Joseph Asamoah v. State Farm Mutual Automobile Insurance Company, 2016 ONFSCDRS 207

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 207

FSCO A13-000732

BETWEEN:

JOSEPH ASAMOAH

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Arbitrator Kenneth J. Conroy

Heard:

In person at ADR Chambers on October 5-8, 2015, January 4, 5 and 7, 2016 and February 22, 23 and 25, 2016 with written submissions due May 13, 2016

Appearances:

Mr. Joseph Asamoah participated

Mr. Richard Levin participated for Mr. Joseph Asamoah

Mr. Darrell March participated for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mr. Joseph Asamoah, was injured in a motor vehicle accident on August 25, 2010 and sought accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the SABS.¹ The parties were unable to resolve their disputes through mediation and Mr. Asamoah, through his representative, 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:

1. Is the Applicant entitled to receive a weekly income replacement benefit pursuant to s. 2(2) of Part 2 of the SABS, at a rate of $400.00 per week, from November 24, 2011 to date and ongoing?

2. Is the Applicant entitled to receive a medical benefit pursuant to s. 2(2) or s. 15 of the SABS for services provided by Malton Physiotherapy and Chronic Pain Centre as follows:

a) $1,490.54 for a work hardening program and acupuncture, OCF-18 dated

September 16, 2011; and

b) $1,484.12 for a work hardening program and acupuncture, OCF-18 dated

December 7, 2011?

3. Is the Applicant entitled to attendant care benefits provided by Job Market Inc., pursuant to s. 2(2) or s. 19 of the SABS, for services provided by Job Market Inc. as follows:

a) $421.87 per month, from September 6, 2010 to September 12, 2010;

b) $675.00 per month, from September 13, 2010 to December 14, 2010;

c) $316.65 per month, from December 15, 2010 to April 15, 2011;

d) $675.00 per month, from April 15, 2011 to May 15, 2011; and

e) $540.00 per month, from May 15, 2011 to date and ongoing?

4. Is the Applicant entitled to payments for housekeeping and home maintenance service provided by Job Market Inc. pursuant to s. 2(2) or s. 23 of the SABS, at a rate of $100.00 per week, from November 24, 2011 to August 25, 2012?

5. Is the Applicant entitled to payments for the cost of examinations pursuant to s. 2(2) or s. 25 of the SABS as follows:

a) $190.00 for a progress report, dated October 7, 2011;

b) $727.44 for three disability certificates, dated September 2, 2010, October 27, 2010 and June 3, 2011;

c) $200.00 for a disability certificate, dated September 16, 2011, for services provided by Dr. Ogilvie Harris; and

d) $3,500.00 for an orthopedic assessment on July 17, 2010?

6. Is the Applicant entitled to interest for the overdue payment of benefits?

7. Is State Farm liable to pay a special award because it unreasonably withheld or delayed payments to the Applicant?

8. Is State Farm liable to pay the Applicant’s expenses in respect of the Arbitration?

9. Is the Applicant liable to pay State Farm’s expenses in respect of the Arbitration?

Result:

1. The Applicant is entitled to weekly income replacement benefits at the

rate of $400.00 per week from November 24, 2011 to November 24, 2012 which includes a three month period of recovery.

2. The Applicant is entitled to receive a medical benefit pursuant to s. 2(2) or s. 15 of the SABS for services provided by Malton Physiotherapy and Chronic Pain Centre as follows:

a) $1,490.54 for a work hardening program and acupuncture, OCF-18 dated

September 16, 2011; and

b) $1,484.12 for a work hardening program and acupuncture, OCF-18 dated

December 7, 2011.

3. The Applicant is entitled to be paid attendant care benefits provided by Job Market Inc. for a period of recovery, being a twelve week period following surgery, in the amount of $1200.00.

4. The Applicant is entitled to be paid for housekeeping and home maintenance services provided by Job Market Inc. pursuant to s. 2(2) or s. 23 of the SABS, at a rate of $100.00 per week, from November 24, 2011 to August 25, 2012.

5. The Applicant is entitled to payments for the cost of examinations pursuant to s. 2(2) or s. 25 of the SABS as follows:

a) $190.00 for a progress report, dated October 7, 2011;

b) $727.44 for three disability certificates, dated September 2, 2010, October 27, 2010 and June 3, 2011;

c) $200.00 for a disability certificate, dated September 16, 2011, for services provided by Dr. Ogilvie Harris; and

d) $3,500.00 for an orthopedic assessment on July 17, 2010.

