Neutral Citation: 2003 ONFSCDRS 109

FSCO A02–000161

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

LUCIANO AMATO

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Joyce Miller

Heard:

March 28, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Joseph Brian Donnelly for Mr. Amato

Stephen B. Macaulay for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Luciano Amato, was injured in a motor vehicle accident on June 6, 2000. He received statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule.¹ Wawanesa terminated weekly income replacement benefits on October 23, 2000. The parties were unable to resolve their disputes through mediation, and Mr. Amato applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

A four-day arbitration hearing commenced on February 24, 2003 regarding the following issues: is Mr. Amato entitled to receive weekly income replacement benefits in the amount of $400 per week ongoing from October 24, 2000 claimed pursuant to section 4 of the Schedule; and is Mr. Amato entitled to a special award pursuant to subsection 282(10) of the Insurance Act. In addition, Mr. Amato claimed interest on any outstanding amounts and both parties claimed their arbitration expenses.

The arbitration hearing was adjourned on February 27, 2003 to resume on April 22, 2003. In the interim, at the request of the parties a preliminary issue hearing was held on March 28, 2003, on the following issues:

The preliminary issues are:

1. Should the report of the late Dr. Frank Deegan dated October 11, 2000 with the associated Functional Abilities Evaluation report dated October 10, 2000 be entered into evidence?

2. Should the report of Dr. Howard Seiden dated February 25, 2003 be entered into evidence?

3. Should Dr. Howard Seiden be allowed to appear as a witness to stand in the stead of the late Dr. Frank Deegan and comment on his report?

Result:

On April 3, 2003, I issued my decision on these issues, with reasons to follow. The Order stated:

1. Dr. Deegan's report dated October 11, 2000 with the associated Functional Abilities Evaluation report dated October 10, 2000 shall be entered into evidence.

In allowing Dr. Deegan's report into evidence I shall take into account in weighing the evidence that Dr. Deegan was not Mr. Amato’s treating physician and that he only saw Mr. Amato on one occasion.

2. Dr. Seiden's report of February 25, 2003 shall not be admitted into evidence, nor shall Dr. Seiden be allowed to appear to comment on Dr. Deegan's report.

SUBMISSIONS:

Submissions by Wawanesa:

Wawanesa’s counsel, Mr. Macaulay, stated that a few weeks before the arbitration hearing he had learned that Dr. Deegan, who had conducted an insurer's medical examination ("IME") on behalf of Wawanesa in October 2000, had died. Mr. Macaulay submitted that before he was aware of Dr. Deegan's death, he had properly served a copy of Dr. Deegan's report on Mr. Amato pursuant to the Dispute Resolution Practice Code (Fourth Edition, May 31, 2001) ("the Practice Code").

Mr. Macaulay stated that it was not until February 21, 2003 that Mr. Amato’s counsel, Mr. Donnelly, advised him that Dr. Deegan was required for cross-examination at the hearing. Mr. Macaulay stated that he quickly arranged for Dr. Seiden, who was the head of the clinic that Dr. Deegan worked for, to provide another report. This report was based on a review of Dr. Deegan’s report and the available medical evidence including the medical reports provided by Mr. Amato. Dr. Seiden's report was served on Mr. Amato on February 26, 2003.

Mr. Macaulay argued that, pursuant to Rule 39(3) of the Practice Code² as well as the case law, Dr. Deegan’s and Dr. Seiden’s respective reports should be admitted into evidence. As well, he submitted that Dr. Seiden should be allowed to testify and be cross-examined on his report.

Mr. Macaulay relied on the propositions in the following case law to support the position that notwithstanding Dr. Deegan’s death, his report should be admitted into evidence. These propositions are as follows:

• The case of Salvatore v. Bortolotti, [1998] O.J. No. 4973, held that the deceased doctor's evidence could be admitted by way of his written report.

• The case of Scime v. Guardian Insurance Co. of Canada, [1988] O.J. No. 2878, held that a trier of fact should exercise discretion so all possible evidence is before the court to consider and that counsel was permitted to file a report of the deceased physician.

