Neutral Citation: 2000 ONFSCDRS 34 FSCO A97–000955

Between:

Kwabena Appiah-Brenya, Frank Wiredu-Adjei and Gladys Wiredu-Adjei Applicants

and

State Farm Mutual Automobile Insurance Company Insurer

Reasons for Decision

Before: Suesan Alves

Heard: February 1, 2 and 3, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto. Written submissions were filed on June 3, and 15, 1999

Appearances: David F. Longley for Mr. Appiah-Brenya, Mr. Wiredu-Adjei and Mrs. Wiredu-Adjei W. Casey Van Moorlehem for State Farm Mutual Automobile Insurance Company

Issues:

The Applicants allege they were injured in a motor vehicle accident on June 29, 1996. They applied for statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ In this arbitration they claim weekly benefits, medical and rehabilitation expenses, interest and their expenses of the arbitration.² Mr. Wiredu-Adjei withdrew his claim for a higher benefit rate based on part-time employment at Tradewings.

State Farm disputed that there had been an accident on June 29, 1996, and claimed a repayment of benefits, and its expenses of the arbitration. In the alternative, State Farm submitted that if there had been an accident, the Applicants were not entitled to further statutory accident benefits. The parties were unable to resolve their disputes through mediation, and the Applicants applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Were the Applicants involved in a motor vehicle accident on June 29, 1996?
Is Mr. Appiah-Brenya entitled to income replacement benefits between July 6, 1996 and October 31, 1996? If so, what is the correct amount of his benefit?
Is Mr. Wiredu-Adjei entitled to income replacement benefits between September 26, 1996 and February 15, 1997 at the rate of $262.44 per week?
Is Mr. Wiredu-Adjei entitled to medical expenses for treatments at Goreway Physiotherapy & Rehabilitation Centre and Back in Motion Rehabilitation and Health Care Center under section 36 or 40 of the Schedule?
Is Mrs. Wiredu-Adjei entitled to weekly caregiver benefits between September 27, 1996 and January 24, 1997?
Is Mrs. Wiredu-Adjei entitled to payment for treatment provided to her by Back in Motion Rehabilitation and Health Care Center in the amount of $1,280 as a medical or rehabilitation benefit under section 36 or 40 of the Schedule?
Are the Applicants entitled to interest on overdue benefits?
Is State Farm entitled to a repayment of benefits which have been paid to Mr. and Mrs. Wiredu-Adjei under section 70 of the Schedule?
Are the Applicants or State Farm entitled to expenses in respect of the arbitration?

Result:

The Applicants have failed to establish on a balance of probabilities that on June 29, 1996, they were involved in the motor vehicle accident which they described.
Mr. Appiah-Brenya's claims for income replacement benefits and interest are dismissed.
Mr. Wiredu-Adjei's claims for income replacement benefits, medical expenses and interest are dismissed.
Mrs. Wiredu-Adjei's claims for caregiver benefits, medical expenses and interest are dismissed.
State Farm's claim for a repayment of benefits paid to Mr. and Mrs. Wiredu-Adjei is dismissed.
If the parties are unable to agree on expenses, the issue of expenses may now be addressed.

Adjournment request

Counsel for the Applicants requested an adjournment because one of his clients, Mr. Appiah-Brenya, was not present. He had been scheduled to return to Canada from a business trip during the last week of January 1999, but had not been in touch with his lawyer's office. Counsel assumed that something untoward had occurred and that Mr. Appiah-Brenya was still in Ghana. He had no information as to when Mr. Appiah-Brenya would be available for a hearing and no way of contacting him. Counsel confirmed that his client was aware of the hearing date. Counsel for State Farm opposed the adjournment request.

I was satisfied that Mr. Appiah-Brenya had been provided with notice of the hearing eleven months earlier, was aware of the hearing date and did not attend. I was not persuaded that an adjournment was reasonable in the circumstances of this case, and denied the request. The hearing proceeded in Mr. Appiah-Brenya's absence.

EVIDENCE AND ANALYSIS:

Was there an accident?

