Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 37

FSCO A11-003445

BETWEEN:

KOFI AGYAPONG

Applicant

and

JEVCO INSURANCE COMPANY

Insurer

Before: Arbitrator John Wilson

Heard: October 19, 20, 21 and 22, 2015 in Hamilton, Ontario.

Appearances: Brian Pickard, Murray Tkatch and Kwaku Bona for Mr. Agyapong Darrell March for Jevco Insurance Company

Issues:

The Applicant, Kofi Agyapong, was injured in a motor vehicle accident on July 12, 2005. He applied for statutory accident benefits from Jevco Insurance Company (“Jevco”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Agyapong 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. Agyapong entitled to a non-earner benefit?
Is Mr. Agyapong entitled to a housekeeping and home maintenance benefit?

Result:

Mr. Agyapong is not entitled to a non-earner benefit.
Mr. Agyapong is not entitled to a housekeeping benefit.

EVIDENCE AND ANALYSIS:

Mr. Agyapong was not the luckiest resident of Hamilton, Ontario. While he had managed to obtain skilled, hard work with Maple Leaf Foods as a cutter in their meat processing facility, he also endured a series of industrial accidents, criminal assaults and a motor vehicle accident in the months and years prior to the July 12, 2005 motor vehicle accident that gives rise to his dispute with Jevco.

While there is no question that Mr. Agyapong, a pedestrian, was hit by a pickup truck while crossing a Hamilton street, there is also no question that this was only the culmination of a series of events that had already rendered him incapable of performing his duties as a cutter at Maple Leaf.

Mr. Agyapong also had the misfortune of referring his claim for accident benefits and LTD benefits to counsel (not his current counsel) who is alleged to have been less diligent than necessary in prosecuting Mr. Agyapong’s claims. Perhaps as a function of this, Jevco alleged that Mr. Agyapong’s accident benefit claim was delayed to the point that it was statute-barred by the time-limits set out in the Insurance Act and the Statutory Accident Benefits Schedule.

The hearing was in fact ordered to be bifurcated by the pre-hearing arbitrator, with the first day of the hearing set aside to deal with the limitations issues. Because of the different interests at play on the limitation issue, separate counsel, Mr. Brian Pickard, was retained to deal with this issue on behalf of Mr. Agyapong.

Withdrawal of Limitations Defence

I was advised at the outset of the hearing that Jevco intended to proceed on the limitations issue. Counsel for Mr. Agyapong, however, advised that it would be an abuse of process for Jevco to proceed on that issue since it had specifically abandoned the limitations defence in writing by a letter addressed to counsel, dated October 7, 2015, and that counsel was only advised at the last moment that Jevco intended to resile from its withdrawal of the limitations defence.

Specifically, Applicant’s counsel had released witnesses intended to be called and had stopped all preparation for a limitations argument upon receipt of the Jevco letter. Additionally, he wrote to Jevco confirming that he would not need to appear at the hearing now that the issue was withdrawn.

Just prior to the hearing, Mr. March wrote again to Mr. Agyapong’s counsel advising that Jevco would be proceeding after all with its limitations defence. No other explanation was given.

At the hearing of the issue that took place at the commencement of the arbitration, I asked for submissions as to whether limitations remained a live issue in this arbitration.

Jevco had effectively no explanation for its concession on limitations, and its subsequent withdrawal of that concession. What may be inferred from its position is that it had the right to raise any legitimate defences that were available to it and the issue of limitations was a legitimate defence.

Mr. Pickard, counsel for Mr. Agyapong, essentially relied upon the initial correspondence from Mr. March which claimed on its face to be with instructions from his client Jevco, as well as his own response to that correspondence to advance the position that Jevco had withdrawn the issue and that his client had relied upon that withdrawal by ceasing to prepare for the trial of that issue and withdrawing himself from the arbitration.

Despite being given the opportunity to present an explanation or evidence supporting its right to withdraw from the resolution of the preliminary limitations issues, Jevco did not advance any credible reason for its conduct.