• In the case of Burley v. Baldwin, [1985] O.J. No. 1895, the court held it is the court's prerogative to admit a report whose author has died.

Mr. Macaulay further argued based on the Scime case that Dr. Deegan’s report should be admitted into evidence because his examination had taken place at a crucial time and had set in motion Wawanesa's actions to terminate Mr. Amato's benefits. He stated, that not to allow Dr. Deegan's report into evidence would be prejudicial to Wawanesa.

Regarding Dr. Seiden's report and whether he should be allowed to testify at the hearing, Mr. Macaulay relied on Tulshi v. Ioannou, [1994], O.J. No. 1472 (Gen. Div.), which held that the trier of fact can use their discretion when dealing with a deceased witness, who cannot be cross-examined, by ordering that the report in question be supported by the oral evidence of another expert.

Mr. Maccaulay also relied on Colley v. Travellers Insurance Co. [1998] N.S.J. No. 405 (N.S.S.C.), which in his brief written in support of his oral submissions he stated stands for the proposition that:

Medical reports of a deceased witness can be admitted into evidence and considered reliable. Other medical opinions can be admitted into evidence providing an outline of the treatment given by the deceased practitioner and an opinion in respect of the diagnosis of the injury. Alternative medical opinions are considered to be a benefit to the Court due to the qualifications of the experts to give an opinion on whether the deceased practitioners' opinions were reliable. The reliable reports and opinions should be admitted into evidence where the alternative practitioner is available to testify.

In summary, based on the case law as enunciated above, Mr. Macaulay submitted that the reports of Dr. Deegan and Dr. Seiden be admitted into evidence at the arbitration hearing and that Dr. Seiden be allowed to testify at the hearing.

Submissions by Mr. Amato:

Mr. Donnelly, on behalf of Mr. Amato, submitted that I should not allow into evidence either Dr. Deegan's or Dr. Seiden's respective reports. Mr. Donnelly submitted that Mr. Amato would be prejudiced in not having the opportunity to cross-examine on the content of Dr. Deegan's report.

Mr. Donnelly presented an excerpt from the College of Physicians & Surgeons of Ontario's website, which states that Dr. Deegan died on June 3, 2002, and that his specialty was general surgery. Mr. Donnelly pointed out that Dr. Seiden's specialty is family medicine, a different specialty from Dr. Deegan.

Mr. Donnelly submitted that in the case law, which allows another expert to stand in the place of a deceased expert, the expertise of the witness and the deceased were the same, e.g. Tulshi v. Ioannou, [1994], O.J. No. 1472 (Gen. Div.). As well, in Tulshi, the expert witness was not allowed to have a "fresh look" at the evidence and give an independent analysis as Dr. Seiden has in his report.

Mr. Donnelly pointed out that Dr. Deegan's report was accompanied by a Functional Abilities Evaluation ("FAE") report prepared by Ms. Carla Mailot, a kinesiologist, which was also signed by Dr. Deegan. The report of the FAE is essentially the same as Dr. Deegan's conclusion. Mr. Donnelly submitted that if Dr. Deegan's report was to be allowed in, then Ms. Mailot would be a more relevant witness than Dr. Seiden as she had co-authored the report with Dr. Deegan. More specifically, he pointed out she was present at the time of Dr. Deegan's IME, and Dr. Seiden was not.

Mr. Donnelly submitted that Wawanesa was trying to get into evidence a report by Dr. Seiden that pursuant to the Practice Code would not have been admitted if Dr. Deegan had been alive because of the late service. Mr. Donnelly argued that Wawanesa is in a better position if Dr. Seiden's report is let in at such a late date. He argued that Dr. Seiden's analysis and critique of the medical evidence delivered at such a late date is unfair to Mr. Amato.

