Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 103

FSCO A10-001161

and A12-005490

BETWEEN:

ISMAIL KAYA

Applicant

and

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY

Insurer

*Minor error under heading “Heard” corrected on June 15, 2016 in accordance with the Dispute Resolution Practice Code and section 21.1 of the Statutory Powers Procedure Act.

Before: Isabel Stramwasser

Heard: March 9, 10, 11, 12 and April 17, 2015, at the offices of the Financial Services Commission of Ontario in Toronto. The transcript was received on August 6, 2015.

Appearances: Mireille Dahab and Niayousha Ghomashchi for Mr. Kaya

Jonathan Schrieder for State Farm Mutual Automobile Insurance Company

ISSUES:

The Applicant, Ismail Kaya, was injured in a motor vehicle accident on March 25, 2008. He applied for, and received, statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ Disputes arose concerning Mr. Kaya’s claims for benefits, which the parties were unable to resolve through mediation.

As a result, in April 2010, Mr. Kaya applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. 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 before me in 2015.

The issues in this arbitration are the following:

Is Mr. Kaya entitled to $2,100.00 for the cost of an OCF-19 Application for Determination of Catastrophic Impairment by Dr. Kakar dated December 30, 2009?
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?
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?
Is Mr. Kaya entitled to interest for the overdue payment of benefits?
Is State Farm liable to pay Mr. Kaya’s expenses of the arbitration?
Is Mr. Kaya liable to pay State Farm’s expenses of the arbitration?
Is State Farm liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Kaya?

Result:

Mr. Kaya is not entitled to payment for either an Application for Determination of Catastrophic Impairment (OCF19) by Dr. Kakar dated May 17, 2010 in the amount of $2,100.00 or an Independent Psychiatric Evaluation by Dr. Kakar dated December 30, 2009 in the amount of $2,400.00.
Mr. Kaya is not entitled to attendant care benefits in excess of what State Farm has already approved on this claim.
Mr. Kaya is not entitled to housekeeping and home maintenance benefits in excess of what State Farm has already approved on this claim.
Mr. Kaya is not entitled to interest payments.
The parties may make submissions regarding entitlement and quantum of the expenses of this arbitration.
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.

Did the Applicant establish entitlement to a December 30, 2009 OCF-19?

At the outset, I note that the Applicant incorrectly framed this issue. The issue as he framed it refers to one document, an OCF-19 dated December 30, 2009 by a psychiatrist named Dr. Kakar. However, that document does not exist. Mr. Kaya is actually referring to two separate documents:

an Independent Psychiatric Evaluation dated December 30, 2009 in the amount of $2,400.00
an Application for Determination of Catastrophic Impairment (OCF-19) dated May 17, 2010 in the amount of $2,100.00

I did not ask the parties for their submissions on changing the issue statement. I considered fairness to the parties in the absence of their submissions.

In considering fairness to the Applicant, I note that 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).

In considering fairness to the Insurer, I note that the Insurer had the benefit of reviewing and responding to all the documents in the arbitration file. I also note that State Farm cross-examined and made submissions on both the psychiatric evaluation and the OCF-19. Consequently, I am satisfied that State Farm had sufficient notice that one or both documents were at issue. There is no prejudice to the Insurer in my analyzing both documents.

Lastly, I consider that the Applicant filed the Application for Mediation in relation to these documents in 2011 and has, therefore, waited years for resolution of the matter.

This reasoning leads me to conclude that reframing the issue meets the standards of procedural fairness. 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.

The Psychiatric Evaluation

Mr. Kaya did not seek pre-approval from the Insurer before incurring the cost of the December 2009 psychiatric assessment. In his testimony, Mr. Kaya could not recall whether a request for pre-approval was ever sent to the insurance company. Similarly, Dr. Kianian also testified that he did not remember whether his office had sought pre-approval. The burden is on the Applicant to prove his case. As the evidence does not establish that he sought pre-approval, I find that he has not done so.

There is no obligation on an insurer to pay where there has been no request for pre-approval. The law is clear in subsections 24(1.1) of the Old Regulation and 38(2) of the New Regulation that “an insurer is not liable to pay” for an assessment that was incurred before seeking pre-approval. State Farm raised this argument at the hearing, but Mr. Kaya made no response.

While there are some exceptions to this rule, no exception applies in this case. Both versions of the regulation list special circumstances where an Applicant may incur an expense without pre-approval (such as an emergency where it would be harmful for the Applicant to go through the usual approval process). However, Mr. Kaya raised no argument and adduced no evidence to suggest that he fit into any of the exceptions.