If the concession of the limitations defence by Mr. March was inadvertent or mistaken or beyond the client’s instructions, I heard no support for those theories. It is trite law that a solicitor can bind his principal as against a third party even when he exceeds his authority. In this matter on the face of the withdrawal letter, Mr. March had consulted with his client and had received instructions.

Mr. Pickard acknowledged the withdrawal and acted accordingly in reliance upon the stated intention of Jevco. If the process was in effect an agreement between the parties to settle an issue. then there was offer, acceptance and consideration.

Mr. Agyapong’s position on the withdrawal could also be supported by an estoppel analysis.

The requirements of promissory estoppel as set out in J.M.B. Cattle v Kaufman, [2015 ONSC 7372] are as follows:

A promise;
Reliance on that promise;
The reliance was detrimental; and
The principles of equity require the enforcement of the promise.

The Ontario Court of Appeal stated, in Owen Sound Public Library Board v. Developments Ltd. et. al. [26 O.R. 2(d) 459],

[A] promise, whether express or inferred from a course of conduct, is intended to be legally binding if it reasonably leads the promisee to believe that a legal stipulation, such as strict time of performance, will not be insisted upon.

As noted above, there was a promise to withdraw the limitation defence, and reliance by Mr. Agyapong on that promise was to his detriment, since his counsel, in reliance upon the promise had stopped preparing for that issue.

Given the total absence of juridical reason for Jevco to withdraw its concession, I find that it would be inequitable under the circumstances, for it to be allowed to do so on the eve of the hearing.

Deemed Acceptance of Mr. Agyapong’s Claims

Mr. Tkatch, in his opening submissions, put forward the theory that, whatever the substantive evidence may be in support of Mr. Agyapong’s NEB and housekeeping claims, he, at the very least is entitled to the benefits from the time when the original application for benefits was made to the time when a proper stoppage and refusal of benefits was finally processed by Jevco.

Mr. Tkatch makes this claim based on the nature of the accident benefit system in which timely payment of benefits is expected in order to deal with problems as they develop following an accident, a system which sets strict timelines for an insurer to respond to accident benefits claims.

In support of this theory of liability, Mr. Agyapong relies on an OCF 1, Application for Accident Benefits, dated June 9, 2005, a disability certificate apparently dated July 5, 2006 issued by Mr. Agyapong’s family physician, Dr. Badawi, and an OCF 9 Explanation of Benefits issued by Jevco on March 30, 2011.

It is Mr. Agyapong’s position that the delay in replying to the claim for non-earner benefits runs counter to the provisions and spirit of the Accident Benefits Schedule and that consequently, benefits should be paid at least until the Insurer’s refusal of the benefit on March 30, 2011.

As noted, the Insurer has taken the position that the initial claim for benefits included in the document briefs was not received by Jevco, certainly not around the date shown on the form.

The Application for Accident Benefits filed as evidence by Mr. Agyapong is typewritten and appears to have been created by Demetrius Kotsakis, his then lawyer. The document is dated June 9, 2005, about a month before the accident. In it, Mr. Agyapong indicates that he is unemployed but had a written offer to start work within a year. Under the box for Income Replacement Benefits stating employment within the last 52 weeks, he lists Maple Leaf Pork working as a cutter for 40 hours per week. With the exception of the details of the accident, much of the form is incomplete.

It is important to note that Mr. Agyapong is not claiming an income replacement benefit, but rather a non-earner benefit and housekeeping expenses.

There appears to have been no disability certificate issued until either July or August of 2006, roughly a year post-accident.

Mr. Agyapong’s evidence was that he left the filling of forms to his former lawyer who was not called to testify in this matter. Mr. Agyapong consequentially was unable to confirm that the form had ever been sent to Jevco.

Certainly, a version of the form exists. It, along with the balance of the document briefs, has been made an exhibit. However, I have no idea of its provenance. Given the extent of the records produced by Dr. Badawi, it may well have come from that source but no witness has either identified its source or given it any context.

Mr. Tkatch has asked me to infer timely delivery merely from the existence of the form in the document brief and what may possibly be a delivery stamp on the form. That would require a leap of faith that is unsupported by any positive evidence, a leap that would be necessary to sustain the claim of deemed acceptance of the benefit claim.

