that Mr. Randhawa’s fall did not involve the use of an automobile. I find it more probable to believe that some of these inaccuracies could have been as a result of the language barrier encountered by Ms. Southwood and Mr. Castillo on scene as testified by Mr. Castillo and Sumeet and the fact that Sumeet was acting as the translator for Rajinder and Mr. Randhawa. I have no reason to believe that Ms. Southwood and Mr. Castillo neglected to take a proper patient history from Sumeet as Mr. Randhawa would like me to believe.

Analysis:

The Different Reports:

Mr. Randhawa submits that no weight should be given to the different reports containing the circumstances surrounding Mr. Randhawa’s fall because the records were created based on reports from individuals who did not have firsthand knowledge of the fall. I reject this submission. Although there were inconsistencies in the reports, I find it compelling that in all of the reports, the one thing that remained consistent is the fact that there was no mention of an automobile during the fall.

The 911 Call:

I found the 911 call most compelling of all the evidence adduced in this case. I listened to the recording several times. Contrary to Sumeet’s testimony that she was confused at the time of making the call and that Rajinder was yelling out words to her in Punjabi which she (Sumeet) tried to make sense of, as she made the call, the atmosphere sounded calm. In addition, I did not observe any communication or language barrier between Sumeet and Rajinder and there did not seem to be any confusion. Sumeet appeared to have a relatively good medical history and account of how the fall occurred which she relayed to the 911 operator when she made the call. At one point where she needed clarification with regard to Mr. Randhawa’s weight, age and a description of the hill around the area where she reported that he fell, Sumeet asked Rajinder in Punjabi and translated Rajinder’s response back to the 911 operator. In all of these, there was no mention of the fact that Mr. Randhawa fell while exiting his Acura.

I find the fact that Mr. Randhawa was exiting a vehicle when he fell too crucial for it to have been omitted at the time the 911 call was made. It was Harinder’s testimony that after Mr. Randhawa was made to lie down in the house, he recounted the story of how the fall occurred to Rajinder and he particularly told Rajinder that Mr. Randhawa fell while exiting his Acura. Yet, Rajinder, in relaying the information to Sumeet who made the 911 call, did not mention that there was a car involved. By omitting to mention the involvement of a vehicle at such a material time as this, I am not persuaded that Mr. Randhawa fell while exiting his Acura.

The Inconsistencies in the Different Accounts:

I found too many inconsistencies in the various testimonies in support of Mr. Randhawa’s theory which I am not prepared to overlook in this case. I have addressed each one below:

First, Mr. Randhawa’s evidence is that Harnek, Harinder’s son followed him and Harinder in another vehicle as they drove to Mr. Randhawa’s house in order for Harinder to go back to his home with Harnek. All three of them testified that Harnek did not witness the actual fall because he arrived a few minutes later in time to witness Robbie and Harinder assisting Mr. Randhawa back into the house after the fall. However, Harnek testified that albeit, he could see Mr. Randhawa’s front door from inside his vehicle while he waited outside the house, he did not see anyone come to the front of the house after Mr. Randhawa was escorted back into the house. The first and only person he saw after Mr. Randhawa was escorted back into the house was Harinder when he came to his car for them to drive home together. Contrary to this, Harinder testified that after Mr. Randhawa was assisted back into the house and made to lie down, he went outside to park Mr. Randhawa’s vehicle properly after the individual visiting Mr. Randhawa’s tenant’s had moved his car. I find it very troublesome that all of these would have occurred while Harnek waited outside and he would not have noticed anything even though he testified that he was listening to the radio the whole time.

Second, Mr. Randhawa submits that for the first time on September 19, 2011, someone (Robbie) who actually witnessed Mr. Randhawa being assisted up from beside the Acura where he fell, reported the incident accurately. This, he submits was when Robbie made a call to Mr. Randhawa’s employer and informed them that Mr. Randhawa had fallen at his home.¹² This was recorded in the STD/LTD claim management record of events. In a subsequent letter¹³ dated September 30, 2011 authored by Mr. Randhawa’s employer, it was stated that on September 19, 2011, the company was informed that Mr. Randhawa fell on September 18, 2011 in his driveway. I reject Mr. Randhawa’s submission. I find that the descriptions of the incident in the employer records above fall short of accurately reporting the incident as described by Mr Randhawa. In addition, I do not find the incident as described in the employer records inconsistent with State farm’s theory – that Mr. Randhawa did not fall while exiting his Acura.

Third, Harinder and Mr. Randhawa testified that because access to the driveway was impeded by other vehicles when they arrived at Mr. Randhawa’s house, Harinder parked Mr. Randhawa’s Acura at the end of the driveway on the right side with the front of the vehicle facing the house. Yet, in a signed statement¹⁴ made to Alliance Legal Consultants Inc. dated February 16, 2012, Harinder stated that he parked Mr. Randhawa’s Acura on the street by the curb. Under cross examination, Harinder had no plausible explanation for the discrepancy. This led me to question the accuracy of his recollection of the events of September 18, 2011.

Conclusion:

After considering all of the evidence, I am not persuaded by Mr. Randhawa’s theory of events that he fell while exiting his Acura. Therefore, I find that Mr. Randhawa was not injured as a result of an “accident” as defined in section 3(1) of the Schedule.

EXPENSES:

The parties did not make any submissions on expenses. They are encouraged to resolve this issue on their own failing which I may be spoken to on it within 30 days of this decision.

October 28, 2015

Isoken Osunde

Arbitrator

Date