Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 204

FSCO A14-009275 and A15-005691

BETWEEN:

YOGARASA YOGESVARAN

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

Before: Arbitrator Jeffrey Rogers

Heard: June 13, 14 and 15, 2016, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Mr. David S. Wilson, solicitor for Mr. Yogesvaran Mr. Jonathan Schrieder, solicitor for State Farm Mutual Automobile Insurance Company

Issues:

This arbitration arises from two 2007 motor vehicle accidents in which the Applicant, Yogarasa Yogesvaran, was injured. The first was on March 17, 2007 (the March accident) and the second was on July 26, 2007 (the July accident).

Mr. Yogesvaran was insured at the time by State Farm Mutual Automobile Insurance Company (“State Farm”). He applied for and received statutory accident benefits, payable under the Schedule.¹ Disputes arose regarding further claimed benefits which State Farm refused to pay. The parties were unable to resolve their disputes through mediation, and Mr. Yogesvaran applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Regulation 664, R.R.O. 1990, as amended.

The issues in this hearing are:

Medical Benefits, March accident:

Mr. Yogesvaran claims payment of $2,251.46, $2,780 and $2,135.60 for services by GTA Chiropractic as set out in treatment plans dated June 11, 2014, September 22, 2014 and January 28, 2015.

Examinations or Assessments, July accident:

Mr. Yogesvaran claims payment of $2,200 for a Psychological Assessment by Dr. Kanagaratnam, dated March 20, 2015.

Interest:

Mr. Yogesvaran claims interest for the overdue payment of all benefits.

Special award:

Mr. Yogesvaran claims payment of a special award.

Expenses:

Both parties claim expenses in respect of the arbitration

Result:

Mr. Yogesvaran’s claims for benefits, interest and a special award are dismissed.
Either party may request a further hearing on the issue of expenses, pursuant to section 79 of the Dispute Resolution Practice Code.

Overview

The only witness at the hearing was Mr. Yogesvaran himself. His credibility was critical to the outcome. I did not find him credible. The question of his entitlement to the disputed benefits turns on determining the state of his health at the time of the subject accidents and accepting his reported subsequent decline. I am not satisfied that Mr. Yogesvaran gave an accurate account in this regard at the hearing. The history he gave to the experts whose opinions support his position was similarly inaccurate. Since the experts relied on this history in forming their opinions, I conclude that their opinions are unreliable and I give them no weight.

Credibility

Section 14 of the Schedule requires State Farm to pay Mr. Yogesvaran the medical benefits he claims if they are reasonable and necessary. The treatment in dispute is intended to address a diagnosis of whiplash associated disorder (WAD2) with various complaints of pain caused by the March accident.

Section 24 requires State Farm to pay for the claimed psychological assessment, if reasonably required, in connection with a benefit claimed or a treatment plan. The assessment in dispute was intended to investigate a diagnosis of mixed anxiety and depressive disorder, post-traumatic stress disorder and somatoform pain disorder caused by the July accident.

Mr. Yogesvaran bears the onus of proving that the need for the benefits arises as a result of the accidents at issue. He claims that the treatment he received for about two years after the accidents was beneficial, that he suffered a relapse after he ceased treatment and that his condition did not improve in the five years before he sought the treatment in dispute. There is no demonstrative evidence supporting Mr. Yogesvaran’s claims. There are no X-rays, MRIs, scans or other images confirming his alleged injuries. There is just Mr. Yogesvaran’s account. Therefore his credibility is key.

Mr. Yogesvaran did not tell any of the medical practitioners he saw after these accidents that he had been involved in previous motor vehicle accidents and he did not mention any earlier accidents in his examination-in-chief. Dr. R. Lambotharan, who was Mr. Yogesvaran’s family doctor at the time of these accidents, was unaware of any previous accidents.

The records of Dr. Manivannan Selvananthan² tell a different story. He was Mr. Yogesvaran’s previous family doctor. On October 16, 2002 he noted that Mr. Yogesvaran was involved in a motor vehicle accident on October 13, 2002. The note indicates that Mr. Yogesvaran lost consciousness for a few seconds, attended at an Emergency Department and had not been working since the accident. The recorded symptoms were neck, shoulder and leg pain.³ On September 18, 2004, Dr. Selvananthan noted that Mr. Yogesvaran suffers from chronic back pain, with a past history of a motor vehicle accident in 2000.⁴

Mr. Yogesvaran claims to have forgotten about these accidents and he denied any history of significant back pain. Dr. Selvananthan’s records also note back pain due to a fall in the bathroom in April 2003 ⁵ and another motor vehicle accident on March 19, 2004.⁶ There are also further notes of complaints of back pain on August 8, 2003, March 24, 2004, March 27, 2004, May 6, 2004, May 15, 2004, June 4, 2004, June 13, 2004, June 21, 2004, September 13, 2004, January 17, 2005, August 22, 2005, August 23, 2005, November 5, 2005 and May 13, 2006.

