September 04, 2016, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Decision Date: 2016-08-02
Adjudicator: Lynda Tanaka
Mr. Comert Toprak was 45 when he was injured in a car accident on August 24, 2008 when he was stopped at a red light and rear ended by a car that left the scene. His airbags did not deploy, however he testified his head hit the visor. The car was not insured for collision and was written off. There are no accident photos. When police responded Mr. Toprak had a partial plate number. He was taken to hospital by ambulance where the records indicate it was a minor collision, Mr. Toprak was ambulatory, he made no complaint that he had hit his head, and he had not lost consciousness.
Following the accident Mr. Toprak sought accident benefits from Economical payable under the Schedule, however when the parties were unable to resolve their disputes through mediation Mr. Toprak applied for arbitration at the FSCO.
The issues in this Hearing are:
Did Mr. Toprak sustain a catastrophic impairment as a result of the accident?
Is Mr. Toprak entitled to receive a weekly IRBs from December 10, 2010 and ongoing?
What is the amount of the weekly IRB that Mr. Toprak is entitled to receive?
Is Mr. Toprak entitled to receive medical benefits in the amount of $1,400.00 for an orthopedic mattress per an OCF-18, dated November 24, 2010?
Is Mr. Toprak entitled to attendant care benefits in the amount of $716.20 per month for the period of August 24, 2008 to August 24, 2010?
Is Mr. Toprak entitled to payment for housekeeping and home maintenance services in the amount of $100.00 per week for the period of August 24, 2008 to August 24, 2010?
Is Mr. Toprak entitled to payments for the cost of examinations by Psychology Associates in the amount of $2,238.00 per an OCF-18, dated December 27, 2011?
Is Mr. Toprak entitled to interest for overdue payments?
Mr. Toprak did not sustain a catastrophic impairment as a result of the accident.
Mr. Toprak is not entitled to receive a weekly IRB from December 10, 2010 and ongoing.
Mr. Toprak is not entitled to receive medical benefits for $1,400.00 for an orthopedic mattress per the OCF-18, dated November 24, 2010.
Mr. Toprak is entitled to attendant care benefits in the amount of $716.20 per month for the period of August 24, 2008 to August 24, 2010.
Mr. Toprak is not entitled to payment for housekeeping and home maintenance services in the amount of $100.00 per week for the period of August 24, 2008 to August 24, 2010.
Mr. Toprak is entitled to payments for the cost of examinations by Psychology Associates for $2,238.00 pursuant to an OCF-18, dated December 27, 2011.
Mr. Toprak is entitled to interest on any overdue payments.
Mr. Toprak’s major complaints concerning his injuries have been consistent: headaches, dizziness, tinnitus, neck and shoulder pain, lower back pain, and difficulties with sleep.
Economical has paid accident benefits based on the applications and assessments it received and the medical information it received from time to time. It paid income replacement benefits for approximately two and half years until December 12, 2010 at the weekly rate of $400.00, based on Mr. Toprak’s earnings in the four weeks before the accident. It paid Mr. Toprak attendant care benefits totalling $10,572.33 for the period of the two years following the accident. It also paid housekeeping and home maintenance benefits totalling $9,590.00, again for the two-year period after the accident.
Economical terminated the benefits, relying on independent assessments conducted by occupational therapists, medical doctors and psychologists who found that Mr. Toprak no longer met the requirements of the Schedule to receive those benefits. Economical denies that Mr. Toprak is entitled to any further attendant care or housekeeping and home maintenance benefits. Though it has received new information since terminating the benefits that raised doubts as to Mr. Toprak’s entitlement to receive these benefits, it has indicated it is not seeking repayment of the money paid under these headings.
The Schedule has very strict criteria which must be met in order to make a claim of catastrophic impairment. They are detailed in sec. 2(1.2) (f) or (g), and the definition in s. 2(1) of impairment.
