Financial Services Commission of Ontario

Neutral Citation: 2017 ONFSCDRS 122 FSCO A15-000544

BETWEEN:

BAHRAM ANSSARI Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator Jeff Musson

Heard: In person at ADR Chambers on March 2, 2017

Appearances: Ms. Melissa Miller, Lawyer, participated for Mr. Bahram Anssari Mr. Paul Barnes, Lawyer, participated for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Mr. Bahram Anssari, was injured in an incident on December 20, 2013 and sought accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Anssari applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Preliminary Issue Hearing are:

1. Was the Applicant involved in an “accident” as defined in Section 3(1) of the Schedule?
2. Is either party entitled to their expenses in respect of the Preliminary Issue Hearing?

Result:

1. The Applicant was involved in an accident as defined by Section 3(1) of the Schedule.
2. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with the Rules 75 to 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

BACKGROUND

On December 20, 2013, the Applicant was installing security cameras along the rear exterior roof line of an industrial building located at 471 Garyray Dr. in Toronto, Ontario. He was using a two year old standard, 12 foot, outdoor extension ladder in order to install the various cameras. Around 3:00 p.m. that day, the Applicant fell approximately 12 feet off the ladder while working on the cameras and he landed on the cement laneway below the ladder. The Applicant doesn’t remember how he fell and there were no witnesses to the incident. The security cameras were not operational at that time.

An employee of an auto shop located behind the building where the Applicant was working had discovered the Applicant on the ground. An ambulance was dispatched to the scene and the Applicant was taken to Sunnybrook Hospital. Approximately after a two-week stay in the hospital, he was discharged and the Applicant began a rehab program for his injuries.

The Applicant’s left and right knees along with his shoulder were injured in the fall. While at Sunnybrook, the Applicant underwent surgery to repair the injuries that he sustained as a result of the incident. After he was discharged from the hospital, he was admitted to the St. John’s Rehab Facility for an additional two-week stay. After being discharged from St. John’s, the Applicant continued his treatment on an outpatient basis.

In January of 2014, once the Applicant was home from the hospital and rehabilitation stay, he returned to 471 Garyray Dr. to retrieve his ladder and tools that he left behind after his fall. It was at this time that he noticed that his ladder was damaged. The Applicant filed a police report a few weeks after, in March of 2014. A report was never filed with the police on the day of the incident. After filing the report, the Applicant proceeded to retain the services of an accident reconstruction firm. The purpose was to identify using the physical evidence, mainly the Applicant’s ladder, and to establish the sequence of events that caused the Applicant to fall from the ladder. Since there were no witnesses and the Applicant doesn’t have any recollection of what occurred prior to his fall, the physical evidence is the only thing available to substantiate the sequence of events.

THE ISSUE IN DISPUTE

The only issue put forward at this Preliminary Issue Hearing is to determine if this incident on December 20, 2013 qualifies as an accident under Section 3(1) of the Schedule. Specifically, did the Applicant slip off the ladder as the Insurer claims, or was the Applicant, as he claimed, knocked off the ladder as a result of the ladder being hit by a vehicle?

Testimony of the Applicant

I found the Applicant’s testimony to be truthful and forthright. The Applicant is a sole proprietor who has owned a security camera installation company since 2005. He is the only employee. His clients are both homeowners and businesses. The Applicant testified that at the time of the incident, he had completed the physical installation of all of the cameras to the rear of the building and was in the process of connecting each camera to the server in the building. The Applicant was contracted to complete this work because he was quite familiar with the building and due to the fact that he completed maintenance on the existing cameras which were now being replaced. At the time that the incident occurred on December 20, 2013, the Applicant was already working seven days on the job at 471 Garyray Dr.

On the day of the incident, the Applicant testified that he was wearing proper safety shoes and that he had placed traffic cones around his work area. He also testified that it was not raining or snowing the day he worked. The reason he said this with such certainty is that if it was raining or snowing, he would not use his sensitive electronic test equipment to work on the camera installation for fear that his test equipment would have been damaged by precipitation.

The Applicant also testified that there were cars coming in and out of the various bay doors at the rear of the building where he was working. In addition, since the rear area of the industrial building is a moderately-travelled area, cars were also parked in the area where he was working. The Applicant testified that he doesn’t remember falling off the ladder and only remembers waking up on the ground in pain.

After the Applicant was discharged from the in-patient rehab facility, he returned to the scene of the incident. An auto shop employee from the area of the building where this incident occurred had placed the Applicant’s tools and ladder in the secured server room in the basement after the fall.

The Applicant testified that his ladder was not damaged prior to this incident and after retrieving the ladder from the basement of 471 Garyray Dr., the ladder was kept at his house and has never been used since. He also testified and produced photographs showing the step of the ladder that was severely dented inwards. Additional photographs were also produced that showed the location of where the incident occurred and the surrounding area.

The Insurer takes the position that the Applicant fell off the ladder in the normal course of doing his job. It was a simple slip and fall incident. Even though the Applicant testified that it was not raining or snowing the day of the incident, the Insurer produced an environment Canada weather report compiled at Pearson Airport which showed that there was precipitation falling on December 20, 2013. Pearson Airport is only a short distance from 471 Garyray Dr., where the incident took place. The Applicant replied that just because the weather shows precipitation at the airport, it doesn’t mean it was raining at the job site.

Under cross-examination, the Applicant was asked if he knew how many cars were in the laneway where he was working. He said he didn’t know because he was facing the wall while on the ladder in order to work on the security cameras. The Insurer asked why it took the Applicant approximately one month after the incident to retrieve his ladder and tools. The Applicant replied that he was in the hospital recovering from his surgeries and then was transferred to a rehab facility before being discharged, which was approximately one month in total after the incident.