6. The Applicant is entitled to be paid interest on overdue payments.

7. State Farm did act unreasonably in failing to reinstate housekeeping and home maintenance as well as attendant care benefits in the denial of same prior to and following the surgical intervention which I am satisfied rendered the Applicant significantly impaired and unable to work for a period of time.

8. I am not satisfied that there is a basis for a special award based on the existing inconclusive evidence at the time of the denials and the obligation of the Applicant to prove and establish its entitlement in law to such benefits at the time of the denial.

9. The parties are encouraged to attempt to resolve the issue of expenses. If the parties are unable to agree on the entitlement to, or quantum of the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

The accident in question appeared to be relatively minor, the airbags did not deploy and the Applicant did not seek medical treatment at the time. He was examined by EMS personnel at the scene and was cleared to leave. Within the next couple of days following the accident the Applicant began to experience pain in his left shoulder, neck and lower back and sought medical attention from Dr. Cheema who recommended ultrasound and therapy. Following that consultation, the Applicant began therapy at Malton Physiotherapy and Chronic Pain Clinic (“Malton”), which he continues and which therapy is funded by the Insurer. The Applicant expressed different degrees of improvement throughout therapy in his own evidence and as reported to medical service providers. However, significant improvement was indicated in reports given to service providers and it is clear that the Applicant’s self-reporting would indicate that he was making progress in his recovery.

State Farm takes the position that the accident was not of sufficient severity to cause the Applicant’s injuries and impairments and raised the issue of causality relating to the loss and the Applicant’s alleged physical and psychological impairments. The Applicant, on the other hand, suggests that this was not an insignificant accident stating that no medical providers or Insurer experts ever suggested that the Applicant was not injured in this loss.

The evidence suggests that the Applicant was working full-time as a lead hand in a supervisory role for Job Market Inc. at the time of the loss. He was required to use a high pressure water gun for cleaning of equipment, which the Applicant advised he could do prior to the accident without difficulty. His responsibilities also included driving a forklift truck. It is apparent from the evidence that State Farm accepted the employment status of the Applicant and based the payment of certain benefits thereafter on same. State Farm’s position is that the Applicant did not experience a work related impairment as a result of his accident and argues that the orthopedic surgery required by the Applicant to deal with his shoulder-tear is remote in time and arguably unrelated to the accident. State Farm raised this issue during the Hearing and in writing for the first time, although no evidence was advanced to support that suggestion or to confirm any unrelated injury post-accident that would account for same. I am satisfied that absent anything to support the suggestion of State Farm, the Applicant satisfied me that the shoulder-tear was a direct result of the accident.

I am satisfied by the evidence that the cost of examinations as claimed was both reasonable and necessary as a result of the accident and injuries sustained. I further concluded that the medical benefits claimed for work hardening programs and acupuncture were appropriate expenses to be paid to the Applicant.

State Farm required the Applicant to attend a section 44 examination by Dr. Chizen who is a specialist in Physical Medicine and Rehabilitation. His report, dated April 18, 2011, suggested that the outcome of a pending MRI to determine the existence of any pathology would, out of necessity, involve Mr. Asamoah not returning to work that required heavy lifting or repetitive or overhead lifting using the left upper extremity. As a result, State Farm continued to pay benefits after receiving this report. The MRI subsequently revealed a large full thickness partial tear of the supraspinatus tendon. A follow up MRI in March of 2012 revealed similar results with an indication that the condition had worsened. Surgical intervention was required which occurred on August 9, 2012. Subsequent reports and expert opinion in evidence confirmed that the surgery was successful and that the Applicant would experience substantial recovery as a result of the surgery.

Psychological evidence was advanced by both the Applicant and State Farm. The Applicant relied upon the evidence of Dr. Gozlan, Clinical Psychologist. State Farm relied upon the evidence of Dr. West, also a Clinical Psychologist, who saw the Applicant for the first time on March 28, 2011. It would appear from the evidence that the Applicant experiences a significant degree of resolve at this point that he is unable to return to work. I do not find that the Applicant lacked credibility. However, it was clear to me that his personal life was coming apart with the breakdown of his marriage, the financial constraints leading to his inability to retain his home, his separation and other significant financial obligations in his homeland of Ghana, from where he arrived in Canada as a refugee in 1989. The Applicant’s evidence is that he has a child in Africa that he supports together with the mother who it appears has some form of spousal status with him. The Applicant continues to travel to Africa and engages in most social activities and life routines, including driving, without significant difficulties that would render him substantially incapacitated in that regard. It is my impression, supported by the Applicant’s own testimony, that the events of his life and not the accident in any significant way, render the Applicant unwilling, or at least not motivated to return to his regular employment at this time. This is also supported by the findings of Dr. West who felt that the Applicant is able to return to his regular employment in some manner. The Applicant also stated that he sees psychological intervention as somewhat shameful and declared that he was not desirous of participating in same in any meaningful way.