Mr. Toprak testified that he worked full-time as a self-employed Master stucco plaster worker prior to and at the time of the accident. This work involves standing, bending, squatting, and repetitive arm movements. He was also required to stand on scaffolding, carry items of 2 to 3 kilograms and to work both outside and inside buildings.
Mr. Toprak provided full evidence of his work history, and of his tax history. At the time of the accident, he had not worked for a full year for any company (other than his own). He declared personal bankruptcy in 2008. He testified and told the various doctors who have treated him or assessed him for the purpose of his accident benefits claim that he has not worked since the accident. The only earnings declared in Mr. Toprak’s tax return for 2008 were those for four weeks he worked for Red Star Construction. In 2007, he declared $1.00 of income, despite his testimony that he worked five months that year. In 2006, he declared business income just over $32,000.00 and deducted expenses related to his motor vehicle and travel. Since 2008, he has not declared any earned income (other than the nominal $1.00), either business or personal, except for $565.00 of income in 2013 and his ODSP income in 2014.
Mr. Toprak reported to the health care professionals who assessed him for the purpose of accident benefits that he was in good health prior to the accident, and did not suffer from neck or back pain, tinnitus or dizziness or headaches until after the accident. He told some of the assessors that the accident had aggravated his gastrointestinal problems.
Mr. Toprak had a history of serious gastrointestinal problems that predated his accident, and was a candidate for surgery. Surgery options were also discussed again with Mr. Toprak in September 2007.
On July 15, a few weeks prior to the accident, another report recommending consideration of a surgical solution to the ongoing problems with the gastric outlet obstruction. On September 2, 2008, nine days after the accident, Mr. Toprak underwent a laparoscopic gastrojejunostomy under general anesthesia. He was seen in a follow-up appointment on September 17, 2008 and two months later he was back at the hospital with abdominal pain, and underwent an emergency operation on January 16, 2009 to address what was tentatively diagnosed as septicemia and diffuse peritonitis. The operation under general anesthetic involved, among other things, a resection of the small bowel. In March 2011, Mr. Toprak was again admitted to the hospital with gastrointestinal bleeding.
There is little evidence as to the impact of this history of gastrointestinal medical issues on Mr. Toprak’s ability to work or his activities of daily living, though the gaps in working arguably coincide with at least some of the periods when Mr. Toprak was hospitalized or turned to emergency departments for help with his symptoms and when he was under the care of specialists. Mr. Toprak’s wife testified that, before the accident, her husband would continue to go to work even when suffering abdominal pain. Though he indicated that gastroenterology was not his field, when questioned the doctor who was called by Economical as a witness, testified that the gastrointestinal condition and operations would not have caused the back pain that Mr. Toprak suffered in the post-accident years but might make someone less likely to be active. Beyond these two items, there was no evidence that could support a reasonable conclusion as to the contribution that the medical conditions, both cardiac and gastrointestinal, had on Mr. Toprak’s ability to recover from the accident injuries, nor of the impact of the accident on his medical conditions. The theory of Mr. Toprak’s case is that the injuries he suffered in the accident were the sole cause of his inability to work and engage in his normal life activities.
Mr. Toprak testified he was born in Turkey and completed school only as far as Grade 8. He then worked in his father’s cartage business driving a truck until he immigrated to Canada in 2000. He took English as a Second Language courses and started work in construction where other immigrants from Turkey worked. He started as a stucco labourer and after a year, became a Master stucco plaster worker which allowed him to earn hourly rates in the $20.00 to $26.00 per hour range. He testified that he worked full-time as a self-employed construction worker.
In August 2008, he lived with his wife and two teenaged sons in a one-bedroom apartment. His two sons were at school and heading towards university and professional qualifications. Mr. Toprak’s wife said that she and Mr. Toprak shared the obligations for meals, cleaning, shopping, and laundry, and both were independent in their personal care. Mr. Toprak’s wife worked part-time until the accident and now works full-time. Mr. Toprak was described as a physically active man who engaged in recreational sports and social events prior to the accident.
