Latest News Articles

iii.          Refusing To Qualify Dr. Aiello As An Expert Witness

Although Dr. Aiello testified at the arbitration hearing, Aviva submits on appeal that the Arbitrator erred in refusing to qualify Dr. Aiello as an expert.  However, I find it was within the Arbitrator’s discretion to refuse to qualify Mr. Aiello as an expert, and the Arbitrator explained his reasons for doing so, namely, that Dr. Aiello:

(i)                 Lacked any specific area of specialty;

(ii)              Did not have enough experience as a health care practitioner to be deemed an expert;

(iii)            Did not have standing in any secondary professional organizations; and

(iv)             Was not published on any noted area of practice.

These are sufficient reasons not to qualify the doctor as a witness.

The Arbitrator nonetheless assessed Dr. Aiello’s evidence and determined that he is:

unable to place any weight on Dr. Aiello’s reports as he continued to rely heavily on the facts that the Applicant was working and had gone on a vacation in order to support his findings. Further, the doctor testified he did not believe that he should give any relevance or weight to any pre-existing medical conditions, nor did he appreciate or give emphasis to any other medical documentation when conducting his assessments or writing his reports.

The doctor simply wrote his reports based on his interview. I am unable to give any credence or weight to this doctor’s report.[16]

Despite the fact that Dr. Aiello was not qualified as an expert, the Arbitrator still assessed his evidence and concluded that he is unable to place any weight on Dr. Aiello’s reports.  The Arbitrator was best placed to assess the potential value of Dr. Aiello’s evidence. His conclusion is entitled to deference.

_____________________________________________________

I am unable to place any weight on Dr. Aiello’s reports as he continued to rely heavily on the facts that the Applicant was working and had gone on a vacation in order to support his findings. Further, the doctor testified he did not believe that he should give any relevance or weight to any pre-existing medical conditions, nor did he appreciate or give emphasis to any other medical documentation when conducting his assessments or writing his reports. The doctor did not request further medical records despite the fact that the patient before him was complaining about:

·         Hitting his head on the steering wheel during the accident;

·         Losing consciousness at the time of the accident;

·         Headaches;

·         Neck and shoulder pain that interrupts his sleep;

·         Anxiety attacks;

·         Tingling in his arms when the pain is severe.

The doctor simply wrote his reports based on his interview. I am unable to give any credence or weight to this doctor’s report.

Decision

For the above reasons, I find that the Insurer had the information which would have removed the Applicant from within the MIG far sooner than they did.

The Insurer argues that regardless of the question on the applicability of the MIG, the Applicant still bears the additional burden of proving that the treatment plan was reasonable and necessary. The Insurer argues that in this case, the Applicant has failed to prove on a balanceof probabilities that the treatment plan is reasonable and necessary – that there is no cogent evidence justifying that the Applicant requires attendant care or occupational therapy, or an assessment of the need for same. I disagree.

The evidence shows that the Applicant hit his head, had significant bruising as a result, and complained constantly of issues of pain in the neck and shoulders and back. The adjusters log notes clearly show that the Applicant hit his head and was diagnosed with a concussion. Clearly, in my view, the Insurer chose to ignore the information in its possession and control along with two recommendations from two different competing treatment facilities who requested an assessment or deeper screening of the Applicant.