Given that Mr. Kaya did not request pre-approval for the psychiatric evaluation and that no exception applies, I have no choice but to deny his claim outright. An arbitrator has no jurisdiction to order payment where there is no liability. For this reason, there is no need for me to proceed with an analysis of whether Mr. Kaya’s claim for the December 2009 psychiatric assessment was reasonable and necessary. Under the governing regulation, State Farm is not liable for the assessment, regardless of whether it was reasonable or necessary.

The OCF-19

Dr. Kakar only saw the Applicant once, at the December 30, 2009 evaluation

The evidence is uncontroverted that Dr. Kakar only saw the Applicant one time before completing the Application for Catastrophic Impairment (OCF-19). In his oral testimony, Dr. Kakar explained that he only saw Mr. Kaya once, at the December 30, 2009 psychiatric evaluation, for an hour. Approximately five months later, Dr. Kakar completed the OCF-19, which is a standard three-page form certifying that an insured is catastrophically impaired and providing some information to the support that opinion. On that form, Dr. Kakar indicated that the “Applicant was seen for the purpose of preparing this application, on 2009/12/30.” He also gave a brief summary of Mr. Kaya’s December 30, 2009 visit. Dr. Kakar provided no further information.

Although Dr. Kakar only saw Mr. Kaya once, he charged for both the December 2009 visit and the May 2010 form. Dr. Kianian invoiced the Applicant $2,400.00 for the December 2009 assessment. He later invoiced Mr. Kaya again in the amount of $2,100.00 for the May 2010 OCF-19. When questioned at the hearing, Dr. Kakar confirmed that these were two separate expenses.

I find Dr. Kakar’s charge for completing the OCF-19 unreasonable. I have already denied his expense for the December 2009 visit because there was no request for pre-approval. Having noted that Dr. Kakar only saw Mr. Kaya once and that the OCF-19 is based almost entirely on that one visit, I conclude that Dr. Kakar did not provide any services to prepare the OCF-19 other than at that one visit. While it is possible that Dr. Kakar may have incurred a professional fee for filling out the OCF-19 form, there is no evidence that he did. Consequently, I deny any expense related to the OCF-19.

The Applicant is not entitled to the psychiatric evaluation or the OCF-19

The evidence does not support Mr. Kaya’s claim for reimbursement of either the December 30, 2009 Independent Psychiatric Evaluation or the May 17, 2010 Application for Determination of Catastrophic Impairment (OCF-19).

Did the Applicant establish entitlement to attendant care and housekeeping and home maintenance benefits beyond those approved by State Farm?

As will be shown below, the evidence regarding Mr. Kaya’s entitlement to ongoing benefits is suspect and unreliable. Consequently, he has not established entitlement to attendant care and housekeeping and home maintenance benefits beyond those that State Farm already approved.

Both Mr. Kaya and his spouse testified at the hearing. 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, migraine headaches and psychological problems. He did not tell doctors about these problems after the accident. None of the medical professionals who were retained to assess Mr. Kaya’s entitlement to insurance benefits was aware of his pre-existing conditions.

The Insurer paid attendant care and housekeeping and home maintenance benefits for nearly 11 months

State Farm paid Mr. Kaya for nearly eleven months of attendant care services by his spouse, Gul Kaya:

State Farm paid Mr. Kaya $423.32 per month for the first three and a half months after the accident (from March 25 to July 13, 2008), based on the recommendations of his chiropractor, Dr. Kianian (whose in-home assessment is confusedly dated both April 9 and April 11, 2008).
State Farm then retained an occupational therapist, Cathy Auerbach, to conduct an in-home assessment (dated June 10, 2008 with an addendum dated July 22, 2008, to review the July 2, 2008 report of the Applicant’s chiropractor, Dr. Rahul Odhavji and kinesiologist Qusai Gulam Housien). Based on the occupational therapist’s recommendations, State Farm decreased the amount of attendant care benefits to $141.35 per month for the next seven months (from July 14, 2008 to February 15, 2009).
State Farm retained the same occupational therapist again on November 21, 2008 to conduct a follow-up assessment. The company also retained psychologist Dr. Godwin Lau to see Mr. Kaya in person on January 13, 2009. Based on their recommendations, and despite the rebuttal report of Dr. Kianian on December 18, 2008, State Farm terminated attendant care benefits on February 15, 2009.

