FSCO Arbitrator Joyce Miller has ruled that a claimant who slipped on ice after exiting her car, and after walking around the front of the car toward the curb, was involved in a motor vehicle accident for the purpose of collecting accident benefits.
The case is called Webb v. Wawanesa. In her decision, Arbitrator Miller introduces the claimant, as follows:
Ms. Webb, who is 36 years old, is a single mother of two boys, ages 10 and 8. She works outside the home as a real estate agent.
Webb testified that on the date of loss she was going to visit a friend. There was no snow or ice on the road. However, there was a snowbank, two feet in height and over a foot wide going from the road to the curb that ran the length of the north side of the street. The only way to get onto the sidewalk was through access points that had been shovelled out. To the best of her knowledge the city clears these access points. There is no other way to access the sidewalk than through these access points.
She testified that she was able to park her car directly in front of an access point, in front of another vehicle. She stated that she exited her car on the driver’s side, locked the door and walked around the car to the front. She stated that she has a compact car and it took her, a few seconds, two or three steps to get to the access point. When she put her foot onto the access point, she slipped on ice and fell backwards. As a result of this fall, Ms. Webb broke four bones in her right foot.
As a result of the incident, Webb applied to Wawanesa for accident benefits. Wawanesa denies her claim on the basis that she was not involved in an “accident” under the SABS. For clarity, the SABS defines “accident”, as follows:
“accident” means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device; [emphasis added]
Wawanesa argued that the access point constituted a different geography and was an intervening event. Once Webb had exited her vehicle and walked to the front of her vehicle, the disembarkation had concluded as she stepped onto the access point and, accordingly, she was no longer engaged in the ordinary activities to which an automobile is put.
Arbitrator Miller disagreed.
Citing a long line of FSCO decisions defining “accident”, Arbitrator Miller found that the use of her vehicle “directly” caused Webb’s impairments, apparently because this single, working mother of two young boys was still “disembarking” from her vehicle when she was walking on the road around the front end of her car and then stepped onto the access point. The arbitrator concluded:
I find that when Ms. Webb was compelled to park at the access point it created a risk that set in motion an unbroken chain of events which resulted in her tripping on the roadway at the access point. Although the tripping on the roadway at the access point caused Mrs. Webb’s injuries, I find as a fact that this was “ancillary” to her being compelled to disembark at the access point. I find that the time, proximity, activity and risk with a subsequent contributing cause did not break the chain of causation. Accordingly, I find that the use of a motor vehicle caused an uninterrupted chain of events ending in Ms. Webb’s injuries.
It isn’t clear whether the arbitrator would have found differently had the evidence been that Webb was unable to find a convenient spot, in the middle of February, directly in front of an access point.