Applicant found to lack all credibility - Claims for caregiver and attendant care benefits denied

September 11, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Sivalingam and State Farm

Date of Decision: July 17,  2017
Heard Before Adjudicator: Caroline King

Sritharan Sivalingam has claimed he was injured in a motor vehicle accident on June 12, 2009.  He applied for and received SABs from State Farm but when a dispute arose about the entitlement to

Issues:

1. Is Mr. Sivalingam entitled to receive weekly caregiver benefits in the amount of $250 per week from June 12, 2009 to date and ongoing? 
2. Is Mr. Sivalingam entitled to attendant care benefits in the amount of $829.69 per month from June 14, 2009 to June 12, 2011? 
3. Is Mr. Sivalingam entitled to payments for the cost of examinations in the amount of $2,201.78 for a psychological assessment as submitted on April 5, 2013?
4. Is State Farm liable to pay Mr. Sivalingam’s expenses in respect of the arbitration?
5. Is Mr. Sivalingam entitled to interest for the overdue payment of benefits?

As no particulars regarding a special award claims were provided to State Farm in accordance with Arbitrator Fadel’s December 7, 2015 order, the special award claim was not added.

Result:

1. Mr. Sivalingam is not entitled to receive weekly caregiver benefits in the amount of $250.00 per week from June 12, 2009 to date and ongoing. 
2. Mr. Sivalingam is not entitled to attendant care benefits in the amount of $829.69 per month from June 14, 2009 to June 12, 2011.
3. Mr. Sivalingam is not entitled to payments for the cost of examinations in the amount of $2,201.78.
4. State Farm is not liable to pay Mr. Sivalingam’s expenses in respect of the arbitration.
5. Mr. Sivalingam is not entitled to interest as there is no overdue payment of benefits.

At the beginning of the hearing Mr. Sivalingam raised a motion to determine whether an OCF-3 and the stated refusal of benefits were compliant with the Schedule.  The Arbitrator found this motion to be premature as the hearing would resolve issues of eligibility.  The parties were advised that if Mr. Sivalingam was found to be eligible the Arbitrator would hear further evidence and submissions regarding Mr. Sivalingam’s motion.  As Mr. Sivalingam was not successful in establishing that he was more likely than not eligible for the benefits claimed, Mr. Sivalingam’s motion is moot.

The accident occurred on June 12, 2009.   Mr. Sivalingam stated that he remembered the accident.  He stated that as a result of the accident he is unable to run, bend, carry heavy things, or twist his left forearm.  He stated that as a result of the accident he suffers from headaches, that he has pain from his mid-back to lower back, and pain from his left hip to his left knee.  Mr. Sivalingam applied for and received approximately $32,910.00 in weekly caregiver benefits (the equivalent of just over 131 weeks), and $1,873.46 in monthly attendant care benefits (which is the equivalent of just over 2 months).  Mr. Sivalingam asserts that he is entitled to these benefits and to further caregiver and attendant care benefits and that he is also entitled to the costs of examination of the psychological assessment done by Toronto Physiotherapy and Rehabilitation Clinic.

State Farm disputes Mr. Sivalingam’s claimsand submits that the medical documentation does not support Mr. Sivalingam’s claims and the inconsistencies in Mr. Sivalingam’s evidence further undermines his claims.

The claims in this case depend largely on an assessment of the credibility of Mr. Sivalingam, as a principal source of information about the injuries Mr. Sivalingam claims to have suffered and the impact of these injuries on his life is based on Mr. Sivalingam’s self-reports to his service providers.  For his medical documentation to be considered reliable, it is critical that Mr. Sivalingam’s self-reports also be reliable and credible.  This decision will consider general issues of Mr. Sivalingam’s credibility before considering the specific issues to be determined in this application.

Upon reviewing the evidence and testimony arbitrator determined that Mr. Sivalingam lacks credibility. The inconsistencies in Mr. Sivalingam’s testimony, and in his documentation, are so numerous, pervasive, and broad that they undermine Mr. Sivalingam’s credibility as a whole.   There were even inconsistencies in these inconsistencies themselves.   There were inconsistencies in the evidence of Mr. Sivalingam.  Mr. Sivalingam’s employment status and history, the reason why he stopped working, and information regarding where Mr. Sivalingam lived and with whom are not the legal tests to be determined in this application.  However, they form a useful backdrop and establish the context in which the legal issues are to be determined.

Information about Mr. Sivalingam’s employment history and status provides an important insight into the accuracy of Mr. Sivalingam’s self-reporting to his own service providers, State Farm and other agencies and provides some context for Mr. Sivalingam’s claim that he was the primary caregiver for his son at the time of the accident.

When asked to explain these inconsistencies, Mr. Sivalingam indicated, in part, that it was the assessors who incorrectly recorded the information provided to them.  Given the specific and detailed nature of the employment information contained in these reports, and given that Mr. Sivalingam provided similar information to multiple assessors, the Arbitraotr found Mr. Sivalingam’s explanation about the inconsistencies to be implausible.

When Mr. Sivalingam was asked why he signed documents if the information in them was not correct, he frequently responded that he did not read the documents, or that the information was not explained to him.  In the instance of Mr. Sivalingam’s November 2013 Application for Employment Insurance Benefits, Mr. Sivalingam indicated that even though he did not believe he was able to work, he told the government that he was willing, able, and capable of working immediately, because that was the only way he could get the benefits. This suggests that either Mr. Sivalingam lied to Service Canada to secure Employment Insurance benefits, or he lied when, during the similar period, he asserted that he was not able to work, and in his sworn testimony before this tribunal.  Either outcome supports a finding that Mr. Sivalingam’s self-reporting contains falsehoods, and misrepresentations, and is lacking in reliability.  When I take this finding into account, and consider that there is no likely other source of information given, kind of details in the information provided in the numerous reports. On this basis the Arbitrator found Mr. Sivalingam to have misrepresented and exaggerated claims and statements made to both his assessors, State Farm’s assessors, State Farm, and this tribunal.

Mr. Sivalingam did not establish that he is more likely than not to be entitled to the claims in his application.  Mr. Sivalingam lacks credibility and when the numerous and broad inconsistencies in Mr. Sivalingam’s evidence undermine the claims made.  The determination of eligibility to benefits at an arbitration is dependent to a significant degree on the reliability and accuracy of Mr. Sivalingam’s self-reports. In this case, there were numerous deficiencies and inconsistencies in Mr. Sivalingam’s evidence and self-reports for which there was no reasonable and plausible explanation.  Mr. Sivalingam was evasive in his answers, even in response to his own counsel’s questions. 

Mr. Sivalingam’s evidence was so fraught with inconsistencies that the Arbitrator was not satisfied that Mr. Sivalingam provided sufficient, persuasive evidence to meet his burden of proof and the case will was dismissed. 

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