Insured did not provide consistent or credible evidence.

April 23, 2016, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Date of Decision: March 31, 2016

Heard Before: Adjudicator Isabel Stramwasser

ISSUES:

Ismail Kaya was injured in a car accident on March 25, 2008. He applied for accident benefits from State Farm, but when disputes arose concerning Mr. Kaya’s claims for benefits Mr. Kaya applied for arbitration at the FSCO. Approximately two and a half years later, he applied for a second arbitration with the Commission, seeking further benefits. Both applications for arbitration were joined and heard in 2015.

The issues in this arbitration are the following:

1. Is Mr. Kaya entitled to $2,100.00 for the cost of an OCF-19 dated December 30, 2009?

2. Is Mr. Kaya entitled to attendant care benefits for services provided by his spouse, Gul Kaya, in the amount of $362.71 per month from July 3, 2008 to March 25, 2010, less amounts paid?

3. Is Mr. Kaya entitled to housekeeping and home maintenance benefits for services provided by his spouse, Gul Kaya, in the amount of $100.00 per week from February 26, 2009 to March 25, 2010?

4. Is Mr. Kaya entitled to interest for the overdue payment of benefits?

5. Is State Farm liable to pay Mr. Kaya’s expenses of the arbitration?

6. Is Mr. Kaya liable to pay State Farm’s expenses of the arbitration?

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

Result:

1. Mr. Kaya is not entitled to payment for either an OCF19 or an Independent Psychiatric Evaluation by Dr. K dated December 30, 2009 in the amount of $2,400.00.

2. Mr. Kaya is not entitled to attendant care benefits in excess of what State Farm has already approved on this claim.

3. Mr. Kaya is not entitled to housekeeping and home maintenance benefits in excess of what State Farm has already approved on this claim.

4. Mr. Kaya is not entitled to interest payments.

5. The parties may make submissions regarding entitlement and quantum of the expenses of this arbitration.

6. State Farm is not liable to pay a special award.

REASONS:

Mr. Kaya has the burden of proving that he is entitled to the accident benefits in dispute. To do this, he must establish certain facts. The facts must show that he meets the requirements of the legislation and that the requested benefits are reasonable and necessary. The Arbitrator noted that Mr. Kaya incorrectly framed this issue referring to one document, an OCF-19 dated December 30, 2009 by a psychiatrist named Dr. K. However, that document does not exist.  Mr. Kaya referred to both documents throughout the proceedings. Evidence and argument from the hearing as well as the Commission file record show that Mr. Kaya referenced these two documents interchangeably or conflated them into one document (including in the Application for Mediation, the Report of Mediator, the Application for Arbitration and in Arbitrator Osunde’s pre-hearing letter). The two documents that Mr. Kaya is referring to are:

1. an Independent Psychiatric Evaluation dated December 30, 2009 in the amount of $2,400.00

2. an Application for Determination of Catastrophic Impairment (OCF-19) dated May 17, 2010 in the amount of $2,100.00

    

The Arbitrator also noted that Mr. Kaya filed the Application for Mediation in relation to these documents in 2011 and has, therefore, waited years for resolution of the matter and that in these circumstances, the most just, quickest and least expensive resolution is to consider the issue by breaking it down into the two sub-issues of a psychiatric assessment and an OCF-19, without seeking further submissions from the parties.

Mr. Kaya did not seek pre-approval from the Insurer before incurring the cost of the December 2009 psychiatric assessment. As the evidence does not establish that he sought pre-approval, the Arbitrator found that he has not done so. The Arbitrator noted the law is clear that there is no obligation on an insurer to pay where there has been no request for pre-approval. On that basis the Arbitrator denied the claim.

Dr. K only saw Mr. Kaya once, at the December 30, 2009 evaluation but charged twice for the visit and the form completion. When questioned at the hearing, Dr. K confirmed that these were two separate expenses. The Arbitrator found Dr. K’s charge for completing the OCF-19 unreasonable, and having already denied his expense for the December 2009 visit the Arbitrator concluded that Dr. K did not provide any services to prepare the OCF-19 other than at that one visit. The Arbitrator denied any expense related to the OCF-19. Mr. Kaya is not entitled to the psychiatric evaluation or the OCF-19

Mr. Kaya and his spouse testified at the hearing. The Arbitrator determined that neither was a credible witness. The medical evidence after the accident is unreliable because it is missing critical aspects of Mr. Kaya’s medical history. Before the motor vehicle accident, Mr. Kaya informed doctors about his serious back pain, ongoing migraine headaches and psychological problems. He did not tell doctors about these problems after the accident. None of the medical or health professionals who were retained to assess Mr. Kaya’s entitlement to insurance benefits was aware of his pre-existing conditions.

The pre-accident records are remarkable because they show that Mr. Kaya had pre-accident low back pain, headaches and psychological problems, which are the same complaints he made to his insurer to with the aim of obtaining the benefits in dispute. The Arbitrator noted that Mr. Kaya also complained of shoulder and neck pain after the accident.

On this basis the Arbitrator found that none of the opinions regarding Mr. Kaya’s entitlement to attendant care or housekeeping and home maintenance benefits is helpful. Consequently, there is no benefit in analyzing the differences between these opinions. All are based on a faulty foundation. Their differences are in degree only, not in kind.

The Arbitrator also noted that Mr. Kaya’s testimony regarding his participation in home maintenance, housekeeping and child rearing was also inconsistent and lacked credibility. His spouse’s testimony was not consistent with his.

Mr. Kaya provided irreconcilable evidence about his income after the accident. Mr. Kaya testified that his income after the accident comprised of charity from one or both of his brothers, and even though he did not work for the first six months after the accident, his brother paid him for working. He added that he was “hardly doing any jobs anymore.” When asked why his income dropped in 2010, Mr. Kaya explained that it was because he did not want any more money from his brother. He did not want any more support, it was bothering him.   When confronted with details about his income documents, Mr. Kaya changed his testimony and said that, in 2011, he was still being helped by his brother and that, in fact, his brother was still supporting him to this day. He clarified that his income was a combination of working hard and receiving help from his brother. Later, Mr. Kaya clarified that he had two brothers, and that another brother helped him in later years, which explained the second source of his income on his tax returns.

Mr. Kaya made specific declarations on his tax returns for significant income, with detailed deductions. His tax returns show that his earnings were higher in the year of the accident and after than in the years before. They also indicate that Mr. Kaya made significant deductions for meals and entertainment and motor vehicle expenses in the year of the accident and after. The tax returns show how much he drove, to the kilometre, and how much he spent on gas and oil. For example, Mr. Kaya’s 2008 tax return claims that he drove more than 40,000 kilometres (over 100 kilometers per day, on average), although he had told various health professionals that he was afraid to drive after the accident and in too much pain to do much driving, in any event.

The Arbitrator noted that either Mr. Kaya was deceitful in these proceedings when he said that he was receiving charity from his brothers or he was deceitful to Canada Revenue Agency when he filed his tax returns with detailed accounts for business income and expenses. Either way, his credibility is damaged. Notably, neither one of Mr. Kaya’s brothers testified at the hearing nor did his accountant.

Mr. Kaya failed to meet the evidentiary burden to persuade the Arbitrator of his ongoing entitlement to benefits. Having found that Mr. Kaya and his wife lack credibility and that all the medical reports are tainted by his misstatements, The Arbitrator concluded that Mr. Kaya has not laid a factual foundation for his claims. A claim without facts is no claim at all. Mr. Kaya has not proven that his requested benefits are reasonable and necessary.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

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.