Insured lacks credibility and fails to provide evidence

October 20, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Rafi and Aviva

Decision Date: September 6, 2017
Heard Before: Adjudicator Marshall Schnapp

Non earner benefits (NEBs): Failure to provide evidence; lack of credibility; NEBs and other benefits denied.

Mr. Mohammad Rafi was injured in a car accident on May 12, 2012 and sought accident benefits from Aviva however when they were unable to resolve their differences Mr. Rafi  applied for arbitration at the FSCO.

Issues:

1. Is Mr. Rafi entitled to receive NEBs from November 12, 2013 to the present and ongoing?
2. Is Mr. Rafi entitled to the following medical benefits:
   1. $3,103.00 for chiropractic care
   2. $1,918.58 for a psychological treatment
3. Is Mr. Rafi entitled to the following cost of examinations:
   1. $978.50 submitted by West Side Diagnostics dated June 4, 2012;
   2. $1,300.25 submitted by West Side Diagnostics dated June 29, 2012 for an In-Home Assessment;
   3. $1,135.00 for an ultrasound submitted by West Side Diagnostics in a treatment plan dated July 31, 2012; and
   4. $1,950.00 submitted by West Side Diagnostics dated September 14, 2012 for a Chronic Pain Assessment?
4. Is Mr. Rafi is entitled to interest on the amounts outstanding in accordance with the          Schedule?
5. Is either party entitled to its expenses of the Hearing?

Result:

1. Mr. Rafi is not entitled to receive a non-earner benefit.
2. Mr. Rafi is not entitled to receive the medical benefits being claimed.
3. Mr. Rafi is not entitled to the cost of examinations being claimed.
4. Mr. Rafi is not entitled to interest for any overdue payments of benefits.
5. 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.

Mohammad Rafi, 47, was a passenger in a car being driven by his daughter. They were going to a grocery store and stopped at a red light, when their car was rear-ended by a van. Police attended after the accident but no ambulance was called. He was unemployed and on ODSP the time he claimed looking after his wife. Mr. Raffi has been in three previous motor vehicle accidents that took place in 1999 or 2000, 2009, and 2010.

Mr. Rafi testified that prior to the May 2012 accident he was in a little pain after the two motor vehicle accidents, but after the 2012 accident he became “like useless”. He testified that his activities prior to the 2012 accident included helping his children, grocery shopping, feeding his wife, taking out the garbage and visiting his mosque. He testified he went to mosque five times a day prior to the 2012 accident, took part in community activities and visited friends and family, but for these activities he qualified them by saying – “not much, a little”.

The Applicant testified he was on medication for depression prior to the 2012 accident because previous accidents left him depressed and with neck and lower back injuries.  His condition got worse after the 2010 accident, and whatever he was doing a little bit before, he was not able to do after. He saw his family doctor and received massage, chiropractic and psychological treatment after the 2010 accident, and was prescribed medication for pain and anxiety.

After the 2012 accident, the Applicant testified that all his injuries got a lot worse. He recalled he attended at the hospital the night of the accident because he was experiencing a lot of pain in his neck, back and legs. X-rays were taken and he was given Oxycodone for pain. He attended at his family doctor over the next few days who prescribed Oxycodone. He now takes 200 Oxycodone tablets per month and he thinks it has been this many for about 1.5 years. The dosage has increased because of the amount of pain he experiences, specifically due to the constant pain in his neck and legs. The medication has many side effects that Mr. Rafi finds limiting to his life,  and he broke down during testimony.

The Applicant testified that he did receive some psychological treatment. He stopped after the insurance company stopped paying. When asked what the biggest impact was from the 2012 accident, the Applicant replied it was being put on Oxycodone and depression pills for the last three years, and not receiving any physiotherapy and massage therapy. He also testified that the only activity his family does for him is to get him tea when he asks.

