Randhawa and State Farm Appeal
The power of contemporary accounts is demonstrated in this new appeal decision from FSCO. On September 18, 2011 the claimant suffered a fall that left him wheelchair bound. There were two competing versions of how this happened:
1.In the 911 call, substantiated by the EMS report and hospital emergency report, he was out drinking with his brother and was dropped off at his home around 9:30 pm. He fell into a ditch and was found by his wife an hour and a half later. EMS was not called until four hours after the incident.
2.The claimant’s testimony, and the evidence of his family and friends were that, as he exited the car driven by his brother “the wind” caused the door to hit him, resulting in a fall.
The arbitrator at first instance, Isoken Osunde, found the claimant, his friends and family less credible than the recording of the 911 call, which clearly showed that no automobile was involved in this incident. She stated, “I find the fact that Mr. Randhawa was exiting a vehicle when he fell too crucial for it to have been omitted at the time the 911 call was made.”
On Appeal, Director’s Delegate Rogers upheld the Arbitrator’s findings of fact. A FSCO arbitrator’s decision is only appealable on matters of law. But are there circumstances were an error of fact can amount to an error of law?
Certainly there are. The director’s delegate outlined this type of appeal succinctly by quoting Truong and Lumbermens, an appeal of Delegate Makepeace:
… the test for error of law ‘is whether the decision was based on a material finding of fact that was not supported by the evidence such that a reasonable tribunal acting judicially and properly directed in law could not have made the finding in question.
It is not enough that there be evidence to support one side or another. An arbitrator (or LAT adjudicator) is entitled to accept evidence, reject evidence or put more weight on some evidence rather than others. It is often said that the trier of fact, at first instance, is in the best position to judge credibility of witnesses and thus to make evidentiary findings, because they have the witness there before them, and can hear their testimony first hand.
This leads to two interesting points for consideration:
1.The source of the evidence is crucial. Contemporaneous accounts are likely to be given greater weight than those made later. A 911 call surrounding the accident is likely to have evidence of what happened while the event is fresh in peoples' memory, and unvarnished by the passage of time, or considerations of insurance coverage. There is an entire area of evidentiary law surrounding “excited utterances” where someone says something at the time of the event. They are often given great weight by the trier of fact.
2.The current trend at the LAT of having written hearings and “hybrid hearings” where the witnesses are not before the trier of fact is not helpful for the trier of fact in assessing credibility unless you have evidence for which a proper cross examination can be conducted upon. This puts greater importance on investigating a claim early, not just for coverage issues, but for investigating the merits of the claim. Section 33 is probably your best friend in conducting these investigations.
The take away is that early investigation always leads to a better handled claim.