Neutral Citation: 1997 ONICDRG 157

OIC A96-000433

ONTARIO INSURANCE COMMISSION

BETWEEN:

DAVID ADU-POKU

Applicant

and

KINGSWAY GENERAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, David Adu-Poku, was injured in a motor vehicle accident on November 18, 1994. Kingsway General Insurance Company ("Kingsway") initially paid for Mr. Adu-Poku's physiotherapy expenses, transportation and income replacement benefits under the Schedule.¹ Mr. Adu-Poku claims ongoing income replacement benefits after Kingsway ceased payments on June 13, 1995, payment of rehabilitation expenses, acupuncture treatment, and transportation costs. The parties were unable to resolve their disputes through mediation, and Mr. Adu-Poku applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mr. Adu-Poku entitled to further income replacement benefits?

2. Did the accident cause Mr. Adu-Poku's injury or impairment?

3. Is Mr. Adu-Poku entitled to payment of further physiotherapy and acupuncture treatments and transportation expenses?

4. Is Mr. Adu-Poku entitled to a special award?

5. Is Kingsway entitled to a repayment order?

6. Is Mr. Adu-Poku entitled to his expenses of the arbitration?

7. Is Kingsway entitled to an order that Mr. Adu-Poku pay the insurer's assessment?

Mr. Adu-Poku also claims interest on any amounts owing.

Result:

1. Mr. Adu-Poku is not entitled to further income replacement benefits.

2. The accident did not cause Mr. Adu-Poku's symptoms.

3. Mr. Adu-Poku is not entitled to payment of further physiotherapy and acupuncture treatment and transportation expenses.

4. Mr. Adu-Poku is not entitled to a special award.

5. Kingsway is not entitled to a repayment order.

6. Mr. Adu-Poku is entitled to one-half of his expenses of the arbitration.

7. Kingsway is not entitled to an order that Mr. Adu-Poku pay the insurer's assessment.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on September 10, 11, 12, and 20, 1996, before me, Fred Sampliner, Arbitrator. I received the parties' written submissions after the close of evidence.

Present at the Hearing:

Applicant:

David Adu-Poku

Mr. Adu-Poku's Representative:

Tom David Barrister and Solicitor

Kingsway's Representatives:

Elizabeth Iwata and Michael Horowitz Barristers and Solicitors

Witnesses:

Frank Greco - plant manager

David Adu-Poku - Applicant

Dr. John Kitakufe - family doctor

Dr. Max Kleinman - physiatrist

Dr. Jack Richman - doctor of occupational medicine

Mr. Paul Rogowski - physiotherapist

Mr. David Darke - claims supervisor

The proceedings were recorded by Gabriella Micelli and Lori Tobis of Professional Court Reporters.

Exhibits:

The parties filed seven Exhibits. The parties also referred to documents, which are not marked as exhibits (listed in Appendix A).

Evidence and Findings:

Mr. Adu-Poku was a rear seat passenger when the car he was riding in hit another vehicle broadside. Although he was wearing a seat belt, the impact caused his body to move forward and back. Mr. Adu-Poku went to Queensway General Hospital emergency room the same day, with complaints of generalized aches and pains. He was examined, released, and advised to rest, use ice, and take pain medication as needed. Mr. Adu-Poku next sought treatment for back pain after the accident on January 7, 1995, when he visited Dr. J.C. Kitakufe, his family physician.

Mr. Adu-Poku was employed as a general factory labourer at United Window Manufacturers ("United Windows") at the time of the accident. He claims that the soft-tissue injuries to his neck and back caused him increasing pain over the following two months, which forced him to leave his job at United Windows on January 20, 1995.

Mr. Adu-Poku is entitled to a weekly income replacement benefit under section 7 of the Schedule if he sustains an impairment as a result of the accident, which causes him to suffer a substantial inability to perform the essential tasks of his job at United Windows. Kingsway argues that the accident did not cause his injuries, and seeks repayment of all benefits.²

Mr. Adu-Poku's Job at United Windows:

Mr. Adu-Poku worked full time, five and a half days a week at United Windows. He had two main functions: piling lumber and operating a machine that shaped the wood for window frames. He stood at a machine and bent over to pick up lumber from a skid. Mr. Adu-Poku fed pieces of lumber weighing up to 15 or 20 pounds into the machine. Workers were required to meet daily production quotas. Mr. Adu-Poku performed other jobs around the plant, but I did not receive evidence describing them.

