Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2013 ONFSCDRS 55

FSCO A11-001929

BETWEEN:

PRINCE TUTU AKOWUAH

Applicant

and

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY

Insurer

Before: Edward Lee

Heard: September 10, 11, and 12, 2012, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Georgiana Sirbu for Mr. Akowuah

Jonathan B. Schrieder for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Prince Tutu Akowuah, was injured in a motor vehicle accident on February 13, 2009. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ State Farm terminated weekly income replacement benefits in July 2009. The parties were unable to resolve their disputes through mediation, and Mr. Akowuah 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:

Is Mr. Akowuah entitled to receive a weekly income replacement benefit of “up to $400.00” (less amounts paid) from February 13, 2009 to October 22, 2009?
What is the amount of weekly income replacement benefit that Mr. Akowuah is entitled to receive?
Is Mr. Akowuah entitled to receive a medical benefit for two treatment plans in the amounts of $3,510.00 and $2,690.00?
Is Mr. Akowuah entitled to attendant care benefits of $853.78 per month from February 13, 2009 to October 22, 2009?
Is Mr. Akowuah entitled to payments for housekeeping and home maintenance services in the amount of $100.00 per week from February 13, 2009 to October 22, 2009?
Is Mr. Akowuah entitled to payments for the cost of examinations of $2,000.00 for two Form 1’s, $63.72 for an FAE and $569.80 for an MRI?
Is State Farm liable to pay Mr. Akowuah’s expenses in respect of the arbitration?
Is Mr. Akowuah liable to pay State Farm’s expenses in respect of the arbitration?
Is Mr. Akowuah entitled to interest for the overdue payment of benefits?

Result:

Mr. Akowuah is not entitled to receive a weekly income replacement benefit of “up to $400.00” (less amounts paid) from February 13, 2009 to October 22, 2009.
Mr. Akowuah is entitled to receive a medical benefit for one treatment plan in the amount of $3,510.00.
Mr. Akowuah is not entitled to attendant care benefits of $853.78 per month from February 13, 2009 to October 22, 2009.
Mr. Akowuah is not entitled to payments for housekeeping and home maintenance services in the amount of $100.00 per week from February 13, 2009 to October 22, 2009.
Mr. Akowuah is entitled to payments for the cost of $569.80 for an MRI.
Mr. Akowuah is entitled to interest for the overdue payment of those benefits he has been awarded in this arbitration.

CONCLUSION:

Overall, little or no credible and trustworthy evidence was presented to substantiate Mr. Akowuah’s case. Through much of his claim, Mr. Akowuah simply did not meet his burden of proof. His testimony, the documentary record and the medical evidence were replete with important omissions, numerous contradictions and inconsistencies. Late in the hearing, after the presentation of glaringly contradictory and incompatible evidence (much of it through his own testimony), Mr. Akowuah significantly reduced the time period during which he sought benefits.

EVIDENCE AND ANALYSIS:

Entitlement to Income Replacement Benefits

At the pre-hearing discussion of February 21, 2012, Mr. Akowuah claimed an Income Replacement Benefit (“IRB”) of $52.00 per week from February 20, 2009 to July 15, 2010; and $300.00 per week from July 16, 2010 to February 3, 2011. When the hearing commenced before me, Mr. Akowuah increased his claim to “up to $400.00” per week from February 20, 2009 to February 13, 2011, less any amounts previously paid. On the third day of hearing, Mr. Akowuah amended his claim again, reducing the period of entitlement to February 20, 2009 to October 22, 2009.

Mr. Akowuah did not initially claim IRBs. At the time of the accident, he was not working, having been laid off from his employment as an order picker in late November or December 2008. Instead, he was studying engineering as a full time student at Humber College. Eventually, he did claim IRBs and received approximately $1,036.00 before this benefit was terminated in July 2009.

Evidence Regarding Workplace:

Mr. Akowuah testified that he had been an order picker for Colinx until November 2008. In this capacity, he retrieved orders and placed them in carts. His work involved scanning orders, lifting objects, and climbing a ladder. He testified that post-accident, he had pain in his back, neck and head, and that he experienced problems sitting for long periods of time because of low-back stress. He was unable to work out at the gym or play soccer.