A line of jurisprudence at the Commission once generally accepted the idea that an insurer’s failure to rigorously follow the claims procedures could support a substantive award of benefits. It was precisely this approach that prompted Arbitrator Miller in Yogesvaran (at first instance) Yogesvaran v. State Farm Mutual Automobile Insurance Company (FSCO A08-001142, November 26, 2009) to make an order of the type requested by Mr. Tkatch. Arbitrator Miller concluded:

Mrs. Yogesvaran submits that State Farm's failure to properly terminate her benefits means that her benefits have not been terminated and are still owing until State Farm properly terminates her benefits. For the following reasons, I agree with this position.

Arbitrator Miller`s decision, while respecting the philosophy and the interpretation of Smith v. Co-operators General Insurance Co. 2002 SCC 30, [2002] 2 S.C.R. 129. at FSCO quickly ran into trouble with the very different view taken of the issue by the Court of Appeal.

Their decision in Stranges v. Allstate, (Stranges v. Allstate Insurance Company of Canada, 2010 ONCA 457, 103 O.R. (3d) 73) made it clear that a technical failure by an Insurer or even a serious breach in its obligations to deal with its clients does not give rise to a substantive claim for benefits. Discussing the reasoning behind Smith v. Co-operators, (which underpinned Arbitrator Miller`s decision) MacFarlane J.A, reasoned:

Importantly, however, at para. 1 of the reasons, Gonthier J. noted:

[T]here was no proper refusal made and the limitation period did not begin to run. The appellant is not barred from bringing her action. However, I make no conclusion about the merits of her claim, which a trial judge must assess.

The inadequate notice did not automatically entitle the insured to payment of benefits. She was still required, as the court acknowledged, to prove her claim.

That same reasoning applies to the facts of this case. The inadequacy of the refusal notice did not entitle the respondent to payment of benefits in perpetuity until proper notice was given or a proper DAC assessment was carried out. The respondent was still required to prove that she was entitled to the continued payment of IRBs because of her continued substantial inability to perform the essential tasks of her employment. Moreover, in this case no question of an expired limitation period arises.

Director’s Delegate Blackman in Yogesvaran interpreted the Stranges decision as follows:

In Stranges, notwithstanding the far more explicit statutory consequences where benefits should not have been stopped, the Court of Appeal held that the insured person was still required to prove her entitlement. In the version of the Schedule before me, the parties agree that there is no explicit consequence that in the event of procedural non-compliance the insurer must resume payment of benefits and pay the benefits that were not paid.

While the Director’s Delegate conceded that an interim award of benefits would still be available, and indeed substituted that for the arbitrator’s original order, in this matter Mr. Agyapong does not want an interim order. He is requesting a final order of entitlement for the period until which the Insurer finally responded and denied the claim on the basis of the technical failure of the Insurer to abide by the procedures and timelines set out in the Schedule. Clearly, since Stranges, this relief is not available. Consequently, a technical breach of the Schedule even if found, does not give Mr. Agyapong entitlement to a benefit that is otherwise disputed, and I so find.

Credibility of Mr. Agyapong’s Statements

To be generous, Mr. Agyapong was at times a willing witness. When asked by his counsel as to his status before and after the subject accident, Mr. Agyapong responded with answers denying or minimising any pre-accident disability and emphasising the importance of pre-accident activities that he now claimed to be denied.

When confronted however, on cross-examination, with documentary evidence and questions as to those same pre-existing conditions he often replied that he didn’t remember. He denied having previous back and left shoulder and knee pain until confronted with his own physician’s notes that documented such complaints in the years prior to the accident, arising from industrial accidents and the motor vehicle accident the week prior to this accident.

In his Physiatry I.E. report Dr. Chris Boulias also identified, on examination of Mr. Agyapong, evidence of scars and lesions, including both knees, from previous injuries that Mr. Agyapong is said to have mostly attributed to old soccer injuries.