Pre-Accident Condition:

Mr. Adu-Poku had sustained soft-tissue injuries to his neck and lower back in a prior October 15, 1993 automobile accident. He received physiotherapy treatment until April 1994. He also suffered low back pain from a slip and fall accident in February 1994. After April 1994, Mr. Adu-Poku did not seek any further medical attention for these injuries. He began working full time at United Windows in August 1994.

The evidence is uncontradicted that Mr. Adu-Poku did not experience back pain from May 1994 until the November 1994 accident. He had worked full time for three months at United Windows, without any symptoms. This evidence persuades me that Mr. Adu-Poku's prior injuries were not symptomatic at the time of the October accident.

Post-Accident Work:

The evidence is undisputed that Mr. Adu-Poku worked full time during the two months after the accident (November 18, 1994 accident until January 20, 1995).³ Mr. Adu-Poku testified that he complained to his fellow workers and plant manager about the back pain after the accident, and that he had difficulty reaching his production quota.

The manager at United Windows, Mr. Frank Greco, testified that he moved Mr. Adu-Poku to light duties in mid-December 1994 because Mr. Adu-Poku's production was low.⁴ Mr. Greco stated that Mr. Adu-Poku remained on light duties until his last work date. He did not know why Mr. Adu-Poku did not report for work after January 20, 1995. There is no documentary evidence of Mr. Adu-Poku's back pain or disability at United Windows.

Mr. Adu-Poku denies that he worked at a second job during January 1995, claiming that a friend used his identity. However, an earnings statement from Temporary Industrial Personnel Specialists ("TIPS") indicates that Mr. Adu-Poku was paid $647 for 29.5 hours of factory labour during January 1995. He signed two written statements to Kingsway that he worked for TIPS, and his medical records from two physicians (Dr. Kleinman and Dr. Kitakufe) mention this second job. In light of this evidence, I am satisfied that Mr. Adu-Poku was employed by TIPS during January 1995, in addition to his regular full-time employment at United Windows.

Mr. Adu-Poku's Evidence:

Mr. Adu-Poku testified that he felt pain all over his body at the time of the impact and throughout that Friday. The pain continued over that weekend, and he did not go to church, shop or do any cleaning.

Mr. Adu-Poku testified that when he went to work the following Monday, he could not keep up with his co-workers production. He complained to Mr. Greco, who reduced his duties two or three weeks after the accident. According to Mr. Adu-Poku, he continued to experience increasingly debilitating low back and neck/shoulder pain.

Mr. Adu-Poku's written statements to Kingsway contradict his testimony. His November 1994 statement indicates that he was fine the day following the accident, and returned to his job without any restriction in duties or further pain. Mr. Adu-Poku did not explain why he did not purchase pain medication prescribed by the emergency room physician. His second statement in January 1995 reads:

As the accident happened on Friday night, I rested and did not experience any pain and returned to work on Monday morning. I did my job as usual with no complaints of any pain or discomfort.

At that time, Mr. Adu-Poku was working at two jobs, and had been to his family doctor for back pain. Mr. Adu-Poku's claims at arbitration and his two prior written statements present dramatically different pictures of his post-accident health.

Again, in July 1995, Mr. Adu-Poku represented that he was in good health. On a life insurance application, Mr. Adu-Poku denied any accident injuries, sickness, or disability, while at the same time continuing to claim a substantial work disability to Kingsway.

Similarly misleading, Mr. Adu-Poku's written statements indicate that he was not involved in previous motor vehicle accidents, which was contradicted by his acknowledgement in testimony and other evidence that he sustained an injury in a 1993 motor vehicle accident.

Mr. Adu-Poku's misrepresentations and mistakes about his accident history, health, disability and earnings are too numerous and significant to excuse as honest mistakes. At best, the contradictions cast doubt on his reliability and credibility. Under the circumstances, I have no hesitation in finding that Mr. Adu-Poku's evidence cannot be relied upon.