Mr. Donnelly further submitted that Dr. Deegan’s report should not be allowed in based on the case of Etienne v. McKellar General Hospital, [1994], O.J. No. 2869. In that case, it was held that a plaintiff could not file a report of a doctor who had examined him but who had subsequently suffered a serious stroke and could not testify. The court in that case held that there was greater prejudice to the defendant if the report was allowed to be filed without the ability to cross-examine than there would be any prejudice to the plaintiff resulting from the denial of the order sought.

In conclusion, Mr. Donnelly submitted that Dr. Deegan's report should not be allowed in based on the Etienne case, but if the report is allowed in, it should be a question of weight based on the Scime case. In that case, it was held that in assessing the weight of the evidence, the deceased doctor's report should be viewed from the perspective that the deceased doctor was not the treating physician and that he saw the patient only once.

Regarding Dr. Seiden's report, Mr. Donnelly submitted it should not be admitted into evidence and that Dr. Seiden should not be allowed to testify at the hearing because his specialty was different from Dr. Deegan. To allow this would be contrary to the case law (e.g. Tulshi and Colley). However, if Dr. Seiden is allowed to testify, Mr. Donnelly submitted he should be limited to commenting only on Dr. Deegan's observations and findings at the time of the examination. As well, both Dr. Seiden's report and his testimony should not include a review of a critique of the medical evidence.

ANALYSIS AND FINDINGS:

Issue 1: Should the report of the late Dr. Frank Deegan dated October 11, 2000 with the associated Functional Abilities Evaluation report dated October 10, 2000 be entered into evidence?

The issue of whether the report of a deceased doctor be admitted into evidence is a novel issue for arbitration. However, there are several court cases which have dealt with the issue that I find relevant to the present case. These are summarized below:

In the case of Burley v. Baldwin, the plaintiff sought to file into evidence reports of her treating orthopaedic specialist, Dr. Richter, who had died suddenly. The defendant opposed the filing of these reports. The defendant argued that it had an absolute right to cross-examine any doctor upon whose report the plaintiff relies. The defendant further argued that to allow the report of Dr. Richter to be filed when cross-examination is no longer possible would cause a great hardship to the defendant.

Justice Holland, after weighing the prejudicial effect that the filing of the reports would have on the parties, allowed the reports to be filed on the basis that "the greater hardship would fall upon the plaintiff who would be deprived of the medical evidence of a treating specialist." Justice Holland went on to state:

It would be wrong to deprive the plaintiff of the right to have the evidence of the main treating specialist before the Court because of his sudden and unexpected demise. I go so far as to say that an order depriving the plaintiff of the right to file these reports could be seen to bring the administration of justice into disrepute.

Justice Holland, however, tempered the effect of the filing of the deceased doctor's reports by stating that the hardship on the defence side could be reduced by an "adequate caution to the jury regarding the weight to be given to the reports because the defence has lost the opportunity to cross-examine."

In the case of Scime v. Guardian, a report of the deceased Dr. Richter was being sought to be filed by the defence. Dr. Richter had only seen the plaintiff one time for an insurance medical. The plaintiff strenuously opposed the filing of the report and argued that he had absolute right to cross-examine the author of any medical report.

The defence submitted that the examination date by Dr. Richter was critical and it could not get a report by any other expert because, unrelated to the accident, the plaintiff’s condition had changed after the examination by Dr. Richter, namely the plaintiff had suffered two strokes and had developed Parkinson's disease.

In exercising his discretion to allow Dr. Richter's report to be filed, Justice Sullivan stated, "I feel to adjudicate this crucial question I should have all possible evidence before me to consider." Justice Sullivan went on to state:

I shall consider as a matter of weight, all the matters I have referred to. The examination took place at a crucial time in the development of the plaintiff Scime's condition that I feel it would not be in the interests of the administration of justice to reject it, there being no other examination by an orthopaedic surgeon at that time.

