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November 13, 2018

by Admin2

Lawsuits allege insurance companies bilked Ontario drivers out of billions

A slew of Canada’s insurance companies have been served with class-action lawsuits for withholding medical benefit HST payments from Ontario car accident victims, a two-part Toronto Star investigation has revealed. 
 
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Class-action over insurance settlements grows to $1.4-billion

Windsor law firm, Greg Monforton and Partners, has added another five insurance companies to a series of class-action lawsuits over HST charged to accident victims. 
 
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One in three Canadians surveyed haven’t read their insurance policy: Sonnet Insurance

One in three Canadians haven’t read their home or auto insurance policy, according to new research from Sonnet Insurance, Canada’s only national online home and auto insurance company. Those who do attempt to read it are traditionally greeted with lengthy descriptions and jargon, making it difficult to understand coverage and common terms. 
 
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Experts who act for both sides more attractive to personal injury counsel

Counsel are less likely to hire experts who exclusively testify for either plaintiffs or defendants following a recent decision which addressed the witnesses’ apparent lack of impartiality, Toronto personal injury and disability lawyer Nainesh Kotak tells AdvocateDaily.com. 
 
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Treatment of age issues contradictory

Why do the insurance industry, the Ontario government and the medical profession reach different conclusions about the same issues? I can cite two examples; doubtless there are plenty more.

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Motor Mouth: Are self-driving cars the brothels of the future?

Self-driving cars will become the brothels of the future. So say two academics from the universities of Surrey and Oxford, professors Scott Cohen and Debbie Hopkins, predicting that autonomous automobiles will replace “hotels-by-the-hour” rooms as the no-tell-motels of the Digital Age. 
 
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Homeowner sued by victims of impaired driving accident

A recent Court of Appeal for Ontario ruling shows judges disagree on how the 2006 Supreme Court of Canada ruling in Childs v.  Desormeaux should apply to lawsuits against owners of homes where motorists got drunk before driving.

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“People Think I Have it Easy” in the November Issue of Hope Magazine
 
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Understanding ICBC’s “Minor Injuries” For Crashes After April 1, 2019

First and foremost it should be emphasized that the term ‘minor injury’ is misleading.  It is a political term used to make the public ok with having your rights stripped.  In short many injuries that no-one should consider minor (such as brain injuries) are caught in this definition.  With the regulations now in force, however, British Columbians now have a better understanding of what the future will hold.  Here is the rundown. 
 

November 12, 2018

by Admin2

Five more insurance firms sued for withholding HST from accident victims

Five more Canadian insurance companies have been served with class action lawsuits — in addition to six others first reported by the Star this month — for withholding medical benefit HST payments from car accident victims in violation of the provincial regulator.

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Canadian study finds major traumatic injury increases risk of mental-health diagnoses, suicide
Patients seriously injured in car accidents, violence and falls are at greater risk of developing a mental illness or dying by suicide, according to a new study that suggests those patients need better mental-health support.
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Sparking Change in the Wake of Tragedy – ‘Buckle up for The Broncos’

So, what are the current laws in Canada for this?  Well, seatbelt use falls under the jurisdiction of the provincial and territorial governments and in most provinces the law states that seatbelts must be worn if they are provided, but of course, most motor coaches are not required to be equipped with belts, so they are not always available to be worn.  That will change in 2020. 

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Law firm seeks to win back HST for accident victims

For those injured in an auto accident sometimes insurance coverage under certain medical benefits can be limited. 
 
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Stand Up, Speak Out: Auto Insurer Direct Repair Programs

In a recent survey looking at how bodyshop professionals grade auto insurers, Collision Repair was struck by how many respondents included their thoughts on direct repair programs on their surveys. Writing under the condition of anonymity, the following responses represent the most striking–and candid–opinions shared with us. Edited for style, spelling and to protect the anonymity of the writers, we have left the substance of the comments entirely unchanged. 
 
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Final grades are in — Canadian bodyshops grade insurers

Collision repair facilities and insurers have an interesting—sometimes fractious— relationship. The tug-o’-war between the two factions is not exactly a level playing field. 

