Neutral Citation: 2017 ONFSCDRS 176

FSCO A15-004250

BETWEEN:

ZHU EN WANG Applicant

and

PRIMMUM INSURANCE CO. Insurer

Before: Arbitrator Kimberly Parish

Heard: In person at ADR Chambers on May 8 & 9, 2017 and by written submissions completed on May 10, 2017

Appearances: Mr. Nick Hamilton participated for Mr. Zhu En Wang Mr. Aaron Wachna participated for Primmum Insurance Co.

Issues:

The Applicant, Mr. Zhu En Wang, was injured in a motor vehicle accident on October 24, 2013 and sought accident benefits from Primmum Insurance Co. ("Primmum"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Wang, through his representative, 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 Hearing are:

Was there an "accident" within the meaning of s. 3(1) of the Schedule?
If the October 24, 2013 incident constitutes an "accident" within the meaning of s. 3(1) of the Schedule, is Mr. Wang entitled to payment in the amounts as follows, for services provided by Perfect Physio & Rehab Centre, all submitted to Primmum on January 14, 2014: i) $2,212.40 for chiropractic treatment; ii) $200.00 for a disability certificate; iii) $940.00 for an attendant care assessment?
Is Mr. Wang entitled to interest for the overdue payment of benefits?
Is either party entitled to its expenses of the Hearing?

Result:

There was no accident within the meaning of s. 3(1) of the Schedule.
As there was no accident within the meaning of s. 3(1) of the Schedule, the benefits in dispute and interest are not payable.
No expenses were requested with respect to this Hearing. 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 within 30 days of the date of this order for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

At the commencement of the Hearing, the Applicant's Counsel advised me that the issue of Attendant Care Benefits was withdrawn by the Applicant. The Insurer conceded to this.

The Insurer orally raised a Motion that I exclude the Clinical Notes and Records ("CNRs") of Dr. Counti, a Chiropractor at Perfect Physio & Rehab Centre. The CNRs were provided within Tab 3 of the Applicant's Document Brief.² The Insurer stated that Dr. Counti had not been qualified to give an expert opinion and should have been produced as a witness, as he was included on the Applicant's list of witnesses. As stated by the Insurer, his evidence would have been the best evidence in the Applicant's interest, and as the doctor was not called as a witness, I should draw an adverse inference by his non-attendance. The Applicant's Counsel responded that Dr. Counti was on their list of witnesses and they intended to call him. However, Dr. Counti is no longer employed by Perfect Physio & Rehab Centre, and there had been a logistical issue with trying to locate him to have him testify at this Hearing. The Insurer further submitted that as the author (presumed to be Dr. Counti) of the CNRs from Perfect Physio & Rehab Centre had not been produced by the Applicant, the author of these CNRs could not be qualified as an expert.

I made an oral ruling that the CNRs from Perfect Physio & Rehab Centre were excluded. I agreed with the position put forward by the Insurer that the author of the CNRs could not be confirmed and Dr. Counti was not called as a witness, nor qualified as an expert witness. In addition, the name of Dr. Counti does not appear anywhere within the CNRs. There is a signature contained on the last page, but neither the parties nor I were able to definitively conclude it was the signature of Dr. Counti. I did not draw an adverse inference from Dr. Counti being unavailable to testify as Applicant's Counsel provided a reasonable explanation regarding the inability to locate him.

EVIDENCE

Background

The Applicant is currently 62 years old and he came to Canada in March 2013. He is now a permanent resident of Canada. On the date of loss, October 24, 2013, the Applicant was on his way to work early in the morning to start his shift at Sunshine Supermarket. The dispute between the parties is a factual dispute regarding whether there was an "accident" within the meaning of s. 3(1) of the Schedule. The Applicant's position is that he was riding his bicycle to work and he was struck by a vehicle. The Applicant submits that he sustained injuries as a result of being struck by the vehicle. The Insurer's position is that a vehicle never struck the Applicant and he sustained no injuries, therefore an accident did not occur.

