This decision sets out a roadmap for dealing with 'zero-sum' disputes where the Applicant claims CAT level benefits but is viewed as a malingerer.
The keys to this dispute included:
i. Getting a Reconstruction Report
Sam Kodsi's clear evidence was that this sideswipe collision would have resulted in very minimal forces to the Applicant's vehicle. The Applicant could not have hit her head as alleged and it was unlikely that any occupant of the vehicle would have sustained a physical injury.
ii. Surveillance
The Applicant's husband claimed his wife had the intellect of a 7 year old and required constant supervision post accident. The surveillance suggested othewise. She was seen supervising her children and taking them to and from school. She attended coffee shops, stores and banks with her husband. She looked to be able to communicate, laugh appropriately and carry both a wallet and a cell phone.
The Insurer alleged it was her driving a vehicle post accident. All laywitnesses denied that portion of the surveillance showed her as the driver (her face was not clearly seen) but admitted that there were other self reports in the medical records of her driving post accident. The Applicant contended that an unseen service provider could have also been in the vehicle and taken the driver's seat when the cameras were not rolling. The Arbitrator accepted the Insurer's argument that no service providers were ever observed and the driver wore the same white scarf that the Applicant was seen entering the vehicle with around her neck.
iii. Validity Testing
None of the Applicant's experts properly completed validity testing. Dr. Gerber repeated a Rey 15 test three times until the Applicant 'passed', thus invalidating the results.
The Arbitrator accepted Dr. Gnam's clear evidence that the Applicant's failure on validity testing and endorsement of medically impossible symptoms meant she was a malingerer. Even if she sustained a mild TBI as a result of the accident, there was no medical explanation for her inconsistent complaints, intermittent catatonia, memory loss complaints and inability to answer the simplest of questions.
iv. 'Knocking Out' a Foundational Brick in Applicant's Theory of the Case
The Applicant's case was in large part predicated on a head injury and ER records from the evening of the accident querying whether she suffered a concussion.
There was no direct evidence of whiplash forces or any impact to her head. The husband did not see her during the collision and she claimed to have no memory of any collision. Mr. Kodsi's evidence was that she could not have hit her head and any forces on her body would have been no greater than her 'plopping into a chair'.
In these circumstances, a diagnois of a traumatic brain injury was not possible. The majority of the Applicant's experts provided their opinions based upon the assumptions that a head injury had occured and that the treating practitioners had ruled out any credibility or malingering issues. Absent validity testing, the experts were forced to admit that their opinions were based upon the assumption that the self reports of the Applicant's husband were accurate and credible (the Applicant was a inconsistent and confusingly poor historian, contrary to the medical science).
The overwhelming majority of mTBI victims recover fully within 30 - 90 days. The small number of people who do not fully recover do not experience worsening symptoms over time or the post accident memory gaps described by the Applicant. Alternative diagnoses of PTSD or the rarely seen diassociative amnesia were not plausible on the evidence before the arbitrator.
v. Knowing Your File
At the hearing, the Applicant was unable to answer 'what is two plus two'. The OCF-1 was dated on the day of the accident. This evidence went to credibility.
Further credibility findings were made based upon immigration and OW records which demonstrated a history of manipulating the truth for gain. The Arbitrator also found it compelling that the s. 25 OT found the Applicant and her husband to be honest and credible during her assessment, even though it was completed in an apartment that was not theirs. When this was revealed to the OT in cross-examination, she maintained her position and was unwilling to admit that inaccurate self-reports could affect her observations and opinion.
FSCO Bulletin A-02/11 was used with strong effect. More than 20 requests for details of AC services and proof of incurred went unaswered. The AC services provider 'changed' 31 days before the hearing. The 'new' provider was unable to satisfactory explain how she provided care while nursing her own baby (delivered post accident) or how she travelled from her residence to the residences of the Applicant with her infant children in tow.
The Arbitrator found the Applicant had not met her onus of proof, and dismissed all claims.
vi. Having a Great Client
It takes a certain confidence to decide to run a 13 day arbitration hearing with a CAT designation on the line. Having a great client who is willing to take on that risk and attend each day of the hearing with you makes it all the more worthwhile.
A copy of the decision can be found here: http://schultzfrost.com/docs/cases/101/caseDocument.pdf
