Released Date: 05/13/2021
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:
Karin Sterling
Applicant
and
Heartland Farm Mutual Inc.
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Louis J. DelSignore Jr., Counsel
For the Respondent:
Jonathan Schwartzman, Counsel
HEARD:
Via written submissions
OVERVIEW
1This matter arises out of an incident that occurred on February 13, 2019. After lifting her son into his car seat, the applicant sat in the driver’s seat, put her seatbelt on and started the vehicle. After pressing her foot onto the accelerator, she alleges that she experienced intense neurological pain in her back and a loss of sensation in her right leg and foot. Two months later, she underwent back surgery. As a result, she sought accident benefits from the respondent, Heartland, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (''Schedule'').
2Heartland denied the applicant’s claim for benefits and, after conducting an examination under oath (“EUO”), took the position that the incident did not constitute an “accident” under s. 3(1) of the Schedule. The applicant disagreed and applied to the Tribunal for resolution of the dispute.
ISSUE IN DISPUTE
3The parties agree that the preliminary issue in dispute is as follows:
i. Whether the incident that occurred on February 13, 2019 was an “accident” as defined by s. 3(1) of the Schedule?
result
4The incident that occurred on February 13, 2019 meets the definition of an “accident” under s. 3(1) of the Schedule.
ANALYSIS
February 13, 2019
5As noted, Heartland conducted an EUO with the applicant on July 8, 2019 after receiving her application (OCF-1) dated May 28, 2019. Beyond this EUO, there is limited evidence before the Tribunal to corroborate the facts: the applicant’s OCF-1 and Disability Certificate (OCF-3); a clinical note from her family physician dated February 13, 2019; a treatment record from her physiotherapist two weeks later; and an MRI report.
6In any case, the applicant, a massage therapist, submits that on February 13, 2019 she had a doctor’s appointment scheduled. Her vehicle was parked in her driveway. She lifted her 30-pound son into his car seat in the back-passenger seat. She submits that she immediately experienced a dramatic increase in back pain with pain radiating down her legs. She was able to secure her son in his seat, close the door and walk around the vehicle to the driver’s side door.
7The applicant asserts that she then sat in the driver’s seat, put her seatbelt on and started the vehicle. She turned right out of her driveway and, after passing three houses down the road, she submits that she suddenly experienced “intense neurological pain in her back and a loss of sensation in her right foot.” At the EUO, she described the pain as being “worse than childbirth.” She pulled the vehicle over, shifted in her seat and, after a few minutes, was able to complete the 15-minute drive to her doctor’s office.
8She asserts that she had to compose herself on arrival and limped into the office with her son. The clinical note of Dr. Walsh from that day does not describe the level of pain reported by the applicant, as above, nor does it provide any of the alleged details specific to the incident, such as lifting her son into his seat, the excruciating pain that came with pressing the accelerator, or pulling over.
9However, the clinical note does state that the applicant had low back pain for 3-4 weeks, that she has a long-standing history of same, including a history of disc protrusion, that she has been seeing a physiotherapist, has been experiencing pain radiating into her right leg, that the pain has gradually worsened and has interfered with her sleep, ability to sit, work and provide care for her son. The note states “likely acute disc herniation again”. A prescription for Lyrica was given and an MRI discussed.
10The next piece of evidence in time is the treatment note from Ms. MacNeil, the applicant’s physiotherapist. The February 25, 2019 note states: “Couldn't come in for treatment last week as the pain into her right leg was horrible. She's not sure exactly what she did but it started just after she lifted [her son] into the car she felt something odd. She got into the car to drive away and the pain was horrific. She had shooting pain down her leg with numbness into her R foot and it has felt weak since. Saw the family doc who is going to order an MRI.”
11The February 25, 2019 MRI,