Upon cross examination Mr. Raffi admitted he was on ODSP due to a shoulder surgery he had in 2002 or 2003 because of a car accident he had in 1999 or 2000. When asked why he did not mention these details to his lawyer during direct examination, he testified that the 1999 or 2000 motor vehicle accident was a long time ago and he was not asked. Counsel then questioned a number of details in various medical reports with Mr. Rafi. 

Mr. Rafi could not recall many details or discussions with specific doctors, nor was he good at remembering where he worked when and why he stopped working.  Mr. Rafi also testified that prior to 2009 he was the primary caregiver to his then-14-year-old daughter. He then clarified that both he and his wife were her primary caregivers, as his wife looked after the food, clothes and ironing.

Counsel then referred to a chiropractic assessment dated January 6, 2012 prior to the May 12, 2012 accident. Mr. Rafi responded that he was in pain, sometimes less and sometimes more, but was not in severe pain every day. He was then asked if the assessment, which documented him in severe pain most of the day every day prior to the May 12, 2012 accident, was incorrect. He replied that he didn’t know.

When questioned about working, Mr. Rafi denied making extra money from a marble importing business. He said that it was his son’s business, and he just would offer advice when asked. He did not know why the medical report from Dr. Valentin dated August 5, 2012 stated that he reported earning extra money from the marble importing business, as he has no interest in the business. He also did not know why Dr. Valentin’s report noted that his sons would help him work on the weekends in July 2012 selling marble at a Flea Market. When asked about this, he testified again that he couldn’t remember.

Mr. Rafi maintains that as a result of the 2012 accident he exacerbated pre-existing injuries and he submits that he is not required to prove that the accident was the only cause of his injuries, but only required to prove the accident significantly contributed to an impairment that "continuously prevents" him from engaging in substantially all activities in which he ordinarily engaged before the accident. His evidence is his condition became progressively worse after each accident, until he was effectively non-functioning compared to his activity levels prior to the accident.

Mr. Rafi submits his prior consistent statements made to multiple assessors can be admitted to help assess his credibility. Mr. Rafi also submitted that after hearing the medical evidence and assessing reports referred to at the Hearing, that an arbitrator can determine if the cost of examinations and treatment plans are reasonable and necessary without having an expert opinion on point.

Royal submits that the Applicant does not meet the stringent test for the non-earner benefit, and has not proven on a balance of probabilities that the cost of exams and treatment plans in dispute are reasonable, necessary and incurred. With respect to the non-earner benefit, the Insurer submits that on the evidence before this tribunal, the Applicant was very significantly limited prior to the May 12, 2012 accident, and failed to prove a continuous and complete inability to carry on that limited normal life. Royal also submits that Mr. Rafi’s evidence with respect to his activity levels is unreliable, unsubstantiated, and probably confused. His ability to recall activity levels during various intervals before, between and after his various motor vehicle accidents was a central issue in this matter, which came across as tainted. Further, throughout the medical evidence and his testimony during the hearing, the Applicant showed himself to be inconsistent in describing his various activity levels, and according to the Insurer his evidence depended on whether or not it would help his numerous claims or not. 

Royal submits Mr. Rafi failed to provide any evidence to suggest that the exams and/or treatment in dispute will provide any benefit. He did not lead evidence to establish that any treatment goals in regards to the disputed benefits were identified, reasonable, or being met.  Thus, he failed to comply with the case law requirements of establishing the reasonableness and necessity of the disputed exams or treatment, and has not met the onus of establishing that the disputed benefits are reasonable and necessary.

Essential to the Arbitrator’s analysis and findings on the issues in this dispute is the Mr. Rafi’s credibility.  He chose to call no other witnesses to corroborate his testimony, relying on his own testimony and the voluminous medical documentation produced to prove on a balance of probabilities he is entitled to a non-earner benefit after the 2012 accident and entitled to the various medical and cost of examination benefits denied. Unfortunately, Mr. Rafi’s credibility was questionable for a number of reasons, some of which were noted by the Insurer.

Based on the evidence and facts, and due to no evidence being provided other than treatment plan and assessments, Mr. Rafi has not met the onus of establishing that the disputed 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.