Experts relied on evidence from insured that was evasive and inconsistent

September 12, 2015, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Date of Decision: July 17, 2015

Heard Before: Adjudicator Charles Matheson

REASONS FOR DECISION

Mr. Abdi Hassan, was injured in a car accident on July 25, 2011.  He applied for and received statutory accident benefits from State Farm, which terminated his entitlement to any benefits on or about December 21, 2012.  Mr. Hassan applied for arbitration at the FSCO.

The select issue in this Hearing is:

1. Did Mr. Hassan sustain an injury or impairment that would remove him from within the Minor Injury Guidelines (“MIG”) as within the meaning of the Schedule?

Result:

1. Mr. Hassan suffered from a minor injury as within the Minor Injury Guidelines as within the meaning of the Schedule.

EVIDENCE AND ANALYSIS:

Mr. Hassan’s counsel relied on a three pronged approach to prove that Mr. Hassan suffered impairment or injuries which remove him from within the MIG, which are as follows:

1. A chronic pain assessment report and testimony.

2. A psychological assessment and testimony;

3. The clinical notes and records of Mr. Hassan’s family doctor along with his testimony as a witness.

Mr. Hassan himself was difficult or evasive during his testimony.  He could not remember the names of his interpreters, the names of any doctors unless prompted by his counsel, names of his clinics, or the different therapies he underwent.  Further, he testified that he would only sign documents he understood, but under cross examination, Mr. Hassan clearly displayed that he did not understand the vast majority of the medical language used in the reports and assessments he apparently signed.

On the face of the testimonies of the expert witnesses and their reports, it would appear plausible that a person suffering from chronic pain could indeed be suffering from post-stress disorder, which would explain the relapse of pain issues and up and down mood swings of a patient trying to move on with his life, after a motor vehicle accident.

In this case, all three expert doctors, on which Mr. Hassan’s case is built, relied upon Mr. Hassan to tell them the truth about all the subjective background information and/or peripheral information surrounding the accident and Mr. Hassan himself.  The doctors admitted there was no back checking or cross referencing of the facts as they were given by Mr. Hassan.

To further complicate matters, the two expert doctors relied on their own communications with Mr. Hassan without the aid of an interpreter.  In fact, one physician did not even speak to or see Mr. Hassan before writing his psychological assessment report.  The credibility issue is exemplified and demonstrated when he was asked if he knew of the eye surgery at the time of his report and, whether or not this fact would have altered his findings.  The physician seemed surprised at the discovery of the eye surgery and admitted that his findings in his assessment report would have been affected.

As a further example of the inaccurate information being disseminated by Mr. Hassan, the Arbitrator highlighted that Mr. Hassan told each assessor different facts about his daily life and facts about the accident. The CNRs from all the physicians contained erroneous information, and are inconsistent from one CNR to the next. Mr. Hassan failed to tell any assessor that he had surgery on his left eye after he admitted to his family doctor on February 13, 2012 that the “MVA back pain is resolved”.  A short four months later, he had the eye surgery and the insomnia and the anxiety began.

To further reinforce the lack of credibility of Mr. Hassan, during his testimony, he was at best evasive as he could not consistently recount some of the basic events of the accident.  He was unable to explain why different stories were told to each of the doctors.  Mr. Hassan couldn’t remember basic activities in any of the clinics he sought treatment, let alone the name of the clinic which he visited more than 20 times.  Mr. Hassan could not even tell which of his friends interpreted for him while at the clinics; even though the doctors and their staff stated that they did not use an interpreter. Mr. Hassan did not tell either psychologist examining him of his eye injury or the resulting surgery.

Dr. S who did do the interview of Mr. Hassan also testified that his associate found an unwillingness of Mr. Hassan to complete the questions during the assessments.  Even when helped and prompted Mr. Hassan refused to answer some test questions.  Dr. S did have an interpreter present for the testing as well as the interview.  The tests were inconsistent with Dr. A’s notes as Mr. Hassan indicated he had suicidal thoughts and also liked to drink to excess, which were not listed in the CNRs.

Dr. S testified that he did not interpret the incomplete or inconsistent portions of the testing because the inconsistency was on the verge of invalidity. Dr. S concluded that Mr. Hassan may have had issues but the issues did not cross the severity line for a diagnosis.  Throughout the test and the interview, Dr. S noted that Mr. Hassan was not in pain during his short window of interaction, as Mr. Hassan did not display the classic signs of guarding or wincing when moving.  The interview lasted for about an hour and the testing lasted for about two consecutive hours prior to the interview. Dr. S, in his testimony, questioned if the degree of headaches and insomnia was so severe, why didn’t Dr. A prescribe prescriptions to relieve either the depression or insomnia?  Why was there not a referral to other professionals to help resolve these issues? Dr. S noted that he did not think Mr. Hassan was suffering from post-stress disorder.  There was no avoidance of the issue of the accident coupled with no evidence of struggling to recount the accident. 

The Arbitrator concluded that there was a credibility issue as Mr. Hassan had omitted or consistently altered information to each of the medical health professionals, causing their respective assessment reports to be inaccurate or incomplete. In review of the evidence, and for the above reasons, the Arbitrator found that Mr. Hassan has not satisfied his burden of proof by evidencing that he did suffer from an injury or impairment as a result of this motor vehicle accident, which would remove him from within the MIG, therefore Mr. Hassan suffered from a minor injury as within the meaning of the Schedule.

About Deutschmann de Koning Law

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