Testimony of Mr. Wang

Examination-in-Chief

Mr. Wang's testimony was provided through an interpreter in the Fuquing language. Mr. Wang testified that Fuquing is the only language he can speak and understand, and he does not understand the Cantonese or Mandarin languages. Early morning on October 24, 2013, while Mr. Wang was riding his bicycle along the sidewalk to work, a vehicle was coming out of the driveway of a school. The front of the vehicle struck Mr. Wang and the impact knocked him off of his bicycle. The driver then exited the vehicle and moved the bicycle to the side, and then tried to flee the scene. Mr. Wang was dizzy and on the ground and when he got up, he tried to prevent the driver from fleeing from the scene. It was then the driver punched Mr. Wang in the chest. No one else was at the scene to witness what had happened. The driver of the vehicle called the police and about 30 minutes later, a police officer attended the scene. The police officer spoke English, which Mr. Wang does not understand. A woman also came to the scene to see if she could help and Mr. Wang stated that the woman spoke to him in Cantonese which he does not understand. Mr. Wang stated he only understands the Fuquing language, and he is illiterate. Mr. Wang described that he had felt dizzy and was crying. Mr. Wang pointed to his right hip area and stated that was where the vehicle had hit him. Mr. Wang stated he also sustained injuries to his left elbow, his left hip and his back.

At the time of the accident, Mr. Wang stated he did not yet have an OHIP card and he did not see a doctor following the accident. He stated his son-in-law advised he should contact a lawyer. Mr. Wang attended Perfect Physio & Rehab Centre three days following the accident. He was assessed there and received acupuncture, cupping, and massage. Mr. Wang attended over 20 sessions of treatment at this clinic over a period of three months. On a number of occasions throughout his testimony, Mr. Wang hit his chest with his hands when he was describing being punched in the chest by the driver of the vehicle. Mr. Wang submits he still currently experiences pain in his left hip. When Mr. Wang was asked by Mr. Hamilton if he ditched his bicycle prior to being struck by the vehicle, Mr. Wang responded he did not. Mr. Wang stated the rear wheel of his bicycle was run over by the vehicle after he had been knocked to the ground.

Cross-examination of Mr. Wang

Mr. Wang testified that he was not riding his bicycle very fast and he estimated the driver of the vehicle was driving 60-70 kilometres per hour when the vehicle struck him. Mr. Wang stated that both he and his bicycle were thrown together about two metres from the car. Mr. Wang stated that the punch to his chest from the driver caused Mr. Wang to experience a lot of pain.

Mr. Wachna stated to Mr. Wang through the interpreter that the notes of the police officer³ who attended the scene noted that a translator, Ms. Ying Li ("Ms. Li"), was present at the scene. According to the police officer's notes, Ms. Li stated to the police officer that Mr. Wang was standing in front of the vehicle and then he "ditched the bike." Mr. Wachna then attempted to ask Mr. Wang why Ms. Li stated that to the police officer. Mr. Wachna had to ask Mr. Wang this question approximately seven different times as Mr. Wang continuously responded to this question by describing what happened to him when he was struck by the vehicle. Mr. Wachna then asked Mr. Wang if perhaps he did not know why Ms. Li stated this information to the police officer? Mr. Wang finally responded that he did not know why she stated this. Mr. Wang submitted that he was riding a 26-inch bicycle when the accident occurred. Mr. Wang submits he was resting himself against a tree after being struck by the vehicle. It was confirmed by Mr. Wang that the police officer gave him a piece of paper which he used as a "napkin" to wipe his tears. An ambulance did not attend at the scene. Mr. Wang submits he indicated to the police officer that he had been punched in the chest and told him that he had scraped his left elbow, but the police officer could not understand what he was saying. Mr. Wang said he was wearing a long sleeved shirt that day and did not show the police officer his left elbow.

Mr. Wang submits he was thrown farther than the bicycle and the vehicle ran over the rear wheel of the bicycle. Mr. Wachna then stated to Mr. Wang that he had changed his story. Mr. Wachna asked Mr. Wang how the bicycle could have been thrown two metres but the wheel of the bicycle was underneath the vehicle? Mr. Wang then stated that he was thrown but the bicycle was not. When asked by Mr. Wachna if he requested any money at the scene from Nate Ramawad ("Mr. Ramawad"), who was the driver of the vehicle, Mr. Wang stated he did not. The police were called by the driver of the vehicle, as confirmed by Mr. Wang.

