In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
Z.A.
Appellant
And
Guarantee Insurance
Respondent
DECISION AND ORDER
Appearances:
Adjudicator: Derek Grant
For the Appellant: Z.A., Applicant Frank E. McNally, Counsel
For the Respondent: Guarantee Insurance, Claims Representative Iain Aspenlieder, Counsel
Court Reporter: Nancy Grindley
Heard: In-Person: July 25, 26 and August 20, 2018
OVERVIEW
1The applicant (“Z.A.”) was involved in an automobile accident on March 30, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'')- Effective September 1, 2010 (the ''Schedule''). Z.A. was denied certain benefits by the respondent, Guarantee Insurance (“Guarantee”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2This is a preliminary issue hearing regarding whether or not Z.A. was involved in an accident on a public transit bus, and whether she provided timely notice to Guarantee. For Z.A. to be entitled to benefits under the Schedule, the bus Z.A. was riding on must have been involved in a collision with another vehicle or object.
3If I find that there was no collision, she will not be entitled to any benefits sought under the Schedule that relate to the incident that she alleges took place on March 30, 2014. If I find there was a collision, then I must consider whether she gave notice to Guarantee in a timely manner, and, if not, does she have a reasonable excuse for the delay in giving notice. Absent a reasonable excuse, Guarantee is not liable to pay her benefits until she provided notice in accordance with the Schedule.
4I find that there was no collision and therefore Z.A. is not entitled to any benefits. As such, I do not need to address the issue of whether she applied for benefits in time.
ISSUES IN DISPUTE:
5The issues to be decided at this hearing are:
i. Was Z.A. involved in a collision on a public transit bus for the purpose of accident benefits under section 268(1.1) of the Insurance Act?
ii. Did Z.A. provide notice of a claim to Guarantee as soon as practicable? If not, has Z.A. provided a reasonable excuse for the delay under section 32(1) of the Schedule?
RESULT:
6The Insurance Act under section 268(1.1) requires that in order for Z.A. to be entitled to accident benefits, the bus she was riding on must have been involved in a collision. The Schedule under section 32(1) also requires that anyone in an accident making a claim for benefits notify the insurer in a timely manner.
7In this case, I find that there was no collision and therefore Z.A. is not entitled to any benefits. As such, I do not need to address the issue of whether she applied for benefits in time.
LAW, EVIDENCE AND ANALYSIS
Law
8Section 268(1.1) of the Insurance Act, states that “no statutory accident benefits are payable in respect of an occupant of a public transit vehicle…..if the public transit vehicle did not collide with another automobile or any other object in the incident”: essentially, the “no crash, no cash” rule for claims involving public transit vehicles for statutory accident benefits.
9The onus is on the insured person, under section 268(1.1), to establish whether or not a collision occurred. The insured has an obligation to notify the insurer of an incident involving a public transit vehicle and provide any supporting evidence to substantiate the claim. The insurer has a duty to thoroughly investigate a claim regarding an incident involving a public transit vehicle but is only able to do so once notified.
Z.A.’s position
10Z.A. must show that the bus she was riding on when she sustained her injuries was involved in a collision. Z.A. testified that on March 30, 2014, she was on [an] articulated bus1, heading to work. Z.A. states that when the bus reached the stop at [the intersection], after approximately a minute, she felt a jolt and hit her head within the bus. Z.A. alleges that she hit her head because a second bus struck the bus on which she was a passenger. Z.A. stated that a second driver came onto her bus. She testified that the two [transit] drivers spoke briefly and the second driver asked the passengers if everyone was alright before exiting the bus. She could not hear what the drivers were discussing.
11Z.A. testified that she did not make a complaint to the driver of the bus until she reached her destination (place of employment). When she reached her destination, Z.A. testified that she spoke to the bus driver and complained that her head was hurting. The driver asked if she needed an ambulance. She indicated she did not and exited the bus. The bus driver did not take down any notes nor provide any further assistance to Z.A. No further action was taken involving the bus driver and Z.A.