In addition, the Insurer paid Mr. Kaya for nearly eleven months of housekeeping and home maintenance services by his spouse, Gul Kaya. Specifically, State Farm paid $100.00 per week from the date of the accident to February 25, 2009, based on the recommendations of Mr. Kaya’s chiropractor, Dr. Kianian, and the later assessments of his other chiropractor and kinesiologist, as well as the occupational therapist’s first assessment. The Insurer then terminated benefits on the occupational therapist’s second recommendation and that of the psychologist, despite the opinions of Dr. Michael Indech, orthopedic surgeon, on November 24, 2008, Dr. Lance Majl, neurologist, on December 21, 2008 and Dr. Kianian.

State Farm did not reinstate benefits, despite an opinion by Dr. Kakar, psychiatrist, on December 30, 2009.

The assessors were unaware of the Applicant’s pre-existing conditions

None of the health professionals who gave an opinion on Mr. Kaya’s entitlement to attendant care or housekeeping and home maintenance benefits was aware of his pre-existing conditions.

Specifically, Mr. Kaya told the Insurer’s occupational therapist that he was healthy before the March 2008 accident, aside from his asthma condition and a minor work-related burn. Similarly, Mr. Kaya told his providers, Dr. Odhavji and Mr. Housien, that his health history was “unremarkable.” Later, Mr. Kaya told his orthopaedic surgeon, Dr. Michael Indech on November 24, 2008, that he sustained a leg burn and had an episode of low back pain three or four years before the accident for which he underwent x-rays, but that he did not suffer with his back after that episode.

Mr. Kaya’s omissions continued with other assessors. He told his neurologist, Dr. Majl on December 13, 2008, that his health history was significant for asthma and a burn and that he was a smoker. He told the insurer’s psychologist, Dr. Lau, that he had no history of psychiatric problems and that his health history involved a work-related burn and asthma. The following year, on December 30, 2009, Mr. Kaya told his own psychiatrist, Dr. Kakar, that his health history was relevant for the following: no known allergies, asthma, a leg burn, smoking, occasional drinking and no drugs.

The majority of records from the Applicant’s chiropractor, Dr. Kianian, indicate that he had no pre-existing conditions. Dr. Kianian’s April 9, 2008 Attendant Care Assessment Report and May 9, 2008 Work Site Assessment both say that Mr. Kaya’s prior health history is “unremarkable.” Similarly, nine other documents from Dr. Kianian through May 2009 state that Mr. Kaya had no prior or concurrent conditions. Yet, three of Dr. Kianian’s records (Treatment and Assessment Plans of April 26, May 13 and June 24, 2008) say that Mr. Kaya had prior back pain and anxiety due to either a previous slip and fall (as stated in the April and May documents) or disc problems (as stated in the June document).

I give Dr. Kianian’s records little weight. Mr. Kaya denied any slip and fall in his testimony. Dr. Kianian was unavailable for cross-examination to explain the inconsistencies. If Dr. Kianian was, in fact, aware of Mr. Kaya’s pre-existing conditions, he gave no opinion on whether they were aggravated by the car accident. In any event, none of his documents suggests that he was aware of the Applicant’s pre-accident headaches or that he was aware of the extent of Mr. Kaya’s pre-accident back pain and psychological problems.

Mr. Kaya’s pre-accident history was actually quite remarkable. He was seeing doctors for low back pain, headaches and psychological problems in the weeks, months and years preceding the accident. The decoded OHIP summary from February 2005 to February 2008 shows over a dozen medical visits for significant pre-accident low back, headache and psychological problems, including four visits to hospital emergency. For example, the OHIP records show that Mr. Kaya sought after-hours medical attention for musculoskeletal problems four months before the accident and that he saw a doctor for musculoskeletal problems just five weeks before. He also sought after-hours attention for psychological problems just three months prior to the accident and also saw his family doctor for psychological problems and headaches two months prior.

There are few records available to cross-reference or supplement the decoded OHIP summary. However, emergency room records for August 1, 2005 show that Mr. Kaya reported severe low back pain feeling “like a knife” in his back, radiating to his legs and aggravated with coughing or movement. At that time, Mr. Kaya rated his back pain as a 10 out of 10. Importantly, he also told the emergency room staff that he had experienced the “same” back pain in the past.

Emergency room records for June 16, 2006 also show Mr. Kaya reporting headaches that lasted for days. He reported that his family doctor had prescribed Tylenol 3, which was not effective. Due to his significant complaints, hospital staff performed a CT scan of the brain. They diagnosed migraines.

