August 10, 2009, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Arbitrator: Richard Feldman
Decision Date: June 8, 2009
Daoud Seyed claimed that he was injured in a motor vehicle accident on February 12, 2006. He applied for and received various statutory accident benefits from Federation Insurance. Disputes arose between the parties concerning the Applicant's entitlement to certain accident benefits.
Mr. Seyed moved to Canada in 1984. He held a Bachelor of Science degree; he was an educated and articulate man who was proficient in the English language and who had worked for many years in Canada and the United States in computer science. He and his spouse had three children together.
From August 1999 through August 2002, Mr. Seyed was working in Missouri. From about September 2002 through September 2005, he was living with his spouse and children in an apartment on Lawrence Avenue West in Toronto. In October 2005, Mr. Seyed started a new job with Radiant Systems Inc. as a computer analyst for Caterpillar in East Peoria, Illinois. Commencing January 23, 2006, Mr. Seyed started working as a computer systems analyst (database administrator) with VNU near Chicago, Illinois. While Mr. Seyed was pursuing his career in Illinois, Ms. Safi and their children continued to reside in the apartment in Toronto.
On Sunday, February 12, 2006, the 2000 Toyota Camry owned and operated by Mr. Seyed was struck by another vehicle on the front, passenger-side (above the front wheel) in a "T-bone" type collision. The accident occurred in Niles, Illinois. According to the police report, Mr. Seyed denied that he was injured and declined any medical attention. Mr. Seyed returned to work the next day (Monday, February 13, 2006) and continued to work thereafter without absence. In May 2006, for the first time, Mr. Seyed sought medical attention for back pain and pain in his left shoulder (radiating down his left arm). By mid-May 2006, Mr. Seyed was approved for short-term disability leave from work. At that point, Mr. Seyed returned to live with his spouse and children in Toronto. He remained in Toronto with his family since then. The short-term disability benefits were continued by the collateral insurer up to August 9, 2006.
Around the time of his return to Toronto, Mr. Seyed retained legal services and filed an Application for Accident Benefits with Federation on July 21, 2006. At that time, with the assistance of his counsel, Mr. Seyed elected to claim caregiver benefits and sought Federation's approval for various proposed assessments. What lied at the heart of the dispute between the parties, however, were the numerous and significant inconsistencies that arose in the information that has was provided to Federation and to others by Mr. Seyed and those acting on his behalf.
In many cases that come before the Financial Services Commission for arbitration, the alleged impairments of which the applicant complains are related to "soft tissue injuries". There is often little "objective" evidence of such injuries. In such cases, the treating practitioners, medical assessors and arbitrators at the Commission must assess the reliability of the applicant's subjective reports of (amongst other things): (1) the amount of pain he or she is experiencing; (2) the degree to which that pain limits his or her ability to function; and (3) the amount of relief provided by various forms of treatment. Causation may also be an issue, especially if there is a substantial delay between the date of the accident and the date upon which the Applicant first seeks medical attention and/or if there is a history of similar complaints prior to the motor vehicle accident in question. In such cases, as in the case of Mr. Seyed, the credibility of the applicant is key. For the reasons that follow, the arbitrator found that Mr. Seyed had little, if any, credibility. There were simply too many suspicious circumstances, omissions and deliberate misrepresentations to give any weight to the testimony of Mr. Seyed, his spouse or anyone who relied upon their word.
Mr. Seyed had not been consistent in what he disclosed concerning his past medical history. He told most doctors who had seen him since the accident that he had no (relevant) medical history. When he saw Dr. B. O. (physician) in Illinois on May 8, 2006, Mr. Seyed indicated that he had had similar back and shoulder pain on two occasions in the previous four years. He told Dr. S.G. E. (neurologist) that his pain pre-dated the accident but had gotten worse since the accident. At the hearing, Mr. Seyed testified that he had no health issues prior to the accident in February 2006. These various statements could not be easily reconciled and they raised concerns both about Mr. Seyed's credibility and the issue of causation.
DELAY IN SEEKING MEDICAL ATTENTION AND IN ATTRIBUTING THE COMPLAINTS TO THE ACCIDENT
The fact that the police records made at the time of the accident indicated that no one suffered any injuries, combined with a substantial delay in seeking medical attention or telling a medical professional about the accident, was another reason to question both the credibility of Mr. Seyed and whether his alleged impairments, even if he were to be believed, had resulted from the accident of February 12, 2006.
DETAILS CONCERNING THE LIVING ARRANGEMENTS OF THE APPLICANT BEFORE AND AFTER THE ACCIDENT
From 1998 through 2007, Mr. Seyed advised Revenue Canada in his income tax returns that he was single and resided at an address in Scarborough, Ontario. At the same time, Mr. Seyed was reporting to the U.S. government that he was married and had three children and, in his U.S. tax returns, was claiming his wife and children as dependents. He was also advising his employers in the U.S. that he was married.
