Tribunal File No.: 18-004362/AABS
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:
J.D.
Applicant
and
Certas Home and Auto Insurance Company
Respondent
PRELIMINARY HEARING DECISION
ADJUDICATOR: Nidhi Punyarthi
APPEARANCES: Anna Stoll, Counsel for the Applicant
Benjamin Hutchison, Counsel for the Respondent
HEARING DATES: November 7 and 8, 2018
OVERVIEW
1The applicant, J.D., was injured on December 20, 2016. She asked the respondent insurance company, Certas Home and Auto Insurance (“Certas”), to pay her benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (“Schedule”). The respondent denied her claim for benefits.
2According to the respondent, the event of December 20, 2016 was not an “accident” as defined in the Schedule. The respondent denied the applicant’s claim on this basis.
3An application was filed with the Licence Appeal Tribunal (“Tribunal”) and a hearing was scheduled to determine whether the applicant was involved in an “accident” as defined in the Schedule on December 20, 2016.
Hearing
4The hearing of this issue took place before me [on November 7 and 8, 2018]. The applicant gave testimony and called three additional witnesses: her husband, daughter, and friend. The respondent called the attendant paramedic.
5After hearing the witnesses’ testimony, I received closing submissions in writing from the parties.
PRELIMINARY ISSUE IN DISPUTE
6I have been asked to decide the following issue:
a. On December 20, 2016, was the applicant involved in an “accident” as defined in Section 3(1) of the Schedule?
Background
7On December 20, 2016, the applicant was out jogging in the morning, and was waiting at the sidewalk of an intersection. The ground beneath her was icy. A car was approaching at the intersecting road of her jogging path. The applicant saw the car stop at the stop sign before it. She was then going to start jogging forward. The car then made a forward movement from the stop sign, and this startled her. As she was startled, she moved back, and her feet slipped and fell on the icy surface that she had been standing on. The fall gave the applicant a hematoma and a head injury. The car drove off and the applicant was unable to identify any details with respect to the car.
8The parties disagree on the cause of the applicant’s fall. The applicant states that the cause of her fall was the vehicle, and the respondent states that the cause of her fall was the icy surface beneath her.
RESULT
9Based on the evidence before me, the applicant was not involved in an “accident” as defined in the Schedule on December 20, 2016. My reasons for this decision are as follows:
a. Medical records of the applicant from around December 20, 2016 refer to ice as the cause of her fall and injury.
b. When the applicant saw other medical professionals in the weeks and months following December 20, 2016, there is continued mention of ice as the cause of her fall.
ANALYSIS
10According to Section 3(1) of the Schedule:
“accident” means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.
A. The story told by the medical records of December 20, 2016
11The applicant had called her partner, daughter, and friend to testify in relation to the event of December 20, 2016. None of these individuals, however, were actually on the scene. They were later present at the hospital and indicated that the applicant relayed to them the presence of the vehicle that startled her and caused her to fall.
12I have considered this testimony and have also reviewed the medical records generated by the attendant paramedic and the [Hospital] on December 20, 2016.
13On December 20, 2016, different medical professionals generated reports in relation to the applicant’s fall. All of them cited ice as the cause of her fall. For example:
a. The ambulance call report indicates that the applicant “slipped on ice on the roadway”;
b. The ER records indicate “ice in situ”;
c. The pre-hospital report indicates that the applicant “was out jogging this am” and had a “slip and fall on ice striking back of head”;
d. The admit/ discharge/transfer report repeats the “ice in situ” as chief complaint, and in the relevant history/information section, indicates: “slipped on ice this morning while jogging, hitting back of head”;
e. The admission history documents by Dr. Dyck Martin, MD, indicate that the applicant “had a mechanical fall on ice” and that she “slipped backwards and fell from standing and hit her occiput on the concrete”; and
f. Dr. Ronald Robins in asking for a CT consultation report, indicated that there was a “fall on ice hitting back of head”.
14The testimony given by the applicant, her partner, her friend, and her daughter in relation to the cause of her fall on December 20, 2016 does not correspond to what is indicated by different medical professionals in their notes of that day. Different medical professionals interacted with the applicant and recorded the event as a slip and fall on ice.
B. The story told by the medical records between December 20, 2016 and February 28, 2017
15In the two months that followed the event, the applicant saw her family doctor, Dr. Francis Lang, who then referred her to a sports medicine doctor, Dr. Lisa Fischer. Their notes indicated as follows:
a. On January 3, 2017, Dr. Lang indicated: “patient fell on Dec 20/16 and hit back of head”;
b. On January 15, 2017, and on February 7, 2017, Dr. Lang requested a CT and a referral to Dr. Fischer, respectively, with the same information as above;
c. On February 28, 2017, Dr. Fischer indicated that the applicant “fell onto ice”, her “feet slid out”, and she “hit back of head”.
16Once again, the cause of the fall, as recorded by these professionals, is ice underneath the applicant. There is no mention of the vehicle or of the vehicle startling her in any of these medical records.
17Therefore, there is no medical evidence from the date of the event or from the two months following the event to indicate that a vehicle caused the applicant to fall. I conclude, on a balance of probabilities, that the cause of the fall as reported to the medical professionals was the icy surface and not the vehicle. I prefer the content of these medical records to the content of the testimony provided by the applicant and her witnesses because the medical records are consistent in their indication that the applicant slipped and fell on ice.
CONCLUSION
18According to Section 3(1) of the Schedule, the use or operation of an automobile has to “directly cause” the impairment in question.
19The Ontario Court of Appeal in Greenhalgh v. ING Halifax Insurance Co. (2004) 2004 CanLII 21045 (ON CA), 72 O.R. (3d) 338 has commented that the statutory accident benefits legislation was updated after the decision of Amos v. Insurance Corp. of British Columbia (1995) 1995 CanLII 66 (SCC), 3 S.C.R. 405 (S.C.C.). In particular, the wording of “directly caused” was introduced to the definition of an accident. When the wording “directly caused” was added to the legislation, Greenhalgh commented on it being a much more stringent test compared to the one in Amos. According to Greenhalgh, when it comes to statutory accident benefits, parties are subjected to the much narrower analysis of whether an automobile directly caused the impairment.1
20Greenhalgh relied on Chisholm v. Liberty Mutual Group (2002) 2002 CanLII 45020 (ON CA), 60 O.R. (3d) 776 (Ont.C.A.) and provided guidance on how direct causation is to be analyzed. Three considerations are involved: the “but for”; “intervening cause”; and “dominant feature” considerations.2
21Applying all of these considerations in this case, the direct cause of the applicant’s injuries was the icy surface underneath her, and not the automobile. The contemporaneous records as well as the records in the two months following the incident make no reference to the presence or role of an automobile and instead refer to the incident as a slip and fall on ice. I am, therefore, satisfied, on a balance of probabilities, that the direct cause of the applicant’s injuries was the presence of ice underneath her. She would not have slipped and fallen on December 20, 2016 but for the icy surface underneath her. The ice was the dominant feature of her fall and injuries.
22For these reasons, the applicant was not involved in an accident as defined in Section 3(1) of the Schedule. Her claim is not addressed in the Schedule and her application is dismissed.
Released: February 26, 2019 ________________________
Nidhi Punyarthi
Adjudicator