Neutral Citation: 2016 ONFSCDRS 200 FSCO A15-001936

BETWEEN:

MOHAMAD SEDIQ Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Eban Bayefsky Heard: May 31, June 1 and 2, 2016 Appearances: Majid Yazdani for Mr. Sediq Jonathan Schrieder for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mohamad Sediq, claims to have been injured in a motor vehicle accident on December 28, 2012. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ State Farm denied certain of Mr. Sediq’s claims. The parties were unable to resolve these matters through mediation, and Mr. Sediq applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Mr. Sediq entitled to medical benefits for the following treatment plans, pursuant to section 14 of the Schedule? (i) April 4, 2013, by Dr. N. Raffi, in the amount of $198.00 (ii) May 27, 2013, by Dr. N. Raffi, in the amount of $1,051.70 (iii) April 1, 2014, by Dr. H. Nayeri, in the amount of $2,417.80 (iv) January 31, 2015, by Dr. H. Nayeri, in the amount of $1,623.60
Is Mr. Sediq entitled to the cost of the following in-home assessments, pursuant to section 25 of the Schedule? (i) February 27, 2013, by A. Gupta, in the amount of $1,297.30 (ii) May 21, 2013, by A. Gupta, in the amount of $1,384.80
Is Mr. Sediq entitled to interest for the overdue payment of benefits, pursuant to section 51 of the Schedule?
Is either party entitled to its expenses of the arbitration, pursuant to section 282(11) of the Insurance Act?

Result:

Mr. Sediq is not entitled to medical benefits.
Mr. Sediq is not entitled to the cost of assessments.
Mr. Sediq is not entitled to interest.
If required, the parties may request an expense hearing in accordance with the process set out in Rule 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

Background – Mr. Sediq’s Accident and Injuries

Mr. Sediq claims to have been injured in a motor vehicle accident the evening of December 28, 2012, when he says he lost control of his car at the end of a dead end street and hit a guardrail. He called 911 and the police attended the scene. He testified that he had “a lot of problems at the time of the accident” and that he injured the “left part of his body.” He said that he was driven to North York General Hospital later that night with a “headache and whole body pain.” Mr. Sediq was assessed and discharged, with a prescription for pain medication.

Mr. Sediq began seeing a chiropractor, Dr. N. Raffi, approximately a week after the accident for treatment, who on January 21, 2013 submitted a Disability Certificate, indicating that Mr. Sediq suffered post-concussion syndrome, lumbar radiculopathy and a WAD III injury as a result of the accident.

The Insurer had Mr. Sediq assessed by Dr. K. Isles, a general practitioner, who, on February 27, 2013, reported that Mr. Sediq “sustained soft tissue injuries of his cervical spine likely WAD I at most WAD II, and sprain/strain of the thoracolumbar spine…[with] no objective evidence of neurological deficit.” On July 11, 2013, Dr. R. Finkel, a psychiatrist who assessed Mr. Sediq at the request of the Insurer, reported that Mr. Sediq suffered from an “adjustment disorder and depressed mood…[without] features of a major depressive disorder” and that Mr. Sediq’s condition “does fall outside the minor injury guideline.”

Mr. Sediq testified that, prior to the accident, he was “good” and “felt well”, and that he is “now not in [his] previous condition” and does “not feel alive.” Mr. Sediq testified that he is in “a lot of pain”, has memory problems due to depression and nervousness, and is taking a number of medications for these problems.

Mr. Sediq’s Credibility

The claims in this case are relatively straightforward and depend largely on the credibility of Mr. Sediq’s complaints of significant physical and psychological problems as a result of the December 2012 accident. However, Mr. Sediq’s evidence is so fraught with inconsistencies, evasions and denials, that I find his complaints cannot be considered credible. This, in turn, fundamentally undermines his claims for the noted treatment plans and assessments.

The following are but a few examples of Mr. Sediq’s lack of credibility, which came to light during his cross-examination.

Mr. Sediq testified that, as a result of the accident, he suffered significant memory problems, and that “I can’t even remember what I ate for lunch.” However, when asked about his pre-accident medical history, he said he was “in good health”, had “no psychiatric treatment”, and that he was “sure about that.”

