Applicant’s injuries are due to slip and fall, not a car accident - 18-004362 JD v Certas Home and Auto Insurance Company, 2019 CanLII 27898 (ON LAT)

June 14, 2019, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant’s injuries are due to slip and fall, not a car accident - 18-004362 JD v Certas Home and Auto Insurance Company, 2019 CanLII 27898 (ON LAT)

Date of Decision: February 26, 2019
Heard Before: Adjudicator Nidhi Punyarthi

WAS IT AN ACCIDENT – was the car the cause of the accident; was ice the cause of the accident; was the injury due to an accident as defined in the Schedule; correct tests must be applied; applicant suffered a slip and fall accident not one covered under the SABs

OVERVIEW

JD was injured on December 20, 2016. She applied to Certas for SABs, and they denied her claim for benefits. JD applied to the LAT to determine whether JD was involved in an “accident” as defined in the Schedule on December 20, 2016.

PRELIMINARY ISSUE IN DISPUTE

1. On December 20, 2016, was JD involved in an “accident” as defined in Section 3(1) of the Schedule?

Background

On December 20, 2016, JD 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. JD 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, she moved back, and her feet slipped and fell on the icy surface that she had been standing on. The fall gave JD a hematoma and a head injury. The car drove off and JD was unable to identify any details with respect to the car.

The parties disagree on the cause of JD’s fall. JD states that the cause of her fall was the vehicle, and Certas states that the cause of her fall was the icy surface beneath her.

Result

1. Based on the evidence JD was not involved in an “accident” as defined in the Schedule on December 20, 2016. The reasons for this decision are as follows:
   1. Medical records of JD from around December 20, 2016 refer to ice as the cause of her fall and injury.
   2. When JD 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

According 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.

Account of medical records of December 20, 2016

The Adjudicator considered the witness testimony and have reviewed the medical records generated by the attendant paramedic and the [Hospital] on December 20, 2016. All of them cited ice as the cause of her fall.

The testimony given by JD, and those who were not in attendance when she fell -  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 JD and recorded the event as a slip and fall on ice.

The story told by the medical records between December 20, 2016 and February 28, 2017

In the two months that followed the event, JD saw her family doctor who then referred her to a sports medicine doctor. Their notes indicated as follows:

1. On January 3, 2017 “patient fell on Dec 20/16 and hit back of head”;
2. On January 15, 2017, and on February 7, 2017  a CT and a referral to sports medicine doctor with the same information as above;
3. On February 28, 2017, Dr. indicated that JD “fell onto ice”, her “feet slid out”, and she “hit back of head”.

Once again, the cause of the fall, as recorded by these professionals, is ice underneath JD. There is no mention of the vehicle or of the vehicle startling her in any of these medical records.

Therefore, 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 JD 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 JD and her witnesses because the medical records are consistent in their indication that JD slipped and fell on ice.

Conclusion

According to Section 3(1) of the Schedule, the use or operation of an automobile has to “directly cause” the impairment in question. The ‘but for’ test, intervening cause and dominant feature must be applied and considered to determine whether the accident occurred.

Applying all of these considerations in this case, the direct cause of JD’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.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.