The Applicant testified that he is now semi-retired from the business and only maintains a small client base of existing customers. This incident and subsequent injuries have caused him to re-adjust his life and work schedule.

Testimony of Mr. Nathan Bamsey

The Applicant hired Giffin Koerth to complete a physical analysis of the evidence, mainly the damage to the Applicant’s ladder. This report was authored by Mr. Nathan Bamsey and entered into evidence. Mr. Bamsey no longer works for Giffin Koerth and is currently employed with the European Space Agency in the Netherlands as a materials and process engineer. Mr. Bamsey testified via Skype at the Preliminary Issue Hearing.

The Applicant put forward Mr. Bamsey as his Expert Witness.² Mr. Bamsey testified that he has completed between 50-100 reports similar to the Applicant’s report, but can’t remember the exact number. In addition to his work at the European Space Agency, Mr. Bamsey also has 10 approved US patents and an additional patent which is pending. Mr. Bamsey confirmed that he is a member in good standing within his profession. The Insurer did not object to Mr. Bamsey being called as an Expert Witness.

I found Mr. Bamsey’s testimony to be extremely credible in the area of materials engineering. He testified that while at Giffin Koerth, he was a member of the forensic investigators team. As part of his forensic investigation, Mr. Bamsey analyzed the ladder that the Applicant was using on the day of the incident. He also did a visual survey of the area where the incident occurred. Upon examining the ladder, he noted in his report that the second ladder rung from the bottom suffered an inward deflection in addition to the ladder’s locking assembly being damaged and missing.³ He also confirmed that the evidence given by the Applicant as to the details of what transpired are confirmed by the physical evidence of the ladder, mainly that while the Applicant was on the ladder, the ladder was hit by a vehicle.

The physical evidence shows that the ladder was set up against the wall and there was some significant force placed on the ladder which would have caused the inward deflection. There was no paint transfer which eliminates the possibility of the inward deflection being caused as a result of the ladder falling on the yellow gas meter next to the bay door. Mr. Bamsey also concluded that a load of 800 lbs. or greater would have been necessary to cause the damage to the ladder. Based on the height of where the damage on the ladder was located, on the balance of probabilities, it was a vehicle’s bumper hitch that hit the ladder while the Applicant was on it. Mr. Bamsey testified that based on his analysis, this is the only manner in which the ladder could have been damaged.

The Insurer asked Mr. Bamsey if he had completed any slip analysis on the ladder or footwear as part of his investigation. Mr. Bamsey said, no, he did not. The Insurer also asked why the “chain of custody” was not commented on in the report. Mr. Bamsey replied he was focused more on what could have caused the damage to the ladder, as this is his area of expertise. When the Insurer provided alternative scenarios as to what might have happened to the ladder in order to cause the inward deflection damage, Mr. Bamsey was able to provide clear and concise answers as to why specific scenarios put forward by the Insurer were not plausible. For example, the Insurer suggested that maybe the Ambulance with its metal bumper might have caused the damage to the ladder after it had arrived on scene. Mr. Bamsey said this was not possible because the force that caused the inward deflection was perpendicular to the ladder and by the time the ambulance arrived on the scene, the Applicant was already on the ground along with the ladder in question. In addition, Mr. Bamsey concluded that the load required to damage this ladder was done over a small area on the ladder rung, not spread out. Mr. Bamsey in his testimony noted that both speed and mass affect the amount of damage.

ANALYSIS

With no witnesses to the incident and the Applicant unable to remember the details as to what caused him to fall from the ladder, we are only left with the physical evidence in order to establish how this incident happened. The Applicant put forward the theory and produced a Forensic Engineering Report to substantiate the claim that his fall was caused by a vehicle hitting the Applicant’s ladder. Further, on the balance of probabilities, it was a vehicle’s trailer hitch which caused this damage. This damage was confined to a small area and had a force of approximately 800 lbs. to create the inward deflection of the second rung on the ladder.

There was conflicting evidence as to the weather at the time of the incident. Environment Canada said it was precipitating in the area, the Applicant said it was not. There were multiple vehicles in a moderately heavy traffic area behind the industrial building but the Applicant couldn’t remember how many cars were present because he was more focused on the installation of the security cameras. The only constant to tell the story of how the Applicant fell from the ladder was the physical evidence of the ladder.

The Insurer didn’t enter into evidence a Rebuttal Report. A Rebuttal Report by the Insurer might have provided a “physical evidence” base on a counter argument to the Applicant’s theory as to how this incident occurred. Rather, the Insurer only relied on untested theories as to the alternative causes of the damage to the ladder. In my opinion, on the balance of probabilities, based on the physical evidence and analysis, the Applicant meets the definition of an accident as defined in Section 3(1)(c) of the Schedule.

CONCLUSION

Based on the evidence submitted and the expert evidence provided, I conclude that the Applicant was involved in an accident as defined in Section 3(1) of the Schedule. The Applicant is therefore entitled to submit a claim for benefits.

EXPENSES:

The parties made no submissions on expenses. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with the Rules 75 to 79 of the Dispute Resolution Practice Code.

April 24, 2017

Jeff Musson Arbitrator

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:

1. The Applicant was involved in an accident as defined by Section 3(1) of the Schedule.
2. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with the Rules 75 to 79 of the Dispute Resolution Practice Code.

April 24, 2017

Jeff Musson Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Exhibit 4, C.V. of Mr. Nathan Bamsey.
3. 3Exhibit 1, Giffin Koerth Report, pg. 19.