In his information given to assessors and in his testimony at the hearing, Mr. Agyapong went to great lengths to minimise not only his pre-accident disability but also the seriousness of the bicycle/motor vehicle collision the week before the subject accident. While he did accept, when confronted with the medical record, that he had been complaining of left knee pain and lower back pain following the bicycle collision, he continued to minimise that event.

He did, however, concede in cross-examination that the subject accident occurred as he was returning from an appointment with Dr. Badawi to deal specifically with the pain and complaints arising from the bicycle accident and that he was visiting Dr. Badawi because he had serious medical concerns arising from the bicycle/motor vehicle accident that precipitated the return visit to the doctor.

Such information was critically lacking in the scenario outlined in Mr. Agyapong’s evidence in-chief. No doubt it was also lacking in the recital of facts given to any examining physicians tasked with evaluating his accident-related disability.

Mr. Agyapong also consistently downplayed his post-accident mobility, a position that was difficult to defend when, on questioning, it became apparent that he walked extensively and took the bus to get to his exercise facility and other appointments. His relative ease of getting around on foot was also apparent from the surveillance evidence which noted excursions on foot of variously 2.3 kilometres, 1.27 and 2.9 kilometres all in one day.

This consistent pattern of denial of unfavourable facts, combined with Mr. Agyapong’s serial forgetfulness when challenged on a fact or statement causes me to place little reliance on Mr. Agyapong’s testimony, except where corroborated by other, credible, evidence.

Causation

The payment of accident benefits is mandated by the Schedule and the policy of insurance where a person suffers from an impairment arising from an accident. Section 2 (1) of the Schedule defines an accident as “an incident in which the use or operation of an automobile directly causes an impairment…”

While I accept that Mr. Agyapong was involved in at least two incidents that could meet the definition of an “accident”, it is not at all clear that the impairments and disabilities that he has enumerated arise directly from the July 12, 2005 accident which is the foundation of his claim against Jevco.

Jevco has made much of the multitude of incidents leading up to the July 12, 2005 motor vehicle accident and the evident impairments that Mr. Agyapong sustained prior to the subject motor vehicle accident.

Essentially, Jevco argues that the complaints raised by Mr. Agyapong immediately prior to the accident were much the same as those complained of after the subject accident. In short, Jevco questions whether the impairments now alleged even arise as a direct consequence of the accident.

There is no serious doubt that there was a collision between Mr. Agyapong, a pedestrian, and a pickup truck on July 12, 2005 and that he was taken to a hospital, examined and sent home. Likewise, there is no question that the week before, he was, while riding a bicycle, in collision with a motor vehicle that also resulted in an ambulance call and some damage to the bicycle.

The record also shows that in October 2003, Mr. Agyapong was attacked by a knife wielding assailant and suffered, inter alia, knife wounds to his neck and serious psychological trauma that had not resolved at the time of the accident. It also had the effect of limiting neck movement and causing headaches.

This incident was serious enough to justify a claim to the Criminal Injuries Compensation Board and a significant award in that forum. It also generated a claim for LTD benefits which, was either mishandled by a previous solicitor and unpaid, or according to some correspondence from the LTD carrier, actually received by Mr. Agyapong.

Dr. Badawi was Mr. Agyapong’s primary treating physician both before and after the accident. His medical report in support of the claim for LTD benefits is dated less than a month before the subject motor vehicle accident and listed major depression and post-traumatic stress disorder as the reasons for disability.

As well, Mr. Agyapong was reportedly attacked and pistol-whipped in the night by an unknown assailant about one year after the stabbing incident. He was also carrying the sequelae of a variety of workplace injuries that had led to time off work and WSIB claims.

All of these injuries resulted in complaints similar to those exhibited after the July 12, 2005 accident that is the subject matter of this arbitration. Those complaints represent a continuum of distress rather than a lower level of dysfunction punctuated by an increase coincident with the July 12, 2005 accident.

Indeed, the first disability certificate issued by Dr. Badawi in 2006 lists headaches, back-pain and right ankle injury. It also lists ongoing depression in the context of the duration of the disability. A second disability certificate dated January 3, 2011 mentions chronic neck and back pain, an injury to the left knee and right ankle and a major depression, all of which Dr. Badawi attributes to the motor vehicle accident.

