January 15, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Gawri and Dominion
Decision Date: November 17, 2017
Heard Before: Adjudicator David Snider
IRBs: Applicant lacks crediblity; applicants witness are deemed to be testifying as advocates rather than witnesses; witness testimony at hearing contradicts their own written records; applicant denied IRBs and treatment plan on basis of lack of credibility and evidence to support claim
REASONS FOR DECISION
The issues in this hearing are:
- Is Mr. Gawri entitled to receive a weekly IRBs from November 26, 2014 to present and ongoing?
- If Mr. Gawri is entitled to receive a weekly IRBs, what quantum of weekly payment is he entitled to?
- Is Mr. Gawri entitled to receive a medical benefit in the amount of $2,402.28 for chiropractic treatment set out in a treatment plan dated June 26, 2016?
- Is Dominion liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Gawri?
- Is Dominion liable to pay Mr. Gawri’s expenses in respect of the arbitration?
- Is Mr. Gawri liable to pay Dominion’s expenses in respect of the arbitration?
- Is Mr. Gawri entitled to interest for the overdue payment of benefits?
- Mr. Gawri is not entitled to receive a weekly IRBs from November 26, 2014 to present and ongoing.
- Mr. Gawri is not entitled to receive a medical benefit in the amount of $2,402.28 for chiropractic treatment set out in a treatment plan dated June 26, 2016.
- Dominion is not liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Gawri.
- Dominion is not liable to pay Mr. Gawri’s expenses in respect of the arbitration.
- Mr. Gawri is liable to pay Dominion’s expenses in respect of the arbitration.
- Mr. Gawri is not entitled to interest.
Suresh Gawri was injured in a car accident on February 1, 2014, when he “t-boned” an approaching vehicle in an intersection when it turned left in front of him. The air bags deployed, and although he passed out, Mr. Gawri refused to go in the ambulance or to attend at the hospital. He testified that he felt pain the next morning and went to see his family doctor the same week. The family doctor prescribed a pain medication, an anti-inflammatory and a muscle relaxant. She booked him for an MRI and a CT scan and referred him for physiotherapy. He applied for and received SABs from Dominion, however when a dispute arose between the parties concerning weekly IRBs and one denied medical treatment plan Mr. Gawri applied for arbitration at the FSCO.
The Arbitrator noted that there are just two issues in in this arbitration. The first is Mr. Gawri’s entitlement to IRBs and the second is whether one specific chiropractic treatment plan is reasonable and necessary.
According to the testimony he gave at the hearing, the collision Mr. Gawri was involved in on February 1, 2014 occurred.
Dominion eventually removed Mr. Gawri, for psychological reasons, from the MIG limitations and approved a psychological treatment plan submitted April 8, 2015. The approval of this treatment plan did not come to the attention of he treating physician until September 2015. Mr. Gawri attended for the first of four visits in February 2016 and discontinued the psychological treatment in April 2016, due to the physicians own health. The result of this situation was that Mr. Gawri was last treated in April 2016 and has received no other treatment since then.
Mr. Gawri’s family physician since 2007, testified on his behalf however her testimony did not match her CNRs and she could not explain the discrepancies on cross-examination. The Arbitrator concluded she testified as an advocate, and did not find any probative value whatsoever in her actual testimony that since the accident he has suffered from anxiety, irritability, poor sleep, sluggishness and chronic pain. The contradictory evidence is not persuasive.
The Arbitrator reviewed the April 2015 psychological assessment and treatment plan that caused Dominion to remove Mr. Gawri from the MIG. Unfortunately, he came ill prepared to provide evidence, and the Arbitrator concluded he too testified as an advocate, therefore the Arbitrator did not find sufficient probative value in this evidence.
The vocational evaluator did not fair well under cross-examination. She assessed Mr. Gawri on March 15, 2017, which is very late in this process. She had no knowledge of Mr. Gawri’s pre-accident employment other than the limited information he provided to her in the interview. She testified that she considered him unemployable based upon the results of her vocational testing and cognitive assessment. On cross-examination she admitted that she relied upon Mr. Gawri to provide accurate information. When she was presented with the results set out in other assessments and with accurate information regarding his actual employment history, income, and abilites she began to admit that her results could have been very different. The net result of all of this from an evidentiary perspective is that her opinions were not solid or reliable and that they were subject to change when she was given additional information which contradicted what Mr. Gawri had reported to her. Accordingly, little weight was given to her evidence.
A chronic pain assessment and report produced three years post accident was also found to be lacking.
Any number of other intervening factors could be involved in that course of time, but this was not considered a factor in his testimony. A diagnosis was made based upon a brief physical examination and Mr. Gawri’s self-reporting along with some perusal of a small portion of the previous medical reports and assessments available to him. When presented with the fact that there is no proof that Mr. Gawri experiences insomnia and that his psychological factors were vaguely evidenced at best the chronic pain physician stuck with his opinion and, unfortunately, also appeared to become an advocate for the Applicant rather than an objective expert witness. The Arbitrator noted that the diagnosis of chronic pain syndrome was not linked to a lack of functionality, so there was not much in his evidence to cause me to conclude that Mr. Gawri had ever been “unable to work” as diagnosed.
The Arbitrator then reviewed Mr. Gawri’s testimony and the medical evidence provided. Mr. Gawri’s medical records suggest that he must be working as he applied for disability benefit coverage, although this is by no means conclusive.
The surveillance is very revealing. Firstly, Mr. Gawri and his wife both testified that he cannot drive since the accident and he has reported both driving and passenger phobias to his medical assessors pertaining to this accident. However, it is indisputably clear that Mr. Gawri drives a great deal since the date of loss. It is also unequivocal that he drives very aggressively. This a major blow to his credibility in this matter. Secondly, he was clearly involved in commercial activity in 2015 despite his testimony that he has not been able to work since the accident. This may all be part of a family business enterprise involving his wife and brother, but I have no doubt that Mr. Gawri is actively contributing to this enterprise and the Arbitrator found it highly unlikely that he is not being compensated for this work. This is secondary major damage to his credibility.
Mr. Gawri’s income tax submissions and his claims to pre-accident income based upon the OCF-2 he submitted to qualify for benefits were reviewed. It is blatantly clear that he reported false income numbers to the Insurer both pre and post accident in this matter. Mr. Gawri provided a tax document to me at the commencement of the hearing which eventually had to be admitted being unsupportable and he, through his counsel, admitted that the quantum of IRB he was claiming could not be proven to be $400.00 per week but was, at best, $169.33 per week and that it must be subject to post-accident income deduction(s). This is another major blow to Mr. Gawri’s credibility.
In conclusion, the Arbitrator found that, on balance of probabilities, Mr. Gawri has not proven that he is entitled to IRBs in any amount or at any time, and therefore, that he certainly does not meet the post 104 week threshold.