Testimony of Police Constable Bodi

Constable Bodi testified that he responded to a call on October 24, 2013 through his dispatch, which had come in from Mr. Ramawad. Constable Bodi testified he was close by the area and he arrived on the scene within a few minutes of receiving the dispatch call. When he arrived on the scene, he observed the bicycle on its side, not blocking the entrance of the driveway to the daycare centre. He first spoke to the driver, Mr. Ramawad, who was present at the scene. Constable Bodi stated that he could not communicate verbally with Mr. Wang, as they did not speak the same language. Constable Bodi stated there was a woman, Ms. Li, who had come out of the daycare centre where the incident occurred. Ms. Li stated she spoke the same language as Mr. Wang and that she could assist. Ms. Li spoke Mandarin. Constable Bodi submitted that Mr. Wang seemed agitated, but that Mr. Wang and Ms. Li appeared to have a conversation with one another and it appeared as if they understood each other. Constable Bodi understood and observed there to be no injuries sustained by Mr. Wang. Mr. Ramawad appeared to be fine. Mr. Wang kept pointing to his bicycle.

Constable Bodi stated that he has observed "hundreds, maybe thousands of accidents during the past 10 years." Through Ms. Li, Constable Bodi was told that Mr. Wang was asking for money and pointing to his bicycle. Ms. Li had told Constable Bodi that Mr. Wang was not on the bicycle at the time when the bicycle was hit by the vehicle. Constable Bodi classified the incident as a non-reportable accident and no charges were laid. If Mr. Wang had been hit, Constable Bodi stated the incident would have been written as a full accident report. Constable Bodi provided Mr. Wang with an Exchange of Information Form and Mr. Wang ripped it up in front of Constable Bodi.

Testimony of Mr. Nate Ramawad - Driver of the Vehicle

Mr. Ramawad testified that his children attend the daycare, Macklin House Daycare Centre, where the incident of October 24, 2013 occurred. He had just dropped off his kids at about 7:30 a.m. that morning. There are kids walking in the area which surrounds the daycare and he had to be careful while driving. He was driving about 5-10 kilometres per hour within the parking lot. Mr. Ramawad was driving his vehicle towards Denison St. when he observed Mr. Wang walking his bicycle along the sidewalk. Mr. Ramawad then stopped while he was observing two-way traffic on Denison St. as he waited about 4-5 minutes to move due to traffic, so he could make a left hand turn. As Mr. Ramawad moved forward in his vehicle, 0-3 kilometres per hour, looking to the left, the front bumper of his vehicle hit the rear tire of Mr. Wang's bicycle. Mr. Ramawad stated he did not know how Mr. Wang's bicycle ended up in front of his vehicle. Mr. Wang was not on the bicycle, he was standing beside a tree making a call on his telephone. Mr. Wang came running over. Mr. Ramawad could not understand what Mr. Wang was saying. Mr. Ramawad then called the police. The police officer responded quickly and arrived shortly after the call. Mr. Ramawad stated Mr. Wang did not appear to be injured. When Mr. Wachna asked Mr. Ramawad if he punched Mr. Wang, Mr. Ramawad stated he did not. The police officer did not issue Mr. Ramawad a ticket or a warning. Mr. Ramawad was told he could go. When Mr. Hamilton asked Mr. Ramawad how Mr. Wang's bicycle ended up in front of his vehicle, Mr. Ramawad stated "it was a scam."

Testimony of Ms. Li

Ms. Li speaks Mandarin but provided her testimony in English.

Ms. Li was an employee of Macklin House Daycare Centre on October 24, 2013. She did not witness the incident between Mr. Wang on his bicycle and the driver of the vehicle, Mr. Ramawad. Her employer asked her to go outside into the parking lot following the incident to see if she could assist, as she speaks Mandarin. Ms. Li observed the police officer asking Mr. Wang in English if he would move his bicycle. Ms. Li stated the bicycle owner did not speak English so she spoke to him in Mandarin, and he seemed to understand as he replied to her in Mandarin and told her that he did not understand what the police officer was saying. Ms. Li stated that Mr. Wang told her that he wanted his daughter there as she understood English but he did not. Ms. Li stated she translated this information to the police officer. Ms. Li heard Mr. Wang say something in another language which she did not understand.