Unfortunately, Dr. Badawi’s analysis leading to this attribution of causation is not in evidence, Only the limited comments written on the disability certificates and the office records are available, albeit without any context since Dr. Badawi himself was not made available as a witness.

Causation: “But for” or “Material Contribution”?

In Monks v. ING (2008 ONCA 269, 90 O.R. (3d) 689), Cronk J.A summarized the jurisprudence on causation in accident benefit matters to that date:

The Athey v. Leonati issue

[85] Athey v. Leonati, supra, is the leading Canadian case on causation in tort law.

In Athey, Major J. reiterated the following well-established principles:

(1) The general, but not conclusive, test for proof of causation is the "but for" test, which requires a plaintiff to show that his or her injury would not have occurred but for the negligence of the defendant (para. 14).

(2) In certain circumstances, where the "but for" test is un-workable, causation may also be established where it is demonstrated that the defendant's negligence "materially contributed" to the occurrence of the tort victim's injury. It is not necessary for the plaintiff to establish that the defendant's negligence was the sole cause of the injury (paras. 15 and 17).

(3) Liability will be imposed on a defendant for injuries caused or materially contributed to by his or her negligence. That liability is not reduced by the existence of other non-tortious contributing causes (paras. 22 and 23). (Citations omitted)

A lot has happened, however, since 2009 when Cronk J.A. wrote on causation. While the jurisprudence is clear that in most circumstances the “but for” causation test is the appropriate way of evaluating causation, accident benefits jurisprudence has remained fixated on the usually rare exception, the “material contribution” test as the appropriate test for causation. Indeed, this approach was approved by the Court of Appeal in Monks where Cronk J.A. stated:

More recently, in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, [2007] S.C.J. No. 7, the Supreme Court of Canada clarified the exceptions to the "but for" causation test and the circumstances in which the material contribution test may be applied. I do not understand Resurfice to alter the basic causation principles that I have described.

Since 2009, both the Supreme Court and the Court of Appeal have spoken again on the issue of the “but for” test and in the process raised significant doubt about the jurisprudence supporting the “material contribution” test as the default in accident benefit matters.

In Clements (Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R) Chief Justice McLachlin stated:

The legal issue is whether the usual “but for” test for causation in a negligence action applies, as the Court of Appeal held, or whether a material contribution approach suffices, as the trial judge held. For the reasons that follow, I conclude that a material contribution test was not applicable in this case. I would return the matter to the trial judge to be dealt with on the correct basis of “but for” causation.

As for the “material contribution test” the Chief Justice observed:

The idea running through the jurisprudence that to apply the material contribution approach it must be “impossible” for the plaintiff to prove that the defendant’s negligence caused the plaintiff’s injury using the “but for” test has produced uncertainty in this case and elsewhere.

As noted by Halsbury’s (Allen M. Linden, Bruce Feldthusen, Halsbury's Laws of Canada):

As a result, the “but for” test once again reigns supreme in Canadian causation jurisprudence, perhaps even more so than before. Courts have almost never found occasion to employ the material contribution exception to the “but for” test, given the difficulty of proving that it is impossible for the plaintiff to prove causation with “but for” principles due to factors outside the plaintiff's control.

As for accident benefit matters, a more recent Court of Appeal case is even more troublesome. In Blake (Blake v. Dominion of Canada General Insurance Co. 2015 ONCA 165, [2015] O.J. No. 1218) Brown J.A applied the “but for” test in an accident benefit matter because counsel for the plaintiff “did not ask the trial judge to depart from the general ‘but for’ test of causation as described by the Supreme Court of Canada in Clements v. Clements” implying that without a specific request and justification, the “but for” test remains the default in accident benefit matters as well.

While I accept that the days of the ritual application of the “material contribution” test in accident benefit matters are numbered at best, I do not believe that Mr. Agyapong has met either test in this matter.

The “but for” analysis is the simplest to deal with and Mr. Agyapong has the burden of showing that but for the accident of July 12, 2005, he would not suffer the disabilities that he puts forward as the basis of this claim.