Mr. Sediq was directed to medical reports from Dr. M. Showraki, a psychiatrist who had treated Mr. Sediq for depression in 2005, but Mr. Sediq said that he could “not remember back to that time.” On several occasions, Mr. Sediq told counsel for the Insurer, “Ask me about the accident”, “I don’t want to answer your questions” and “You can ask me about the accident and after that.”

Mr. Sediq was asked whether, as reported by Dr. Showraki, he suffered from insomnia, anxiety and depression prior to the 2012 accident. Mr. Sediq said both that he could not remember (since he could “not even remember what happened yesterday”) and that he “sometimes had those problems.”

Mr. Sediq was asked about Dr. Showraki’s report that he complained of neck, upper back and shoulder pain, and wanted to be “put on welfare so that he can work only a few hours a week.” Mr. Sediq responded by saying that he could not remember, and that he did not want to answer counsel’s questions before 2012.

Mr. Sediq was asked about whether he had been involved in a previous motor vehicle accident on January 23, 2010, as reported by his family physician, Dr. M. Bakhshi, but Mr. Sediq said he could not remember. Dr. Bakhshi reported at the time that Mr. Sediq complained of neck and back pain and headaches as a result of that accident. When asked about this, Mr. Sediq said that he could not remember, and told counsel, “Don’t hurt me.” Mr. Sediq threatened to “leave this place” if counsel asked him any more questions about his life before 2012. However, Mr. Sediq also stated that he had had “5-6 accidents” before 2012, but that this was “not relevant to this case.” Counsel asked Mr. Sediq to clarify how many accidents he had before 2012, and Mr. Sediq responded by saying that he had had “more than a hundred, maybe none” and that it was “not your business.”

Mr. Sediq was asked about Dr. Bakhshi’s report that he suffered constant, total-body pain in September 2010, but Mr. Sediq said he could not remember. He was asked about reports from Joseph Brant Memorial Hospital that he suffered depression and anxiety in April 2010, but he said he could not remember. He was asked about an August 2011 report from the North York General Hospital that, since the 2010 motor vehicle accident, he was suffering “chronic moderate-to-severe pain”, but he said he could not remember.

Mr. Sediq was taken through the OHIP summary and asked about numerous visits in the two years preceding the accident for various physical and emotional ailments, but Mr. Sediq just repeated that he could not remember.

Mr. Sediq was asked whether he denied having any pre-accident problems to the assessors he visited after the accident, but instead of answering directly, Mr. Sediq simply said that he “did have problems” before the accident, “but not this much.” In February and May 2013, Dr. Isles reported Mr. Sediq as denying that he had had any major illnesses, or previous musculoskeletal injuries or motor vehicle accidents. Mr. Sediq said both that this was not correct and that he could not remember. Mr. Sediq replied the same way when asked about a similar report from Dr. Finkel in July 2013. Mr. Sediq attempted to say that the pain medication he has been taking as a result of the 2012 accident has impaired his memory. However, he had no explanation for why some of his denials of pre-accident problems preceded his beginning to take pain medication, namely, 3-4 months after the accident.

Despite his claims of a lack of memory, when asked about his last job prior to the 2012 accident, Mr. Sediq recounted in some detail the nature of his employment. For example, he stated that he worked for a company called Silver Sign, at Yonge and Major MacKenzie, delivering fliers by car, on a part-time basis, without a fixed schedule, and that he worked more when he was feeling better. He also said that his boss’s name was Bob, that he worked there approximately 5-6 months, and that he earned a different amount of money each week, depending on the number of fliers he delivered.

When asked about why he could remember his employment in detail, but not the various medical reports, he replied, “when you have a steady income, you remember”, but “if something happened once, you can’t remember.”

Mr. Sediq also recalled his accident in considerable detail, namely, that he was on Passmore Avenue, going to a friend’s party in Richmond Hill, that his GPS had led him down a dead-end street, and that, although he hit his head in the accident, he did not lose consciousness. Mr. Sediq denied an October 6, 2013 report by Dr. A. Shaul, a psychologist, that he had lost consciousness in the accident (one of Mr. Sediq’s chiropractors, Dr. Nayeri, also having testified that Mr. Sediq reported being “out awhile” after the accident). Despite testifying that he had “a lot of problems at the time of the accident” and that he injured the “left part of his body”, the investigating officer recorded in his notes, “no injuries.” When asked about this, Mr. Sediq said that the police had asked if his body was “torn” or had “any wounds”, to which he replied, “No.” And, although Mr. Sediq said that he went to the hospital the same night with a “headache and whole body pain”, the records from North York General Hospital after the accident show that Mr. Sediq attended very late the following night (or early in the morning December 30th) , complaining only of “chest pain and headache.”