A January 2, 2008 clinical record from his family physician, Dr. Janjua, indicates that Mr. Kaya “continued” to complain of anxiety, insomnia and headaches. The doctor prescribed anti-anxiety medication.

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. I note that Mr. Kaya also complained of shoulder and neck pain after the accident.

As a result of Mr. Kaya’s failure to inform his health care providers of his relevant medical history and as a result of Dr. Kianian’s failure to explain his records, I find that none of the opinions regarding his entitlement to attendant care or housekeeping and home maintenance benefits is helpful. Consequently, I see 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 Applicant’s evidence lacked credibility

I am unable to rely on Mr. Kaya’s evidence about his need for attendant care and housekeeping and home maintenance benefits because his evidence lacked credibility.

The Applicant Failed to Disclose his Pre-existing Conditions

As noted above, Mr. Kaya failed to disclose his pre-existing conditions to the medical professionals who were retained specifically to assess his eligibility for insurance benefits.

In addition to the medical professionals who assessed his entitlement to attendant care and housekeeping and home maintenance benefits, Mr. Kaya told his psychiatrist, Dr. Abbas Azadian on October 7, 2008, that he had no prior medical problems except asthma. He told physician Dr. Omar Khan and physiotherapist Paul Jager on February 14, 2009 that his past medical history consisted of asthma and a leg burn.

Mr. Kaya brought two medical witnesses to the arbitration, psychiatrist Dr. Kakar and neurologist Dr. Veidlinger, and neither was aware of his pre-accident history. On cross-examination, Dr. Kakar admitted that he did not have significant medical, psychiatric and employment information when he wrote his report. On February 23, 2010, Mr. Kaya told Dr. Veidlinger, neurologist, that he enjoyed good health generally before the accident, except asthma. On the stand, Dr. Veidlinger admitted that knowledge of the full medical record may have affected his conclusions.

On November 10, 2010, Mr. Kaya told his psychologist, Dr. Amena Syed, that he was healthy before the accident, with the exception of mild intermittent back pains, which he rated as a 1 to 2 out of 10 (with 10 being the most severe). He also reported the leg burn. Mr. Kaya added that, while he was afraid of fire after the burn, he had no further medical or psychological difficulties prior to the accident.

Lastly, Mr. Kaya told his orthopaedic surgeon, Dr. Franco Tavazzani on April 25, 2013, that he had no past medical history significant for muscoloskeletal injuries or impairments, except a visit to hospital for back pain in 2005, from which he recovered completely. He said that his past medical history was otherwise unremarkable.

Mr. Kaya’s failure to disclose his pre-accident conditions to the medical professionals who were retained specifically to assess his eligibility for insurance benefits creates a pattern of dissimulation. When confronted with the documentary evidence on cross-examination, Mr. Kaya repeated that he did not remember what he had told the health professionals and suggested that there may have been language barriers. Given that every report in these proceedings has nearly the same omissions and even outright denials of pre-accident back, headache and psychological problems, while other information is consistently included (such as asthma and a burn), a language barrier is not likely. Mr. Kaya has not provided any plausible explanation for his failure to disclose.

Inconsistencies in the Applicant’s reports of household responsibilities before the accident

The inconsistencies in Mr. Kaya’s evidence regarding his pre-accident responsibilities for housekeeping and home maintenance are irreconcilable.

On the one hand, Mr. Kaya told his chiropractor in April 2008 that he was responsible for more than half the household chores before the accident. Specifically, he said that he was 100% responsible for shopping (groceries and clothes) and 50% responsible for meals (prep, cooking, dishes), 50% responsible for cleaning (sweeping, dusting, vacuuming, making beds/changing linens, washing floors, cleaning oven, garbage removal), 50% responsible for laundry (washing, drying and ironing) and 50% responsible for child care (bathing, dressing, meal preparation and recreation). Notably, Mr. Kaya repeated this information with nearly the exact same wording to his other chiropractor and kinesiologist in July 2008.

On the other hand, Mr. Kaya seemed to have told the occupational therapist in June 2008 that he did less than half the housekeeping and home maintenance chores before the accident. Specifically, he said that he shared most chores with his wife, namely, laundry, sweeping, mopping and vacuuming, linen changing, bathroom cleaning, garbage removal, grocery shopping. However, he said that he only shared in the meal chores on weekends and weekday dinners and did not share in any of the bed-making or dusting.

Mr. Kaya told Dr. Azadian in October 2008 that he used to help with shopping and doing laundry. He did not say how much he helped. He did not mention any other household activity.

