Volume. 3 Issue. 11 – April 17, 2019
Shouldering the Burden – Getting the Facts Straight
In 17-007003 v Certas, the Tribunal was unable to “conclude on a balance of probabilities that the applicant’s bicipital tendinitis and mild rotator cuff tendinopathy were injuries caused by the accident. I have difficulty in relying upon an ultrasound dated almost two years after the accident when [the assessor] recommended imaging as early as one week after the accident. Further, the impressions in the ultrasound report do not speak to causation and there is no evidence before me from any health care providers that expressly state that the bicipital tendinitis and mild rotator cuff tendinopathy observed in the ultrasound in the applicant’s left shoulder were caused by the accident.”
Moreover, there was no evidence that the Applicant complained of pain or injuries specifically to his left shoulder within a reasonable timeframe. “On the OCF- 3 dated October 15, 2015, [the assessor] does not identify which shoulder joint is sprained/strained and plurals are not used to indicate that both of the applicant’s shoulder joints are sprained/strained. The KIN Communication Sheet submitted by the applicant notes the applicant’s injured area as ‘shoulder – right,’ and only the right shoulder is marked as injured on the accompanying body diagram, which would still fall within the MIG. There is no mark indicating an injury to the applicant’s left shoulder.”
Reviewing the records from the family doctor and OHIP summary, the Tribunal found no entries related to the accident or pain. There was a total of 7 OHIP entries following the date of the accident, with the first dated April 15, 2016 being 6 months after the accident, and the last being on January 19, 2017.
While the Applicant contended that he suffered from psychological issues, “the only evidence before [the Tribunal] on any potential psychological impairment comes from a chiropractor and from the applicant’s self-reporting through his mother.”
The Applicant also argued the impact of pre-existing injuries upon his recovery, however in one report, the assessor “indicates ‘no’ as an answer to the question, ‘Do you have any pre-existing health conditions?’ with the area being entirely struck out by the author.” In addition, “on all six OCF-18s, the OCF-3 and the OCF-23, [the assessor] provides the response of ‘no’ to the inquiry, ‘prior to the accident, did the applicant have any disease, condition or injury that could affect his/her response to treatment for the injuries identified’”.
The Tribunal Rules a “Slip and Fall” is Merely a Slip and Fall
But For…The Ice – In 18-004362 v Certas, the Applicant contended that while out jogging, the actions of a vehicle caused her to step back and subsequently fall, with her head striking the pavement. Finding that “the direct cause of the applicant’s injuries was the icy surface underneath her, and not the automobile”, the Tribunal noted, “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.”
Further, “the testimony given by the applicant, 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”. “When the applicant 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.”
But For…the Car? – In 18-001537 v TD, the Applicant slipped and fell on black ice when he had just exited his car with his engine off and his door shut. The Tribunal “agree[d] with the applicant that in this case, but for the use or operation of his vehicle, which includes parking it, this incident would not have occurred. Therefore, the applicant satisfies the first part of the causation test.”
This left a further matter to be addressed “whether the black ice was an intervening cause”. The Tribunal concluded, “the slip and fall on ice was an intervening act and the use or operation of the vehicle was not a direct cause of the applicant’s injuries”. As such, the Applicant was not involved an “accident” as defined in the Schedule.
While ultimately arriving at the same conclusion, there do appear to be different takes on the role and interpretation of the ‘but for’ test of causation. In 18-001029 v Primmum, it was found that while the incident did pass the ‘but for’ “screening measure”, nonetheless “the assault or physical altercation was an intervening act and broke the chain of causation”. However, in another decision earlier reported upon 18-002820 v Aviva, also involving a slip and fall on ice, the Tribunal reasoned that “it follows that if she had stepped out of her vehicle on ground without snow and ice, she would not have fallen and sustained the injuries. The applicant’s injuries were therefore not caused ‘but for’ the use or operation of an automobile”. Given the ultimate similar conclusions reached in all cases, the applicability of the ‘but for’ test may merely represent an academic exercise.
Degrees of LATitude
Caught in a Lie
In 18-002368 v Pafco, largely turned on credibility, the Tribunal was “inclined to believe that the applicant is unable to perform the essential tasks of his employment”, relying on both the Applicant’s in-person testimony and the IEs conducted. Additionally, his psychological symptoms were “supported by the applicant’s testimony…”.
Dealing though, with his pre-accident employment status, “[the Applicant] stated in his testimony that he had not dealt with back pain prior to his accident, but was presented with medical evidence that…he left his job due to back pain related to his kidney stones”. Further, he had “ongoing credibility issues with CRA who went as far as to state that the applicant knowingly made false representations regarding his income during the time of the accident.” As a result, “because the applicant had a previous incident of improper reporting, Service Canada imposed a penalty and deemed the applicant not to qualify for EI since he did not work enough hours”. The Tribunal therefore “put more weight on the respondent’s evidence, based on the applicant’s lack of credibility”.
In 17-009121 v TTC, awarding entitlement to both physiotherapy and chiropractic Treatment Plans, the Tribunal found that the Applicant’s “reports of pain are consistent, credible and ongoing”. However, in dealing with entitlement for NEB, “the in-person testimony revealed significant disparities between the applicants self-reporting and the reports and records before the Tribunal that, taken as a whole, are difficult for the applicant to overcome”. Testifying that she regularly sought medical attention in the months following the accident, it was found that “her OHIP records and prescription summaries suggest that her recollection differs significantly from the reality”. In addition, concerning a claim for ACB, the Applicant testified that she was extremely dependant upon her mother, however the Tribunal found it “difficult to conceive how being carried to the washroom every day for four months by your mother does not come up in any of the medical records available”.