*Since the writing of this blog SCC refused Leave to Appeal.

In the LAT decision of  H.Y. and Aviva Insurance Company, LAT (16-000670/AABS), May 19, 2017, the Applicant sought entitlement to Non-Earner Benefits and a determination that the injuries she sustained as a result of a motor vehicle accident on June 5, 2015 were not minor. She also sought entitlement to two Medical Benefits, two Costs of Examinations, Interest and a Special Award.

This matter proceeded by way of an In-Person hearing. The only experts who attended the hearing were the experts retained by Aviva and  H.Y. was cross-examined at her hearing. Adjudicator Truong clearly focussed on the experts’ evidence, in coming to her conclusions regarding the claim for Non-Earner Benefits and treatment beyond the Minor Injury Guideline.

Adjudicator Truong compared the report of H. Y’s psychological expert, Dr. Judith Pilowsky, with the report of Aviva’s psychological expert, Dr. Amena Syed. Adjudicator Truong found Dr. Syed’s report to be more persuasive than Dr. Pilowsky’s report since Dr. Pilowsky concluded that H.Y. met the test for Non-Earner Benefits due to her physical limitations, which was clearly outside of the scope of Dr. Pilowsky’s expertise. Secondly, Adjudicator Truong found that unlike Dr. Syed, Dr. Pilowsky did not complete any validity testing and therefore her conclusions were based solely on H.Y’s subjective reports. Considering these weakness in Dr. Pilowsky’s report, Adjudicator Truong did not place much weight on Dr. Pilowsky’s diagnosis of Major Depressive Disorder, Post-Traumatic Stress Disorder and Somatic Disorder and Chronic Pain Disorder. She was also not convinced by Dr. Pilowsky’s opinion that H.Y.’s injuries did not fall within the definition of a “minor injury”.

With respect to the physical assessments, Adjudicator Truong again preferred the reports from Aviva’s expert. Adjudicator Truong found that it was problematic that H.Y’s Orthopaedic expert, Dr. Ogilvie-Harris, did not complete any validity testing to confirm the results obtained from the questionnaires he administered to H.Y.  She also found that it was problematic that Dr. Ogilvie-Harris diagnosed H.Y. with chronic pain syndrome but did not provide any objective medical findings to support this diagnosis. Therefore, Adjudicator Truong was not satisfied that Dr. Ogilvie-Harris could accurately conclude that H.Y suffered from chronic pain, and therefore placed little weight on his entire report.

In contrast, Adjudicator Truong was satisfied with the testimony of Dr. Esmat Dessouki, Orthopaedic Surgeon who testified on behalf of Aviva. She found that his testimony held up under cross-examination and she found him to be credible. She also accepted his explanation for the inconsistencies he observed while examining H.Y. as well as his reasons for disagreeing with Dr. Ogilvie-Harris’ diagnosis of chronic pain.

After considering the experts’ reports filed before the tribunal, the  testimony of Aviva’s experts who attended the hearing and surveillance filed of H.Y., Adjudicator Truong found that H.Y. had not adduced enough evidence to prove on a balance of probabilities that her accident-related injuries prevented her from engaging in substantially all of her pre-accident activities. She also concluded that  H.Y. did not prove on a balance of probabilities that she sustained anything more than minor injuries. Adjudicator Truong further held that H.Y. was not entitled to any of the medical benefits or costs of examinations claimed, and therefore was not entitled to interest or a special award.

This decision is a prime example of the importance of experts. Not only is the rigor of their reports important, but their performance under examination, and cross-examination at hearings. This decision serves as a reminder to counsel and Insurers to ensure that their expert reports read as being objective and that their experts understand their role should their attendance be necessary at a hearing. Lawyers should consider calling their experts even if opposing counsel fails to call experts for their case, especially when confident that your experts' results are solid after preparing them for the hearing. Having an expert appear credible in person can be very persuasive to an Adjudicator when constrasted with a weak opposing expert reports.

Suzanne Clarke is a partner and member of the License Appeal Tribunal practice group. If you have question about this decision or a LAT file, please contact Suzanne.