Mr. Toprak testified that, after the accident, he was not able to engage in social activities or sports or to assist with housekeeping and home maintenance. The family moved to a two-bedroom apartment in 2009 after the accident. Mr. Toprak’s wife and sons assumed the entire burden of housekeeping and both Mr. Toprak’s wife and son, Okan, assisted Mr. Toprak with personal care aspects when his injuries were so painful that he could not look after himself. Mr. Toprak easily became very irritable after the accident and the stress level in the family was very high. Mr. Toprak had to move out because there was a danger he would hurt the sons. Mr. Toprak had broken a TV and dishes in fits of anger and frustration. Police had attended the home.
Mr. Toprak testified that he has lost the respect of his sons and that the injuries he suffered in the accident have damaged the spiritual life of the family. He testified that he lives with his friend and sometimes cooks, and he can do some vacuuming, but he runs out of energy so he cannot do more. He is independent in his personal care, though, if he has pain, he needs help, especially with foot care. He can carry four to five kilos. He usually goes over to his family’s apartment every morning. He testified that he sees his sons every day and denied that he had left his family. In his view, he had to go somewhere else to avoid hurting them but he has not left them. He testified that he stays in both his family’s apartment and with his friend, and that he can stay where he wants. His friend takes him out in the evenings when the friend gets home from work.
Mr. Toprak’s wife testified that she stays away from Mr. Toprak because of the arguing. She leaves for work and Mr. Toprak goes to his family’s apartment where he may eat what she has prepared for him. On the weekends especially, she makes food for him. His sons do his laundry for him and ensure he takes his medication. She confirmed that he goes out to socialize with friends, but she said that his brain is not stable and he cannot work because his physical and psychological situation is not good enough. She testified that, after the accident, her husband went through very difficult days and she had to do all the housework, shopping and everything herself. In her view, the accident ruined their lives, including those of her children. She testified that he could not take care of himself and that she is exhausted from having to assume the workload he once did. She is clear that, before the accident, he helped with the laundry even though he had reported to assessors that he did not assist with the laundry prior to the accident. Friends and family have concerns about cognitive decline.
Economical produced video surveillance showing Mr. Toprak on the balcony of his family’s apartment, sometimes sweeping the balcony. That surveillance also confirms that Mr. Toprak is able to socialize with friends, use the TTC comfortably, and conform to expected conduct in public situations, such as buying a coffee at a fast food outlet.
Mr. Toprak has had considerable financial stresses, both before and after the accident. I have previously set out his declared income. Mr. Toprak has previously retained three other lawyers before Mr. Cintosun who represented him at the Hearing. One lawyer has had a notice of garnishment issued for his fees and disbursements for over $45,000.00. In 2013, his second lawyer “fired him” over a disagreement concerning settlement of the tort case with respect to the accident. This event caused Mr. Toprak a great deal of stress and the evidence is that Mr. Toprak’s wife called for help when she found him after he took five prescription pills. He was admitted to a hospital on the basis that this was a suicide attempt following the disagreement with his lawyer.
Mr. Toprak testified that, at the present time, he uses medication for sleeping, for depression and nervousness, for cholesterol, for stomach gas and pain killers. He does not drive, though he has attempted to do so. Mr. Toprak testified that he cannot work because of the injuries he suffered in the accident. The record indicates that he has been provided with various assistive devices for exercise, housekeeping and self-care over the years on the recommendations of various health care providers and that he has had psychotherapy provided by psychologists, psychiatric care and physiotherapy, all to assist in his recovery from the accident.