The Applicants in this arbitration are Frank Wiredu-Adjei, his wife, Gladys Wiredu-Adjei, and Kwabena Appiah-Brenya, the owner of Tradewings Freight Forwarding Inc. ("Tradewings"). They allege that Mr. Wiredu-Adjei was driving a car in which his wife and Mr. Appiah-Brenya were passengers, on June 29, 1996, at about 5:00 p.m., when they were injured in an accident with a taxi. State Farm alleges that the motor vehicle accident did not occur, no injuries and impairments were sustained and no allowable expenses were incurred by the Applicants. State Farm claims a repayment of benefits. For the reasons which follow I find that the Applicants and the Insurer have failed to meet their respective burdens of proof.

The events of June 29, 1996

Mr. and Mrs. Wiredu-Adjei testified that on June 29, 1996, they drove to Tradewings to see if there was work for Mr. Wiredu-Adjei. If there was, he would remain and work, and Mrs. Wiredu-Adjei would take the car and go shopping for groceries. If there was no work, they would both go for the groceries. I did not find the circumstances of their trip to Tradewings plausible in light of other evidence.

Saturdays are not a regular workday at Tradewings. When Mr. Appiah-Brenya needed staff on a Saturday he would telephone them to come in.³ Mr. Wiredu-Adjei worked at Tradewings between 5:00 p.m. and 11:00 p.m on the evening before the accident.⁴ It is difficult to understand Mr. Wiredu-Adjei's decision to travel the following morning from his home in Mississauga, to Tradewings, located in Toronto, to see if there was work for him. That would have been evident the previous evening, and, in any event, the owner would have called him in to work that day if he was needed.

Mrs. Wiredu-Adjei alleges that she was going to get groceries. However, Mrs. Wiredu-Adjei performed all the usual child care and homemaking duties, except for purchasing the groceries.⁵ I find that Mr. and Mrs. Wiredu-Adjei's stated reasons for travelling that day make no sense when considered in the context of other evidence.

Mr. Wiredu-Adjei testified they arrived at Tradewings, near Finch Avenue and Dufferin Street in Toronto, at approximately 11:00 a.m. He learned that there was no work, but agreed to give Mr. Appiah-Brenya and Mr. Amoako⁶ a ride to a shoe store on St. Clair Avenue before going for groceries. Mr. Wiredu-Adjei testified he drove directly to St. Clair Avenue, in stop-and-go traffic. He was near Yonge Street at about 5:00 p.m. when the collision occurred. I find it implausible that it would take them six hours to drive this distance, even when rainy weather and stop-and-go traffic are taken into account. Mrs. Wiredu-Adjei testified that she fell asleep at Dufferin and Finch, and awoke at the time of the collision. I find it unlikely that she would have slept through a six hour stop-and-go drive.

Mr. Wiredu-Adjei testified that at about 5:00 p.m., a taxi ahead of him and towards his right made a U-turn in front of his car. He applied his brakes and swerved to avoid a collision; however, it was raining heavily, and the left front side of his vehicle struck the taxi on its left in the rear side quarter panel. The damage to Mr. Wiredu-Adjei's 1985 Toyota was to its left fender, bumper and hood, and was estimated at $1,866.19. The only damage to the 1990 Caprice taxi was a paint scratch.

The taxi driver told Mr. Wiredu-Adjei that his name was Don Mirre, gave him the cab number and insurance documentation. Mr. Wiredu-Adjei testified he copied this information on a piece of paper, called the police, was instructed to go to the collision reporting centre, and did so; however, Mr. Mirre did not attend. After leaving the collision centre, he drove Mr. Appiah-Brenya and Mr. Amoako to a bus stop, then drove to Akan Auto with his wife. In an earlier statement,⁷ he said he drove his wife home and then he went alone to Akan Auto. According to Mrs. Wiredu-Adjei, she went to Akan Auto with her husband.

Mr. Appiah-Brenya did not attend the hearing. His statement varies in some respects from the evidence of Mr. and Mrs. Wiredu-Adjei. He stated that the Wiredu-Adjeis left Tradewings at about 4:00 p.m.; not shortly after 11:00 a.m; they were driving to a shoe store at Bloor and Yonge; not one on St. Clair Avenue. These discrepancies were not clarified in the evidence.

I find that the Applicants' evidence was not credible with respect to the circumstances of their trip, the duration of the trip, and the events leading up to the alleged collision. The two passengers, Mr. Appiah-Brenya and Mr. Amoako, may have been able to clarify some of the discrepancies raised by the evidence but did not testify. Mr. and Mrs. Wiredu-Adjei know what they did on June 29, 1996. They have complete control over this aspect of their testimony. Their failure to provide a plausible account of the circumstances before the alleged accident causes me to question the reliability of their evidence with respect to that accident, and the injuries they alleged they sustained.