Nevertheless, he never testified that he would have been disabled from performing the essential tasks of his pre-accident employment. Further, no workplace assessment or analysis was adduced, and there was no other evidence concerning Mr. Akowuah's job. No other details of his workplace activities, such as the type of lifting, the amount of lifting or the weights involved, were tendered.

Mr. Akowuah missed no schooling after his accident. He graduated one year later than anticipated, but not because of accident-related disability. Rather, he commenced a new job in August 2009, training and working as a personal fitness trainer.

Medical Evidence:

Dr. Laura Tummonds, chiropractor, testified before me. She treated Mr. Akowuah from March 2009 to June 2009, and prepared Mr. Akowuah’s first disability certificate², dated May 22, 2009. In that document, she concluded that he had suffered a complete inability to carry on a normal life, specifying that he was unable to work out or play soccer. She also prepared a report dated May 12, 2009 which stated the following: “Activities such as squatting, bending, walking and climbing stairs are painful.”

Nevertheless, Dr. Tummonds did not state that Mr. Akowuah would have been unable to perform the essential duties of his pre-accident employment. When asked whether a person who had suffered a complete inability to carry on a normal life (as she opined in her first disability certificate) could go to school, drive and socialize, she responded that she had a “different opinion of what was a normal life.”

In cross-examination, she admitted having had little or no knowledge of Mr. Akowuah’s physical and other activities at the time she was preparing her reports. Her Disability Certificate of January 17, 2011 was equally unreliable. That certificate stated that Mr. Akowuah was unable to perform the essential tasks of his pre-accident employment, and he would be unable to resume engaging in the activities he ordinarily engaged in for another 6 to 8 weeks.

In fact, Mr. Akowuah had already commenced a new job as a personal fitness trainer in September 2009 for GoodLife Fitness. In this capacity, he created training regimes, and demonstrated physical exercises and weight routines for clients. He worked at this job for as many as 6 to 8 hours per day, four or five days a week. He even travelled and attended at his clients’ homes, three or four times per week. Further, he had recommenced his own physical and weight training as early as the fall of 2009, preparing for body building competitions.

Dr. Tummonds admitted that Mr. Akowuah had not told her he had resumed weight-lifting and body-building at the time of the preparation of her second disability certificate. She admitted that she had known little about his pre-accident employment. Based on these deficiencies, I give no weight to her evidence or disability certificate of January 2011 wherein she stated he had been disabled from performing the essential tasks of his pre-accident employment.

I found the other medical evidence as unreliable and unsupportive of Mr. Akowuah’s claim.

Although Dr. A. Azadian’s psychiatric evaluation³ of March 18, 2011 concluded that Mr. Akowuah was “… disabled from pre-accident employment (any or own occupation)”, this report was flawed and unreliable for several reasons. First, it contained serious errors of fact. The report stated that Mr. Akowuah was working at the time of the accident and was unable to continue his work because of “emotional and physical problems.” In fact, Mr. Akowuah had left his job in November 2008 and his accident did not occur until February 2009. Second, Mr. Akowuah had already commenced working as a personal trainer at the time of this report. Third, the report stated that Mr. Akowuah had discontinued his social activities “such as doing exercise…”⁴ This was another clear error as Mr. Akowuah had resumed his weight-lifting and body-building activities in the fall of 2009.

Dr. L. Schiffer’s neurological report⁵, dated February 22, 2010, and prepared at the request of Mr. Akowuah’s counsel, found that he was not disabled from employment, performing housekeeping or self care.

Dr. E. Dessouki’s Independent Orthopaedic Evaluation Report⁶, dated May 18, 2010, concluded that Mr. Akowuah was able to perform his housekeeping duties apart from heavy lifting, and to meet all his own personal care needs.

Lack of Particularization:

In addition to the lack of medical evidence regarding disability, and the lack of detail about Mr. Akowuah’s pre-accident employment, the claim for income replacement benefits itself was never particularized. Counsel for Mr. Akowuah simply failed to present a dollar value for the amount of IRBs sought. Mr. Akowuah bears the burden of proving his case. It was insufficient for counsel to ask for some amount “up to $400.00.” Further, Mr. Akowuah had received significant post-accident income from his work as a personal trainer, but despite requests from the insurer, failed to provide income documentation for those periods. The non-production of financial documents led me to draw a further negative inference in regard to this claim.

