Causation Test Appropriately Applied and Appeal Dismissed

January 25, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Agyapong and Jevco – Judicial Review; Causation Test; Claim for benefits fails due to lack of proof; Appeal upheld finding that claim failed for failing both but/for and material contribution test

Agyapong and Jevco

Date of Decision: December 16, 2016
Heard Before: Adjudicator Jeffrey Rogers

APPEAL ORDER

1. This appeal is dismissed.
2. Mr. Agyapong shall pay Jevco its appeal expenses in the amount of $3,000.

Mr. Agyapong appeals the Arbitrator’s decision of January 25, 2016. The Arbitrator denied his claims for non-earner benefits and for housekeeping and home maintenance benefits. Mr. Agyapong submits that the Arbitrator erred in:

• Failing to award benefits until the time Jevco denied them, because of Jevco’s breach of its statutory obligations
• Failing to accept hospital records as prima facie evidence of the cause of his impairments, and
• Failing to apply the proper causation test or misapplying the causation test.

The Appeals Adjudicator rejected Mr. Agyapong’s submissions, finding that the original Arbitrator properly concluded Mr. Agyapong was required to prove entitlement to the benefits he claimed, and properly concluded that he failed to do so. The original Arbitrator was not required to treat hospital records as evidence of causation and he properly applied the causation test. The Arbitrator therefore did not err in rejecting Mr. Agyapong’s claims. Consequently, the appeal is dismissed.

Mr. Agyapong testified at the hearing. In addressing the question of proof of entitlement, the Arbitrator concluded that Mr. Agyapong was not a reliable witness. The Arbitrator found that Mr. Agyapong was not forthright when describing his impairments that pre-dated the accident, and that he functioned at a higher level than he reported following the accident. The Arbitrator concluded that the 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.

The Arbitrator’s determination regarding Mr. Agyapong’s delivery of his application for accident benefits is a finding of fact.  Under s. 283(1) of the Insurance Act, appeals are limited to “a question of law”.

An error of law is a finding of fact made in the complete absence of supporting evidence, based on conjecture, or arising from a misapprehension of the evidence that is caused by a misdirection on a legal principle. There was ample evidence before the Arbitrator to support the factual findings of when Mr. Agyapong applied for accident benefits. There was no error. The Arbitrator was right in concluding that Mr. Agyapong did not prove the prerequisites for any consequences to be attached to his allegations of misconduct by Jevco.

Further, the Arbitrator was also correct in concluding that, even if Jevco breached its obligations under the Schedule, Mr. Agyapong still had to prove that he was entitled to the benefits he claimed. The Arbitrator relied on the decision of the Court of Appeal in Stranges to support this conclusion. In this case, there has been an extensive review on the merits by the Arbitrator, and there is no procedural basis for overturning his decision.

Mr. Agyapong submits that the Arbitrator erred because he did not correctly apply the causation test. The Appeal Arbitrator  rejected that submission. The Appeal Arbitrator determined that there was no error in applying causation test

In arriving at the decision, the Arbitrator reviewed the jurisprudence on the issue of causation and concluded that it is not clear whether the test to be applied was the “but for” test or the “material contribution test”.  The “but for” test requires answering the question of whether “but for the accident” the insured person would have sustained the impairments required for entitlement. The “material contribution” test asks whether the accident materially contributed to the impairments. The Arbitrator resolved the uncertainty in the jurisprudence by applying both tests. He concluded that Mr. Agyapong met neither test. 

Mr. Agyapong submits that the “but for” test does not apply in his circumstances. The Appeal Arbitrator found  it unnecessary to address that submission since the Arbitrator applied both tests and correctly applied the test upon which Mr. Agyapong relies.

In both written and oral submissions, counsel for Mr. Agyapong referred to the proper causation test as “material contribution to risk”. I wondered whether this was a new approach. At the hearing, counsel clarified that this was not a new test. Rather, it is his preferred way of referring to the test which is generally called the “material contribution” test.  According to Mr. Agyapong, the Arbitrator misunderstood the test because he gave meaning to “material” as a qualifier of “contribution”.

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

The trial judge’s conclusion on the evidence was that “[i]n my view, the plaintiff has proven, on a balance of probabilities, that the injuries suffered in the two earlier accidents contributed to some degree to the subsequent disc herniation”. She assessed this contribution at 25 percent.  This falls outside the de minimis range and is therefore a material contribution…”

When the Arbitrator determined that the accident was neither significant nor influential in creating post-accident disability, he engaged in the de minimis analysis applied in Athey. There was no error.

Mr. Agyapong was entitled to a non-earner benefit upon proving that the accident caused him to suffer a complete inability to carry on a normal life. Mr. Agyapong was entitled to housekeeping and home maintenance benefits if the accident caused a substantial inability to engage in his pre-accident housekeeping and home maintenance activities. Having properly determined that the accident was neither significant nor influential in creating post-accident disability, the Arbitrator correctly concluded that the accident did not cause the functional deficits required for entitlement to the benefits Mr. Agyapong claimed. Mr. Agyapong’s appeal must therefore be dismissed.

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It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.