Volume. 4 Issue. 4 – January 29, 2020
Toxic Spill Incident Not ‘Accident’, Snow Removal & Shuttleworth Irrelevancy
Toxicity – In the aftermath of a fatal tractor-trailer collision, the Applicant in 18-010791 v Economical, was one of many responsible for cleaning up the two substances that spilled onto the highway, mainly the flammable liquid, wearing no personal protective equipment. As a result, he suffered physical impairments, including a collapsed lung from exposure to the various liquid and powder substances. He was further traumatized by having to strap down the deceased operator. There was found to be no doubt that “on the balance of probabilities, the applicant suffered physical and psychological injuries as a result of the incident”.
Following the Supreme Court in Vytlingam, coverage was confirmed as being “limited to motor vehicles being used as motor vehicles…Using similar reasoning, when the truck and tractor-trailer collided, they were no longer operational, they were no longer functioning as a motor vehicle. Therefore, the toxic spill and resulting impairments could not stem from a direct result of the use and operation of a vehicle.” Ultimately, the Tribunal indicated that “What the applicant is really asking me to decide, is whether the respondent should be responsible for any impairments that arise out of the aftermath of an accident that has already occurred? The answer is no.”
The Tribunal, turning to the use and operation of the vac-truck, found that it was not the cause of the injuries. Rather, “it was exposure to the toxic flammable substance, the chalk-like substance and absorbal for an extended period of time.” Further, “the use and operation of the vac-truck would be considered ancillary to the impairments…and it was the exposure to the three substances over a long period of time that were the dominant feature of the impairments, not the vehicle.”
Snow Day – In 18-010779 v Economical, the Applicant fell during the course of cleaning snow off of her car. The fall occurred while the Applicant was walking around to another side of the car to continue clearing snow. The Tribunal found that “the use or operation of the vehicle has not ended at this point…[the Applicant] was still in the process of using the vehicle…[and] the fall was not an intervening act, and therefore there is no break in the chain of causation”. Further, “legislation dictates that a driver is required to clear off any excess snow before operating a vehicle on a roadway. Thus, this legislative requirement supports the position that clearing snow off a vehicle is part of the normal use and operation.”
Made Up My Own Mind – Again – In 18-001607 v Economical & 18-003343 v Intact, the Vice-Chair, hearing her own reconsideration, upheld her earlier finding that the incident in question, an explosion whilst repairing a fuel pump, did not meet the Purpose Test. One of the Applicant’s submissions suggested that the “Tribunal’s decision-making process is flawed”. The Vice-Chair however confirmed that the “Shuttleworth case is a singular instance and the Court of Appeal decision in Shuttleworth does not render the whole Tribunal inherently bias [sic]. The applicants have not provided any evidence to support a finding that I did not reach my decision independently or that my decision was amended or influenced by my colleagues.”
Analysis Not Reflected in Notes and Failure to Pay Interest Lead to Awards
Better Check Your Notes – In 18-003238 v Aviva, the Tribunal made an award of 25% of certain disputed items, largely based upon the absence of references in either the adjuster’s log notes or associated EOB’s. The Applicant’s position was that “nothing is mentioned in the log notes regarding any information included in the OCF-18s, any s. 25 reports or any of the CNRs of [the Applicant]’s treating doctors.” In considering a Treatment Plan for physical therapy, the Tribunal found, “There is no discussion in the adjuster log notes, or in the related Explanation of Benefits (EOB), that … information, which formed part of my finding that [the Applicant} was entitled to this treatment plan, was considered or analyzed by [the Respondent]…”.
Dealing with (only) the psychological assessment and treatment portion of two chronic pain program Treatment Plans, it was found that the Respondent “failed to consider all of the information available to it contained in its own s. 44 reports.” The Tribunal relied upon an initial psychological IE report to support intervention, however the Respondent relied upon a second assessor’s opinion to deny the treatment plan. The Tribunal noted however that psychological testing results were the same in each assessment, and that “no discussion or consideration evident in the log notes, or in the related EOB, regarding [the second assessor]’s inconsistent finding that [the Applicant] not have a diagnosable psychological condition with [the first assessor]’s diagnosis of [the Applicant].”
Interest(ing) Award – In 18-004878 v Aviva, the Respondent initially paid the Applicant IRB at the rate of $34.32 per week for a June 2017 accident, with the initial payment being made in April 2018. The amount was subsequently corrected, with the Respondent making a payment of in excess of $23,000 in December 2018, with no interest being paid on the amount. The Respondent asserted that their accountant had not been provided essential documentation, however the Tribunal noted that even after discovering and making the correction, there was a delay in making the payment of several months.
The Tribunal found “the fact is the proper calculation was not only made a significant time after the accident, it was paid even later and without interest…[The Respondent] is therefore indemnified to [the Applicant] by paying interest as a result of the late payment.” Given the finding that interest ought to have been paid upon correcting the calculation, an award of 20% of the applicable interest (only) was made. There was no award made with respect to the late payment itself.
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