S. M. T. c R. C., 2018 CanLII 103928 (ON HPARB), <http://canlii.ca/t/hvx42  

42.      When assessing this aspect of the complaint, the Committee, on the other hand, appeared to find a lack of information in the Applicant’s report as follows:

While it appears that [the Applicant] performed various testing, the assessment report did not appear to specify how [the Applicant] communicated information to [the Respondent] about shoulder range of motion testing even though [the Applicant] indicated that she sought [the Respondent’s] consent to proceed with the testing. The panel considered such information to be pertinent when providing a full picture of [the Respondent’s] abilities. In the panel’s opinion, [the Applicant’s] assessment as it relates to completing adequate physical testing appeared to be weak. The panel was concerned that [the Applicant’s] report did not document how she conducted range of motion and strength testing.                                                                                    …

The Applicant’s conclusions about [the Respondent’s] functioning did not appear to be sufficiently supported by the assessment information contained in her report. The panel noted that in order to complete a thorough assessment and to provide a fully informed opinion about an individual’s abilities, the assessor is obliged to consider and document a client’s functional status and to provide sufficient information to support the assessor’s conclusions.

52.      Accordingly, the Board returns the matter to the Committee and requires it to reconsider its decision in light of these reasons and more particularly, in light of the contents of the report of Ms. K. R. dated July 8, 2018. Prior to reconsidering its decision, the Board directs the Committee to first allow the parties the opportunity to make further submissions should they wish to do so.

53.      Counsel for the Applicant when making submissions that the Committee’s decision to order a SCERP was unreasonably harsh also referred the Board to Ms. R.’ opinion which contained screenshots from the COTO website. Counsel indicated that as a result of the website posting the Applicant has experienced a significant decline in referrals and a loss of income. Counsel referred the Board to the Applicant’s impact statement dated July 8, 2018.

54.      In her report Ms. R. stated that:

Generally speaking, in my opinion, if an occupational therapist appeals an ICRC decision, the College should consider not recording the ICRC decision on the website until the appeal has been heard and resolved; otherwise, it can do irreparable harm to a clinician’s reputation and ability to practice over a significant period of time until resolution.

55.      It appears that Counsel for the Applicant takes the position that the summary of the ICRC decision that is posted on the website, as well as the red exclamation mark placed next to the name of the Applicant should not be present “while a matter is still in process before HPARB”.

56.      The relevant section of the COTO bylaw is 17. 01 u.

Where, for a complaint filed on or after January 1, 2017 or for a report received on or after January 1, 2017 for which an investigator is appointed under 75 (1) (a) or 75 (1) (b) of the Code, or for any decision made by the Inquiries, Complaints and Reports Committee on or after May 30, 2017, in respect of a complaint filed or report received, a panel of the Inquiries, Complaints and Reports Committee requires a registrant to complete a specified continuing education or remedial program, as authorized by paragraph 26 (1) 4 of the code,                                                             

 i.            a notation of that fact,                                                                            

ii.            a summary of the specified continuing education or remedial program,                                                                           

 iii.            the date of the panel’s decision,                                                                      

 iv.            the date that the specified continuing education or remedial program is successfully completed, and                                                            

v.            if applicable, a notation that the panel’s decision is subject to review and therefore is not yet final, which notation shall be removed once the review and any reconsideration by the Committee is finally disposed of.

57.      The Board has reviewed the particulars included on the College’s website including the red exclamation mark that Counsel for the Applicant finds objectionable. The Board notes that the bylaw permits the College to provide: “a summary of the specified continuing education or remedial program” on the public register. In the Board’s view, the summary of the Committee’s decision that appears in the public register regarding the Applicant is within the authority of the College as set out in the relevant bylaw. In addition, the Board is not prepared to find that the use by the College of a red exclamation mark to flag the concerns and/or conditions related to the Applicant in the public register to be beyond the jurisdiction of the College. The Board notes that after the summary of the Committee’s decision that appears on the public register, the College, under the heading Decision Under Appeal makes the following statement: “This decision of the Inquiries, Complaints and Reports Committee is currently under appeal or review and therefore is not yet final.

VI.        DECISION

58.      Pursuant to section 35(1) of the Code, the Board returns the matter to the Committee and requires it to reconsider its decision to order the Applicant to complete a SCERP as directed and to issue a further decision.

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Ismail v. Fleming, 2018 ONSC 6615 (CanLII), <http://canlii.ca/t/hvxxv
 

[1]               The plaintiff in this personal injury action claims substantial damages from the defendants as the result of a 2009 motor vehicle accident, in respect of which liability has been admitted.

[2]               The matter proceeded to a trial by judge and jury, which began with jury selection on October 1, 2018.  The trial thereafter continued until October 31, 2018, at which time I felt compelled, albeit with great regret, to declare a mistrial for reasons to follow. 