In his direct examination, Mr. Kaya gave the impression that he was responsible for the majority of household chores. He initially testified that he was responsible for the housekeeping tasks before the accident. When prompted, he added that his wife and, from time to time, his brother, helped him. He testified that he did one to two hours of housekeeping per day.

However, on cross-examination, Mr. Kaya seemed to say that he did not do much housekeeping before the accident. He said that he could not remember how much of the housekeeping he did, but only that he did “some” after he came home from work. When pressed, Mr. Kaya said that his wife was taking care of the child and was doing all the other house chores and when he came home, he helped her.

In her testimony, Ms. Kaya contradicted her husband’s accounts. She testified that she took care of their infant child before the accident and that, as a result of her absorption with child care, her husband took over the household responsibilities. According to Ms. Kaya’s initial testimony, she did the cooking and dusting and her husband did the rest. Ms. Kaya specified that her husband vacuumed, mopped, did laundry, did groceries and put out the garbage. Then, she qualified her testimony. She said that sometimes her husband also cooked. She said that sometimes she helped her husband with the housekeeping, but mainly she was occupied with child care. She added that her husband would help her with child care when he came home from work.

The combined evidence of Mr. Kaya and his wife provides a contradictory and confused picture of his role in the household before the accident. For example, Mr. Kaya repeated at least twice that he was 100% responsible for the household shopping, but told a third provider that he shared this responsibility with his wife. It is irreconcilable that he gave a detailed account, twice, of doing 50% of the household tasks (other than shopping) and yet told a third provider that he did not provide 50% of the meals and did 0% of the bed-making and dusting. It is inexplicable that Mr. Kaya stated with certainty on direct examination that he performed one to two hours of housekeeping per day, but was unable to recall this evidence on cross-examination. It is inexplicable that Mr. Kaya should have told at least two providers that he was responsible for 50% of the child care and yet seemed to say otherwise in his testimony. His wife, on the other hand, was clear that she was the primary caregiver.

Inconsistencies in the Applicant’s reports of his health after the accident

The evidence is also irreconcilable regarding Mr. Kaya’s self-reports of his health condition after the accident.

Most of the evidence indicates that Mr. Kaya reported a gradual improvement in his symptoms in the weeks and months after the accident. He told Dr. Tavazzani that he only needed help with attendant care for several weeks after the accident. He told Dr. Kianian on September 6, 2008 that he had “significant improvement.” By November 2008, Mr. Kaya told Ms. Auerbach that he felt much better overall, compared to June 2008, and that he was independent with self-care. He told Dr. Indech, in November 2008, that he was improving gradually. In December 2008, he also told Dr. Majl that he was independent in personal care activities. He told Dr. Lau in January 2009 that, as far as self-care was concerned, he was able to manage now. In February 2009, he reported to Dr. Khan and Mr. Jager a 50% improvement in his symptoms.

However, the foregoing does not match what Mr. Kaya told Dr. Azadian in October 2008. He said that the pain was persistent, constant and excruciating. He reported that he stopped helping at home. He said that he was receiving help to carry out his daily activities. He said that he was dependent on others to provide caregiving on a daily basis.

It also does not match Dr. Kakar’s report in December 2009, nearly two years post-accident, wherein Mr. Kaya claimed that he had still been unable to regain his pre-accident function. Mr. Kaya described himself as severely limited in his ability to perform any household and most self care duties. He was reportedly doing “absolutely nothing” due to severe pain and depression. Dr. Kakar was under the impression that Mr. Kaya had been unable to do things for himself since the accident and was dependent on assistance for basic self-care and housekeeping.

On cross-examination, Mr. Kaya insisted that he was unable to look after himself for the first two years after the accident. He testified that his wife helped him with personal care for one and a half to two hours per week. He then changed his evidence to say that she helped him with basic self-care activities one and a half to two hours per day.

When confronted with the documents, Mr. Kaya responded that he did not know why numerous reports stated that he had been recovering. Mr. Kaya suggested that maybe there was a language barrier. He said that maybe he and the health professionals did not understand each other.

None of this matches Mr. and Ms. Kaya’s representations to State Farm. For the first 21 months from March 2008 to December 2009, they claimed that Ms. Kaya performed between one and five hours of attendant care tasks per day (at least three hours per day on average). Suddenly, for the last three months of the period in dispute, from December 2009 through March 2010, Mr. Kaya claimed 15 hours of attendant care benefits per day. On cross-examination, Ms. Kaya admitted that these representations to the insurer were incorrect. She blamed the translator. Notably, the translator did not testify.