The case of Etienne v. McKellar General Hospital, a 1994 decision of Justice Platana, dealt with a motion by a plaintiff to have two doctors' reports admitted into evidence who were not available for cross-examination at trial. One doctor could not testify because he had suffered a serious stroke. The author of the second report was a doctor residing in the United States and he could not testify because it was inconvenient for him to attend and also very costly for him to do so. In coming to his decision that the reports could not be admitted into evidence, Justice Platana reviewed the case law and abstracted the following questions that he considered in arriving at his decision.

• Was the unavailability of the witness sudden and unexpected in relation to the trial date;

• Was the report prepared by the main treating specialist who made personal observations known only to him at the time;

• Was the report prepared at a crucial time in the action, that is, could any of the facts have changed since the time of the observations.

• Has the plaintiff's condition changed since the report was prepared that could have effected the opinion in the report.

In arriving at his conclusion, Justice Platana found that the reports were not prepared at a crucial time in the action and that, in the case of the doctor who had the stroke, the plaintiff had the opportunity to get another expert’s report after that date. He also noted that neither doctor was the main treating specialist and that one of the doctors had not even seen the plaintiff, but had rather reviewed the medical reports and the materials that were made available to him for the purpose of preparing his report. Accordingly, he did not allow these medical reports into evidence.

There is one other case in 1998, Salvatore v. Bortolotti, which allowed a deceased doctor's report into evidence. In that case, however, there was no discussion regarding the basis for admitting the report. Justice MacLeod merely stated in passing, "This doctor is now deceased and his evidence was admitted by way of his written report."

Finding:

Based on the submissions presented to me, as well as the case law, I found that for the following reasons the report of the late Dr. Frank Deegan, dated October 11, 2000 with the associated Functional Abilities Evaluation report dated October 10, 2000 should be entered into evidence.

Unlike courts, pursuant to subsection 15(1) the Statutory Powers Procedure Act, R.S.O. 1990, C.S.22,³ an arbitrator is not bound by the hearsay rule and has a much wider discretion to admit evidence. Nevertheless, I found the principles enunciated in the above cited cases which dealt with the hearsay rule to be a very helpful guide in coming to my conclusion that Dr. Deegan’s report and the FAE report be admitted into evidence.

The present case is similar to the Scime case where it was held that the deceased doctor's examination took place at a crucial time and that it would be unfair to the insurer not to admit the deceased doctor's report as no other orthopaedic report could be obtained because of the change of circumstances in the plaintiff's health.

In the present case, I found that Dr. Deegan's report was prepared at a crucial time in that it formed the basis for the termination of Mr. Amato's benefits. Except for Dr. Deegan's report, Wawanesa did not have nor could it obtain another report to substantiate the basis for its termination more than two years after it terminated Mr. Amato's benefits. Like Justice Sullivan in the Scime case, I found that in the circumstances of the present case it would not be fair to reject Dr. Deegan's report, there being no other examination at that time.

The present case can be distinguished from the Etienne case upon which Mr. Amato relies. In the Etienne case, Justice Platana found that not only were the reports of the doctors not prepared at a crucial time, but in respect of the doctor who had the stroke, Justice Platana pointed out that the plaintiff had the opportunity before trial to acquire further reports from other experts and did not. In the present case, there was no such opportunity.

Although I admitted Dr. Deegan's report and the accompanying FAE report, nevertheless, in weighing and balancing the prejudice to Mr. Amato in not being able to cross-examine Dr. Deegan, I accepted the reports with the proviso that in assessing the weight of the evidence, I will take into account that Dr. Deegan was not Mr. Amato's treating physician, and that he only saw Mr. Amato on one occasion.

Issue 2: Should the report of Dr. Howard Seiden dated February 25, 2003 be entered into evidence, and should Dr. Howard Seiden be allowed to appear as a witness to stand in the stead of the late Dr. Frank Deegan and comment on his report?

The burden rests with Wawanesa to show why I should accept Dr. Seiden's report and that he should be allowed to testify. For the following reasons, I find that Wawanesa has not discharged its burden.