[3]               These are those reasons.

Broader context

[4]               Before turning to the specifics of this matter, I think it necessary to emphasize important considerations and concerns that provided the broader context for my decision.

[5]               In that regard, I start by emphasizing the vital importance of accurate trial duration estimates to the efficient and effective administration of justice in this province.

[6]               Certainly, from the immediate perspective of civil litigants, the accuracy of such estimates is or at least should be important.  Trials clearly now are very expensive undertakings, from the perspective of all parties to a dispute.  The quantum of a party’s own prospective trial costs, and the extent of exposure to adverse cost awards if an opponent is successful, therefore should form an important component in ongoing cost-benefit assessment of whether a matter should proceed to trial.  
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Ismail v. Ismail et al., 2018 ONSC 6489 (CanLII), <http://canlii.ca/t/hvtch  

[1]               An inflexible, unyielding preoccupation with the Rules of Civil Procedure (“Rules”) is not appropriate.  As Sharpe J.A. said in 1196158 Ontario Inc. v. 6274013 Canada Limited, 2012 ONCA 544 (CanLII) at para. 19, “procedural rules are the servants of justice not its master”.  That helps explain why the Rules are to be “liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.”[1]

[2]               However, a too casual approach fosters a culture of complacency which delays or extends proceedings to the detriment of the people the system is intended to serve.  Expert reports illustrate the point. 

[3]               The time for delivery of such documents is spelled out in the Rules: the first report at least 90 and any response at least 60 days before the pre-trial conference.[2]   The court has jurisdiction to extend the time for compliance at a pre-trial or on motion.[3]  It is fair to say that an indulgence is often requested because it is rare that all parties have complied with the time requirements the subrules impose.

[11]           The solution starts with a procedural rule that is all too often ignored in this part of Ontario despite years of reminders that were initially gentle and are no longer so.  Rule 53.03(2.2) obligates parties to come to an agreement that will ensure expert reports are in hand 90 (in the case of an initial report) or 60 days (in the case of a responding report) before a pre-trial.  It provides as follows:

Within 60 days after an action is set down for trial, the parties shall agree to a schedule setting out dates for the service of experts’ reports in order to meet the requirements of subrules (1) and (2), unless the court orders otherwise.

November 8, 2018

by Admin2

Ontario’s distracted driving penalties changing

 The existing fines and penalties for distracted driving will increase on January 1, 2019.
Drivers with A to G licences
If you have an A, B, C, D, E, F and/or G licence, starting January 1, 2019 you’ll face:
For your first conviction:
  • a fine of up to $1,000
  • three demerit points
  • a three-day day driver’s licence suspension
http://www.mto.gov.on.ca/english/safety/distracted-driving-faq.shtml
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V801 – Apprehension of Bias in Insurer Examination Reports

Insurer imposed examinations tend to have quite significant impact upon our clients. Such examinations are not only disruptive to routine, but they are often also perceived as being invasive, stressful, and frightening. Our clients often feel as though they are dismissed, rushed and not listened to in the course of being examined. Following examination, our clients are then left to experience many weeks of worry as to whether their claims for benefits may be discontinued or denied. 
 
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V802 – An Insurer’s Obligation to Pay Rent

People sometimes need to move out of their existing residences and into new ones following motor vehicle accidents. This may occur due to accessibility issues such as can arise following spinal cord injury. It may also occur when injured people live in remote locations and have difficulty accessing care post-accident. Relocations are sometimes short-term solutions, necessary only in the acute injury period, but they can also be permanent in nature. 
 
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“The Times They Are A-Changing” – Instagram and Facebook Evidence Ordered to be Produced – Isacov v Schwartzberg, 2018 ONSC 5933 (CanLII)

SOCIAL MEDIA: private versus public profile; right to of plaintiff to maintain private information private; right of defendant to have access to information; does mere proof of the existence of a Facebook profile does not entitle a party to gain access to all material placed on that site; the presentation of some evidence that a party possesses a relevant document before a court can order production;  where the plaintiff puts her social enjoyment of life in issue and alleges various activities that she is unable to do then photographs of her social life and activities, before and after the alleged trauma, which exists on social media accounts, are produceable as having some semblance of relevance and should be part of her Affidavit of Documents; whether they are ultimately produceable at trial will be a determination made by the trial judge 
 
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Crashes with cyclists and pedestrians are on the rise locally

The Region of Waterloo 2017 Collision Report shows the amount of crashes between cars and cyclists went up 13 per cent from 2016.

