Introduction
The applicant, Nicholas Crecoukias, was involved in a motor vehicle accident on July 18, 2017, when he witnessed a woman who was killed by a bus. The applicant is claiming that he has sustained a catastrophic impairment as a result of witnessing the accident while getting off a TTC bus. The insurer denies that the applicant sustained a catastrophic impairment as a result of the accident. The applicant was diagnosed with schizophrenia after the accident, but the parties disagree on whether the accident caused the diagnosis, and this causation issue was the key to the catastrophic determination issue before LAT adjudicator Deborah Nielson.
The notable procedural issues in the case included: (1) whether the respondent’s psychiatric expert, Dr. Ali, should be exempt from any order excluding witnesses; (2) whether the applicant may file a report by the insurer’s tort defence expert, Dr. Gnam, as an exhibit, and (3) whether a chiropractor, Dr. Persi, should be excluded from testifying on the basis that he is not an expert in mental health issues.
Issue 1
Dr. Ali, the independent psychiatric examiner, was permitted to be present for the evidence of the treating psychiatrist expert, without effecting the order excluding witnesses. It was determined that “any risk that Dr. Ali would tailor her evidence is negligible.” Therefore, she was not required to testify before any of the applicant’s witnesses testified and was permitted to be present, ostensibly to assist counsel in preparing to cross examine the Applicant’s expert.
Issue 2
Dr. Gnam, a psychiatrist, conducted a defence medical for the tort, and the applicant wanted to call on Dr. Gnam to provide evidence at the hearing. Notably, the parties filed a joint book of documents, and the applicant also filed an additional brief containing extra documents, and neither brief contained Dr. Gnam’s report. The insurer therefore objected to Dr. Gnam providing evidence, as it claimed to have had no notice that the applicant intended to rely on the report. Specifically, the insurer opposed on the basis that the deemed undertaking rule applied, and the report was being used for tort purposes only. It may or may not have been notable that the counsel for the insurer was the same for both tort and accident benefits. He could not argue that he had never seen the report before.
Ultimately, the adjudicator noted that a toxicology report – served jointly for AB and tort defence – did reference Dr. Gnam’s report. For this reason, the deemed undertaking rule was not breached (even though the rule was found to apply to the LAT as if it were a court).
Ultimately, Dr. Gnam was called in chief by the applicant, and the insurer was able to cross-examine Dr. Gnam on his report authored for the insurer albeit in a tort context.
Issue 3
The insurer submitted that Dr. Persi, a chiropractor, should be excluded from testifying. Dr. Persi drafted a report rating the applicant using chapter 14 of the AMA Guides. Chapter 14 pertains to mental and behavioural disorders. As a chiropractor, the assessment of mental or behavioral impairments is not within this practitioner’s scope of practice. In the end, it was determined that Dr. Persi was allowed to testify, but only to give an expert opinion on physical issues, not psychological issues.
Conclusion
This important decision highlights interesting procedural and preliminary issues, specifically as it relates to expert assessors and the extent of their involvement during LAT proceedings. In addition to analyzing causation and determining whether the applicant was deemed catastrophically impaired, this decision also provides a fascinating analysis of schizophrenia and a standard analysis of chapter 14 spheres. At the end of the day, Adjudicator Neilson concluded that the Applicant could not establish a causal connection between the accident he witnessed and the schizophrenia, and as a result, catastrophic impairment was not found.
Julia Cohen is a summer student at ZTGH and author of this blog. If you have a question about this blog or a similar decision, please contact Eric Grossman at [email protected] or 416.777.5222.