Mr. Toprak had undergone treatment for many specialists, and in 2012 was diagnosed with PTSD, “S/P head injury”, cognitive impairment, tendinitis in his shoulder, fibromyalgia, posttraumatic stress disorder and depression, sleep disorder and “peptic ulcer disease not caused by the MVA but possible [sic] exacerbated by stress”. Both a rheumatologist and a physiatrist diagnosed Mr. Toprak’s impairments as myofascial injuries of the neck and lower back. Both reported that Mr. Toprak had had physiotherapy that did not benefit him a great deal, the physiatrist recommended acupuncture for symptomatic pain control, hydrotherapy and core strengthening exercises. The rheumatologist, diagnosed myofascial pain syndrome of the neck and cervicogenic headaches, as well as myofascial pain syndrome of the lumbar spine, but saw little improvement in Mr. Toprak’s condition between two assessments he did in 2010 and 2011, despite “multiple modalities of therapy”. Both saw little prospect of Mr. Toprak being able to return to work and relied on Mr. Toprak’s report that he had not returned to work and that an attempt to return had been unsuccessful due to severe pain from his accident injuries.
The Arbitrator noted that his primary difficulty with accepting the opinions of the experts whose reports are provided is that over the eight-year period since the accident occurred, Mr. Toprak has given differing statements as to what happened in the accident, specifically whether or not he hit his head and/or lost consciousness and how much he remembered about the accident itself. The assessments are based on a description of the accident that includes his hitting his head and losing consciousness until he was in the ambulance. This description is not supported by the documents generated by the paramedics who attended at the accident scene and the medical staff in the emergency room at the hospital who saw Mr. Toprak immediately after the accident. These observers are uninterested third parties recording the events, their observations, and Mr. Toprak’s statements immediately after the accident.
Economical provided a summary chart of the details of the accident description that Mr. Toprak gave to various doctors. On review of the chart, it is clear that the concepts of a head injury and loss of consciousness suffered during the accident became part of Mr. Toprak’s accident narrative, even though none of the documents created at the time of or close in time to the accident have such a notation. Nowhere among those contemporaneous accounts is there any record of Mr. Toprak complaining that he had hit his head. When he was questioned about the inconsistencies between the Emerg. Report and the ACR, Mr. Toprak said that he could not remember what happened but he confirmed that he was walking at the accident scene immediately after the accident. He agreed that his memory of what occurred at the accident would have been better when he was in the emergency department that night as compared to now and that he would have had a better recollection of the events when he was giving his statement to the police. As the years passed, the doctors who treated or assessed Mr. Toprak seem to have accepted at face value his statements to them that he had struck his head, lost consciousness, recalled nothing of the accident because he came to, lying in the ambulance with the paramedics shining a light in his eyes, and was admitted to hospital for at least one night, even though the hospital records indicate he was released the same day.
The Arbitrator found that Mr. Toprak, whether subconsciously or consciously, has created a narrative of the accident not supported by the original documents. That fictitious narrative would provide a more credible rationale for his complaints of ongoing pain and impairment than the actual records of a very minor accident with Mr. Toprak ambulatory at the scene and able to record a partial licence plate of the car that hit his car. No doubt that over the years, Mr. Toprak genuinely finds it difficult to recall the details of the accident, but health care professionals based their assessments on an inaccurate narrative that led some of them to incorporate the head injury into their diagnosis and conclusions of lasting significant impairments. The Arbitrator gave little weight to the opinions of those who based their diagnosis on a head injury and loss of consciousness, in his determination of the obligation of Economical to provide benefits to Mr. Toprak.
Economical submits that Mr. Toprak is not catastrophically impaired and, in fact, is malingering. Economical’s position is that Mr. Toprak has not been truthful and has exaggerated his impairment suffered because of the accident to recover what he believes he is entitled to under his insurance policy.
The onus is on Mr. Toprak to prove his impairments.
While Mr. Toprak’s impairments have made a difference to his life, The Arbitrator found that Mr. Toprak has not proven that he has a catastrophic impairment as defined by the legislation. The tests under either s. 2(1.2) (f) or (g) are specific, and there is no doubt that Applicants, like Mr. Toprak, who are not able to meet the tests, are people who continue to cope with their injuries and who must make adjustments to their new circumstances.