Tsiofa v. Wawanesa Mutual Insurance Company, 2021 CanLII 82590

Citation: Tsiofa v. Wawanesa Mutual Insurance Company, 2021 CanLII 82590

Release date: 08/30/2021

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:

Konstantinos Tsiofa Applicant

and

Wawanesa Mutual Insurance Company Respondent

DECISION AND ORDER

ADJUDICATOR: Avril A. Farlam, Vice Chair

APPEARANCES:

For the Applicant: Carlos Bernal, Paralegal

For the Respondent: Tim Gillibrand, Counsel

HEARD: By way of written submissions

OVERVIEW

1Konstantinos Tsiofa (“applicant”) alleges he suffered physical and psychological injuries when he moved out of the way of a vehicle on May 10, 2018 (“incident”). The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule¹ - Effective September 1, 2010 (the ''Schedule'').

2Wawanesa Mutual Insurance Company (“respondent”) denied benefits claimed by the applicant. The respondent’s position is that the applicant was not involved in an “accident” within the meaning of s. 3(1) of the Schedule.

3The applicant disagreed with the respondent’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”). On June 29, 2020, the Tribunal ordered that the preliminary issue below be heard. For the purpose of this hearing, automobile and vehicle hold the same meaning.

PRELIMINARY ISSUE

4The preliminary issue to be decided is:

i. Was the applicant involved in an “accident”?

RESULT

5The applicant was not involved in an accident as defined in the Schedule. The application is dismissed.

LAW

6Section 3 (1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”.

7The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused his injuries.

ANALYSIS

Was the incident an “accident”?

8For the following reasons, I find that the applicant was not involved in an “accident” as defined in s. 3(1) of the Schedule.

9The Ontario Court of Appeal has established a two-part test to determine whether an incident constitutes an accident² as follows:

a. Purpose test: did the incident arise out of the use or operation of an automobile, and

b. Causation test: did the use or operation of an automobile directly cause the impairment.

10If it can be established that the use or operation of an automobile was the cause of the injuries, then the applicant must establish that there was “no intervening act(s) that resulted in the injuries that cannot be said to be part of the course of the “ordinary course of thing”. The question is whether it can be said that the use or operation of the automobile was a “direct cause” of the injuries.”³

11The application of this test to the facts of this case follows.

Positions of the Parties

12In short, the applicant submits that he sustained physical injuries to his right knee and lower back, psychological injuries and damage to his fabric knee brace during the incident in which he had to move out of the way of a driver’s vehicle. The driver had exited his vehicle, left it in gear and it rolled up the access ramp of the applicant’s parked landscaping equipment trailer following which the driver got into his vehicle and backed it down off the ramp. The applicant submits that the driver was frustrated and hostile, was swerving while backing down the ramp and the applicant was frightened by the incident because he thought the driver was attempting to hit him. The applicant submits he jumped out of the way of the reversing vehicle which exacerbated his pre-existing right knee injury, back pain and pre-existing adjustment disorder, depression and anxiety. The applicant relies on case law including a previous Tribunal decision⁴ and submits that the incident meets both the purpose test and the causation test.

13The respondent submits that the applicant has failed to prove that he was involved in the incident and if he was, has failed to prove that he sustained an impairment as a result of the incident. Therefore, the incident is not an “accident” as that term is defined in s. 3(1) of the Schedule.

Did the applicant’s injuries arise out of the use or operation of an automobile (the purpose test)?

14After reviewing the evidence, submissions and case law submitted by both parties, I find the applicant’s alleged injuries did not arise out of the ordinary use or operation of an automobile and the incident does not meet the purpose test for the following reasons.

15Although the applicant submits that he jumped out of the way of the reversing vehicle which exacerbated his physical issues including pre-existing right knee injury, back pain, the evidence does not support this submission.

16In his October 25, 2018 examination under oath (“EUO”) the applicant testified that he was aware that the driver was planning to reverse the vehicle down the ramp and he made what he called a “quick motion” to get out of the way. There is no evidence that he fell or was struck by any part of the vehicle.

17There are no contemporaneous reports that the applicant suffered any injuries, experienced any pain or any symptoms, physical or psychological, at the time of the incident. The applicant did not tell the driver or the police officer that attended at the scene about any injuries, symptoms or pain. To the contrary, the applicant testified in his EUO that he was fine at the time of the incident, was back to somewhat normal that day and had no symptoms when the officer arrived at the scene. The applicant did not seek medical attention on the day of the incident. Instead, he worked the rest of his day at his landscaping job and went home. The applicant did not report any injuries to the respondent when he reported the property damage. There is no evidence the applicant reported any injuries when he filed the self-reporting collision report on May 11, 2018.

18The records of Dr. Karantonis, the applicant’s family physician, contain no mention of the incident when he saw Dr. Karantonis two days post-incident. The applicant did complain of anxiety and depression caused by his pre-existing knee problems from ACL and osteoarthritis in his right knee. Dr. Karantonis diagnosed chronic anxiety and depression and noted the applicant’s biggest fear was his functionality after surgery. Although the applicant testified in his EUO that his symptoms of knee and back pain did not arise until a couple of weeks post-incident, this is not supported by the medical evidence. The records of Dr. Karantonis establish that the applicant saw Dr. Karantonis nine times between the date of the incident and October 23, 2018 without any mention of the alleged incident. The records of Dr. Karantonis do not support that any of his medical conditions resulted from the incident.

19The applicant was not forthright about his pre-incident medical condition in his EUO. Although the applicant testified that he did not have issues with his back and no ongoing pain pre-incident, the records of Dr. Karantonis clearly show this is not the case.

