Licence Appeal Tribunal File Number: 23-013484/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:
Jeffrey Rogoza
Applicant
and
Co-Operators General Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Rachel Levitsky
APPEARANCES:
For the Applicant:
Avneet Kaur, Counsel Kiro Soliman, Paralegal
For the Respondent:
Eric Grossman, Counsel Rebecca Brown Greer, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Jeffrey Rogoza (“the applicant”) was involved in an incident on May 13, 2022, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“the Schedule”). The applicant was denied benefits by Co-Operators General Insurance Company of Canada (“the respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“the Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES IN DISPUTE
2The preliminary issues to be decided are:
i. Was the applicant involved in an “accident” as defined in section 3(1) of the Schedule?
ii. Is the applicant barred form proceeding to a hearing as they failed to notify the respondent of the circumstances giving rise to a claim for benefits no later than the seventh day after the circumstances arose or as soon as practicable after that day?
RESULT
3The applicant was not involved in an “accident” as defined in s. 3(1) of the Schedule. The application is dismissed.
ANALYSIS
Issue (i) – Was the applicant involved in an “accident”?
Background
4The applicant visited his family physician, Dr. Cucina, on May 13, 2022. Dr. Cucina’s office called an ambulance as he was experiencing delirium. An ambulance came, but one of the paramedics developed a migraine, so a second ambulance arrived and transported him to The Ottawa Hospital (“TOH”).
5The applicant submits that he struck his head in the second ambulance and fell, and that this constituted an “accident” pursuant to s. 3(1). The respondent submits that there is no evidence to corroborate the allegation that the applicant struck his head while in the ambulance.
Was the applicant injured in the ambulance?
6Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”. The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused his injuries.
7I find that the applicant has not met his onus to prove that he was injured in an ambulance.
8The applicant submits that when he was in the second ambulance on May 13, 2022, he was told to move by a student paramedic. He did not receive assistance while in the ambulance, which he says resulted in him hitting his head and falling. The applicant also relies on his description of the accident in the OCF-1: “struck back of head inside vehicle with bleeding and loss of consciousness”. He also submits that beginning May 27, 2022, he consistently reported to various medical practitioners that he struck his head in the ambulance.
9The first ambulance report mentions “no obvious signs of trauma”. The second ambulance report indicates that the applicant reported having fallen while in the hospital 2-3 weeks prior, and he was bruised as a result. It also notes: “old scab (~2 weeks old) and hematoma to back of head.” Nothing is mentioned in the report about a fall or strike to the applicant’s head that day, or any bleeding.
10The applicant was hospitalized on May 6, 2022, for delirium as well, and there are no reports of trauma to his head from that visit. The applicant argues that those records, in addition to the first ambulance report, prove that what was reported in the second ambulance report could not have been possible. The applicant submits that “the records may have been inaccurately reported or varied in an effort to eliminate liability for his injuries”.
11I do not agree. The applicant’s father advised the physicians at TOH on May 13 that he had been falling at home for many years, and that he had an increase in recent falls. The second ambulance report states that the applicant “presents himself with confusion and significant memory problems, having a hard time placing any past or present event on a reliable timeline.” He could not remember why he recently went to the hospital, nor what hospital he went to. It is certainly possible that he could have fallen after his hospitalization on May 6, and not during.
12Further, there is no mention of the applicant striking his head on May 13 in an ambulance anywhere in the hospital records. If I accept that a lack of reported head trauma on May 6 meant that the applicant did not strike his head at the hospital, that logic could also apply for the ambulance ride on May 13.
13I find it more likely that the first ambulance report did not mention the injury to the applicant’s head because it was an older wound. The second ambulance report was more thorough and touched on the applicant’s history, whereas the first did not; for example, it mentioned yellow bruising from a fall 2-3 weeks prior, as well as the applicant’s prior chronic pain. In addition, the triage note from May 13 states that he had an old cut to the back of his head, and a nursing note from May 13 states that he had an old wound to the back of his head that had scabbed over. This adds credence to notation in the second ambulance report.
14The applicant has not provided any evidence of an effort to inaccurately report or vary records. Presumably if the applicant had sustained a bleeding head wound in the ambulance, that blood or the recency of such an injury would have been mentioned by the paramedics and hospital staff. Instead, they mentioned it multiple times as an old wound. Further, the applicant was admitted to TOH again on June 9, 2022. When his father mentioned that he hit his head in an ambulance on May 13, the note indicates that the applicant “has no recollection of this and the TOH team did not seem to be aware of his falling the ambulance [sic]”. Even if the paramedics did not report it, either deliberately or erroneously, I fail to see why numerous staff members at the hospital would have all tried to assist the paramedics in covering up an incident that occurred in an ambulance.
15The applicant relies on a photograph showing a wound on his head, and he submits that it corresponds with the description of his injuries and the accident’s mechanism. I note that it is not dated, nor did the applicant even advise in his submissions when it was taken. The dispute is not whether the applicant sustained an injury to his head, it is whether he was injured in an ambulance. I find that without this additional information, the photograph does not assist the applicant in proving when or how he injured himself.
16The applicant submits that, pursuant to s. 245 of the Insurance Act, the respondent failed to investigate this matter and therefore cannot oppose the applicant’s account or evidence. I do not find that this section is applicable to the issue at hand, as it refers to motor vehicle liability policies, and not accident benefits under the Schedule.
17The applicant reported to various physicians from May 27, 2022, onward that he struck his head in the ambulance. However, I find that the applicant’s self reports beginning two weeks after the alleged incident do not align with the contemporaneous records as I have indicated above. I assign those reports very little weight.
18I accordingly find that on a balance of probabilities, the applicant has not proven that he was injured in the ambulance on May 13, 2022. As such, he was not involved in an accident pursuant to s. 3(1).
Issue (ii) – Did the applicant fail to notify the respondent?
19As I have determined that the applicant was not involved in an accident, I need not make a finding on this issue.
ORDER
20The applicant was not involved in an “accident” as defined in s. 3(1) of the Schedule. The application is dismissed.
Released: August 29, 2024
___________________________
Rachel Levitsky
Adjudicator