I find that Mr. Akowuah is not entitled to IRBs claimed.

Entitlement to Attendant Care Benefits:

Mr. Akowuah commenced the hearing claiming attendant care benefits at the rate of $853.78 per month from February 11, 2009 to July 11, 2010; and then at $595.90 per month from July 12, 2010 to February 13, 2011. On the third day of the hearing, Mr. Akowuah reduced his benefit period to February 11, 2009 to October 22, 2009.

There was little evidence to support this claim. Mr. Akowuah had difficulty describing the attendant care he received during any period. In cross-examination, he was unable to recount or remember the self-care tasks he received. It was not even clear whether he had required help for dressing and undressing in May 2009. He admitted he could shower, bathe, use the toilet independently, self-groom, take care of his own hair, and put on his shoes independently in May 2009.

Two Form 1’s had been submitted for attendant care⁷, the first totalling $853.78 per month and the second at $595.90 per month. The persons who completed those Forms 1’s did not attend before me and there was no explanation as to how they had calculated those values. Both forms were dated July 2010, but Mr. Akowuah’s own evidence was that by July 2010 he had resumed all his own self-care tasks. He had been working as a personal trainer since August 2009, and in late 2009, he had resumed his own intense training for body building competitions.

There was no credible medical evidence that Mr. Akowuah ever required attendant care. The medical evidence submitted by Mr. Akowuah included Dr. Dessouki’s report⁸, which stated that Mr. Akowuah was independent of self-care in May 2010.

Dr. A. Azadian’s psychiatric evaluation, dated March 18, 2011, stated that Mr. Akowuah was able to perform all his self-care tasks, although he was slower than he used to be.

Importantly, Mr. Akowuah never filed or submitted expense claims for attendant care received. It was unclear who had provided the attendant care, and no attendant care provider testified before me.

In summary, there was no credible evidence that Mr. Akowuah received or needed any attendant care following his accident. I do not find that Mr. Akowuah was entitled to the attendant care claimed.

Entitlement to Housekeeping and Home Maintenance Benefits:

Mr. Akowuah originally sought housekeeping benefits for the period from February 13, 2009 to February 13, 2011, but on the third day of hearing, the period of the claim was reduced to February 13, 2009 to October 22, 2009.

State Farm paid approximately $1,834.50 in housekeeping and home maintenance benefits to Mr. Akowuah before this was terminated in June 2009.

Mr. Akowuah testified that Philip Asamoah, who lived with him until the fall of 2009, provided the housekeeping services. Mr. Asamoah did not attend the hearing and did not testify before me. Both parties had sought to summon Mr. Asamoah as a witness, but on the second day of hearing, counsel for Mr. Akowuah informed me that Mr. Asamoah would not be available for testimony. No explanation was given for his absence and I drew an adverse inference based on Mr. Asamoah’s non-appearance.

In cross-examination, Mr. Akowuah stated that Mr. Asamoah had done dishes and cleaning and shovelling of snow at his home. He was unable to remember how often Mr. Asamoah helped and how many times a week he performed these tasks. Mr. Akowuah was unsure if Mr. Asamoah had charged him money for his work and he could not remember any agreement for payment.

Most importantly, when questioned about the expense claims⁹ submitted for housekeeping from July 2009 to December 2010, Mr. Akowuah admitted that his representative had prepared them, and all he had done was sign them. When questioned, Mr. Akowuah remembered little or nothing about the housekeeping tasks described on those forms. Further, Mr. Akowuah admitted that Mr. Asamoah had done little, if any, housekeeping after September 2009, when he moved out of the house they had been sharing, although the amount of reimbursement sought in expense claims did not decrease after Mr. Asamoah’s departure.