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Ontario Tories to unveil social assistance reforms on Nov. 22

Ontario’s Progressive Conservative government is poised to unveil reforms to the province’s social assistance programs on Nov. 22.

In a statement on Wednesday, Children, Community and Social Services Minister Lisa Macleod said the government has spent 100 days carving out a plan to reform Ontario’s “disjointed patchwork” of programs.

https://globalnews.ca/news/4640798/ontario-tories-social-assistance-reform/?utm_medium=Twitter&utm_source=%40globalnewsto

November 7, 2018

by Admin2

What’s fair when it comes to setting automobile insurance rates?

Political pressure to keep automobile premiums low is a problem that has bedevilled Ontario insurers for some time now. The problem certainly isn’t new and it isn’t going away. It also crosses party lines. Four years ago, the Liberal government introduced legislation aimed at reducing auto insurance premiums by 15%. That goal was not achieved. 

https://www.insblogs.com/auto/whats-fair-when-it-comes-to-setting-automobile-insurance-rates/8589

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Law firm in Windsor goes after insurance companies for $600M

Jennifer Bezaire, a partner at Greg Monforton and Partners has announced that she and her firm are members of the consortium of lawyers formed to start a series of class action lawsuits against six Ontario auto insurers and their regulator the Financial Services Commission of Ontario (“FSCO”). 
 
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Trucker’s defence team calls fatal bicycle collision ‘tragic accident’ in dangerous driving trial

Conley, 40, has pleaded not guilty to both charges in the Sept. 1, 2016 early morning collision at the corner of Laurier and Lyon Street that killed 23-year-old Jahan as she was cycling to college classes that day, in a case that reignited concerns over bike and pedestrian safety on downtown streets. 
 
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MANDEL: It’s too soon to release drunk driver Marco Muzzo

How can Marco Muzzo expect to be released on parole at his hearing Wednesday when barely three years have passed since — as the sentencing judge said — “In one fell swoop, he decimated an entire generation of the Neville-Lake family, its legacy and its future?” 
 
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Green Experts Wonder How Legalized Cannabis Affects Auto Insurance

There is a strong alliance between cannabis advocates and environmental activists. They are often the same group. They both have tried to make some salient points about the need for changes in both regards. 
 
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Banks caught red-handed upselling controversial insurance product

CBC News has been investigating issues surrounding a product called credit card balance insurance (or balance protection insurance) – a type of insurance that supposedly helps with credit card payments in the event a cardholder loses their job or gets sick. 
 
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JACOBS: Ontario’s specialists file for divorce

Healthcare in Ontario has fallen behind other provinces. For 15 punishing years the Liberals attacked doctors. The lack of dialogue starved government initiatives of physician input. Instead the Liberals wasted billions of dollars that should have gone to front line care. Wait times grew. Patients suffered in crowded hospital hallways. 
 

November 6, 2018

by Admin2

Legislature defeats bill quashing territorial ratings in Toronto area

If you have clients living in Brampton or near the intersection of Jane St. and Finch Ave., they will probably continue paying more for auto insurance than if they lived elsewhere in the Greater Toronto Area. 
 
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Telematics’ value to insurers evolves

Telematics-based insurance policies are growing slowly. According to Harry Huberty, lead associate with Novarica, overall participation for telematics-fueled usage-based insurance remains modest. “About one-third of property and casualty carriers have telematics capabilities live or in pilot, and only about a third of their policyholders participate in those programs,” he says. 
 
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Ford PCs leave drug-company transparency law in limbo

A law that would have made Ontario the first province in which drug companies were forced to publicly disclose their payments to doctors is in limbo with less than two months to go before the data collection was supposed to begin. 
 
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What are Common OT Recommendations After Assessment?

As an Evidence Based Research Project through McMaster University, Solutions for Living set out to summarize and highlight common OT recommendations after initial assessment.  The goal was to publish these findings to help student OTs, or OTs looking to enter the sector, to understand the scope, depth and breadth of the recommendations we tend to make.  Here are the highlights of our research findings, the completed study will be submitted for publication to OT journals when finalized. 
 
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What Makes Reading Enjoyable?

