March 28, 2015, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Date of Decision: February 23, 2015
Heard Before: Adjudicator Michael Kelly
REASONS FOR DECISION
Nadine McKoy claimed that she was injured in a car accident on April 16, 2010. She claims she was a passenger in the car. She applied for and initially received statutory accident benefits from Unica Insurance Inc., however, Unica terminated benefits on the basis that Mrs. McKoy was not involved in the car accident. The parties were unable to resolve their disputes through mediation and Mrs. McKoy applied for arbitration at the FSCO.
Was Nadine McKoy involved in a car accident on April 16, 2010?
Nadine McKoy was not involved in a car accident.
EVIDENCE AND ANALYSIS:
Unica’s position is that Nadine McKoy has failed to prove, on a balance of probabilities, that she was a passenger in the car when the accident occurred. Mrs. McKoy relies primarily upon her own testimony and the onus of proof is on her. Mrs. McKoy was not named by the driver as a passenger in the car at the Collision Reporting Centre on the day of the accident.
As the credibility of Mrs. McKoy is fundamental to her onus of proof, the Arbitrator thoroughly reviewed all the evidence before considering her testimony.
The Self-Reporting Collision Reports of both drivers were placed in evidence. They contained all the particulars of the accident including the names of the drivers, and the passengers. Nadine McKoy is not named in any report. At the hearing one of the drivers involved in the accident gave credible and forthright testimony regarding the circumstances of the accident. He confirmed Ms. McKoy was not a passenger in his car. He thought at the time there were two passengers in the other car one was female, and he was uncertain of the other.
An expert witness submitted an accident reconstruction which confirmed an accident may have indeed occurred. All car windows were intact. His report was accepted by Unica. The Arbitrator accepted testimony that it was unlikely that a seat-belted rear seat passenger would have been propelled into contact with the interior of the Pontiac as a result of the collision.
The driver of the car that Ms. McKoy claimed to be in has since told the insurance company that she had Ms. McKoy was indeed a passenger.
Mrs. McKoy testified that on the morning of April 16, 2010, she drove her car to the Malvern Town Centre to pick up some prescriptions. The pharmacy confirmed that the prescription was dispensed on April 16, 2010 at the Mall. While strolling the Mall, she ran into friends from school. Mrs. McKoy agreed to do some errands with the women in their car. She testified the accident occurred during the ride. She said everyone was upset following the collision. She called her husband to come pick her up and did not attend the collision centre. She testified she was belted in the back seat, struck her knee and head, and stayed at the accident scene for a half hour or so when her husband came to get her. His testimony on this point is confused. He can’t remember if he picked her up or if there was an accident.
After going home, Mrs. McKoy contacted her family doctor who was absent from the office for a few days and, therefore, an appointment was arranged for April 22, 2010. Mrs. McKoy attended on that date. She described her injuries as involving her neck, lower back, and hip. For four months post-accident, she attended a physiotherapy clinic and continued to see her family doctor who prescribed painkillers such as Tylenol #3. Clinical notes and records were produced in evidence by Mrs. McKoy.
In her testimony, Mrs. McKoy described the damage to the car as a shattered back glass. She testified she ran into the driver of the car the day after the accident at the Rehab clinic and the driver said she had mistakenly omitted Mrs. McKoy from the accident report. The driver then contacted the insurer to correct the record. The testimony is confused as to whether they talked about the accident. Mrs. McKoy testified that she did her best to give accurate information to the various doctors and assessors who questioned her, and admitted that with respect to the details of the accident, she may have made errors, but not with respect to her injuries.
Under cross examination Mrs. McKoy testified that she didn’t know that she had been omitted from the accident report until a few weeks before, then she changed her testimony to agree with her earlier testimony that she knew the day after the accident and that she had in fact discussed the accident with the driver. She then contradicted her own testimony again and said it may have been a year after the accident before she found out. Mrs. McKoy was unable to give any particulars about her friendship with the driver of the car, nor of the other passenger other than to say she had gone to school with one for a while years ago.
Her husband and she were in an on again off again relationship and his testimony as to whether he picked her up from an accident scene and whether he was aware of any accident is confused.
