May 7, 2015

SABS Update: Defining an “Accident” and the Importance of Supportive Evidence for the Benefit You Seek

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Golizadeh v Motor Vehicle Accident Claims Fund, FSCO A13-014896, Adjudicator Kenneth Conroy (Final Decision)

 

The Applicant, Mr. Golizadeh, claimed that he was injured in a motor vehicle collision in the early morning hours of December 2, 2012, after leaving a local licensed establishment. He sought accidents benefits from the Motor Vehicle Accident Claims Fund (“MVACF”), payable under the Schedule.

Mr. Golizadeh’s evidence was that after leaving the establishment, he got into an altercation with individuals who pulled up beside him in a running vehicle. While still in the vehicle, the driver threw a rock or a piece of concrete at Mr. Golizadeh. The assailants then exited the vehicle and began punching him in the head, possibly kicking his body. They then got back in their vehicle, and as they proceeded to drive away, his left thigh, left hip, left leg, and left foot were struck by the vehicle causing him to fall.

Adjudicator Conroy distinguished between the two distinct accidents: the first being the throwing of the stone or piece of concrete at Mr. Golizadeh, and the second being Mr. Golizadeh’s contact with the moving vehicle. Adjudicator Conroy looked at the definition of “accident” as set out in the Schedule, and found that the throwing of the stone or piece of concrete, as well as the punching and kicking did not constitute an accident. The second incident, however, was considered an accident for the purpose of accident benefits. Adjudicator Conroy applied the modified causation test, where it is not enough to show that an automobile was somehow involved in the incident giving rise to the injury, but rather, the use or operation of the automobile must have directly caused the injury. Although Mr. Golizadeh’s evidence was not corroborated, Adjudicator Conroy was prepared to accept that Mr. Golizadeh did come into contact with the vehicle, resulting in soft tissue injuries to his lower extremities.

Mr. Golizadeh also sought entitlement to Income Replacement Benefits, indicating that he was no longer able to work as an auto-detailer. He relied on a report from Dr. Rod, a chronic pain specialist, but did not present any viva voce evidence other than his own. He provided very little information about his employment, which included hand written income figures on scrap paper attached to his submissions, and a letter from his alleged employer. Adjudicator Conroy noted that Mr. Golizadeh would have been well served if Dr. Rod and his employer had presented viva voce evidence to expand on their written documents.

Adjudicator Conroy found the evidence of the Respondent more persuasive. The Respondent retained two physicians, one of which presented viva voce evidence, relied on convincing surveillance, and presented evidence from an investigator, which suggested that the business where Mr. Golizadeh allegedly worked had closed before the accident. Adjudicator Conroy did not find Mr. Golizadeh’s evidence credible with respect to his employment status, and was not satisfied based on the above evidence, that Mr. Golizadeh met the test for receipt of Income Replacement Benefits as defined in the Schedule.

 

IMPLICATIONS

Before bringing an application for accident benefits, it is important to review the definition of “accident” to ensure that the Claimant has actually been involved in one. Having a vehicle somehow present in the situation is not enough. In addition, this case demonstrates the necessity of having proper evidence in support of the benefit that one seeks to receive. It is not always possible for the Claimant to engage the same amount of resources as a Respondent corporation, but he or she should make the best of what they do have. In this case, it would have been beneficial for Mr. Golizadeh to call Dr. Rod and his employer to provide evidence. Although it is uncertain whether it would have made a difference in this particular case, a Claimant should always do what is in their power to level the playing field.

 

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