None of the parties were successful in locating the alleged driver of the taxi, Mr. Don Mirre. State Farm retained Mr. Robert Mullins, an investigator, to locate him. Mr. Mullins confirmed that the policy number, name of the insurer, type of vehicle and the Ontario licence plate numbers were all correctly recorded by Mr. Wiredu-Adjei on the collision report, by reviewing a file at the Metro Licensing Commission. However, Mr. Wiredu-Adjei transposed the taxicab licence from 983 to 938. Mr. Mullins testified that a vehicle licence plate search would yield insurance particulars, but not the Metro taxi licence number. He felt it was unlikely that Mr. Wiredu-Adjei could have obtained all of the particulars except from a driver or from someone who had the insurance slip in his possession.

Mr. Mullins testified that there was no record of a licensed cab driver by the name of Don Mirre at the Metro Licensing Commission. Mr. Mullins then sought out Mr. Ayatti-Ghaffari who owned the taxi and rented the plates of the vehicle Mr. Wiredu-Adjei identified. Mr. Ayatti-Ghaffari testified he operated a fleet of between 30 and 50 taxis, but is no longer in the taxi business. He does not have records which would establish who was driving the taxi on June 29, 1996. Mr. Ayatti-Ghaffari testified that he tried to keep his taxis on the road 24 hours a day, and if the taxi identified by Mr. Wiredu-Adjei was operable, it would probably have been on the road. He testified that the taxi Mr. Wiredu-Adjei identified was never in an accident during the period he leased the 983 taxicab licence. A damaged taxi must be repaired before it is back on the road, or he could be fined up to $2,000. A scratch of paint, the damage which Mr. Wiredu-Adjei described to the taxi, was not the type of damage which he was required to repair.

Mr. Ayatti-Ghaffari testified that he only permitted licensed drivers to drive his vehicles. His practice was to personally see the drivers and inspect his taxis at the 4:30 a.m. and 4:30 p.m. shift changes. He never had a driver by the name of Don Mirre.

Mr. Ayatti-Ghaffari acknowledged that it was possible that one of his taxi drivers could have loaned the taxi to someone else during his shift, and that person could have identified himself as Don Mirre. He observed that the taxi license plate and the Ontario vehicle plate are required to be plainly visible on a taxi. He feels it would be relatively easy to "put two and two together." He testified that there were occasions when people have claimed to have been involved in an accident with his taxis, yet his drivers have denied the accidents.

The evidence suggests two possibilities: the Applicants are telling the truth and Mr. Wiredu-Adjei was misled, either by a licensed taxicab driver, or a "rogue" driver as to his identity, or the accident did not take place. In my view, these explanations are equally plausible.

The medical evidence

The Applicants allege they sustained soft tissue injuries in the motor vehicle accident. Mr. and Mrs. Wiredu-Adjei also allege psychological sequelae. The Applicants provided health practitioner certificates in which their physicians recommend treatment and medication, proscribe activities and attribute their injuries to a motor vehicle accident on June 29, 1996. A physiatrist reported that he was able to reproduce Mr. Wiredu-Adjei's headache symptoms by palpating his greater occipital nerve. Mrs. Wiredu-Adjei alleges that she had an abortion because of her post-accident pain. Mr. Appiah-Brenya is described as having muscle spasm. Such evidence can tend to support the Applicants' allegation that they sustained injuries in a motor vehicle accident. However, even the medical evidence is not without its problems.

During his examination-in-chief Mr. Wiredu-Adjei denied any pre-accident musculoskeletal problems. However, the clinical notes and records of his family physician, Dr. C. Cameron, show that in 1995 he complained of chronic pain in both arms, and that in 1996 he complained of chest wall pain.

Mrs. Wiredu-Adjei complained of severe pain in her right ribcage and to the right of her thoracic spine which interfered with her ability to be a caregiver and home maker. Dr. G. Lloyd, an orthopaedic surgeon who assessed her in September 1996 at State Farm's request, reported that her complaints suggested a significant injury. Dr. Lloyd noted that "patients who have a significant rib injury are usually aware of it within a matter of hours. They are notoriously painful quite quickly." However, Mrs. Wiredu-Adjei stated that her pain began a day or two after the alleged accident, when she first sought medical attention.