12Once at work, Z.A. states she was feeling unwell (headache/nausea) and advised a co-worker and supervisors of the incident. After several attempts to commence her shift, Z.A. continued to feel unwell and called a friend, J.F., and informed her of the incident.
13J.F. suggested Z.A. go to the hospital and took Z.A. to [the Hospital]. The Emergency Room (‘ER’) Physician diagnosed Z.A. with a head injury. The ER Physician recommended rest and medication.
14There is no evidence that Z.A contacted [the transit service] about the alleged incident after that day. The first time that Z.A. reported the incident to an insurer was on June 27, 2014, approximately three months post-accident.
Guarantee’s position
15Guarantee questioned Z.A.’s account of the incident, pointing to inconsistencies in her evidence. They note that according to [the transit service], there was no articulated bus on the day in question. In addition, Guarantee points to inconsistencies in Z.A.’s testimony versus [the Hospital]’s triage report. In the Hospital report, Z.A. stated she struck her head on a pole. In her testimony, Z.A. “didn’t know for certain, but that is what it felt like”, in regards to how the head injury occurred.
16Guarantee also noted Z.A.’s medical history two years prior to the incident as well as her history of alcohol consumption and mental health; I am not persuaded by the issues raised by Guarantee in cross-examination. Z.A. provided consistent statements about her state of mind/health prior to the time of the incident. Further, I do not find that Z.A.’s medical or personal history two years prior to the incident to be relevant to her recollection of the circumstances of the accident.
Was Z.A. involved in an accident?
17For the purposes of determining whether there was a collision in this case, I am prepared to accept, without finding as a fact, that Z.A. sustained the injuries she complained of. However, I do not find that the injuries were the result of an accident as defined in the Insurance Act.
18The only evidence that a collision took place comes from Z.A.'s testimony and the case turns on whether I accept that testimony despite the lack of documentation and a three month delay in reporting the accident. Due to the lack of evidence, for the reasons that follow, I find that the bus Z.A. was on was not involved in an accident in accordance with section 268(1.1) of the Insurance Act.
19There is no independent evidence that a collision occurred involving a public transit vehicle. There is only Z.A.’s testimony. Z.A. admitted she was half asleep at the time she felt the bump which caused her injuries so she is unaware of what caused the bump. She did not report it to [the transit service] - as such, there was no incident report. She also did not report it to Guarantee until she applied for accident benefits on June 27, 2014.
20M.B., Program Manager, [the transit service], gave evidence at the hearing. M.B. testified that there was no record of any collision/incident report. Further, the evidence showed no record of any incident from any other potential buses/drivers on or about the date in question. The evidence supporting a collision in this case is very weak. I must assess and weigh the evidence on a balance of probabilities to determine whether a collision involving a public transit vehicle occurred.
21Based on Z.A. `s testimony, I find that her description of the injuries to be believable and that her injuries very likely occurred on an [the transit service] bus. However, in accordance with section 268(1.1), the test to be met is that a public transit bus was involved in a collision.
22By her own evidence, Z.A. was half asleep at the time the collision was alleged to have occurred. Thus she admits that she has no direct evidence in support of a collision. Her evidence that she felt a bump when the vehicle was stopped and another driver came onto the bus does not convince me, on a balance of probabilities that a collision occurred. When combined with Z.A.’s lack of evidence of a collision, and the absence of any incident report on record with [the transit service], I find that no collision occurred.
23Z.A. has the onus to show that a collision occurred on a public transit bus, which in turn caused her injuries. Since she has not provided proof of a collision having occurred on a public transit bus, she has not satisfied her onus. As a result, I find that there is no evidence of a collision having occurred involving a public transit bus; therefore, Z.A. was not involved in an accident.
CONCLUSION
24For the reasons stated above, I find that Z.A was not involved in an accident in accordance with section 268(1.1) of the Insurance Act.
25As a result, Z.A. is not entitled to any benefits, and this matter is dismissed.
Released: February 8, 2019
Derek Grant
Adjudicator