Insured's version of car accident not supported by reports.

March 05, 2016, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Heard Before: Adjudicator Isoken Osunde

Date of Decision: October 28, 2015

DECISION ON A PRELIMINARY ISSUE

Sukhdev Singh Randhawa suffered a very serious impairment as a result of a fall —an impairment which left him paralysed and confined to a wheelchair on September 18, 2011. He applied for statutory accident benefits from State Farm who denied his application for benefits. After failed mediation Mr. Randhawa applied for arbitration at the FSCO.

The preliminary issue is:

1. Was Mr. Randhawa injured as a result of an “accident” as defined in the Schedule?

Result:

1. Mr. Randhawa was not injured as a result of an “accident” as defined the Schedule.

BACKGROUND:

There is no dispute that Mr. Randhawa is now catastrophically injured as a result of the fall. The issue which the Arbitrator must determine is whether the fall involved the use of an automobile, in which case it would fall within the meaning of an “accident” as defined in Schedule.

The Arbitrator reviewed the law, the evidence, and the definitions in the Schedule

There were 2 dominant theories in this case. Mr. Randhawa’s claims that he fell while exiting his Acura through the passenger door on September 18, 2011. According to him, only he and his friend, Harinder, witnessed the actual fall. State Farm’s theory on the other hand is that Mr. Randhawa did not fall while exiting his Acura. For the reasons that follow, the Arbitrator found that Mr. Randhawa’s version of events is not supported by the evidence and therefore Mr. Randhawa was not injured as a result of the use or operation of an automobile as defined by the Schedule.

EVIDENCE AND ANALYSIS:

Mr Randhawa’s case was complicated by the different versions of the events surrounding his fall on September 18, 2011. There was the documentary evidence comprising of various hospital reports created at different times by different individuals which contained different versions of how the fall occurred. Most of these reports suggest that Mr. Randhawa was the only eye witness to his fall and that he was found later by his wife. On the other hand, there was the testimony of Mr. Randhawa and his family and friends - the general theme in their testimonies was that the only eye witnesses to the fall were Mr. Randhawa and Harinder and that Mr. Randhawa fell while exiting his Acura.

A 911 call recording indicates that Mr. Randhawa had been drinking when he fell. It states that Mr. Randhawa was not drunk but that he fell “in a hill beside his driveway” and he had been laying in there for half an hour before, his wife, Rajinder found him. The Ambulance Call indicates that Mr. Randhawa was dropped off at home at approximately 9:30pm on September 18, 2011. It further states that Mr. Randhawa felt dizzy prior to falling into a ditch at the front of his house and that he was found by his wife approximately an hour and a half later.

The York Region EMS Call Report dated September 19, 2011 states that according to the patient’s family, the patient was out drinking with his brother the night before and was dropped off at home at approximately 9:30pm. It states further that Mr. Randhawa reported feeling dizzy prior to falling into a ditch near his front door and that he was found by his wife outside approximately an hour and a half later. It states further that Mr. Randhawa was walked into the house and laid down on the floor upstairs and that EMS was called approximately 4 hours after the initial episode.

The Etobicoke General Hospital triage report dated September 19, 2011 states that Mr. Randhawa was found in a ditch outside his house “this am” after being dropped off by his brother. It further states that Mr. Randhawa was out drinking with his brother and was feeling dizzy and that Mr. Randhawa fell at 9.30pm the night before.

The University Health Network — Toronto Western Hospital ER Triage Assessment Report, dated September 19, 2011, states that Mr. Randhawa was out drinking with family last night and had a syncopal episode. It states further that Mr. Randhawa fell striking his left shoulder on the pavement and was found later.

Mr. Randhawa’s Evidence:

The bulk of evidence in support of Mr. Randhawa’s theory of the events surrounding the fall comprised of his oral testimony and the testimony of his family members, his friend Harinder and Harinder’s son, Harnek. As stated earlier, the general theme in their testimony was that Mr. Randhawa and his friend, Harinder, were the only eye witnesses to his fall.