Ms. Li submitted that Mr. Wang seemed angry but did not speak very much. Mr. Wang did not communicate his name or his date of birth to the police.

Closing Submissions of Applicant

It is a factual dispute involving the events on October 24, 2013. Mr. Wang submitted that he was struck while riding his bicycle by a vehicle driven by Mr. Ramawad, and that the incident meets the definition of an accident under s. 3(1) of the Schedule.

Mr. Hamilton submitted that the Respondent's witnesses, Constable Bodi, Mr. Ramawad, and Ms. Li, did not witness the accident. Mr. Ramawad stated he had been looking left as he was trying to turn onto Denison St. and was unable to explain how Mr. Wang's bicycle ended up in front of his vehicle, and stated it was "a scam." Mr. Ramawad provided no further evidence to support his statement and his reliability should be questioned.

The testimonies of Constable Bodi and Ms. Li came second-hand from information exchanged with those at the scene after the incident took place. Mr. Hamilton submits that this evidence should therefore be diminished accordingly.

Ms. Li testified that the only verbal exchange Mr. Wang had with her was that he did not understand English and wanted his daughter to be present as she understands English. Ms. Li testified that she was told nothing about the actual accident by Mr. Wang. Mr. Hamilton submits that Ms. Li's testimony cannot be relied on as Mr. Wang has stated that he does not speak or understand Mandarin at all. Mr. Wang has testified that the only language he understands is Fuquing.

Mr. Wang could not verbally communicate his injuries due to the language barrier and there were no injuries observed by Constable Bodi. As a result, Constable Bodi concluded that Mr. Wang sustained no injuries.

Mr. Hamilton relies on the Ontario Court of Appeal case Economical Mutual Insurance Company v. Caughy.⁴ The Court of Appeal endorsed a modified version of the Amos test in determining whether an incident constitutes an accident under section 3(1) of the Schedule. The two-part test addresses two issues: purpose and causation. Mr. Hamilton submits that from the facts put forward in this proceeding, it appears that neither purpose nor causation is at issue. The vehicle was being used for its ordinary purpose, and there was no evidence of an intervening act in Mr. Wang's bicycle being struck and Mr. Wang being knocked to the ground.

Closing Submissions of Respondent

Mr. Wachna submits that there are two versions of what happened involving the incident on October 24, 2013. One version was supported by the testimony of two witnesses and the CNRs of Mr. Wang's own family doctor. The opposing version of events was only supported by Mr. Wang's testimony. It is Mr. Wachna's position that Mr. Wang's version should not be accepted for the following reasons: it conflicts with common sense, it conflicts with Mr. Wang's own evidence, it has been contradicted by the evidence of other witnesses, and it comes only from Mr. Wang's testimony, which has many indicators of unreliability.

Constable Bodi was an independent witness. Through his observations at the scene, he concluded there were no injuries sustained by Mr. Wang and that Mr. Ramawad did not hit Mr. Wang with his vehicle. This was found by Constable Bodi to be a non-reportable incident and thus no accident report was filed. The translations provided by the bystander, Ms. Li, appeared to be consistent with what Constable Bodi was observing at the scene.

The driver, Mr. Ramawad, stated he was proceeding slowly and exercising caution while driving his vehicle after dropping off his children at the daycare. This is what a reasonable person would do. Mr. Ramawad contacted the police as he could not understand what Mr. Wang was saying to him. Mr. Ramawad observed no signs of injury on Mr. Wang and was not issued a ticket by Constable Bodi.

The detailed CNRs of Mr. Wang's family doctor, Dr. Trinh,⁵ were filed into evidence by the Applicant. These CNRs do not document any reporting of hip pain or lower back pain. There is not one musculoskeletal complaint noted within the records provided, even though Mr. Wang testified he still currently experiences hip pain since the accident on October 24, 2013. The absence of these notations within the CNRs supports the Respondent's version of events, wherein no injuries were sustained and an accident did not occur.