I sat opposite my therapist, focusing effortfully on her lesson. She was teaching me how to read post-concussion using strategies: highlighters to highlight words I needed to remember; pens to write notes in the margins and in a notebook to remember the text; two sheets of paper to cover off pages and paragraphs I wasn’t reading; sticky notes to mark key points; a decision list on how to choose material that gave me the best chance of reading. I went home with this clutch of strategies to help me read for five minutes per day, the limit of my ability to read after brain injury. 
 
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Online Concussion Support Group

The Online Concussion Support Group welcomes you to a safe place where you can share your frustrations and struggles and connect with others who have had similar experiences. 

November 5, 2018

by Admin2
FAIR letter to the FSCO Superintendent about insurers failure to pay the HST http://www.fairassociation.ca/wp-content/uploads/2018/11/FAIR-letter-to-Brian-Mills-Nov-2-2018-re-insurers-non-payment-of-HST-1.pdf
Regulatory failure leaves Ontario’s injured car accident survivors paying while insurance companies dodge responsibility
 
TORONTO, November 2, 2018 / It should concern all Ontarians that auto insurers are failing to pay the HST on goods and services required by injured MVA victims in recovery. Traumatically injured auto accident survivors are among the most vulnerable of patients and they should not have to fight their insurance company to get what they paid for.
 
http://www.fairassociation.ca/fair-media-releases/
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Exclusive: Wells Fargo says auto insurance remediation will not wrap up until 2020

WASHINGTON (Reuters) – Wells Fargo & Co will not finish paying back the estimated 600,000 customers it wrongly charged for auto insurance until at least 2020, the bank said in a letter to U.S. lawmakers seen by Reuters. 
 
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Ford government votes down Brampton MPP’s bill aiming to end auto insurance postal code discrimination

The majority Ontario Progressive Conservative government voted down a private members bill by Brampton East MPP Gurratan Singh to end auto insurance postal code discrimination on Thursday (Nov. 1).

https://www.bramptonguardian.com/news-story/9003549-ford-government-votes-down-brampton-mpp-s-bill-aiming-to-end-auto-insurance-postal-code-discrimination/

______________________________________________________________Expert witnesses: Balancing the scales of justice in personal injury claims

No matter how clearly you may feel that the facts “speak for themselves” and support your version of events, the opposing insurance company will have experts with well-honed counter-arguments. After all, the insurance company may have dozens or even hundreds of claims that could be affected by the outcome of your legal action. And they also benefit from anything they can do to generally discourage others from filing suit. 
 
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Accident victims pursue $600 million in lawsuits

Six Ontario automobile insurers have been named in a series of class-action lawsuits by accident victims who are seeking millions in benefits they say they were denied because the insurer improperly subtracted the harmonized sales tax from their benefits packages. 
 
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The Cruelest Personal Injury Law

There are a lot of cruel personal injury laws:  caps on pain and suffering, secret deductibles, biased doctors, the list goes on.  But, there is one that is the worst of them all: The cap on damages for the loss of family members.  
 
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Cannabis legalization could force hike in car insurance rates

The legalization of cannabis on October 17 was a huge day for Canada, but for drivers it has created a lot of questions. Like alcohol, cannabis is considered a substance that impairs your ability to drive, but what constitutes ‘impairment’ is somewhat unclear right now, and impairment rules differ between police forces across Canada. 
 
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Chiropractors at a crossroads: The fight for evidence-based treatment and a profession’s reputation

Canadian chiropractor Dr. Clifford Hardick paces in front an auditorium full of Life University chiropractic students in Marietta, Ga. He energetically tells the students gathered on a Monday in June that it is a mistake to treat symptoms such as headache and back pain. He tells them about the power of “the subluxation” and how it is the root of all disease. “One cause, one cure,” he booms into the crowd. 
 
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Why can naturopaths mislead the public about their credentials? Because no one bothers to stop them

The College of Physicians and Surgeons of New Brunswick recently conducted an investigation and found that 41 per cent of the province’s naturopaths were using restricted terms like “physician” and “medical practitioner” in contravention of New Brunswick’s Medical Act. 
 
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The Power of Kindness with Kinnie Starr
A devastating car crash left guest host Kinnie Starr with a mild to moderate brain injury and chronic physical pain and ailments. Over time Kinnie began to notice that doing kind deeds for others, or when she received them herself, relieved much of her physical pain. Kinnie explores the healing powers of kindness to alter the body and the mind…  
 

Press Release – Regulatory failure leaves Ontario’s injured car accident survivors paying while insurance companies dodge responsibility

by Admin2

TORONTO, November 2, 2018 / It should concern all Ontarians that auto insurers are failing to pay the HST on goods and services required by injured MVA victims in recovery. Traumatically injured auto accident survivors are among the most vulnerable of patients and they should not have to fight their insurance company to get what they paid for.

