In this FSCO arbitration, the Applicant claimed for almost all types of accident benefits.
Arbitrator Maggy Murray began her decision by quoting an excerpt from The Law of Evidence in Canada:
an unfavourable inference can be drawn when, in the absence of an explanation, a party … fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party.
Arbitrator Murray later commented:
“Important factual inconsistencies, misrepresentations or material non-disclosure of relevant facts by an applicant and lack of corroboration can be fatal to an applicant’s claims. In the absence of objective evidence, the credibility of the Applicant is crucial and it is due to a lack of credible evidence that the Applicant’s claims fail.”
Arbitrator Murray dismissed the Applicant’s claim for all benefits. She had drawn a negative inference from the Applicant’s failure to call any witnesses who would have helped establish her case.
The insurer called the Applicant’s alleged treating chiropractor and her family doctor. The Applicant’s family doctor gave evidence regarding the Applicant’s significant pre-accident health history of depression, suicide attempts, overdoses, and numerous motorcycle accidents. The Applicant’s alleged treating chiropractor testified that he had never worked at the clinic that submitted the treatment plans on behalf of the Applicant and that he had never treated a patient with the Applicant’s name.
The Applicant failed to disclosure her significant, pre-accident medical history to several medical assessors. The Applicant told different stories to different assessors regarding post accident events.
Despite the diagnostic imaging test of the Applicant’s spine, taken eight days after the accident and showing degenerative changes, the Applicant did not lead any evidence to support that those degenerative changes were caused by the accident.
The arbitrator considered that the Applicant failed to produce clinical notes and records from various treating practitioners, despite the insurer’s repeated requests for same. Dispute seeking additional acupuncture treatment by way of a treatment plan in dispute, neither the Applicant nor her acupuncturist produced acupuncture treating records.
With respect to the Applicant’s claim for housekeeping and attendant care assistance, the arbitrator noted that the alleged assistance providers did not testify at the hearing. The circumstances regarding the Applicant’s pre-accident employment were also suspicious. The arbitrator found that the evidence regarding the Applicant’s inability to work and her need for attendant care and housekeeping assistance, was uncorroborated and inconsistent. The Applicant had failed to produce medical evidence to rebut the conclusions of the insurer’s assessors.
In this case, the insurer was able to identify inconsistencies between the Applicant’s evidence in an examination under oath, her story to medical assessors and treating practitioners, what was claimed in OCF-6s, and the Applicant’s evidence at the arbitration hearing. The Applicant tried to explain the inconsistencies by stating that previous interpreters made mistakes in translating her evidence. The arbitrator didn’t buy it.
This decision serves as an important reminder that it is the claimant’s onus to prove her case. It may be enough for insurers to simply ask the adjudicator to draw a negative inference when the claimant: a) fails to produce documents that are relevant to their case, b) fails to provide credible evidence from treatment providers or assistance providers to corroborate claims for medical treatment or attendant care, and c) fails to provide evidence on causation.
This case also reinforces the value of conducting an examination under oath to confirm inconsistencies in the claimant’s evidence when the claim may be suspicious.
FSCO has always encouraged parties to carefully consider how many and which witnesses need to be called to give evidence orally. Where hearing days are in short supply and bestowed in a parsimonious fashion, can an Applicant argue that limited in-person hearing time interfered with their ability to respond to the insurer’s argument that an adverse inference be drawn on the failure to call every witness. Lan Thi Nguyen and State Farm was a case where an adverse inference was appropriately drawn, but there needs to be care shown in extrapolating the ratio in this case to other less problematic fact patterns. When claimants seek appeals at the LAT, and there is little to no in-person hearing time bestowed to the parties, insurers may face increased challenges in persuading an adjudicator to draw an adverse inference.