Dr. Selvananthan’s records also note complaints of headaches and dizziness, symptoms which Mr. Yogesvaran denies having occurred earlier, now attributes to the later accidents, and did not report to his treatment providers or assessors. But Dr. Selvananthan noted these complaints on December 24, 2001, October 16, 2002, August 8, 2003, August 12, 2003, August 26, 2003, March 18, 2004, March 24, 2004, September 6, 2004, and September 2, 2005.

According to Mr. Yogesvaran, at the time of the March accident he was employed by Twins Maintenance as a carpet cleaner. He had been employed in that capacity for a year to a year and a half, and he had never missed work for medical reasons. His evidence was that he stopped working as a result of the injuries he sustained in the March accident.

As with Mr. Yogesvaran’s medical history, the available records tell a different story. The Record of Employment his employer issued shows his last day of work as February 28, 2007, seventeen days before the March accident. It also shows that he worked for about seven months, not a year and a half.⁷ Mr. Yogesvaran applied for welfare in June and October 2007. The records of the Ministry of Community and Social Services confirm the dates of employment Mr. Yogesvaran’s employer gave.⁸ These records also state that he is unable to work as a result of his diabetes with no mention of the accidents, that he is separated from his wife and that he is the caregiver for his children⁹, all of which Mr. Yogesvaran denied to be accurate.

The March accident occurred on Highway 401. Mr. Yogesvaran was a belted, front seat passenger. It was snowing at the time. Mr. Yogesvaran testified that his vehicle was travelling a considerable speed, close to the speed limit of 100 km/h, when the driver lost control and hit the guardrail. He says that he hit his head on the inside of the car and that he lost consciousness.

Mr. Yogesvaran was taken by ambulance to the Scarborough Hospital. The records of the hospital show a reported speed of 65 km/h. The records confirm impact to the head with a complaint of headache but no loss of consciousness is indicated. When the hospital conducted a CT scan of the head, the only abnormality was found in the sinuses. The scan showed large cysts in both maxillary sinuses, moderate thickening of both ethmoidal sinuses, mild thickening of the right frontal and spheroidal sinuses and occlusion of the right ostii. The diagnosis was chronic sinusitis with large bilateral maxillary retention cysts.¹⁰

At the time of the July accident Mr. Yogesvaran was driving his Lexus when it was hit from behind. He describes the impact as less severe than the March accident but claims that he again lost consciousness. Mr. Yogesvaran was taken to North York General Hospital after this accident. These records also contradict Mr. Yogesvaran’s claim that he lost consciousness. Another MRI taken at the time again showed evidence of sinus disease.¹¹

Mr. Yogesvaran says that his depression was caused by these accidents. He could not recall exactly when the symptoms started. However, when his family doctor issued a Disability Certificate in December 2009, it stated that Mr. Yogesvaran had developed depression, unrelated to the accidents.¹² The family doctor sent Mr. Yogesvaran for a consultation with Dr. Sooriabalan, a psychologist. On October 19, 2008, Dr. T. Sooriabalan reported that Mr. Yogesvaran’s had been showing symptoms of depression for one year. The reported cause was concern for the welfare of his wife, who was being treated for cancer. Diabetes was the only reported physical health concern. ¹³

I do not believe that Mr. Yogesvaran just forgot about the previous accidents in which he had been involved, as he claimed. Even if his recollection of them had faded by the time of these accidents, his involvement in these accidents would certainly have jogged his memory. Yet, Mr. Yogesvaran failed to disclose the previous accidents to anyone involved in his care and assessment, even when directly asked. I find that his omission was deliberate.

I do not believe that Mr. Yogesvaran only suffered from minor back pain before these accidents as he claimed. One does not likely attend for medical treatment as a result of minor back pain and one certainly does not attend as often as Mr. Yogesvaran did. As with the previous accidents, he could not have forgotten about the numerous attendances, as he claimed. I find that he deliberately understated his pre-existing medical condition.

I do not believe that Mr. Yogesvaran did not suffer from significant headaches before the accidents. As noted above, the records of Dr. Selvananthan tell a different story. In my view, complaints of dizziness requiring medical attendances are significant events which one does not simply forget. I again find this omission to be deliberate.

