Applicant found unreliable - testing not acceptable -- CAT claim fails - Aydemir and Aviva

May 08, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Aydemir and Aviva

Decision Date: March 5, 2018
eHeard Before: Adjudicator Barry Arbus

CATASTROPHIC IMPAIRMENT: applicant fails to show the injuries are catastrophic; surveillance footage contradicts accident report by driver; CAT testing done questionably and not reliable; applicant is malingering

Issues:

Ms. Filiz Aydemir was in a car accident July 9, 2012. She was a passenger in the right rear seat of a motor vehicle driven by her husband. There appeared to be four or five occupants in the vehicle, including Ms. Aydemir and her 6-month-old daughter. They were travelling approximately 30-40 km/hr when a second vehicle attempted to cut in front of them and there was a collision.

According to Ms. Aydemir’s husband, they were impacted on the driver’s side of the vehicle by a vehicle attempting to turn into the intersection. Ms. Aydemir purported to have hit her head on the right rear passenger window at the time of the impact. The infant was taken to the Hospital for Sick Children for assessment and was deemed to have sustained no injuries. Ms. Aydemir was taken to a different hospital and assessed, after which she reports she began experiencing headaches as well as severe discomfort in the entire right side of her body, particularly her neck, right shoulder and lower back. Ms. Aydemir’s evidence is that she continues to experience pain and discomfort in all of these areas on an ongoing basis. The evidence of the witnesses is that Ms. Aydemir has steadily declined in her ability to function both physically and cognitively since the accident.

She applied for SABs but when the parties were unable to resolve their differences Ms. Aydemir applied for arbitration at the FSCO.

Issues:

1. Did Ms. Aydemir sustain a Catastrophic Impairment within the meaning of the Schedule as a result of the accident?
2. Is Ms. Aydemir entitled to receive Non-Earner Benefits at the rate of $185.00 per week for the period from January 9, 2013 to date and ongoing?
3. Is Ms. Aydemir entitled to Attendant Care Benefits at the rate of $6,000 per month for services provided for the period from July 9, 2012 to date and ongoing?
4. Is Ms. Aydemir entitled to payments for the costs of examination in the amounts as follows:
   1. $1,803.19 for an Attendant Care assessment provided May 29, 2013?
   2. $1,997.64 for a Mental Health Assessment dated February 14, 2013?
5. Is Ms. Aydemir entitled to proceed with a claim for Special Award in this Arbitration and, if so is Ms. Aydemir entitled to a Special Award?
6. Is Ms. Aydemir entitled to interest for the overdue payments of benefits in accordance with the Schedule?

Result:

1. Ms. Aydemir did not sustain a Catastrophic Impairment within the meaning of the Schedule as a result of the accident.
2. Ms. Aydemir is not entitled to receive Non-Earner Benefits for the period from January 9, 2013 to date and ongoing.
3. Ms. Aydemir is not entitled to Attendant Care Benefits for the period from July 9, 2012 to date and ongoing.
4. Ms. Aydemir is not entitled to payments for the treatment plans as set out in the Application.
5. Ms. Aydemir is not entitled to a Special Award in this Arbitration.
6. Ms. Aydemir is not entitled to interest for any overdue payments of benefits as prescribed in the Schedule.

Background:

Ms. Aydemir was born in 1984 in Turkey and is married with two children. She immigrated to Canada in 2009. Prior to the accident she was enrolled in ESL classes and claims to have had a relatively normal lifestyle and participated in normal daily activities.

CATASTROPHIC IMPAIRMENT DETERMINATION

Ms. Aydemir submitted an application for Catastrophic Impairment (OCF-19) on October 27, 2015. Dr.DP gave evidence before this Tribunal that Ms. Aydemir suffered a major depressive disorder from a single continuous episode, that she suffered post-concussion syndrome and post-traumatic stress disorder. He stated that Ms. Aydemir has impaired cognitive and executive functions and stated that she cannot function independently, needs constant supervision, shows mental confusion and is not able to communicate relevantly and that she is disoriented with respect to time, place and persons.