The Ontario government has a duty to protect vulnerable citizens from predatory insurers and to ensure that we have the quality coverage we need if we are injured. FAIR has long been aware of the many oversight failures that have led to this class action and the continuing struggle of accident victims to access adequate resources for maximum recovery.                                 

The IBC and their auto insurer members were known to be among the highest donors to the Liberal government in recent years. That relationship undermined the recovery of tens of thousands of injured car crash survivors who depended on the government to do their job and protect them and not insurer profits. The sum and total of the previous governments failure to regulate has led us to where we are today with a fundamentally broken system since the previous Liberal government “fixes” were heavily tilted in favor of protecting the financial health of Ontario’s private auto insurers at the expense of the physical health of injured claimants.

According to Rhona DesRoches, Chair of FAIR, “Effectively we have ended up with a blended public/private auto insurance. Private insurer profits soar when they deliberately fail to live up to their promised coverage and download recovery costs to accident victims and unsuspecting taxpayers. It is only once in the system that one can see how hard insurers fight to put profits ahead of their customers recovery and how little meaningful regulation there is to protect them from predatory practices.”

“We aren’t buying policies with a ‘user fee’ of 13% in Ontario. While this does not sound like a large amount for a person to pay, spread over many claims over a number of years it means insurers are pocketing big dollars while downloading significant costs to those most injured. In order to recover these ill-gotten HST fees an injured accident survivor would have to take their insurer to the Licensed Appeal Tribunal (LAT) for a hearing where the victim has to pay a fee and even if successful at recovering these expenses from an insurer, they will not be reimbursed for their legal costs for having done so.”

FAIR supports the class action suit and the effort to hold insurers and their regulators to account. We look to the new Conservative government to do the right thing and protect Ontario’s vulnerable car accident survivors in recovery while holding insurers to account for their fraudulent acts.

‘FAIR – supporting auto accident victims through advocacy and education’

SOURCE: FAIR Association of Victims for Accident Insurance Reform http://www.fairassociation.ca/ 

For further information: fairautoinsurance@gmail.com

November 2, 2018

by Admin2

November 1, 2018

by Admin2

Accident victims denied millions in benefits by insurers, lawsuits allege

Six auto insurance giants have withheld hundreds of millions of dollars in HST payments from Ontario car accident victims in defiance of repeated demands from the provincial regulator, according to a series of class-action lawsuits — obtained exclusively by the Toronto Star — claiming $600 million in damages. 
 
 
Full coverage – who to contact and video of the press conference
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Raise auto accident benefits: Ontario politician

The cuts to mandatory auto accident benefits made in 2010 and 2016 need a second look, says Ontario’s opposition auto insurance critic. 
 
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Why this 1996 auto accident benefits claim has not been resolved

An accident benefits claimant who a designated assessment centre concluded 22 years ago was not disabled still has a chance to claim income replacement benefits, Ontario’s Divisional Court has ruled. 
 
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Should Canadians be concerned that there will be more Drug Impaired Drivers on the Road?

The most troubling issue for many Canadians, regarding the legalization of marijuana on October 17, is whether heightened cannabis use will lead to an increase in motor vehicle accidents caused by drivers who are high. 
 
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Welfare reform is the Ford government’s next big project

Premier Doug Ford’s government is about to reform social assistance in Ontario, raising fears of the kind of sweeping cuts to welfare made the last time the Progressive Conservatives took power in the province.  
 
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Aviva Canada Inc. and Yeshitla Dadi Decision Date: 2018-10-23, Appeal, Final Decision, FSCO 5614 https://www5.fsco.gov.on.ca/AD/5614

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.

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Dadi and Aviva Decision Date: 2017-09-20, Arbitration, Final Decision, appeal pending, FSCO 5350 https://www5.fsco.gov.on.ca/AD/5350
 
In regards to Dr. Aiello, I was unable to accept him as an expert. I agreed with the Applicant’s arguments that he lacked any specific area of speciality, and did not have the enough experience as a health care practitioner to be deemed an expert. The doctor did not have standing in any secondary professional organizations, and was not published on any noted area of practice. Therefore, I limited his evidence to his report alone.

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.

October 31, 2018

by Admin2