Sep 27, 2016 in News Accident Benefits Claims

Accident Benefits Claims: How medical evaluations impact Ontario’s insurance and accident benefits systems

In 2006, it was revealed during testimony for Macdonald v. SunLife Assurance Company of Canada that a doctor’s medical report had been rewritten by the clinic which had brokered it on SunLife’s behalf. Ten years later, not much has changed, and Macdonald is a familiar touchstone in arguments against Ontario’s troubled auto insurance and accident benefits systems.

Independent medical evaluations (IME) are common in insurance claims lawsuits. In an ideal world, medical experts would be brought in to provide unbiased evidence on the accident victims’ injuries. But according to Toronto lawyer Loretta Merritt, procuring a genuinely impartial medical evaluation has become a costly and complicated endeavor, and assessment clinics are part of the problem.

“The idea [of an IME] is to get an efficient third party physician treatment provider to weigh in on the issues that are contentious and that objective is rarely achieved,” said Thomson Rogers partner Darcy Merkur in the April 2016 edition of Canadian Lawyer Magazine. “It’s typically sent to an assessment agency that works almost exclusively for an insurance company and does it at reduced cost with expectation of high volume, and seemingly feels pressure to render opinions favourable to the insurer.”

In order to better comply with insurers’ wishes, clinics perform “quality control,” which sometimes includes re-writing medical conclusions, Canadian Lawyer reports. The practice can have devastating results for injury victims seeking accident benefits.

“The independence one would expect in situations like this simply isn’t there,” Rhona DesRoches, chairwoman of the FAIR Association of Victims for Accident Insurance Reform told Canadian Lawyer. “It’s sad because we [know] people who have been sent to up to 40 medical assessments and we hear stories from our members where they are looking for $5,000 worth of treatment and the insurers will spend $10,000 getting medical documents saying they don’t need this treatment.”

Money is at the heart of the Ontario insurance and accident benefits systems’ issues: experts who submit evidence supporting insurance companies’ claims can make a successful living off of their practice, while those who find in claimants’ favour are unlikely to be re-hired.

This practice has come under harsh scrutiny thanks to Daggit v. Campbell, a recent personal injury case before the Ontario Superior Court of Justice. During the trial, Unifund, the defendant insurer, asked that the plaintiff undergo a long-term psychiatric examination by Dr. Monte Bail. In an unprecedented move, Justice Helen MacLeod-Beliveau dismissed the motion due to a lack of evidence, and issued a strong rebuke of the defense counsel and “hired-gun” defence experts in general.

“The plaintiff submits that Dr. Monte Bail … has demonstrated such clear and definitive defense bias in many previous cases that the court should decline to make any order allowing any independent medical examination by Dr. Monte Bail in particular,” MacLeod-Beliveau wrote. She went on to state that the courts should “consider and determine in appropriate cases whether or not the proposed named health practitioner is biased in favour of a party,” and that the expert “should not be allowed to have any role in the court process” should a bias be discovered.

MacLeod-Beliveau’s decision was met with enthusiasm by advocates for victims’ rights, who believe the ruling could be a turning point.

“Ontario’s insurers have used the partisan medical experts as a tool in their toolbox, and it is the most effective method they have to deny claims,” Rhona DesRoches told Law Times. “If Daggit is a road map, those days of denial based on bogus medical opinions is coming to an end.”

If you or a member of your family has suffered a serious injury, contact Neinstein Personal Injury Lawyers today. We can help you understand your legal position, and guide you through the insurance and accident benefits process.