Dr. LG’s evidence was that Ms. Aydemir suffered a mild neurocognitive disorder due to a traumatic brain injury, suffered a personality change due to a medical condition and suffered chronic pain disorder. He also ruled out dissociative amnesia. Ms. Aydemir produced a number of witnesses, her husband, herself, the head of the Alevi Association, her brother, cousin and other family members confirming that as a result of the accident, Ms. Aydemir sustained injuries sufficient to qualify her for a Catastrophic designation.

Ms. Aydemir has applied for a designation of Catastrophic Impairment in accordance with the AMA Guides under mental and behavioural disorder. In order for Ms. Aydemir to succeed, we must examine the four categories of functions and determine whether or not Ms. Aydemir has a marked or extreme impairment in any one of the four areas set out in each of the categories. The onus is on Mr. Aydemir to prove her case.

Ms. Aydemir, in both the written evidence and the oral evidence of the witnesses, including Ms. Aydemir, her family and religious leader, and Drs. DP and LG, together with Dr. B and AD, supported the view that Ms. Aydemir was catastrophically impaired. Dr. DP, who, as her treating psychiatrist, saw her more frequently than any other medical advisor, diagnosed her with major depressive disorder, single episode, severe with generalized anxiety, post-concussion syndrome and post-traumatic stress disorder and chronic pain. His evidence was that, although he was familiar with the AMA Guides, he did not use the standards set out therein to conclude that Ms. Aydemir was catastrophically impaired. The other witnesses, other than Dr. LG, although not medically qualified, concluded similarly that Ms. Aydemir’s lack of functioning was sufficient to place her in the Catastrophic category. Dr. LG applied the criteria set out in the AMA Guides to determine that in two of the four areas Ms. Aydemir suffered from marked impairment and in two areas, she suffered from extreme impairment.

Dr. LG stated that Ms. Aydemir would not be able to attend work; she would be unable to make decisions of any kind in a work situation, would be unable to interact with co-workers, nor would she be able to remember procedures. He stated that Ms. Aydemir would be unable to work, even with special supervision. Dr. LG’s evidence is supported in all these areas by the evidence of family, friends and other clinical witnesses in their written evidence.

Insurer’s Position

Aviva relies on the evidence of Dr. G who relies primarily on the Rey 15 test and identifies Ms. Aydemir as a malingerer. In addition, Aviva submits in support of its position the surveillance evidence.

Dr. G found that there was conscious symptom amplification/fabrication throughout his assessment based on objective testing and clinical judgment. Dr. G felt that in Dr. DP’s completion of the OCF-19 on October 27, 2015, his diagnosis was based mostly on reports by Ms. Aydemir’s husband, and he did not engage in any form of validity or credibility testing of Ms. Aydemir. Dr. DP’s evidence was that although he had read the AMA Guides, his diagnosis relied on his “clinical judgment” and not on objective testing. Aviva’s position is that Ms. Aydemir is a malingerer and to support Dr. G’s position, it relied on the surveillance evidence and the inconsistency in the evidence given by Ms. Aydemir’s witnesses, including the evidence of AD, Ms. Aydemir’s occupational therapist.

Analysis and Conclusion

The Arbitrator reviewed all of the evidence and noted that the surveillance evidence together with the questionable information given to Ms. Diaz in her interview in performing the occupational therapy assessment, is sufficient to question the validity of Ms. Aydemir’s assertions and suggest the probability of malingering by her.

The Arbitrator also found the automobile accident reconstruction expert evidence compelling. It points out the damage to the vehicle driven by Ms. Aydemir’s husband sustained minor damage primarily to the left front of the vehicle, including a dented front bumper together with scratch marks on the left fender and left front door. Although no photographs of the other vehicle were presented, the MVA report indicated the other vehicle had light damage to the right centre and right rear of that vehicle. It concluded that the acceleration that the occupants in the Aydemir vehicle would have experienced would have been very similar to everyday activities such as braking, swerving, riding the straight portion of a rollercoaster, or coughing. It does seem implausible that the impairment claimed to have been suffered by Ms. Aydemir could have been caused by the auto accident in question.

Ms. Aydemir has not established that the impairment suffered qualifies as a Catastrophic Impairment.

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