I found Mr. Akowuah was entirely lacking in credibility in regard to housekeeping and home maintenance. It was clear that the expense forms submitted for housekeeping bore little or no resemblance to reality. It was also apparent that Mr. Akowuah reduced the claim periods for each of the benefits he sought because his credibility had been successfully impeached on cross-examination. Finally, there was also little or no medical evidence that Mr. Akowuah was disabled from performing his housekeeping tasks in the relevant period.

Dr. Tummonds’ Re-assessment Report of June 16, 2009 states that Mr. Akowuah had reported 70% improvement since beginning therapy. The only activities listed as painful were “prolonged sitting and standing.”¹⁰

Dr. Schiffer’s neurological assessment report of February 22, 2010 reported that Mr. Akowuah stated that he had returned to his pre-accident household chores and was not disabled in this respect.

I find that Mr. Akowuah is not entitled to any other housekeeping and home maintenance benefits.

Medical and Rehabilitation Benefits:

Two treatment plans were in dispute.

The first plan¹¹ had been prepared and submitted by Dr. Maya Pande, chiropractor, and dated March 11, 2009 for $3,510.00. The plan recommended six weeks of treatments in the form of physical rehabilitation, acupuncture, and therapy.

Dr. Pande testified before me. She stated that she treated Mr. Akowuah from March 2009 to June 2009, and confirmed the clinical evaluation she expressed in her report. She stated that her examination had revealed indicia of more damage to his body, and stated that this treatment plan had been reasonable and necessary to stop or prevent any further issues from arising due to his injury.

On cross-examination, Dr. Pande said that she would be prepared to defer to the opinion of an orthopaedic surgeon, as expressed in Dr. Soriano’s report¹², if it were based on a contemporaneous examination of the patient.

I found Dr. Pande a credible witness. She treated Mr. Akowuah over a three-month period and I preferred her opinion in regard to this treatment plan over that of Dr. Soriano, who did not examine Mr. Akowuah until June 2009. I did not find the retroactive opinion of Dr. Soriano as probative as the opinion of Dr. Pande.

Therefore, I find that the March 2009 plan was reasonable and necessary.

The second treatment plan of May 12, 2009¹³ was prepared by Dr. Tummonds for the amount of $2,690.00. This plan included the following treatments: physical rehabilitation, massage and acupuncture. I found most of the evidence tendered by Dr. Tummonds was unreliable. Many of her conclusions were based on incorrect or incomplete evidence. Therefore I do not find the treatment plan of May 12, 2009 was reasonable and necessary.

Preparation of OCF-22 for a Functional Abilities Evaluation:

No evidence was tendered in regard to this document and I do not find that Mr. Akowuah is entitled to any amounts for this item.

Preparation of Form 1’s for Attendant Care:

No evidence was tendered on these items and I do not find that Mr. Akowuah is entitled to any amounts for these items.

Cost of an MRI:

Mr. Akowuah sought $569.80 for the cost of an MRI of his lumbar spine.¹⁴ Dr. Tummonds testified that this document revealed signs of lumbar disk herniation. I noted that even Dr. Soriano’s report of June 2009 suggested that a further investigation of the L-5 region might be warranted.¹⁵ I find this examination was reasonable and necessary.

MISCELLANEOUS OBJECTIONS:

In the course of the hearing I dealt with these objections.

Facebook Pages:

Counsel for Mr. Akowuah objected to the admission of copies of Facebook pages¹⁶ from Mr. Akowuah’s Facebook account. She cited the arbitral decision of Prete and State Farm Mutual Automobile Insurance Company¹⁷ wherein the arbitrator held that an applicant was not required to produce photographs and video images from his Facebook account.

In the present instance, the Facebook pages in question were already in the possession of State Farm. There was no question of my having to order their production, and much of the Prete decision was inapplicable to the present discussion. Nor was there any dispute as to the relevance of these Facebook pages.

Nevertheless, the Prete decision also detailed the arbitrator’s concerns in regard to reliability and the probative value of Facebook photos. She stated that it would be a procedural quagmire to set guidelines for the preservation and production of such images that would render them reliable in an arbitral process.

