Adjudicative Bias & Catastrophic Injuries

We successfully appealed on 2008 Arbitration for Mrs. Bains a visible minority who suffered serious and permanent injuries as a passenger in a motor vehicle accident arising on May 12, 2004. The Arbitrator at the Financial Services Commission of Ontario ruled she was not catastrophic after, amongst other things:

  1. Ignoring the new legal test under Bill 198 and refusing to rate objective tears and related impairments because Mrs. Bains was scheduled for surgery;
  2. Ignoring the admissions of destruction of key evidence by the insurer's medical practitioners;
  3. Ignoring the admitted visual evidence showing Mrs. Bain's injuries, the graph of the key documents ignored by the insurer's medical practitioners and other visually defined evidence refuting erronous factual fundings;
  4. Applying an unheard of legal test to rule that one of the key doctors for Mrs. Bains was not an expert on the Guides to the Evalution of Permanent Impairment, American Medical Association 4th Edition, and then not applying the test to the insurer's practitioners; and
  5. Dismissing Mrs. Bains rating on the Loss of Motion Segment Integrity of her cervical spine despite its basis in x-ray evidence with support from a radiologist, an orthopedic surgeon, a disability assessor, a chiropractor and the absence of any contrary medical evidence because of her erroneous reliance on figure 63 at page 98-99 of the AMA Guides which figure relates to angular motion of the lumber spine.

On Mrs. Bains behalf we requested a hearing by appeal, a stay of the balance of the Arbitration and a further stay of the assessment of the legal fees sought by the insurer for the manifestly unjust hearing of the "Preliminary Issue". On April 17, 2009 the Director's Delegate of the Financial Services Commission of Ontario accepted the Appeal, stayed the Arbitration and the Expense Hearing.

The above synopsis arises from several decisions, and documents filed and/or referred to in the decisions. Below you may read: