https://www5.fsco.gov.on. ca/AD/5530
Mid-Hearing Motion #1
Upon closing his case and prior to the Insurer calling Dr. Sharma, an orthopaedic surgeon, the Applicant objected to the doctor taking the stand in order to testify.
The Applicant argues that the doctor did not assess the Applicant for a catastrophic impairment, but opined on the Applicant’s income replacement benefit (“IRB”) issue. This case is only about a catastrophic determination, under mental and behavioural issues. There is no relevance to Dr. Sharma’s testimony or in other words there is not a relationship with the doctor’s expertise and the issues in dispute. There is no probative value to his testimony, which may be prejudicial to the Applicant. The Applicant is unsure as to the intention of this witness’ testimony. Thus the evidence as it relates to the issue in dispute is unknown to the opposing party.
The Applicant argues that all non-relevant evidence should be excluded.
The Insurer argues that there is no prejudice in this instance and the fact that the Applicant does not know what the relevance of his evidence is, is not in itself prejudicial to the Applicant. The Applicant has the doctor’s reports and the diagnosis and the conclusions of the reports. The Insurer argues that the Applicant suffers from a constellation of symptoms, as has been already evidenced in this Hearing, according to the Guides[17]: chronic pain under Chapter 15, a closed head injury under Chapter 4, and not just the narrow issue of mental and behavioural issues under Chapter 14. Therefore the Insurer argues it has the right to bring this case to the attention of the trier of fact and present its case as it sees fit. The Insurer argues that the Applicant best fits Criterion 7 and not Criterion 8.
The Applicant replies that Dr. Sharma did not have any expertise in chronic pain. This is subjective and goes to the credibility of the Applicant which cannot be allowed as the doctor did not ask the correct questions to the Applicant directly.
The Insurer argues that Dr. Sharma is not being called for credibility issues alone, but he has tracked the Applicant’s physical condition, and the Insurer wants to argue this case on that basis. Further the Insurer suggests that it will not be asking for a whole person impairment (“WPI”) rating from the doctor, which has not been provided in the doctor’s report.
Decision
In the interest of fairness to the Insurer, I will allow the witness to testify to his reports and the implications of those reports on the Insurer’s perspective of this case. In my view, the Insurer also has the right to present its best evidence for its best defense. This of course does not have an impact on the Applicant’s ability to present his case as he ultimately has the burden of proof of entitlement.
Mid-Hearing Motion #2
During the examination of the Insurer’s expert, Dr. Sharma, counsel for the Insurer and Dr. Sharma recognized that his final report was not the report that the doctor had dictated or submitted to the service provider known as “CVE”.
The Insurer moved that I allow the correct version of the report in as evidence despite the late service.
Arguments
The Insurer argued that under Rule 39.3 (c) of the Dispute Resolution Practice Code (the “Code”), I may allow the evidence due to extraordinary circumstances. This section reads as follows:
39.3 The hearing arbitrator will determine the relevance, materiality, and admissibility of evidence submitted at the hearing, but will not admit evidence at a hearing that:
(c) was not served on the opposing party in accordance with Rules 39.1 and 39.2, unless the hearing arbitrator is satisfied that extraordinary circumstances exist to justify an exception.
The Insurer argues that the only explanation it or Dr. Sharma can offer is that the third party service provider, who polishes the doctor’s formatted reports and submits them to the Insurer for dissemination, somehow and inexplicably changed vital sections of his report. Unfortunately, this has just been discovered and is out of the control of either party or the doctor. The doctor testified that he does not see the finished product prior to it being sent out to the parties. The doctor dictates the report, it is transcribed, and he then reviews it, makes any adjustments and then approves it for the proper formatting and the auto-signature to be applied. The doctor admitted it has not been his practice to review final reports in their final format in the past.
The Applicant argues that I should not allow the new report into evidence, for three reasons: first, the Code does not permit it, second, he has already objected to the doctor’s evidence, and third, it is not consistent with the principles of natural justice as he has been taken by surprise and/or ambushed. He is unable to properly cross-examine the witness. The Applicant has not been able to request the doctor’s notes and records in order to understand his evidence.
The Insurer’s remedy to the Applicant’s concerns of prejudice is to adjourn the Hearing, for two weeks, in order for the Applicant to read any documents he may want to review in order for him to properly cross-examine the doctor.
Decision
In my view, extraordinary circumstances are situations that appear as a surprise, and the surprise is out of the control of the parties. This is the case before me today. Essentially, CVE submitted a false report that negatively impacted on the Applicant, as the Insurer relied on this report in determining benefits the Applicant may have been entitled to, to one degree or another. This is verified by Insurer’s counsel. This issue was discovered on the day, just hours prior to the commencement of this proceeding and was reported immediately thereafter.
For the reasons above I adjourned the Hearing, after the doctor’s examination-in-chief had been completed, for two weeks, in order for the Applicant to properly prepare his cross-examination.
[]Dr. S. Sharma’s Testimony (Orthopaedic Surgeon)
Dr. Sharma testified on behalf of the Insurer as to the accuracy and veracity of his reports. In the generation of his seven reports, the doctor had the occasion to examine the Applicant three times on November 7, 2012, October 1, 2014 and April 1, 2015.
The first report,[34] dated November 21, 2012, was to opine on whether the Applicant met the substantial inability test for his IRB; he did not. On page five of his report the doctor testified that he came to the conclusion that the orthopaedic and neurological exams were normal, although there were signs of arthritis which would cause a longer recovery period.
Dr. Sharma’s third report[35] and second paper review report from the examination assessment made on November 7, 2012 overturned the doctor’s earlier opinion that the Applicant did not meet the substantial inability test for the IRB being claimed as new information became known that the Applicant could not stand or extend his arms for extended periods of time.
Dr. Sharma’s fourth report,[36] also a paper review, reviewed the most recent MRI and a neurological assessment completed by Dr. Nguyen. In his report the doctor opines that further supervised physiotherapy will provide significant benefit to the Applicant, as the MRI multilevel discopathy is most evident at the L5-S1 joint. The doctor testified that the Applicant is likely to develop chronic pain and that his prognosis is guarded as arthritis may be the underlying cause of his pain.
Dr. Sharma’s fifth report[37] dated October 14, 2014 relied on his physical examination of the Applicant performed on October 1, 2014. The doctor testified that he recognized the Applicant’s lower back complaints but maintained that these were not caused by the accident, but were due primarily to degenerative related issues. He did not agree to adjust his diagnosis to a WAD 3 and lumbar disc disorder with radiculopathy as the Applicant had no objective signs of nerve root impingement.
On page 7 of his report the doctor made the recommendation that the Applicant be assessed by a chronic pain team, as the Applicant had reached maximal orthopaedic recovery, and that the Applicant’s prognosis was now downgraded to poor.
During his testimony Dr. Sharma testified he was worried about the Applicant’s growing dependence on narcotics, hence his chronic pain assessment recommendation.
In regards to Dr. Sharma’s sixth report,[38] a paper review based on his examination of October 1, 2014, dated January 14, 2015, he opined on three independent reports by Drs. Emad, Smith and McKee, which found that the Applicant suffered from chronic pain syndrome. The doctor maintained in his report and in his testimony that the Applicant was suffering from an underlying arthritis condition which was contributing to his current complaints.
Dr. Sharma’s last report,[39] dated June 9, 2015, was from his examination of the Applicant completed on April 1, 2015. The doctor noted that the Applicant described global body pain, which in the doctor’s opinion did not reflect a normal progression of a soft tissue injury. The doctor noted the Applicant was seeing a psychologist, and he was not able to complete his daily housekeeping activities at that point in time. In the doctor’s opinion the Applicant was getting worse as the Applicant was experiencing more pain that limited his movements. The doctor opined on the Applicant’s worsening pain in his neck and lower back in that the underlying reason, from an orthopaedic perspective, behind the Applicant’s worsening pain was the arthritis of the spine.
In cross-examination Dr. Sharma testified that he did not perform a catastrophic assessment on the Applicant. Further, the doctor testified that he did not assess for pain or mental or behaviour issues, as it was outside of his scope of expertise. The doctor also agreed that he does not ask in-depth questions on housekeeping or self-care or other daily activities.
In regards to osteoarthritis, the doctor opined that it can be detected in a client who does not have pain, and generally, arthritis gets worse over time, but that conclusion is speculative at best. The doctor maintained that this Applicant’s worsening symptoms were, in part, due to arthritis.
Dr. Sharma found no reason to disagree with the findings or observations of Dr. Smith’s chronic pain assessment report.[40]
[]
In regards to Dr. Sharma’s evidence that he believes that the underlying pain experienced by the Applicant can be attributed to his arthritis, I remain unconvinced that all of the Somatic Symptom Disorder, with predominant pain, persistent, as diagnosed by the Insurer’s own psychiatrist in June 2015,[50] is associated solely with the arthritis. There is no direct evidence to that effect. I also note that Dr. Sharma only makes a suggestion that a possible head trauma occurred and that this went unverified, therefore, in my view, means a Chapter 4 impairment rating and subsequent WPI rating are not necessary or required.
[]
The Applicant argues that the special award is warranted on the following grounds:
1. The Insurer refused to accept the CAT application based on Dr. Scott’s flawed report, as the evidence shows the doctor clearly did not follow the Guides recommendations;
2. Mr. Landry’s OT report was not provided to Dr. Scott prior to the release of Dr. Scott’s CAT report, despite the critical role it should have played as part of a CAT determination team’s assessment of the Applicant;
3. The Insurer relied upon a falsified or ghost written report of Dr. Sharma, which the Insurer had relied upon in making its decision not to accept the Applicant’s CAT application. As such the Insurer should be held vicariously liable for the conduct of a third party assessment firm it hired. The Applicant relies in part on the Supreme Court Decision in Bazley.[56]
In light of these facts the Applicant requests a finding of a 50% special award on benefits that the Applicant would have been entitled to from the date of the denial on November 2015 to date.
The Insurer argues, in part, that in respect of a special award, it does not believe that there ar e either grounds for or a jurisdictional basis upon which a special awa rd can be granted. Further, the Insurer objects to the argument that it ought to be held responsible for the actions of CVE.Upon becoming aware of the error it communicated that fact to the Commission. It acted honourably and reasonably in all the circumstances. It is submitted that neither the error nor the report played a role in the determination of whether the Applicant had suffered acatastrophic impairment.