Evidence of Dr. Kitakufe:

I have similar concerns with the evidence of Mr. Adu-Poku's family physician, Dr. Kitakufe. In his first health practitioner's certificate (January 1995) and first full medical report (October 1995), Dr. Kitakufe stated that he examined Mr. Adu-Poku on the day of the accident. However, Dr. Kitakufe admits that his reports are in error, and that he first saw Mr. Adu-Poku on January 7, 1995, a month and-a-half later. Dr. Kitakufe's admission that he erred does not adequately explain this inaccuracy to my satisfaction.

Further, Dr. Kitakufe represented in an August 1995 health certificate for Mr. Adu-Poku's life insurance that while Mr. Adu-Poku had suffered soft-tissue injuries as a result of the automobile accident, he was improved after physiotherapy, and "Now he is OK." Dr. Kitakufe's conclusion troubles me because his opinion is opposite to his testimony that Mr. Adu-Poku's injuries continued to be serious and debilitating. Dr. Kitakufe's explanation that wanted to assist Mr. Adu-Poku obtain life insurance convinces me that he will tailor his professional opinion to advance his patient's interests. As a consequence of Dr. Kitakufe's willingness to tailor his professional opinion and reporting errors, I do not rely upon his evidence or opinion.

Dr. Richman's and Dr. Kleinman's Evidence:

Dr. Jack Richman is a specialist in occupational medicine. He conducted a work capacity evaluation at Kingsway's request on April 10 and 26, 1995. His report and testimony are in evidence.

Dr. Richman's report states that Mr. Adu-Poku described his ongoing back pain as beginning one or two hours after waking up in the morning, but improving towards the end of the day. Mr. Adu-Poku also reported that he had mid-back pain, lasting fifteen to twenty minutes a day, four days a week, although there is no mention of mid-back pain in any other evidence before this date. He did not complain of shoulder pain.

Dr. Richman's report states that Mr. Adu-Poku assessed his own work abilities as very severely disabled. However, Dr. Richman found that he was in good physical shape and was able to perform many of the tests adequately. Although Mr. Adu-Poku answered questions indicating that he could not shop, vacuum, sweep, house clean or do laundry, he also reportedly said that he could perform household chores with slight or no pain.

Dr. Richman tested Mr. Adu-Poku's maximum voluntary effort. Dr. Richman found a significant variation in Mr. Adu-Poku's grip strength. Dr. Richman stated that the heart monitor used to measure Mr. Adu-Poku's exertion during his exercises indicated that he was not applying full effort during the tests.

In examination, Dr. Richman found that Mr. Adu-Poku had full range of motion of his lower back, with tightness at the extremes of the range. There were muscle spasms in Mr. Adu-Poku's lower back, and ligament inflammation.

Mr. Adu-Poku was able to lift 12 pounds during testing. Mr. Adu-Poku told Dr. Richman that he was exercising and bicycling two or three hours a day, five days a week. Dr. Richman testified that Mr. Adu-Poku's muscle tone and physical health were good. Based upon the testing, Dr. Richman found that Mr. Adu-Poku had exaggerated his symptoms, and that he was capable of lifting and carrying twenty pound pieces of lumber. It is Dr. Richman's opinion that Mr. Adu-Poku. could work full time, providing he had a high stool or ergonomic chair for rest breaks.

Findings On Disability:

Mr. Adu-Poku's claim for income replacement benefits is based upon the opinion of Dr. Kitakufe, whose evidence is unreliable. Dr. Richman is of the opinion that Mr. Adu-Poku is capable of working as an assembler and machine attendant,⁵ with slight modifications. There is no reliable medical opinion that Mr. Adu-Poku suffers a substantial inability to perform the essential tasks of his employment at United Windows after June 13, 1995. Based upon Dr. Richman's opinion, I find that Mr. Adu-Poku is not entitled to further income replacement benefits, under section 7 of the Schedule.

NorthWest Rehabilitation Associates is a Designated Assessment Centre (DAC). Dr. Max Kleinman conducted an examination and assessment of Mr. Adu-Poku's eligibility for weekly benefits in June 1995. His report and testimony are in evidence, but apparently the DAC did not conduct the detailed work capacity or functional testing performed by Dr. Richman. I am impressed by and rely upon Dr. Richrnan's comprehensive testing and analysis of Mr. Adu-Poku's function.