Dr. Badawi’s records taken as a whole tend to show that the psychological and physical impairments exhibited prior to the accident mirror those claimed afterwards. That is not to diminish the degree of impairment exhibited, merely to question as to how it came about.

The evidence is clear from Dr. Badawi’s records that Mr. Agyapong suffered serious and ongoing psychological sequelae that he attributed to the knife attack and which necessitated psychiatric consultations and psychological referrals.

In cross examination, Mr. Agyapong readily admitted that in the months prior to the motor vehicle accident he was being treated for PTSD and serious depression and that the symptoms and complaints were similar to those after the subject motor vehicle accident.

However, he had also represented in his examination, under oath, that the accident worsened his psychological condition, and specifically attributed psychological problems to the July 12, 2005 accident.

Overall the same apparent symptoms continued after the last accident but both Mr. Agyapong and Dr. Badawi seem to simply have gradually transferred the causation for any claimed disability to the latest incident, a process that appears to have been accentuated as the years passed since the accident.

Dr. Badawi also recommended, in his 2011 disability certificate, psycho-vocational assessments and a psychiatrist, furthering the impression that he viewed Mr. Agyapong’s psychological condition as accident-related.

Without some evidence from Dr. Badawi as to why he apparently shifted causation for the psychological difficulties from the earlier knifing, and in light of the Insurer’s expert reports challenging causation, I cannot accept that but for the July 5, 2005 accident Mr. Agyapong would not have the physical and psychological afflictions attributed to him.

The situation is similar for the physical complaints said to arise from the accident. The neck, back and knee pain outlined in the Application for Benefits appears to be similar to the problems complained of following the bicycle collision scarcely a week earlier, and the complaints arising from the long-standing work-related injuries.

Mr. Agyapong had already applied for LTD benefits from another insurer prior to his motor vehicle accidents apparently with a similar blend of complaints. The records obtained from Dr. Badawi which constitute the large part of the medical evidence do not suggest any analysis of causation other than an attribution in a strictly temporal manner, without any weighing of the effect of pre-existing conditions.

As noted earlier, Dr. Badawi did not testify. Without drawing any sort of adverse inference, the absence of further evidence from the person, perhaps best qualified to speak to causation, leaves me puzzled, and reliant on the doctor’s records themselves which in this case are unhelpful.

From these records, I find it impossible to ascertain if and why the subject accident had any significant effect on the ongoing difficulties experienced by Mr. Agyapong. His significant problems being much the same before and after the accident, I cannot find that but for the accident, they would not have happened.

Assuming however that the rationale in Monks still applies and that causation should be analysed on the basis of a material contribution to the disabilities suffered, I reach the same conclusion.

While it makes sense that being knocked over by a motor vehicle will likely contribute to an accident victim’s overall level of complaint, credible evidence is lacking that this accident materially contributed to the ongoing knee, back and shoulder pain that Mr. Agyapong was experiencing.

The mere existence of complaints after an accident is not in itself sufficient to attribute causation. The use of the word “material” to modify “contribution” in the phrase “material contribution” suggests that the contribution of the subject accident must be more significant and not form simply a minor or insignificant part of the causation spectrum.

The Canadian Oxford Dictionary (Katharine Barber ed. Oxford University press Toronto 1998) ascribes the following meaning to “material”:

‘Material’ - :law (of evidence, a fact, etc.) significant , influential, esp. to the extent of determining a cause, affecting a judgement, etc. ( a material witness).

Notwithstanding Mr. Agyapong’s evidence to the contrary, I do not find that the July 5, 2005 accident was either significant or influential in creating the disability reported post-accident.

After being discharged from emergency, Mr. Agyapong waited until August to see Dr. Badawi. Even then, the accident report seemed secondary to other issues . While Dr. Badawi’s note of that date refers to worsened depression and tenderness in the neck, the chief complaints are linked to the earlier assault.

Notes of visits in September 2006 also deal with increased depression with some mention of back pain. However, a note over a year post-accident clearly makes the link between the ongoing complaints (depression PTSD and neck pain) with the pre-accident knife attack.