Inconsistencies in his reports of income

Mr. Kaya also provided irreconcilable evidence about his income after the accident.

It was Mr. Kaya’s testimony that his income after the accident comprised, in whole or in part, charity from one or both of his brothers. Mr. Kaya testified that, even though he did not work for the first six months after the accident, his brother paid him for working. He added that his brother continued to help him in subsequent years, even though 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. Mr. Kakar testified that his income in 2010 was money he earned himself from working.

But then 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 insurer’s representative asked whether Mr. Kaya had created an elaborate numerical scheme to hide charity from his brother. Counsel put to him that, when one receives help, one does not typically go into extreme detail regarding write-offs like meals and entertainment and motor vehicle expenses. Counsel also asked Mr. Kaya whether it would not have been easier to just take a loan from his brother.

In response, Mr. Kaya repeated that he did not know. He held his accountant responsible. He said that he did not file the tax returns himself. He explained that he took documents to his accountant, but he did not know what the papers were for.

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 and neither did his accountant.

The Applicant’s evidence was generally not credible or reliable

Taken together, Mr. Kaya’s evidence in these proceedings reflects negatively on his general credibility and reliability as a witness. He was a poor historian. He showed little regard for accuracy. There were inconsistencies in his accounts. His shifting statements were incongruous and, at times, deceptive. He withheld and suppressed relevant and material information. As a result, his credibility and reliability as a witness was irretrievably damaged.

The Applicant’s spouse lacked credibility

Ms. Kaya admitted that she was guessing at the hearing

Ms. Kaya was an unreliable historian. She testified to providing attendant care for one and a half to two and a half hours per day during the first year to year and a half after the accident, maybe less, and that this amount decreased a little bit later. However, the documentation to State Farm contradicted her testimony. Mr. Kaya’s requests for payment from his insurer say that his wife provided attendant care services an average of three hours per day for the first 21 months after the accident and 15 hours per day the last three months. On cross-examination, Ms. Kaya admitted that the written communications with the insurer were incorrect. Later, she also admitted that she was guessing during the hearing.

Ms. Kaya was certain that her spouse had health problems post-accident, but none prior

Ms. Kaya’s unreliability was also evidenced by her certainty that the Applicant had significant health problems after the accident and none before. She initially testified that her husband had no health issues before the accident. When pressed, she qualified that her husband sometimes had back pain, for which he would take one over-the-counter painkiller. She denied that her husband ever went to the doctor for back pain. She was also sure that he had no pre-accident anxiety, depression or sleep problems. Yet, as noted above, this is contradicted by the documentary evidence. I prefer the documentary evidence because it is contemporaneous with the complaints.

Ms. Kaya did not testify in a straightforward manner

Ms. Kaya’s credibility was damaged by the fact that she did not give evidence in a straightforward manner. Her testimony was often self-contradictory. The trend in her evidence was to make dramatic, extreme and sweeping generalizations first and qualify them when pressed. I have noted some examples of that trend, above.

The Applicant’s claims for attendant care and housekeeping and home maintenance benefits are denied

With the benefit of a fuller perspective than any of the medical professionals who considered the Applicant’s claims, including the Insurer’s examiners, I find that there is little ground for Mr. Kaya’s claims to attendant care or housekeeping and home maintenance benefits. To the extent that his claims are based on self-reports of need and pain, I deny them. Mr. Kaya’s statements are not helpful evidence in these proceedings, either directly through his testimony and through his and his spouse’s communications with the Insurer, or indirectly through his reports to medical professionals.

Mr. Kaya has failed to meet the evidentiary burden to persuade me 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, I conclude 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.

Mr. Kaya’s claims for interest and a special award are dismissed

Given that I have denied Mr. Kaya’s claims for the cost of examinations, attendant care and housekeeping and home maintenance, I also deny his claims for interest and a special award.

Claims for interest and a special award are not stand-alone claims. They are tied to the principal claims in an arbitration. I did not award Mr. Kaya any amount for his substantive claims for the cost of examinations, attendant care or housekeeping and home maintenance. Consequently, I deny his claims for the corollary relief of interest and a special award.

Expense Hearing

The parties may make submissions on entitlement and quantum of expenses. In particular, I am interested in hearing whether there is any reason that the Insurer ought not to have its expenses of this arbitration.

CONCLUSION:

The Applicant’s claims are dismissed.

March 31, 2016

Isabel Stramwasser

Arbitrator

Date