Causation:

Mr. Adu-Poku contends that his symptoms were a result of the November 1994 accident. The only expert evidence that he relies on is Dr. Kitakufe, whose opinion I do not accept.

On the other hand, there is compelling medical opinion and evidence that Mr. Adu-Poku's problems are not accident-related. Dr. Richman testified that Mr. Adu-Poku told him in April 1995 that the symptoms did not appear until about three days before he went to see Dr. Kitakufe on January 7, 1995, and that he was completely symptom-free during the five weeks after the accident. Dr. Richman's evidence is consistent with Mr. Adu-Poku's written statements to Kingsway about the onset of symptoms, and I accept it.

The plant manager, Mr. Greco, testified that Mr. Adu-Poku's production went downhill two or three weeks after the accident. He was aware that Mr. Adu-Poku had an unrelated gastro-intestinal problem during that period. He saw Mr. Adu-Poku stretch sometimes too. However, he could not confirm that Mr. Adu-Poku suffered back, neck or shoulder pain during the five week post-accident period.

In this case, the evidence has been established to my satisfaction that though Mr. Adu-Poku initially attended at the emergency room with generalized aches and pains, he did not seek further medical attention or take any pain medication during the five weeks thereafter. He worked full time, and his employer cannot confirm his complaints at work. Mr. Adu-Poku also began a second job, about the same time that he first saw his family doctor about the accident.

Dr. Richman and Dr. Kleinman agree that a causal link between the accident and the appearance of Mr. Adu-Poku's symptoms cannot be established without symptoms during this period. While the developed case law at the OIC has recognized that an accident need not be the sole cause of a person's symptoms, an applicant is required to establish, on a balance of probabilities that the accident resulted in some significant or material contribution to the condition.⁶ On a balance of probabilities, I find that Mr. Adu-Poku has not established that the mild discomfort he suffered immediately after the accident either caused or significantly contributed to his symptoms in January 1995.

Physiotherapy Expenses:

I must determine whether Mr. Adu-Poku is entitled to medical services in the event that I am wrong on the causation issue.

Mr. Adu-Poku seeks payment of his physiotherapy treatment and transportation expenses at Get Well Rehabilitation Centre ("Get Well") and Yorkgate Rehabilitation Centre ("Yorkgate"), under section 36 of the Schedule. The section provides that if an insured person sustains an impairment as a result of the accident, the insurer is required to pay for reasonable medical expenses that are recommended by a health care practitioner.

Mr. Adu-Poku complained of constant low back pain and occasional pain between his shoulder blades when he was first examined by a physiotherapist at Motivated Rehabilitation in February 1995. He had good range of motion, but tender muscles in the area of his thoracic and lumbar spine. The therapist was not convinced Mr. Adu-Poku's back problems were serious, and stated that most of his functional activities were not affected, except for prolonged activities.

Get Well provided a three day per week physiotherapy program to Mr. Adu-Poku from March through mid-August 1995. Mr. Paul Rogowski, physiotherapist, found that Mr. Adu-Poku's chief problem was low back pain with muscle spasm. He found that Mr. Adu-Poku had limited forward flexion of his back, aggravated by prolonged sitting, standing or walking. The progress reports state that Mr. Adu-Poku's pain and mobility were modestly improved over the treatment period.

Seven months elapsed between the time Mr. Adu-Poku ceased physiotherapy at Get Well until he commenced a new program at Yorkgate. Mr. Adu-Poku attended 43 treatment sessions between April 1, 1996 and June 8, 1996.⁷

The Yorkgate program was recommended by Dr. Pierre Kirwin. Dr. Kirwin first examined Mr. Adu-Poku almost a year and-a-half after the accident, diagnosing chronic low back pain and a left shoulder impingement. However, Dr. Kirwin did not testify, and his reports do not address the causal connection between the accident and his diagnosis, nor does his evidence provide an assessment of the reasonability of treatment.