When asked about the two claimed in-home assessments by Mr. Gupta, Mr. Sediq responded that he was “not [at the hearing] for any dispute”, and was “only here because the Court ordered me to be here.”

On the basis of these numerous deficiencies in Mr. Sediq’s evidence, I find him to be completely lacking in credibility. I find that Mr. Sediq unreasonably refused to answer or evaded relevant questions about his pre-existing medical history. I do not accept that he suffers memory problems that prevent him from recalling his pre-accident medical condition. Mr. Sediq offered no medical evidence of a brain impairment or other cognitive problems that would preclude him from answering questions about his pre-accident life. I note, in particular, that, on April 23, 2015, Dr. Showraki saw Mr. Sediq for new emotional problems, and reported that he “told his story coherently”, with “no signs of psychosis, or any cognitive impairment.” I further find that there is no support, either medical or otherwise, for Mr. Sediq’s claim that his medication has affected his memory. I find significant that despite claiming an inability to recall even recent events, Mr. Sediq was able to recall in considerable detail the nature of his pre-accident employment, the circumstances of the subject accident, and in fact professed to be in good health prior to the accident. Based on numerous medical records, I find that Mr. Sediq previously suffered a number of injuries and ongoing medical problems relevant to the treatment he received following the 2012 accident. I also find that Mr. Sediq unreasonably and without justification withheld relevant medical information from his treating practitioners and assessors. Finally, I find that, at the hearing, Mr. Sediq attempted to portray himself as having been significantly more injured in the accident than he was at the time.

In all of the circumstances, I find Mr. Sediq’s evidence to be wholly lacking in credibility, and, as discussed more below, that this disentitles him to the benefits claimed.

1) Mr. Sediq’s Claim for Medical Benefits

Mr. Sediq claimed medical benefits in respect of two treatment plans from Dr. N. Raffi, for chiropractic treatment, dated April 4 and May 27, 2013, in the amounts of $1,299.96 and $1,051.70, respectively. The Insurer partially approved the first treatment plan (leaving the claimed balance of $198.00) and denied the second treatment plan (the latter on the basis of Dr. Isles’ February 2013 report). Pursuant to sections 14 and 15 of the Schedule, an Insurer is required to pay a medical benefit for all “reasonable and necessary” expenses for, among other things, chiropractic and physiotherapy services, incurred as a result of a motor vehicle accident.

I do not find that Mr. Sediq is entitled to the balance of Dr. Raffi’s April 4, 2013 treatment plan. Although the treatment plan was for $1,299.96, an Auto Insurance Standard Invoice (OCF-21), dated May 22, 2013, indicates that only $1,100 of this was invoiced, and this amount was paid (leaving an actual balance of $199.96). Mr. Sediq offered no evidence of why the balance was either reasonable or necessary, or why the Insurer’s not paying the remaining amount was improper. Dr. Raffi was not called to address either the substantive or financial appropriateness of his treatment plans.

I further find that Mr. Sediq is not entitled to Dr. Raffi’s second treatment plan. I find that Mr. Sediq’s utter lack of credibility significantly undermines his claim of requiring chiropractic treatment as a result of the 2012 accident. I note, in particular, Dr. Raffi’s January 2013 Disability Certificate (indicating that Mr. Sediq had suffered post-concussion syndrome, lumbar radiculopathy and a WAD III injury as a result of the accident), where Dr. Raffi indicated that Mr. Sediq did not have any relevant pre-existing medical conditions or injuries. I note, as well, that Mr. Sediq did not testify, or otherwise offer specific and reliable medical evidence, as to the reasonableness and necessity of Dr. Raffi’s second treatment plan.