This is notwithstanding the fact that, in July 2006, a year after the accident, Dr. Badawi signed a disability certificate that attributed grade II whiplash, back pain, headache and ankle pain to the July 12, 2005 motor vehicle accident . An even later disability certificate, dated April, 2011, then goes on to further attribute major depression, chronic neck and back pain left knee and right ankle injuries to the July 12, 2005 motor vehicle accident. Both of these certificates would appear to be at odds with the information contained in the clinical notes and records.

They are also at odds with the multi-disciplinary examination conducted by a psychologist, occupational therapist, physiatrist and a functional abilities evaluator in March of 2011.

To be accepted as probative, the disability certificates issued by Dr. Badawi require some sort of explanation to reconcile the apparent differences in attribution of causation. In the absence of Dr. Badawi’s testimony, report, or indeed any other viva voce medical testimony, this was not forthcoming.

On the basis of the documentary information filed, it appears that there may even have been some minor short-term aggravation of the long-time complaints by the July 12, 2005 incident. However, in the longer term, the claimed psychological ramifications clearly pre-date the subject accident, and the physical injuries reported post-accident appear to be little more than a re-hash of the existing panoply of pain-related complaints.

I note, as well, that there has been no suggestion that Mr. Agyapong was a “thin skull” plaintiff with a peculiar sensitivity to further minor injury due to his pre-existing condition. Rather, Mr. Agyapong’s theory appears to be that he was relatively functional prior to the July 12, 2005 motor vehicle accident, but deteriorated as a consequence of the accident. I do not accept that theory.

Perhaps, had the claim been handled more promptly and diligently by the original solicitor on the case, more timely and relevant reports could have been commissioned that would clear up the present confusion, but the fact remains that there is limited credible evidence as to what was happening to Mr. Agyapong in the first year after the accident. For whatever reason, the evidence was not there.

In the face of the confusing and sometimes conflicting information in the medical records, I have no choice but to find that Mr. Agyapong has simply not met the burden of proving that, more likely than not, his July 12, 2005 accident was a material contributor to his post-accident complaints and disability.

Issue of Non-earner Benefits

Section 12 of the Schedule sets out the criteria for the award of a non-earner benefit:

(1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a non-earner benefit if the insured person meets any of the following qualifications:

The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.

The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident, received a caregiver benefit as a result of the accident and there is no longer a person in need of care.

The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and,

i. was enrolled on a full-time basis in elementary, secondary or post-secondary education at the time of the accident, or

ii. completed his or her education less than one year before the accident and was not employed, after completing his or her education and before the accident, in an employment that reflected his or her education and training. O. Reg. 403/96, s. 12 (1).

Once again, a pre-condition of an award of benefits is sustaining an impairment as a result of an accident. Having already found that Mr. Agyapong has not demonstrated, on the balance of probabilities, that he suffered an impairment as a direct result of an accident, this primary pre-condition of entitlement to a non-earner benefit has not been met.

Even if I am wrong and the July 12, 2005 accident materially contributed to Mr. Agyapong’s disabilities post-accident, I would still be of the view that entitlement to a non-earner benefit has not been made out.

Entitlement to a non-earner benefit is arrived at through the process of comparing an insured’s life both pre and post-accident, to decide if the changes in disability wrought by the accident create a complete inability to carry on a normal life.

Mr. Agyapong has represented to Jevco that until the knifing incident, he was hale and hearty, playing soccer at least once a week at a high level, a sport that he was unable to play since the accident.

As noted earlier, there is no doubt that over the years since the accident Mr. Agyapong has accumulated a significant number of complaints, which taken together at face value, might well add up to some significant disability.

Unfortunately, all the complaints cannot necessarily be taken at face value, since the common feature with the complaints of disability is that they are dependent on Mr. Agyapong`s reporting of the degree and the timing of his difficulties.

In a signed statement made by Mr. Agyapong on October 4, 2006, he represented that:

Before this accident, I was in good physical condition and did not have any prior injuries to the body parts injured in this accident. I did have one prior injury which was a cut to my neck suffered in an altercation at a night club.