Mr. Adu-Poku did not adequately explain the seven month gap between attendances at the two clinics. In my view, an applicant who seeks reimbursement for accident-related services after a lengthy delay in treatment is under a burden to establish a causal connection to the original injuries. Mr. Adu-Poku did not establish a nexus between the accident and his treatment at Yorkgate. Consequently, I find that the physiotherapy services at Yorkgate are not reasonable. If I am wrong on the causality issue, then I would rely upon Dr. Kleinman's opinion in respect of the reasonability of Get Well's services. Dr. Kleinman stated that he would recommend a maximum of eight weeks of physiotherapy. The substance of Dr. Kleinman's reasoning is that the therapy is of limited value due to the four-month delay in commencement of treatment. Mr. Rogowski did not explain why he thought the entire treatment program was reasonable, nor do I have any other evidence from a reliable health practitioner to support the physiotherapy program that Get Well provided. Under the circumstances, I am not convinced that the entire five months treatment was reasonable.

Kingsway paid for five weeks of physiotherapy (15 sessions between March 28, 1995 and April 28, 1995, plus associated transportation costs). If the accident caused or significantly contributed to Mr. Adu-Poku's symptoms, I would rely upon Dr. Kleinman's opinion, and find that he is entitled to be reimbursed for the costs of an additional three weeks of physiotherapy.

Acupuncture Services:

If I am wrong on the causation issue, I would order Kingsway to pay for acupuncture treatment. Dr. Richman recommended that Mr. Adu-Poku receive a course of acupuncture treatment to relieve his back pain, regardless of the causation issue. Mr. Adu-Poku received two of the 16 planned treatments in April 1995 from the Shiatsu Acupuncture Clinic, which have not been paid. Kingsway produced no evidence that this treatment plan was unreasonable, and I rely on Dr. Richman's opinion. Accordingly, I would find Mr. Adu-Poku should receive reimbursement for the two acupuncture treatments. I did not receive any evidence of the necessity of treating Mr. Adu-Poku with acupuncture at this time, and I decline to make any findings concerning future treatment with this modality.

Special Award:

Arbitrators are empowered to make a special award against an insurer that has unreasonably withheld or delayed payment of benefits.⁸ OIC decisions have established that an arbitrator is not empowered to make a special award unless additional benefits are granted.⁹ Although I have found that the accident did not cause or significantly contribute to Mr. Adu-Poku's condition, Kingsway's behaviour deserves comment in relationship to the potential for a special award.

Mr. David Darke, Kingsway's representative, testified that on June 26, 1995 he wrote a letter to Mr. Adu-Poku's lawyer informing him that Kingsway would not pay further disability benefits based upon the IME and DAC reports. Kingsway never produced the letter. Further, Mr. Darke testified that he telephoned Mr. Adu-Poku's lawyer to explain that Kingsway would not pay further physiotherapy expenses. Mr. Darke did not produce any log notes or other proof to confirm the conversation. I do not accept Mr. Darke's claim that he notified Mr. Adu-Poku or his representative that Kingsway was refusing to pay for further physiotherapy. Kingsway received Get Well's second bill in October 1995. The company never paid any portion of the expenses or provided Mr. Adu-Poku with an explanation of its position.¹⁰ Kingsway treated the bills from the Shiatsu Acupuncture Clinic and Yorkgate similarly.

The Schedule requires that generally insurers must pay for medical treatment arising out of an insured person's accident injuries pending the resolution of any dispute about the reasonableness of the expense.¹¹ In addition, insurers are required to provide the person with notice of the reasons for refusing to pay a medical benefit.¹² Mr. Adu-Poku claims that Kingsway violated these procedures.

Kingsway failed to inform Mr. Adu-Poku that any claims he would submit would be denied, and refused to evaluate or consider reports from his health care practitioners or respond in any way to treatment expenses he submitted. I find that Kingsway's failure to provide Mr. Adu-Poku with notice or to respond to his claims stubborn, inflexible and immoderate.¹³ If the scales had tipped in favour of Mr. Adu-Poku on the causality issue, I would have been prepared to make a special award. Additionally, the company's high-handed failure to comply with the notice provisions of section 66(7) may attract attention of regulators.