It became apparent during the Applicant’s testimony that the Applicant is his own impediment to moving forward in his own life and not actually the accident and resulting loss. That being said, however, the denial of benefits by State Farm was not entirely justified. Given the Insurer’s awareness of the MRI reports and the pending surgical intervention required and received, a resumption of benefits should have occurred to assist in the Applicant’s pain and physical limitations prior to surgery and subsequent recovery and as such, I find that income replacement, housekeeping and home maintenance and attendant care benefits for a fixed period of time are owing to the Applicant.

It is clear that the Applicant has the burden of proof to establish entitlements to benefits. I rely heavily on the decision in El-Saikali and Co-operators General Insurance Co.:²

The Commission’s decisions are unanimous in holding that at the end of the day the insured person bears the burden of proving entitlement to the benefits claimed. But a distinction is made between the ultimate legal burden of proof, which remains on the insured person, and the secondary, tactical or evidentiary burden, which may shift back and forth between the parties depending on the strength of the evidence and the proposition to be proved. This is consistent with well-established rules of evidence.

The onus on the Applicant was not satisfied post denial until the need for surgical intervention became apparent. As such, I do not find any bad faith on the Insurer in its denial sufficient to justify a special award.

EXPENSES:

The parties have yet to make submissions on expenses. They are encouraged to resolve the issue. If the parties are unable to agree on the entitlement to, or quantum of the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

August 2, 2016

Kenneth J. Conroy

Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 207

FSCO A13-000732

BETWEEN:

JOSEPH ASAMOAH

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:

1. The Applicant is entitled to weekly income replacement benefits at the

rate of $400.00 per week from November 24, 2011 to November 24, 2012 which includes a three month period of recovery.

2. The Applicant is entitled to receive a medical benefit pursuant to s. 2(2) or s. 15 of the SABS for services provided by Malton Physiotherapy and Chronic Pain Centre as follows:

a) $1,490.54 for a work hardening program and acupuncture, OCF-18 dated

September 16, 2011; and

b) $1,484.12 for a work hardening program and acupuncture, OCF-18 dated

December 7, 2011.

3. The Applicant is entitled to be paid attendant care benefits provided by Job Market Inc. for a period of recovery, being a twelve week period following surgery, in the amount of $1200.00.

4. The Applicant is entitled to be paid for housekeeping and home maintenance services provided by Job Market Inc. pursuant to s. 2(2) or s. 23 of the SABS, at a rate of $100.00 per week, from November 24, 2011 to August 25, 2012.

5. The Applicant is entitled to payments for the cost of examinations pursuant to s. 2(2) or s. 25 of the SABS as follows:

a) $190.00 for a progress report, dated October 7, 2011;

b) $727.44 for three disability certificates, dated September 2, 2010, October 27, 2010 and June 3, 2011;

c) $200.00 for a disability certificate, dated September 16, 2011, for services provided by Dr. Ogilvie Harris; and

d) $3,500.00 for an orthopedic assessment on July 17, 2010.

6. The Applicant is entitled to be paid interest on overdue payments.

7. State Farm did act unreasonably in failing to reinstate housekeeping and home maintenance as well as attendant care benefits in the denial of same prior to and following the surgical intervention which I am satisfied rendered the Applicant significantly impaired and unable to work for a period of time.

8. I am not satisfied that there is a basis for a special award based on the existing inconclusive evidence at the time of the denials and the obligation of the Applicant to prove and establish its entitlement in law to such benefits at the time of the denial.

9. The parties are encouraged to attempt to resolve the issue of expenses. If the parties are unable to agree on the entitlement to, or quantum of the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

August 2, 2016

Kenneth J. Conroy

Arbitrator

Date

Footnotes

1. 1Effective September 1, 2010, the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “new SABS”) came into force. The transition rules in the new SABS provide that, subject to certain exceptions, benefits that would have been available pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (the “old SABS”) shall be paid under the new SABS, but in amounts determined under the old SABS.