May 23, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Anssari and Wawanesa
Was it an Accident: no witness; personal injury requiring 4 week hospital stay; no chain of evidence; expert forensic testimony leads to arbitrator being satisfied an accident occurred
Date of Decision: April 24, 2017
Heard Before: Adjudicator Jeffrey Musson
Mr. Bahram Anssari was hurt on December 20, 2013 and sought accident benefits from Wawanesa payable under the Schedule however when the parties were unable to resolve their disputes through mediation Mr. Anssari applied for arbitration at the FSCO.
The issues in this Preliminary Issue Hearing are:
- Was Mr. Anssari involved in an “accident” as defined in Section 3(1) of the Schedule?
- Mr. Anssari was involved in an accident as defined by Section 3(1) of the Schedule.
EVIDENCE AND ANALYSIS:
On December 20, 2013, Mr. Anssari was installing security cameras along the rear exterior roof line of an industrial building using a two-year-old standard, 12 foot, outdoor extension ladder in order to install the various cameras. Around 3:00 p.m. that day, Mr. Anssari fell approximately 12 feet off the ladder while working on the cameras and he landed on the cement laneway below the ladder. Mr. Anssari doesn’t remember how he fell and there were no witnesses to the incident. The security cameras were not operational at that time.
An employee from a neighbouring business found Mr. Anssari on the ground, called an ambulance and Mr. Anssari was taken to Sunnybrook Hospital. After a two-week stay in the hospital, he was discharged and began a rehab program for his injuries. Mr. Anssari’s left and right knees along with his shoulder were injured in the fall. While at Sunnybrook, Mr. Anssari underwent surgery to repair the injuries that he sustained as a result of the incident. After he was discharged from the hospital, he was admitted to the St. John’s Rehab Facility for an additional two-week stay. After being discharged from St. John’s, Mr. Anssari continued his treatment on an outpatient basis.
Once Mr. Anssari was home from the hospital and rehabilitation stay, he returned to retrieve his ladder and tools that he left behind after his fall. He noticed then, that his ladder was damaged. Mr. Anssari filed a police report a few weeks after, in March of 2014. No report was filed with the police on the day of the incident. After filing the report, Mr. Anssari proceeded to retain the services of an accident reconstruction firm. The purpose was to identify using the physical evidence, mainly Mr. Anssari’s ladder, and to establish the sequence of events that caused Mr. Anssari to fall from the ladder. Since there were no witnesses and Mr. Anssari doesn’t have any recollection of what occurred prior to his fall, the physical evidence is the only thing available to substantiate the sequence of events.
THE ISSUE IN DISPUTE
The only issue put forward at this Preliminary Issue Hearing is to determine if this incident on December 20, 2013 qualifies as an accident under Section 3(1) of the Schedule. Specifically, did Mr. Anssari slip off the ladder as Wawanesa claims, or was Mr. Anssari, as he claimed, knocked off the ladder as a result of the ladder b
The Arbitrator found Mr. Anssari’s testimony to be truthful and forthright. Mr. Anssari is a sole proprietor who has owned a security camera installation company since 2005. He is the only employee. His clients are both homeowners and businesses. Mr. Anssari testified that he was wearing proper safety shoes and that he had placed traffic cones around his work area on the day of this job. It was not raining or snowing the day he worked. There were cars coming in and out of the various bay doors at the rear of the building where he was working, as well as cars parked in the area.
Mr. Anssari testified that when he returned to the scene of the incident he found an auto shop employee from the area of the building had placed his tools and ladder in the secured server room in the basement. Mr. Anssari testified that his ladder was not damaged prior to this incident and after retrieving the ladder from the basement of 471 Garyray Dr., the ladder was kept at his house and has never been used since. He also testified and produced photographs showing the step of the ladder that was severely dented inwards. Additional photographs were also produced that showed the location of where the incident occurred and the surroun
Wawanesa takes the position that Mr. Anssari fell off the ladder in a simple slip and fall incident. Wawanesa produced an environment Canada weather report compiled at Pearson Airport which showed that there was precipitation falling on December 20, 2013. Mr. Anssari replied that just because the weather shows precipitation at the airport, it doesn’t mean it was raining at the job site.
Mr. Anssari testified that he is now semi-retired from the business and only maintains a small client base of existing customers. This incident and subsequent injuries have caused him to re-adjust his life and work schedule.
Mr. Anssari hired GK to complete a physical analysis of the evidence, mainly the damage to Mr. Anssari’s ladder. This report was entered into evidence. Mr. Anssari put forward the report’s author, Mr. B., as his Expert Witness.
The Arbitrator found Mr. B’s testimony to be extremely credible in the area of materials engineering. He testified that while at GK, he was a member of the forensic investigators team. As part of his forensic investigation, Mr. B analyzed the ladder that Mr. Anssari was using on the day of the incident. He also did a visual survey of the area where the incident occurred. Upon examining the ladder, he noted in his report that the second ladder rung from the bottom suffered an inward deflection in addition to the ladder’s locking assembly being damaged and missing. He also confirmed that the evidence given by Mr. Anssari as to the details of what transpired are confirmed by the physical evidence of the ladder, mainly that while Mr. Anssari was on the ladder, the ladder was hit by a vehicle.
The physical evidence shows that the ladder was set up against the wall and there was some significant force placed on the ladder which would have caused the inward deflection. There was no paint transfer which eliminates the possibility of the inward deflection being caused as a result of the ladder falling on the yellow gas meter next to the bay door. Mr. B also concluded that a load of 800 lbs. or greater would have been necessary to cause the damage to the ladder. Based on the height of where the damage on the ladder was located, on the balance of probabilities, it was a vehicle’s bumper hitch that hit the ladder while Mr. Anssari was on it. Mr. B testified that based on his analysis, this is the only manner in which the ladder could have been damaged.
Wawanesa asked Mr. B if he had completed any slip analysis on the ladder or footwear as part of his investigation. Mr. B said, no, he did not. Wawanesa also asked why the “chain of custody” was not commented on in the report. Mr. B replied he was focused more on what could have caused the damage to the ladder, as this is his area of expertise. When Wawanesa provided alternative scenarios as to what might have happened to the ladder in order to cause the inward deflection damage, Mr. B was able to provide clear and concise answers as to why specific scenarios put forward by Wawanesa were not plausible. For example, Wawanesa suggested that maybe the Ambulance with its metal bumper might have caused the damage to the ladder after it had arrived on scene. Mr. B said this was not possible because the force that caused the inward deflection was perpendicular to the ladder and by the time the ambulance arrived on the scene, Mr. Anssari was already on the ground along with the ladder in question. In addition, Mr. B concluded that the load required to damage this ladder was done over a small area on the ladder rung, not spread out. Mr. B in his testimony noted that both speed and mass affect the amount of damage.
With no witnesses to the incident and Mr. Anssari unable to remember the details as to what caused him to fall from the ladder, there is only the physical evidence in order to establish how this incident happened. Mr. Anssari put forward the theory and produced a Forensic Engineering Report to substantiate the claim that his fall was caused by a vehicle hitting Mr. Anssari’s ladder. Further, on the balance of probabilities, it was a vehicle’s trailer hitch which caused this damage. This damage was confined to a small area and had a force of approximately 800 lbs. to create the inward deflection of the second rung on the ladder.
Based on the evidence submitted and the expert evidence provided, the Arbitrator concluded that Mr. Anssari was involved in an accident as defined in the Schedule. Mr. Anssari is therefore entitled to submit a claim for benefits.