Repayment:

Kingsway submits that Mr. Adu-Poku wilfully misrepresented his degree of disability. Under section 70 of the Schedule, an insured person must repay any benefits received through wilful misrepresentation.¹⁴

"Wilful" is deliberate or intentional action.¹⁵ While I accept that Mr. Adu-Poku exaggerated his symptoms for purposes of entitlement to weekly benefits, the evidence is that he believed the symptoms were serious and caused by the accident. Though Mr. Adu-Poku's belief may have been ill-founded, I do not accept that his conduct amounts to wilful misrepresentation. I find that Kingsway is not entitled to a repayment order.

Expenses:

The parties were unnecessarily argumentative during the course of the hearing, and their written submissions were not helpful. Mr. Adu-Poku's claim is weak, and his counsel's written submissions provided me with no assistance on the law. Under the circumstances, I am prepared to award half of Mr. Adu-Poku's arbitration expenses. The parties may apply for an assessment if they cannot agree.

Insurers' Assessment:

Kingsway requests that Mr. Adu-Poku be ordered to reimburse the company for the fee it paid to participate in the arbitration process. Arbitrators have ordered applicants to pay the insurer's assessments where the claims were entirely unmeritorious or are frivolous, vexatious or an abuse of process.

I cannot agree with Kingsway that Mr. Adu-Poku's arbitration amounts to an abuse of process. The parties disagreement on causation, treatment and disability were highly adversarial, but based upon the views of their health care experts. As long as the evidence shows that an applicant maintains an honest belief in the legitimacy of his or her claim based upon expert evidence, it is my view that there is no abuse of process. Thus, although I did not accept Mr. Adu-Poku's expert evidence, I find that his reliance upon it does not constitute an abuse. Accordingly, I find that Kingsway is not entitled to an order that Mr. Adu-Poku pay its assessment.

Order:

1. Mr. Adu-Poku is entitled to one-half of his expenses of the arbitration process.

August 20, 1997

Fred Sampliner Arbitrator

Date

APPENDIX A

1. Get Well invoice #1115, dated November 15, 1995; and invoice #1224, dated December 20, 1995.

2. Get Well invoice #1001, dated October 10, 1995 with travel vouchers.

3. Get Well invoices #0134, #0116, undated.

4. Yorkgate Rehabilitation invoice #0941886, dated May 1, 1996; invoice #0940723, dated August 30, 1996; invoice #0941712, dated April 2, 1996; travel expense sheet.

5. Letter from Ponton Coleshill Edwards & Assoc. (insurance adjusters) to Get Well, dated June 28, 1995.

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents after December 31, 1993, and before November 1, 1996, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94.
2. 2The parties agree that the quantum is $344.80 per week.
3. 3The plant was closed 9 or 10 days between Christmas and New Year, and Mr. Adu-Poku was off sick during the first week of January 1995.
4. 4Mr. Adu-Poku submitted an undated unsworn statement from Mr. Greco. I prefer Mr. Greco's sworn testimony at the hearing as the best evidence.
5. 5Canadian Classification and Dictionary of Occupations (CCDO)
6. 6Flemming and Wawanesa Mutual Insurance (April 28, 1992), OIC 000406; Whitney and Co-operators General Insurance Company (March 31, 1993), OIC A-001005; Edwards and State Farm Mutual Automobile Insurance Company (July 12, 1993), A-001707
7. 7Yorkgate invoices #0941886, #0940723, #0941712.
8. 8Insurance Act section 282(10)
9. 9Whitney (supra); Jensen and Gan Canada Insurance Company (Sept. 24, 1996), OIC A95-000577; Cowie and The Non Marine Underwriter's, Members of Lloyd's (Aug. 12, 1996) P-001159/P-005767 appeal
10. 10The charges represent physiotherapy and transportation expenses incurred from May through August 1995. The principal balance is agreed at $15,103, exclusive of interest under the Schedule.
11. 11Section 36(4)
12. 12Section 66(7)
13. 13Plowright and Wellington Insurance Company, October 29, 1993; OIC A-003985
14. 14Upper and Canadian General Insurance Company (June 3, 1994) OIC A-002855; Kahkesh and Lloyd's Non Marine Underwriters (March 31, 1992), A-000378; Nijjar and Co-operators General Insurance Company (April 14, 1994), OIC A-004436
15. 15Oxford Dictionary