In any event, other causes were identified when Mr. Yogesvaran’s headaches were investigated after the accidents. Dr. Ronald Wilson, a neurologist, diagnosed status migrainosus. In May 2008 he reported that the symptoms had existed for 6 months. There is no mention of the accidents in the history he took. ¹⁴ I find that opinion to be more reliable than the revised diagnosis Dr. Wilson later gave. Mr. Yogesvaran saw Dr. Wilson again in 2009 and gave a different history. The new history included loss of consciousness for 5 minutes after the March accident, for 15 minutes after the July accident and a post-accident onset of headaches. Dr. Wilson then changed his diagnosis to post-concussive syndrome.¹⁵

I do not believe that Mr. Yogesvaran was employed at the time of the March accident. There is no explanation for the differing information his employer gave and that Mr. Yogesvaran gave to the Ministry of Community and Social Services. I find that Mr. Yogesvaran was not working at the time of the March accident and that his reconstruction of his employment status at the time of the March accident is part of a concerted effort on his part to misstate his medical status at that time.

I do not believe that Mr. Yogesvaran developed depression as a result of the July accident, as he now claims. I find that he likely gave more accurate information to Dr. Sooriabalan when he told him that his emotional problems related to his wife’s health and did not mention the accidents.

I do not believe that the March accident involved large forces and occurred at a speed of 100 km/h, as Mr. Yogesvaran claimed. He conceded in cross-examination that he did not know the speed before the impact in the March accident. He suggested that the information that the speed was 65 km/h might have come from the driver, who was also taken to the Scarborough Hospital. That appears likely, since the record also indicates that the loss of control was caused by hitting a patch of ice, something that Mr. Yogesvaran has not recounted. The driver was in a better position to know the speed than Mr. Yogesvaran. The fact that it was snowing at the time also suggests that a speed of 100 km/h would not have been appropriate. I conclude that the speed was more likely 65 km/h and find that the snowy and icy road conditions and not the high speed, explain the movement of the car across the highway after the initial impact.

I am not satisfied that Mr. Yogesvaran lost consciousness in either accident. I find that the records of the hospitals, to which he was taken, are the best evidence of his reports in this regard, and not his later revisions. Neither hospital recorded a loss of consciousness. Scarborough Hospital accurately recorded impact to the head. Information regarding loss of consciousness would have been critical in those circumstances. There is no report of impact to the head in the records of North York General Hospital and no contemporaneous report of head trauma or symptoms of concussion occurring from the July accident.

I am not satisfied that information in the records contradicting Mr. Yogesvaran’s current version of events result from poor interpretation or lack of English skills, as Mr. Yogesvaran suggested. All of the impugned records also contain accurate information and, in many instances, the impugned information is so far removed from the alleged facts that the recorder would have had to engage in complete fabrication. I find it unlikely that this occurred. I am not satisfied that language and interpretation only affects the information that Mr. Yogeavaran selectively disavows. In addition, contradictory information appears with or without interpreters and also when Mr. Yogesvaran gave information in his native language.

I am not satisfied that Mr. Yogesvaran’s lapses in memory were caused by his depression, as he also claimed. There is no evidence supporting the notion that depression causes a loss of memory or that it selectively impedes Mr. Yogesvaran’s memory. Even if I were to accept that notion, it would erode confidence in all of the history Mr. Yogesvaran gave, not just those aspects of the history that he now denies.

I find that Mr. Yogesvaran lacks credibility. As a result, his medical status and functional abilities at the time of the March accident are unknown. The reason he quit work before the March accident is unknown. The effectiveness of the treatment he received during the two years after the accidents is unknown. We also do not know whether Mr. Yogesvaran really made no progress in his recovery in the subsequent five years and whether he sustained any other injuries during that time.

Conclusion

I conclude that Mr. Yogesvaran deliberately obscured his medical history and that he enhanced the events surrounding these accidents. His purpose must have been to mislead regarding the impairments sustained in these accidents. I find that his account of the injuries and impairments he sustained in these accidents is unreliable.

I find that he has not proven that the March accident materially contributed to any of the conditions proposed to be addressed by the disputed treatment and that he has not proven that the July accident might have caused a diagnosable psychological condition. Mr. Yogesvaran’s claims are therefore dismissed.

SPECIAL AWARD:

Section 282(10) of the Insurance Act allows an Arbitrator to order an insurer to pay a special award, in addition to the benefits and interest to which an insured person is found to be entitled. Since I have found that Mr. Yogesvaran is not entitled to the benefits he claims, he is also not entitled to a special award.

EXPENSES:

The parties advised that there are no Offers to Settle relevant to the issue of expenses. They both resisted my suggestion that they immediately make submissions on expenses, preferring instead to await the result. They were instructed to exchange Bills of Costs within 30 days of the end of the hearing. I urge the parties to now negotiate a settlement of the issue of expenses. If they are unable to do so, either party may request a further hearing, pursuant to section 79 of the Dispute Resolution Practice Code.

July 28, 2016

Jeffrey Rogers Date

Arbitrator