Mr. Randhawa’s theory is that Harinder drove him back home in his Acura after the visit. This was only done as a precautionary measure. Mr. Randhawa was not drunk. Mr. Randhawa sat in the passenger’s seat. Harnek, Harinder’s son, followed them shortly after in another car in order for Harinder to return home with him. Upon arriving at Mr. Randhawa’s house, Harinder parked Mr. Randhawa’s Acura on the right side of the end of the driveway as there were other cars in the driveway. As Mr. Randhawa was about to exit the car from the passenger’s side, the door swung back at him because of the wind, causing him to lose control and fall backwards hitting his head on the curb. Harinder testified that he knew it was the wind that caused the door to swing back at Mr. Randhawa because, he felt the wind when Mr. Randhawa opened the passenger door to exit the car. After the fall and while Mr. Randhawa was still on the ground, Harinder knocked on the front door of Mr. Randhawa’s house to request help with assisting Mr. Randhawa to get up. Mr. Randhawa’s wife, opened the door and asked Robbie, Mr. Randhawa’s son who was the only other person at home at the time, to come outside and help. After Mr. Randhawa was put to lie down in his living room on the main floor of his house,. Harinder then parked Mr. Randhawa’s Acura properly and handed the keys back to Robbie and left.

Rajinder’s testimony is that she called Sumeet, Mr. Randhawa’s daughter, to come home immediately and that Sumeet arrived shortly after. Robbie and Sumeet then escorted Mr. Randhawa up the stairs to his room. Robbie left the house shortly after. Both Rajinder and Mr. Randhawa fell asleep (they both testified that they were not sure how long they were asleep for) and Rajinder was awoken by Mr. Randhawa that he needed her help to use the washroom. Rajinder waited outside the washroom while Mr. Randhawa used the toilet. While using the toilet, Mr. Randhawa’s neck fell forward and he was unable to get up. Rajinder screamed for Sumeet’s help and they both assisted Mr. Randhawa to lie down on the floor in front of the washroom. Sumeet then called 911. Robbie did not return back to the house until the next morning. Mr. Randhawa’s theory is that neither Harinder, Harnek nor his family members thought his injuries were serious at the time of the fall hence, they would have called 911 sooner.

In support of State Farm’s theory SK a Mechanical Engineer testified on its behalf. At the hearing, he was qualified as an expert witness in the area of reconstruction engineering. SK conducted an accident reconstruction investigation at Mr. Randhawa’s house, and concluded that the door did not close due to the wind as testified by Mr. Randhawa. SK could not determine conclusively in which direction Mr. Rahdhawa fell. He was not a meteorologist and his conclusions regarding weather lacked certainty. Overall, the Arbitrator did not find SK’s evidence of much help.

Ms. S and Mr. C, paramedics with York Region testified on State Farm’s behalf. The Arbitrator gave some weight to their testimony. They testified that upon arriving at Mr. Randhawa’s house and obtaining the patient history, they applied the protocol for suspected cardiac arrests as opposed to spinal injuries because they suspected that Mr. Randhawa was suffering from a cardiac arrest. For the first time at the hearing, it became apparent to them that Mr. Randhawa had suffered a spinal injury and not a cardiac arrest.

The Arbitrator gave no weight to the portions of their testimonies that are inconsistent with the evidence in this case because, both Ms. S and Mr. C testified that since September 19, 2011, they have attended to over 1000 calls each. The Arbitrator determined that confusion over whether Mr. Randhawa fell in a ditch were a result of the language barrier encountered by Ms. S and Mr. C on scene, and there is no reason to believe that Ms. S and Mr. C neglected to take a proper patient history from Sumeet as Mr. Randhawa would like to believe.

The Arbitrator rejected Mr. Randhawa’s submission that only his eyewitness testimony should be regarded as reliable. Although there were inconsistencies in the reports, the Arbitrator found it compelling that in all of the reports, the one thing that remained consistent is the fact that there was no mention of an automobile during the fall. In general, the Arbitrator found too many inconsistencies in the various testimonies in support of Mr. Randhawa’s theory.

After considering all of the evidence, the Arbitrator was not persuaded by Mr. Randhawa’s theory of events that he fell while exiting his Acura, and therefore, Mr. Randhawa was not injured as a result of an “accident” as defined in the Schedule.

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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.

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