Mrs. Wiredu-Adjei testified that she had an abortion approximately a month after the alleged accident because she was in too much pain from her injuries. The earliest reference to her abortion is in a report of an occupational therapist retained by State Farm, who assessed her in August 1996: "[She] revealed that she is no longer pregnant because they cannot afford to have another child as she is not working...she had had an abortion." Mrs. Wiredu-Adjei's testimony and this statement are not necessarily inconsistent. In the absence of her pre-accident records, I prefer her earlier statement, made to a person retained by the Insurer, made closer in time to the event.

Mr. Appiah-Brenya was still undergoing treatment for his injuries from a motor vehicle accident which occurred on May 25, 1996 (about a month before the alleged June 29, 1996 accident). It is difficult to determine what role, if any, the events of June 29, 1996 played in his muscle spasm or in any disability which he may have suffered.

Mr. Wiredu-Adjei has taken many of the usual steps taken after a motor vehicle accident: he went to a collision reporting centre where photographs were taken of his vehicle, he called his broker to report the accident the same evening, took the car to be repaired where it was inspected by someone on State Farm's behalf, and the damage to the vehicle was estimated. Mr. and Mrs. Wiredu-Adjei also sought medical attention and treatment. However, I find that the cumulative effect of the evidentiary problems in this case raise serious questions as to whether the Applicants were involved in the accident they described, and whether they sustained the injuries they allege.

Although the hearing had been scheduled for almost a year, the Applicants requested their pre-accident clinical notes and records or OHIP summaries only two and a half weeks before the hearing. I was provided with no explanation for this delay in seeking and providing documentation.⁸ The notes and records in relation to Mr. Wiredu-Adjei were produced pursuant to a summons from State Farm. In these circumstances I draw an adverse inference and find that the Applicants' injuries and impairments do not result from the accident they described. I also conclude that since the Applicants have failed to establish they were involved in an accident or sustained impairments as a result of the accident they describe, under the provisions of the Schedule, their claims for income replacement benefits, caregiver benefits, and medical and rehabilitation benefits must also fail.

Claim for repayment

State Farm claimed a repayment of statutory accident benefits. State Farm paid statutory accident benefits to Mr. and Mrs. Wiredu-Adjei, but made no such payments to Mr. Appiah-Brenya. The grounds for repayment under section 70 of the Schedule are error, wilful misrepresentation or fraud. State Farm has the burden of establishing that there was wilful misrepresentation or fraud on the part of Mr. and Mrs. Wiredu-Adjei by adducing clear and convincing evidence.

State Farm alleged that the accident did not take place. I agree with State Farm that the Applicants' evidence raises serious questions as to whether there was an accident on June 29, 1996. However, State Farm adduced no engineering or other opinion evidence that the damage to the Toyota could not have taken place in the manner which Mr. Wiredu-Adjei described, or that the physical damage alleged to have taken place to the taxi — not even a dent, just a scratch of paint — was inconsistent with the damage to the Toyota or the nature of the impact. There was some medical evidence which if accepted could tend to support the Applicants' claims that they were injured in a motor vehicle accident. For these reasons, I am not persuaded that State Farm has established on a clear and convincing basis that the accident did not occur, or that they made payments to Mr. and Mrs. Wiredu-Adjei because of wilful misrepresentation or fraud.

State Farm alleged that Mr. Wiredu-Adjei failed to claim collateral disability benefits under a policy with Canada Life Assurance Company. I find that Mr. Wiredu-Adjei had no entitlement to collateral disability benefits before October 26, 1996, because that policy contains a 119 day elimination period. Since State Farm paid Mr. Wiredu-Adjei income replacement benefits until September 25, 1996, I find no overpayment with respect to income replacement benefits paid to Mr. Wiredu-Adjei.

EXPENSES:

The question of expenses was deferred until all other issues in dispute were decided. I encourage the parties to resolve the issue of expenses amongst themselves. If they are unable to do so, the issue of the parties' expenses of this arbitration proceeding may now be addressed.

February 10, 2000

Suesan Alves Arbitrator

ARBITRATION ORDER