There were only two cases presented to me where a deceased expert’s report was admitted into evidence and, in addition, another expert in the same area of expertise was allowed to comment on the deceased expert’s report. These were Tulshi and Colley.

In the Tulshi case, Justice Epstein admitted the report of a deceased expert (a forensic engineer) and allowed his business partner who had the same engineering expertise to testify on the deceased expert’s report. In her reasoning as to why she allowed this, Justice Epstein made the following comments:

Counter-balancing [the prejudice to the opposing party in not having an opportunity to cross-examine] is the need of the trial judge to have all possible relevant evidence before him or her in order to determine the issues raised in the action. In my view, this requirement, particularly where the evidence in question is of importance and cannot be obtained in any other way, takes priority over the prejudice suffered by a party in being deprived of its right to cross-examine, especially since this prejudice can at least be addressed by the trier of fact through a consideration of the weight to be attached to the evidence in question. The Court should, however, attempt to go further where possible to assist in reducing the prejudice suffered by the opposing party through not being able to cross examine.

In this case, I can take a further step by ordering that the report in question be supported by the oral evidence of another expert...

In the Colley case, the plaintiff requested that the reports of a deceased psychiatrist be admitted into evidence. In admitting these reports into evidence, Justice Davison noted that the examination by the deceased psychiatrist took place at a crucial time in the development of the plaintiff’s condition. He stated that the treatment and the opinion of the deceased expert, as accepted by the Court, was relevant to the issue of disability of the plaintiff. However, he stated that he would only allow the deceased expert's report into evidence if another psychiatrist whose report was filed by the plaintiff would testify at trial and be able to comment on whether the deceased expert's opinions were reliable.

Succinctly, Justice Davison allowed the deceased expert's report in if an expert in the same area of expertise, could comment on the deceased expert's report.

Finding:

In the present case, Wawanesa did not present any evidence to show that Dr. Seiden, who was a family practitioner, had the same specialty as Dr. Deegan. During submissions, Mr. Maccaulay objected to Mr. Donnelly's submission that Dr. Deegan was a "general surgeon" as shown on the website page of the College of Physicians & Surgeons. Despite this objection, no evidence was presented by Wawanesa as to what Dr. Deegan’s specialty was.

In my view, it would be wrong and unfair if Dr. Seiden's report was allowed into evidence and that he would be allowed to testify on the conclusions of Dr. Deegan's report. Unlike the Tulshi and Colley cases, in the present case I had no objective evidence as to what Dr. Deegan's area of expertise was and whether Dr. Seiden shared the same area of expertise as Dr. Deegan.

At a minimum, if one were to stand in the place of a deceased expert at arbitration, the area of expertise of the deceased expert should be known and the area of expertise should be the same as the replacement expert. Accordingly, I ruled that Dr. Seiden's report of February 25, 2003 shall not be admitted into evidence, nor shall Dr. Seiden be allowed to testify and comment on Dr. Deegan’s report.

EXPENSES:

The issue of expenses is deferred until the conclusion of the arbitration hearing.

July 18, 2003

Joyce Miller

Arbitrator

Date

Neutral Citation: 2003 ONFSCDRS 109

FSCO A02–000161

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

LUCIANO AMATO

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Dr. Deegan’s report dated October 11, 2000 with the associated Functional Abilities Evaluation report dated October 10, 2000 shall be entered into evidence.

2. Dr. Seiden's report of February 25, 2003 shall not be admitted into evidence, nor shall Dr. Seiden be allowed to appear to comment on Dr. Deegan’s report.

July 18, 2003

Joyce Miller

Arbitrator

Date

(a) would not be admissible in a court by reason of any privilege under the law of evidence; or

(b) is not admissible under the Insurance Act; or

(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.

(a) any oral testimony; and

(b) any document or other thing,

relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.```

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 2, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98, 114/00 and 482/01.
2. 2Rule 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:
3. 315(1) Subject to subsection (2) and (3), a tribunal may admit as evidence at a hearing whether or not given or proven under oath or affirmation or admissible as evidence in a court,