Mr. Sediq also claimed medical benefits in respect of two treatment plans from Dr. H. Nayeri, for chiropractic treatment, dated April 1, 2014 and January 31, 2015, in the amounts of $2,417.80 and $1,623.60, respectively. The Insurer denied the first treatment plan on the basis of Dr. Isles’ May 21, 2014 report, in which she found that “overall from a physical perspective the documentation would indicate that [Mr. Sediq] sustained soft tissue injuries which were uncomplicated and of a minor nature and therefore would not require any further treatment at this point in time.” The Insurer denied the second treatment plan on the basis of Dr. Isles’ May 6, 2015 report, in which she found that there were “no objective findings in [relation] to any ongoing physical impairment resulting from the injuries sustained in the accident” and that Mr. Sediq “no longer requires any formal clinic-based treatment and, therefore, the OCF-18 dated January 31, 2015 is not appropriate and consistent with the severity of his injuries.”

For reasons similar to those upon which I denied Mr. Sediq’s claims for Dr. Raffi’s treatment plans, I also deny his request for Dr. Nayeri’s treatment plans. I note, in particular, that Dr. Nayeri was called to testify, and said that his recommendations were not based on a review of any documents, that he did not know what Mr. Sediq was like prior to the accident, that it would be important to know this, and that it was “hard to say” whether Mr. Sediq’s problems were related to the 2012 motor vehicle accident. In his first treatment plan, Dr. Nayeri had reported Mr. Sediq’s prior medical conditions to be “unknown”, and in his second treatment plan, he had reported Mr. Sediq as saying that he had had “no” prior medical problems. I find that Mr. Sediq’s lack of credibility (which is, in part, responsible for Dr. Nayeri’s lack of information concerning the nature, cause and extent of Mr. Sediq’s complaints) significantly undermines Dr. Nayeri’s recommendation for additional chiropractic treatment for Mr. Sediq.

2) Mr. Sediq’s Claim for the Cost of Assessments

Mr. Sediq claimed the cost of two in-home assessments by Mr. A. Gupta, an occupational therapist, dated February 27 and May 21, 2013, in the amounts of $1,297.30 and $1,384.80, respectively. The Insurer denied these claims on the basis of Dr. Isles’ February 2013 report. Pursuant to section 25 of the Schedule, an Insurer is required, in part, to pay expenses incurred for assessments reasonably required as a result of an accident.

Mr. Sediq did not testify or otherwise provide any evidence as to the reasonableness and necessity of the proposed assessments. He did not, in particular, address why more than one in-home assessment was reasonably required and/or why two in-home assessments in rapid succession were needed. Mr. Gupta was not called to testify as to why he felt that either one or both of the assessments was warranted. As with Dr. Raffi and Dr. Nayeri, Mr. Gupta was also unaware of Mr. Sediq’s significant pre-accident medical history (reporting first that he did not know of any relevant prior medical problems, and then reporting that none existed). Mr. Gupta’s diagnoses of Mr. Sediq’s problems were virtually identical to those of Dr. Raffi, and, in my view, were unreliable given Mr. Sediq’s fundamental lack of credibility in describing his overall medical condition.

In final submissions, Mr. Sediq maintained that the Insurer improperly denied him benefits and that, in particular, he did not proceed to incur the costs of Mr. Gupta’s assessments because of the Insurer’s improper denial of his claims. Mr. Sediq submitted that the Insurer should either be found liable to a special award or at least be ordered to pay for Mr. Gupta’s assessments (on the basis that they should be deemed to have been incurred as a result of being unreasonably denied, pursuant to section 3(8) of the Schedule). I reject these arguments. Mr. Sediq did not identify either of these issues at the commencement of the hearing, and, in any event, did not establish that the Insurer acted improperly in denying his claims. On the contrary, I have found Mr. Sediq to be completely lacking in credibility, that he has not established his entitlement to the claimed treatment plans and assessments, and I see no evidence that the Insurer unreasonably withheld or delayed the payment of benefits to him.

3) Interest

Given that I have denied Mr. Sediq’s claims, I find that no interest is owing.

EXPENSES:

The parties did not address the issue of expenses. If required, they may request an expense hearing in accordance with the process set out in Rule 79 of the Dispute Resolution Practice Code.

July 19, 2016

Eban Bayefsky Arbitrator

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

Mr. Sediq is not entitled to medical benefits.
Mr. Sediq is not entitled to the cost of assessments.
Mr. Sediq is not entitled to interest.