Mr. Seyed’s spouse and children were receiving welfare while he was earning an annual income of up to, and sometimes more than, (U.S.) $50,000.00. It was suggested to Mr. Seyed by counsel for Federation (during cross-examination) that his likely motivation for misrepresenting both his residential address and family status to the Canadian government was to ensure Ms. Safi's continued receipt of welfare funds. While Mr. Seyed did not exactly admit this, he did not strenuously deny this allegation either.
The numerous addresses provided by Mr. Seyed to the U.S. federal government, the Illinois Department of Transportation, his employers, his collateral insurer, his automobile insurer (Federation), the Canadian government and to the arbitrator of the case (by way of his testimony at the hearing) led the arbitrator to great doubt as to exactly where and with whom Mr. Seyed was living at the time of the accident.
CONTRADICTORY EVIDENCE RE SERVICES REQUIRED AND SERVICES PROVIDED
Initially, Mr. Seyed elected to claim caregiver benefits. In order to qualify for such benefits, he would have had, at the time of the accident, to have been the primary caregiver to his children and to have been residing with them. At the time of the accident, Mr. Seyed was living in Illinois and his children were living in Toronto with their mother, who was a full-time homemaker and caregiver to them.
According to the invoices filed for caregiver services, Suhail Idris provided caregiver services (at the rate of $350 per week) in Illinois from February 13, 2006 until May 7, 2006 and then Mr. Seyed’s brother, Nimat Seyed, allegedly provided these services (at the same rate) in Toronto from May 8, 2006 through December 31, 2006. Ms. Safi testified that Mr. Idris never cared for her children and that the children resided with her in Toronto during the period that Mr. Idris allegedly was caring for them in Illinois. She also confirmed that Nimat Seyed did very little to care for her children after Mr. Seyed returned to live with her and the children in May 2006.
By making and maintaining claims that are clearly devoid of merit, an applicant runs the risk of undermining his credibility. In this case, Mr. Seyed pursued a caregiver claim where he was not the primary caregiver and his children were not living with him and they were not even living in the same country. Mr. Seyed’'s conduct in advancing this claim and in submitting falsified invoices went to the issue of his credibility.
EXAGGERATION OF SYMPTOMS
Medical assessors and treating practitioners rely upon the accuracy of the history provided by an applicant, their complaints and reports of the relief provided by various types of treatment. If the applicant withholds important information, exaggerates or otherwise misleads the medical professionals, then their opinions can be given little, if any, weight.
In this case, there was some objective evidence that Mr. Seyed suffered from degenerative disc disease with possible nerve impingement. These conditions, however, may well have pre-dated the motor vehicle accident or be unrelated to it. The real question is the extent to which any noted condition impairs an Applicant's function. This is determined largely based upon an Applicant's subjective reports of functional limitations, typically related to complaints of pain. If Mr. Seyed lacked credibility, this would have thrown into doubt the opinion of any medical professional who relied largely or entirely upon his word.
There was evidence that Mr. Seyed had exaggerated his symptoms. He had shown up for appointments wearing a neck brace (cervical collar) and/or knee brace and/or wrist brace and/or using a cane even though his occupational therapist had repeatedly recommended against the use of such devices. Dr. J. E. S. (psychologist) found evidence of significant symptom magnification and exaggeration; Dr. J. E. S. concluded that Mr. Seyed had to be making a concerted effort to give the wrong answers Dr. M. (chiropractor) reported inconsistencies and evidence of pain amplification and found that the clinical examination of Mr. Seyed did corroborate his reported symptoms.
While the Applicant may have suffered some problems with his back, neck and left arm as well as some psychological problems, his application could not succeed without credible evidence as to (amongst other thing): his condition at the time of the accident; his living arrangements at the time of the accident; the types of activities in which he was engaged at the time of the accident; his condition in the three-month period immediately following the accident and before seeking any medical treatment;
the cause of any impairments from which he had suffered post-accident;
his functional limitations (if any);the caregiver, housekeeping and attendant care services actually provided to Mr. Seyed (if any); and the benefit Mr. Seyed derived from various forms of treatment.
For all of the reasons given above, the arbitrator could not rely upon the word of Mr. Seyed unless it was supported and corroborated by more credible evidence. The opinions of the medical experts upon whom Mr. Seyed had relied were of no value because they assumed that he was being truthful with them and such an assumption was unwarranted in this case. Mr. Seyed showed a willingness to lie when it suited him. There were so many problems with the credibility of Mr. Seyed and his evidence that, on this basis alone, this application was dismissed.