Mr. Wachna submitted there were several inconsistencies in Mr. Wang's testimony and concluded his testimony must be viewed as unreliable. Mr. Wang testified that the bicycle he was riding on October 24, 2013 was a 26-inch bicycle. Mr. Wachna stated that it was impossible for the front bumper of the Dodge Minivan which Mr. Ramawad was driving to hit Mr. Wang's right hip while Mr. Wang was riding his bicycle. The front bumper of this type of minivan would be too low to hit Mr. Wang's hip. Mr. Wang testified that the driver of the vehicle was driving 60-70 kilometres per hour when he struck Mr. Wang on his bicycle. If this were to be accurate, then Mr. Wang would have left the scene in an ambulance. It also does not follow common sense that Mr. Ramawad would be driving at this speed through the parking lot of a daycare centre where he just dropped off his kids.

Mr. Wachna noted that one question had to be put to Mr. Wang seven times consecutively: "Why would Ms. Li have given the police officer such specific information if you (Mr. Wang) had not said it to her?" In response, Mr. Wang restated his version of the events several times instead of directly answering the question put to him. When it was suggested to him by Mr. Wachna that he just might not know the answer, he conceded.

Mr. Wang testified that both he and the bicycle were thrown together a distance of two metres when struck by the vehicle. But when Mr. Wang was asked if the wheel of his bicycle was ever underneath the vehicle, Mr. Wang stated it was. Mr. Wachna submitted this is where Mr. Wang changed his story, and responded that he was thrown two metres but the bicycle was not.

Mr. Wachna lastly submitted that the Application for Accident Benefits (OCF-1), dated November 25, 2013,⁶ noted Mandarin as the language spoken for the Applicant. The Application for Arbitration,⁷ dated June 12, 2015, noted that services of a Mandarin Interpreter were required. The Pre-Hearing letter, dated October 15, 2015,⁸ noted a Mandarin interpreter had been present to assist the Applicant at the Pre-Hearing. From this information, it appeared Mr. Wang did speak the Mandarin language.

ANALYSIS

I find that the evidence presented before me yields two different versions of what has happened.

Even if I accept the Applicant's testimony that he did not understand Mandarin at the time this incident occurred on October 24, 2013, there are still inconsistencies within what the Applicant has provided through his testimony. At the Hearing, the Applicant testified through a Fuquing interpreter, so I accept that the Applicant understood the questions which were put before him during the Hearing.

I am in agreement with the points raised by the Insurer. The Applicant did not answer the question directly put to him regarding why the bystander, Ms. Li, provided Constable Bodi, with specific information that was not provided to her by the Applicant. This was a very straight-forward question, yet the Applicant needed this question to be put to him about seven times before he responded that he did not know. The Applicant also testified under cross-examination that both he and his bicycle were thrown together two metres after being struck by the vehicle. The Applicant then stated the rear wheel of his bicycle was underneath the wheel of the vehicle. When confronted by the Insurer that the Applicant had changed his story, the Applicant stated that he was thrown but the bicycle was not. This point is a fundamental change in the description of what happened, and speaks to the credibility of the Applicant's testimony.

It does not make logical sense that Mr. Ramawad would have been driving at a speed of 60-70 kilometres per hour in the parking lot of the daycare centre where he had dropped off his children, then hit the Applicant on his bicycle and run over the rear wheel of the Applicant's bicycle. Therefore, I do not find the Applicant to be a credible witness and apportion little weight to his testimony.

The CNRs of Dr. Trinh, the Applicant's family doctor, contain notes spanning from March 2014 to April 2017. I reviewed these notes and there are no entries which reference back pain, hip pain, or any musculoskeletal complaints. The Applicant stated he is still experiencing left hip pain to this date.

Constable Bodi, who attended at the scene shortly after receiving a call through his dispatch, determined there was no accident. He created no accident report and issued no ticket to Mr. Ramawad.

The burden of proof rests upon the Applicant. I find the Applicant has failed to meet this burden. Based upon the facts presented before me, I conclude that an accident did not happen as defined in s. 3(1) of the Schedule. As a result, I therefore do not need to decide on the Medical Benefits and Costs of Examinations in dispute.

EXPENSES:

No expenses were requested with respect to this Hearing. 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 within 30 days of the date of this order for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

June 22, 2017

Kimberly Parish 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:

There was no accident within the meaning of s. 3(1) of the Schedule.
As there was no accident within the meaning of s. 3(1) of the Schedule, the benefits in dispute and interest are not payable.
No expenses were requested with respect to this Hearing. 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 within 30 days of the date of this order for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.