Beware! Your Life Becomes an Open Book in a Personal Injury Action

When you are injured in an accident or make a claim for benefits, your life becomes an open book.  This means that if you think an insurer cannot or will not find out what your medical history was like before the accident, then think again.  What is curious is that many injured people are not aware of this and how it can impact their claim.   

 

The purpose of this article is to help those injured in accidents to understand that, despite the inherent desire to minimize their past medical history in order to maximize recovery of damages for the claim at hand, the best course of action is to be forthright about their history since it will be examined in detail and could be used to impeach their credibility.

 

The following is a list of the documents insurers will want to see in order to assess your credibility as a witness and assess the value or your claim.  This list is not exhaustive and is subject to the claims being made:

 

  1. DECODED OHIP SUMMARY.  Every time you see a doctor the doctor bills OHIP.  An insurer is entitled to see the summary.  OHIP summaries go back 7 years from the date of request.  This will list all doctors you have seen in that time, what your complaints were at the time you attended and how often you attended.  Thus, the insurer will know everyone you have seen through OHIP.   
  2. FAMILY DOCTOR RECORDS.  Your records from your family doctor will be requested for a period of about 3 to 5 years before the accident.  This will include all specialists you may have seen and what your complaints were upon attendance.  As well, the records will be used to determine how often you are seeing the doctor post-accident, what your complaints are and what treatment you are receiving.   
  3. PREVIOUS MEDICAL RECORDS.  If you were treated before the accident by any specialists or other doctors, and your injuries from an accident overlap with past medical complaints then these records are relevant and will need to be produced.  
  4. INCOME TAX RETURNS. If you are claiming a loss of income then your income taxes will be requested directly from the CRA.  Again, your tax returns will be examined at least 3 to 5 years before the accident.  
  5. HOSPTIAL RECORDS.  If you went to hospital via ambulance following an accident then these records will be produced to the insurer.  The records usually list what your complaints are and what may have been said to you about your injuries.  
  6. EMPLOYMENT RECORDS.  If you allege you cannot work following an accident then your employment records will be relevant.  If you worked at more than one employer then a request will have to be made to the various employers.  Insurers look for information regarding pay, attendances, annual reviews, etc.  These records will be examined to determine what type of employee you are, if you have a history of issues which could impact your income and whether you are complaining to your employer of issues related to your injuries if you returned to work.  
  7. POLICE RECORDS.  If the police attended the scene and took notes, those records will need to be produced.  The police records will assist in determining the cause of the accident, if there are any independent witnesses and comment on injury, if any.  
  8. ACCIDENT BENEFITS RECORDS.  It is not uncommon for people to have been involved in prior accident and having sustained injuries.  In a motor vehicle accident an injured party may have claimed accident benefits.  Depending on the amount of time between accidents, these records may be relevant and have to be produced.  Your complaints will be compared to these records and whether there are any inconsistencies in your evidence.  
  9. SOCIAL ASSISTANCE/DISABILITY FILES.  There are those injured in accidents who may have been on long-term disability, social assistance, WSIB, CPP disability or ODSP to name a few.  These records are relevant as it will assist an insurer in comparing what you allege are your complaints and limitations from the accident to what you condition was before the accident.  Again, it will be used to determine you credibility and the extent of your injuries.   
  10. PHYSIOTHERAPY RECORDS.  Any treatment you received before the accident may be relevant and any treatment after the accident is clearly relevant if related to the accident.  These records will show what your complaints were, how often you attended treatment, and what treatment you received.   
  11. DAMAGE DOCUMENTATION.  If you were in a motor vehicle accident, the property damage file will be requested.  The file will include estimates, invoices, appraisals and photographs.  The purpose of the file is to determine the extent of the damage.  Simply put, if the damage is minor the argument will be that the accident could not have caused the injuries complained of.  
  12. PRESCRIPTION SUMMARIES.  If you were taking medication before the accident or after the accident, these records may be relevant.  Thus, the insurer will have access to records that show what medications were prescribed before the accident and after the accident.  Insurers will examine if pre-accident medications were changed due to exacerbation of pre-existing conditions and what medications were prescribed following the accident which may be new.  As well, keep in mind that the insurer will also use the summary to determine whether the medications prescribed to you are being filled out or not.


As can be seen, when injured in an accident the insurance company  may access many of the records listed above in order to assess your claim.  Thus, it is imperative that when involved in a personal injury matter that you are clear that any attempt to minimize your past medical history could have a negative impact on your claim.  As well, the records will also be used to determine whether or not you continue to complain of accident related complaints and whether you are continuing with necessary treatment due to these complaints. 

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