I was recently retained as counsel to conduct a personal injury hearing at the Licence Appeal Tribunal.
When preparing for the hearing, it became apparent that one reason an insured’s claim is unsuccessful is due to the information relied upon by the insured’s expert was inaccurate (the insured failed to accurately convey evidence) or that the doctor did not conduct a thorough assessment due to a lack of documentation (key documentation was missing or lacking).
What is often overlooked is that decisions made at the outset of a claim (which may have started years ago) could have a significant impact on the success of the insured’s claim. Despite many personal injury matters resolving without the need of a hearing, it is always a good rule of thumb to consider that any claim you start will eventually result in a hearing. This ensures that appropriate steps are taken at the outset of the claim to improve chances of success at any hearing.
The following are some factors to keep in mind when starting a claim and what steps should be taken at the outset:
- Always obtain pre-accident medical records at the outset of a claim. It is a good idea to obtain the following immediately upon the start of the claim and not wait for this information when requested:
a) An OHIP summary at least 5 years before the accident;
b) A copy of any disability files from ODSP, CPP disability, long-term disability, etc.;
c) A copy of any income tax records to confirm sources of income, if any;
d) Employment files, if applicable;
e) The family doctor records pre-accident records;
f) A copy of any treating doctor records including treatment for physical or emotional issues;
g) A copy of any pre-accident hospital records and any hospital records following the accident, including ambulance call reports;
h) A copy of any pre-accident therapy clinics; and
i) A copy of the pre-accident prescription summary.
2. Before sending out a plethora of OCF-18s for treatment, make sure that you have the pre-accident medical information in hand to support the claim. Why give the insurer the opportunity to conduct medical assessments that could adversely impact the insured’s claim before you have the medical evidence to support the claim?
3. Make sure that your client is consistent and accurately relays pre and post-accident complaints. Memories fade and your client should be made aware of what they said in the past in order to ensure they provide accurate evidence post-accident. Always protect the insured from exaggerating their complaints as their “cry for help” may be seen as an attempt at secondary gain (i.e. money).
4. Do not obtain an expert medical report without pre-accident records. Doing so raises the risk that the expert’s findings will be adversely impacted it they did not have critical information.
5. Always make sure that you provide the medical expert with a request letter setting out the questions being asked and providing a summary of relevant statutory provisions to consider, including definitions. In the request letter, make it clear what the insured’s pre-accident situation was before the accident and for this to be discussed in the report.
6. Do not forget to include a document index listing the documentation provided. The expert must include this in their report to ensure it is clear what information was available at that time when preparing their report.
7. If further medical information is obtained following an assessment (be it pre-accident information that was not available at the time of assessment or post-accident information), send it to the expert and request an addendum with an updated opinion. This will assist in protecting your expert from questions on cross-examination.
8. Choose your expert wisely. Did you select the right expert? Have they given testimony before? Are there any skeletons in the closet that could adversely impact their credibility?
9. Ask the expert to maintain their clinical notes and records. These may have to be produced at a hearing. Keep in mind that psychiatrists, psychologists, and neuropsychologists will not produce their raw test data with their clinical notes. They will only make it available to another doctor.
10. If necessary, have your expert reach out to the insurer’s doctor to provide the raw test data obtained from the insured. If you are going to dispute the testing, have your expert review the data, and to comment on the reliability and validity of that testing.
I do not suggest that the foregoing is exhaustive. I do not suggest that the foregoing will lead to success. However, my years of litigation experience has shown that the foregoing will help improve the chance of success at a hearing.