Under cross-examination Mrs. McKoy was asked: “Who referred you to that physiotherapy?” She responded, “I can’t remember.” When asked to explain how it came about that she, the driver and passenger all ended up at the same physiotherapy clinic the day after the accident, she answered that she did not know. She stated that she had had no contact with the driver subsequent to the accident, until they met at the physiotherapy centre on the day following the accident. Upon further questioning, Mrs. McKoy confirmed that she had spoken by telephone with the driver on the day following the accident and the driver referred her to the physiotherapy clinic. She then admitted that she had spoken to the driver twice between the accident and their first attendance at the therapy clinic.
In an attempt to clarify Mrs. McKoy’s testimony the Arbitrator asked who referred her to the clinic and at that point she said “Mike”. When council referred to her previous testimony she indicated “Mike” was the driver’s boyfriend. He was not called as a witness.
Mrs. McKoy had testified that immediately following the accident, she was in pain. She was asked why, if she was in pain, she did not immediately go to a hospital or to her family doctor at Health Centre. She responded that she called her doctor’s office after returning home that day, but was advised that he was not at the clinic that day. She booked an appointment for April 22, 2010. She stated that as she was one doctor’s client and that no other doctor at the clinic would provide immediate service to her. She had initially stated, under cross-examination, that she had never seen any doctor at the health centre but after continued questioning she admitted to having seen other doctors, and in physician notes it was clear that she had in fact seen another doctor only three days before the accident for a prescription. Her response to this fact was “So what if I’ve seen another doctor? Is that a big deal?”
Unica filed reports containing a record of prior statements allegedly made by Mrs. McKoy. The reports were not supported by Affidavit or oral testimony. As Mrs. McKoy testified that she believed that for the most part, the assessors had accurately recorded what she had said to them thus the Arbitrator was satisfied that their content had valid evidentiary competence to test credibility.
Portions of the medical reports from all treating professionals were reviewed at the hearing and during cross examination several discrepancies in Mrs. McKoy’s description of the accident were noted including direction of travel, the location, whether the car was moving or not, whether the car was driven or towed away, whether she was picked up from the accident, who picked her up, and where she went after. Mrs. McKoy could not explain the differences in her testimony. The Arbitrator felt that her testimony was evasive, showed absence of genuine desire to be responsive, and lacked credibility.
The accident benefit claim applications were reviewed. Unica placed these statements in evidence in the expectation that they would demonstrate that Mrs. McKoy’s claims for certain accident benefits were untrue, invalid, or exaggerated, thereby affecting her credibility in general. Mrs. McKoy’s counsel objected to this, however the Arbitrator allowed the submission of the forms in order to assess the credibility of Mrs. McKoy.
Upon review of here Revenue Canada Records it became clear that Mrs. McKoy had been evasive about her living arrangements with her husband, and upon questioning she eventually said she did not remember if she lived with her husband or not. Her husband did not appear to testify notwithstanding having been served a Summons to appear, and the Arbitrator gave this evidence little weight in his assessment of her credibility.
The driver of the vehicle Mrs. McKoy claimed to be in had actively avoided being served her Summons to Appear. Unica made extended attempts to contact the driver including attending her mother’s home, and leaving a letter with the mother. The driver did not respond to Unica. The other passenger in the car did not attend as a witness, nor was there any specific attempt made to contact her.
The Arbitrator did not draw an adverse inference against Mrs. McKoy, pertinent to the driver of the car. He did however draw an adverse inference against Mrs. McKoy by reason of David McKoy’s decision to not attend as a witness.
The Arbitrator noted that notwithstanding inconsistent testimony, Mrs. McKoy had the location of the accident correct, and that indeed she had suffered a concussion in another accident around the period of giving her affidavit. The human memory can be the victim of unintentional distortion with the passage of time. The Arbitrator also noted that with respect to information provided to a healthcare provider or assessor, factual precision in the details pertinent to a car accident and immediate aftermath may be unintentionally compromised by the nature of the process. The party being examined understands that the examination pertains to physical injury complaint, and consequently may not focus sufficiently on the importance of accurate recall of the facts pertinent to the accident itself.
However the Arbitrator was not satisfied with Mrs. McKoy’s presentation at the hearing, nor her responses to initial questions of how she came to be at the same rehab clinic the day after the accident, and of not being able to pinpoint who referred her. Her repeated answers of I don’t know, or I don’t remember were perceived as not being forthright. She was perceived as being evasive throughout the hearing.
On this basis the Arbitrator was not satisfied that Mrs. McKoy met her burden of proof, on a balance of probabilities, that she was involved in the accident.