Arbitration – FSCO A16-004703

Alan Clausi – lawyer for Mr. Dadi – Applicant

Alex Robineau and James Brown – lawyers for Aviva Canada Inc. – Respondent

The Arbitration of this accident benefits claim was brought mainly to dispute Aviva’s determinations that:

1. Mr. Dadi had suffered ‘minor’ injuries only; and
2. That a Treatment Plan for an In-Home Assessment was not reasonable and necessary.

Two weeks before the hearing, Aviva removed Mr. Dadi from the Minor Injury Guideline. The main issue was whether or not the Treatment Plan for the In-Home Assessment was reasonable and necessary.
Arbitrator Matheson relied on the undisputed medical evidence in determining that the Treatment Plan was reasonable and necessary. In his analysis, Arbitrator Matheson confirmed that Aviva had in its possession documented evidence which should have removed Mr. Dadi from the MIG far sooner than they did, including evidence that the collision caused unconsciousness, acute anxiety, concussion, headaches, post concussion syndrome, dizziness, and chronic head, neck and back pain.

Aviva called only one medical witness: General Practitioner Dr. Michael Aiello. Alan Clausi objected to the qualification of Dr. Aiello as an expert, on the basis that this insurer assessor had very little experience, had no special qualifications or publications, and was a family doctor unable to provide opinions.

Arbitrator Matheson agreed, and refused to accept Dr. Aiello as an expert, as this doctor lacked any specific area of speciality, and did not have enough experience as a health care practitioner to be deemed an expert. Dr. Aiello was simply allowed to comment on his reports and his assessment of Mr. Dadi.

Arbitrator Matheson refused to place any weight on Dr. Aiello’s reports or evidence, because Dr. Aiello:

1. Relied heavily on the facts that Mr. Dadi was working and had gone on a vacation after the collision;
2. Refused to rely on preaccident medical evidence;
3. Refused to rely on postaccident medical evidence;
4. Failed to request further medical evidence despite the fact Mr. Dadi complained to him of hitting his head, losing consciousness, headaches, neck and shoulder pain that interrupts his sleep, anxiety attacks, and tingling in his arms.

Arbitrator Matheson, in denying a special award, noted that the adjusters handling the file misinterpreted the information, which may borderline incompetence.

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