20As acknowledged in the applicant’s submissions for this hearing, the applicant had pre-existing issues in both his right knee and lower back. At the time of the incident the applicant was wearing a knee brace. In his EUO the applicant admitted to a “tiny bit” of instability in his right knee, admitted he had injured his right knee in a slip and fall in 2017 and had suffered a complete ACL tear as a result of his landscaping work and was scheduled to see Dr. Kraemer, his orthopaedic surgeon, about his right knee. Pre-incident medical imaging show degenerative changes, joint effusion, fluid issues, a complete tear of the ACL, torn meniscus and displaced flipped fragment in the applicant’s right knee. Dr. Karantonis diagnosed chronic right knee pain in 2017. Pre-incident, Dr. Kraemer attributed the applicant’s right knee issues and pain to his work over the previous several years, a slip and fall and muscle atrophy and had recommended surgery. Two weeks prior to the incident, the applicant reported both lower thoracic and knee pain to Dr. Roussev, his neurologist.

21The single entry in the records of the applicant’s family doctor from November 20, 2018 is insufficient evidence that these physical issues were caused or exacerbated by the incident or that the applicant suffered any other physical impairment as a result of the incident. This conclusion is consistent with the opinion of respondent’s orthopaedic surgeon Dr. Zarnett who found in October, 2018 that the applicant’s reported “jump out of the way” during the incident did not directly cause his leg and knee symptoms. The applicant’s excerpts from the Mayo Clinic article do not constitute medical evidence regarding the applicant or this particular incident and are unhelpful.

22Although the applicant submits that he jumped out of the way of the reversing vehicle which exacerbated his psychological issues including pre-existing adjustment disorder, depression and anxiety the medical evidence does not support this claim.

23The applicant relies on the November 29, 2018 report of Ivan Staroversky, his psychotherapist under the supervision of Erin Langis, his psychologist, that he suffered adjustment disorder, unspecified, as a result of the incident. However, this report is expressly stated to be based on the applicant’s presumed truthfulness. It is clear from this report that the authors were unaware of the pre-existing mental health history identified by Dr. Karantonis pre-incident and accepted the applicant’s word that he had none, which is incorrect. Further, none of the applicant’s medical records were reviewed by the authors. This report is based on inaccurate medical information and, as a result, I give this report no weight.

24Dr. Karantonis’ records reveal a 2017 pre-incident diagnosis of acute adjustment disorder and significant levels of anxiety but contain insufficient medical evidence to establish that the applicant’s psychological issues were caused or exacerbated by the incident. This is consistent with the opinion of respondent’s psychologist Dr. Prendergast who found in March 2019 that he could find no evidence to support a diagnosable DSM-5 condition or a need for mental health treatment as a result of the incident.

25Further, although the applicant testified in his EUO that the driver swerved the vehicle, attempting to hit him, there is no evidence in support of this suggestion. To the contrary, the applicant’s photographs show that the vehicle moved just enough that it was no longer on the trailer ramp. The applicant testified that the vehicle was going slowly back down the ramp and the driver parked it a couple of feet directly behind the trailer ramp. The applicant said he spoke to the driver. The applicant continued taking photographs after the incident. None of this evidence establishes any attempt by the driver to hit the applicant and is inconsistent with it. Most importantly, there is no evidence that the applicant reported to the attending police officer any threats made by the driver or any attempt by the driver to hit him or made any report to the police post-incident even though he self-reported as shown on the OCF-3, disability certificate, dated June 29, 2018, that the driver was trying to hit him with his car. This self-reporting by the applicant is not credible given the evidence referred to above and the applicant’s failure to report this to the police.

26Although the applicant submits direct damage was caused to his fabric knee brace in the incident, the evidence put forward does not support this submission. In his EOU the applicant did not testify about damaging his knee brace. The fact that Dr. McGuire ordered a knee brace is not evidence that the applicant damaged his previous knee brace without more explanation from Dr. McGuire.

27The applicant’s submission that “but not for” the moving vehicle, the applicant would not have been required to move out of the way is not persuasive. It is well established law that the “but for” test does not conclusively establish legal causation. As Laskin J.A. noted in Chisholm⁵, the purpose of the “but for” test of causation is an exclusionary test which serves to “eliminate from consideration factually irrelevant causes. It screens out factors that made no difference to the outcome…the but for test does not conclusively establish legal causation.” Here, the applicant was not injured due to the quick movement. Legal entitlement to accident benefits “requires not just that the use or operation of the car be a cause of the injuries but that it be a direct cause.”

Did the use or operation of an automobile directly cause the applicant’s injuries (the causation test)?

28Within the causation test, a three-point analysis has been set out by the Ontario Court of Appeal⁶:

i. whether the incident would have occurred “but for” the use or operation of the automobile;

ii. whether there was an intervening act that cannot be said to be part of the ordinary course of the use or operation of the automobile; and

iii. whether the use or operation of the automobile was the dominant feature.

29Given that I have found the applicant’s alleged injuries did not arise out of the ordinary use or operation of an automobile and therefore the incident does not meet the purpose test, further analysis concerning the direct cause test is not necessary.

ORDER

30For the reasons above, I find that the applicant was not involved in an accident as defined in the Schedule. The application is dismissed.

Footnotes

1. 1O.Reg. 34/10
2. 2Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ONCA); Greenhalgh v. ING-Halifax Insurance Company, 2004 CanLII 21045 (ONCA) at para 10; Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 at para 10.
3. 3Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 at para 14.
4. 416-000131 v. TD Insurance Meloche Monex, 2017.
5. 5Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020, paras 25 and 26 (ONCA); Greenhalgh v. ING-Halifax Insurance Company, 2004 CanLII 21045 (ONCA).
6. 6Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ONCA); Greenhalgh v. ING-Halifax Insurance Company, 2004 CanLII 21045 (ONCA).