He also stated that he had no previous accidents. While some elements of this statement may be true, the overall impression it gives is that the motor vehicle accident was a watershed in disability for Mr. Agyapong. Such an impression, based on a review of the evidence before me, would be highly misleading.

As noted earlier, Mr. Agyapong has not always turned out to be a credible historian when it comes to his accident –related issues. Given this tendency towards unreliability, I have trouble accepting his assertion that there was such a significant change in Mr. Agyapong’s ability to play soccer with his children, his ability to walk, to travel by bus, and to care for himself was impaired by the accident to the degree that it can be found that he is no longer capable of carrying on a normal life.

Nor do I find the boxes checked by Dr. Badawi on the Disability Certificates persuasive as to entitlement to non-earner benefits. Without some insight into Dr. Badawi’s reasoning, they have little probative value.

Mr. Gideon Fripong, a friend of Mr. Agyapong’s, testified as well. While he shared accommodation with Mr. Agyapong and was said to have assisted him with housekeeping after the accident, his testimony was of little assistance in advancing Mr. Agyapong’s non-earner claim. He confirmed that he did not need to assist Mr. Agyapong with basic activities of daily living after the accident and that Mr. Agyapong was essentially independent in meeting his own personal needs.

While Mr. Fripong may well have provided assistance in cooking and cleaning, and this assistance was accepted by Mr. Agyapong, this fact, in itself, does not imply a complete inability to carry on a normal life.

Taken together with Mr. Agyapong’s admissions and the paucity of medical evidence on point, Mr. Fripong’s evidence does not assist Mr. Agyapong in establishing his entitlement to non-earner benefits.

Consequently, I find that Mr. Agyapong has not met the evidentiary burden of proving his entitlement to non-earner benefits.

Issue of Housekeeping

The Schedule sets the parameters of a Housekeeping Claim as follows:

Housekeeping and Home Maintenance

(1) The insurer shall pay for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident. O. Reg. 403/96, s. 22 (1).

(2) The amount payable under this section shall not exceed $100 per week. O. Reg. 403/96, s. 22 (2).

(3) No payment is required under this section for expenses incurred more than 104 weeks after the onset of the disability. O. Reg. 403/96, s. 22 (3).

(4) Subsection (3) does not apply if the insured person sustained a catastrophic impairment as a result of the accident. O. Reg. 403/96, s. 22 (4).

As with the other benefits claimed by Mr. Agyapong, a housekeeping claim emerges only when expenses were incurred as a result of the accident which triggers the claim. Having found that Mr. Agyapong has not proven that his post-accident impairments arose due to the July 12, 2005 accident, there would be no entitlement to housekeeping benefits as well.

While I accept Mr. Fripong’s evidence that he provided some services to Mr. Agyapong that could be classified as housekeeping services, the absence of adequate supporting medical evidence, linking the provision of those services to a substantial inability on the part of Mr. Agyapong to perform housekeeping and home maintenance services, is fatal to his claim.

As mentioned earlier, given the significant confusion over causation in this matter, a mere disability certificate with limited information provides little support, in itself, to substantiate entitlement to a housekeeping benefit.

Even the reports including the FAE report filed by Mr. Agyapong in support of his claim were produced some six years after the accident and the FAE report does not even speak to the “substantial inability” test that governs entitlement to housekeeping benefits. Rather in the opinion of the examiner, Scott Blad, Mr. Agyapong “is limited in performing housekeeping tasks.”

Mr. Blad also does not appear to have explored how the identified limitations related to the July 12, 2005 motor vehicle accident, a task that given the passage of time and the multiplicity of potential causes may well have been too difficult to undertake.

For the above reasons, I find that Mr. Agyapong has not proven his entitlement to housekeeping and home maintenance benefits.

EXPENSES:

If the parties are unable to deal with the issue of expenses between themselves, I may be spoken to on that issue, provided only that the request is made within 30 days of the delivery of these reasons.

January 25, 2016

John Wilson Date Arbitrator