I agree that determining the reliability of such images might be challenging, but not necessarily more so than with any other photographs or documentary evidence. Apart from the issue of production, this concern should not lead to an automatic and blanket exclusion of all such documents. Instead, I allowed State Farm to refer the individual Facebook photos and pages to Mr. Akowuah in cross-examination, and to pose questions relating to their subject matter, including when and where they had been taken and posted. Counsel for Mr. Akowuah was, of course, permitted to re-direct in regard to any of those questions.

The questioning of Mr. Akowuah made it relatively simple to ascertain when and where the Facebook documents had been created and when they had been uploaded. Mr. Akowuah agreed that he was the subject of many of the photographs, and they depicted him working out with machines and body building equipment, posing, exercising and balancing in extremely athletic positions¹⁸ in as early as November 2009. Although these were static snapshots and not necessarily conclusive, the pictures certainly did not suggest an individual who might be disabled from performing the tasks of his own self-care or housekeeping and home maintenance.

Dr. Soriano and the Soriano Report:

Counsel for Mr. Akowuah sought to exclude the June 2009 Soriano report on the grounds that it had not been included in the documentation exchanged in the preparation of the joint brief. The parties had agreed to file a joint brief, and upon examination of the file, I note that the Soriano report had indeed been listed in the exchanged index of documentation.¹⁹ This report, dated June 2009, formed the basis of the original denial (OCF-9) of Mr. Akowuah’s benefits.

I found it highly unlikely that counsel had not received that document, but she could have easily obtained it by asking the other party, as noted in the letter accompanying the index. There was thus no reason to exclude this document.

Counsel for Mr. Akowuah also sought to exclude the same report based on the grounds that State Farm had not made Dr. Soriano available for cross-examination. On review of the correspondence in the file²⁰, it was evident that State Farm had not represented that it would be calling Dr. Soriano to testify. Mr. Akowuah could have called Dr. Soriano himself, and there was no requirement on State Farm to produce Dr. Soriano as a witness.

Documentation Regarding IDFA Body Building Competition:

At a very late stage in the hearing, Counsel for Mr. Akowuah sought to exclude documentation in regard to the IDFA body building competition, on the grounds that the document had not been exchanged within the timelines of the Dispute Resolution Practice Code. This objection was largely moot, as Mr. Akowuah had already admitted his participation in the competition, and the competition itself had been referenced in Facebook documentation already entered. Further, the photographs of that competition were scarcely different from the ones properly before me. Nonetheless, given that there was some evidence that the document had not been exchanged as required by the Code, I excluded it from the record.

Request to Call a Further Witness by State Farm:

On the last day of the hearing, State Farm sought to present another witness, not previously disclosed as required by the Code. According to State Farm, the prospective witness, an employee of State Farm, was required to give testimony in regard to Mr. Philip Asamoah, the purported service provider of Mr. Akowuah. As mentioned, Mr. Asamoah had been summoned by Mr. Akowuah as part of his case, but on the second day of hearing, Mr. Asamoah was inexplicably absent and never testified.

State Farm sought to present this new and previously unnamed witness to impeach the credibility of Mr. Asamoah. State Farm alleged that Mr. Asamoah had been involved in his own automobile accident and had, in fact, been receiving housekeeping benefits from State Farm at the same time he was purportedly providing such services to Mr. Akowuah.

This was a last minute request, made because of the surprise non-attendance of Mr. Asamoah on the second day of hearing. Nevertheless, no documentation had been produced about Mr. Asamoah’s accident benefits case, and there had never been any indication that Mr. Asamoah’s claim would be examined as a part of this proceeding. Many complications would arise from allowing this new witness to testify. Given that Mr. Asamoah had never appeared, how would State Farm be able to identity this as the same person who made another accident benefits claim? How would State Farm prove this was the same person? Counsel for Mr. Akowuah would have been entitled to an adjournment to respond to this new evidence. More importantly, I saw no reason to delay or extend the hearing for a witness whose testimony would only go to impeach the credibility of another witness (not the applicant) who had already declined to appear without explanation. I had already drawn an adverse inference based on that non-appearance. I therefore refused this request.

EXPENSES:

The parties made no submissions as to expenses. If needed, they may seek my assistance in accordance with the Dispute Resolution Practice Code.

May 1, 2013

Edward Lee Arbitrator

Date