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Trial Lawyers Association calls for inquiry

|Written By Marg. Bruineman

The Ontario Trial Lawyers Association is calling for the provincial government to conduct a public inquiry into medical assessments of people injured in auto accidents.

‘Experts have been found to be advocates to certain parties and that is a distortion of the system,’ says Steve Rastin.

The OTLA charges medico-legal experts distort evidence to satisfy insurance company clients.

It also cites concerns over reduced coverage and delays, as well as unfair denial of coverage.

“There have been several cases before the courts and the Financial Services Commission where judges and arbitrators have found that experts have failed to act as neutral, independent, and impartial witnesses, but rather have acted as hired-gun advocates. The judges and arbitrators have made it clear that they find this conduct unacceptable,” says Steve Rastin, of Barrie, Ont.-based Rastin and Associates and OTLA’s immediate past president. “The expert should give the same opinion whether he or she is hired by the insurance company or by the claimant. The opinion should be the same.”

Both the OTLA and the FAIR Association of Victims for Accident Insurance Reform have called for a public inquiry. The trial lawyers are pressing the Ontario government to establish a commission to examine the state of medical assessments of injured auto accident victims. The victims’ group wants the quality of medical evidence used in auto insurance claims explored through an inquiry.

David Marshall, former president and CEO of the Workplace Safety and Insurance Board, began his new role as adviser of auto insurance and pensions to Ontario Finance Minister Charles Sousa on Feb. 1, 2016, and the trial lawyers wasted no time in highlighting what they feel is a critical issue.

Rastin says medical experts are under pressure to act favourably on behalf of the insurance companies. Some, he adds, are doing just that, serving as advocates for the insurance companies.

Experts are meant to be neutral and impartial and serve the courts, not one side or the other. Rastin suggests medico-legal experts who have been found repeatedly to be an advocate for one side be disqualified from testifying.

“Experts have been found to be advocates to certain parties  and that is a distortion of the system,” says Rastin, adding that wrongly keeps victims from accessing the benefits that they need.

But, counters David Festeryga, medical witnesses — those who make a living treating or assisting accident victims — advocate on behalf of victims as well.

Festeryga, a Hamilton lawyer with Sullivan Festeryga LLP, is also first vice president of the Canadian Defence Lawyers. While he says advocacy does occur, they are the court’s experts and are controlled by the courts.

“Certainly, anyone who is biased will be vetted out by the court system,” says Festeryga. “If a medical examiner is biased, they will not last very long.”

Rule 53 of the Rules of Civil Procedure  clarify the expert’s role to highlight that it’s up to the trier of facts, be it a judge or adjudicator, to decide whether the information an expert witness presents is biased or neutral.

 “I don’t think it’s a problem,” says Festeryga.

Peter Karageorgos, director of consumer and industry relations for the Insurance Bureau of Canada, says Ontario’s insurance industry has been under examination and that has resulted in many changes with more on the way.

“The system as it currently stands has been tweaked and tinkered with for quite some time,” says Karageorgos. “The challenge continues to be that cost pressures are impacting the premiums that people are paying.”

And he strikes back at the trial lawyers’ request, suggesting that one area that hasn’t been examined is the amount of money personal injury lawyers make on claims.

In a written response to the OTLA statement, Ontario’s Ministry of Finance says the government seeks to balance the needs of injured claimants while ensuring affordable auto insurance. Recent changes, it adds, will help identify and treat injuries from collisions so the injured can receive the treatment they need while minimizing disputes in the auto insurance system.

But auto accident victims have been facing more hurdles on their road to recovery, says Rastin. He says it has become more difficult for those seeking general damages for pain and suffering. There is also a statutory deduction removed from any damages awarded, which has increased in recent years.

Attendant care benefits were cut in half to $36,000 from $72,000 and caregiver benefits and housekeeping are gone. The maximum limit for rehabilitation was also cut.

The current medical assessment system, Rastin says, further stifles victims’ access to compensation by requiring letters from doctors and ongoing exams.

Rastin says he hopes his group will have a chance to meet with Marshall in his new role as auto insurance advisor as they seek an independent assessment of the current system.

  • A Pool of Assessors

    Dr. LM Picard
    As a practising neurologist I have reviewed many so called “IME’s”. The element that is generally lacking is that of independence.

    I suggest that there should be a pool of experienced experts to whom claimants would be assigned at random. Payment levels should be fixed at the outset. There should be caps on annual payments to assessors to prevent the pool of assessors becoming a cesspool of hired guns.
  • Mr.

    Andrew C. Bome
    Good Luck getting an impartial view from David Marshall. The WSIB is being raked through the coals for engaging in exactly the same behaviour that the Ontario Trial Lawyers Association is complaining of. I suspect that Mr. Marshall will use the same Public Relations spin for the Trial Lawyers that he had used when he was the CEO of the WSIB.
  • Plaintiff hacks

    OTLA Ferro
    Mrs Francis and Mr Desroche
    Us Plaintiff hacks have the same problem. We buy opinions the same way the other side does. You guys make me laugh that you see it as only one sided.
  • Humor and harm

    Rhona DesRoches
    Whether inflating or deflating claims it is a dis-service to injured MVA victims trying to recover. Not something to laugh at but perhaps as a self-designated 'hack' you might see it that those who suffer through the claims process, run over by the company they paid, are there to humor you.
    What should be part of the discussion is why are Ontario's insurers and the IBC not weighing in on cleaning up the problem of dirty medical opinions.
  • Look - over there!

    Charles Ball
    "And he strikes back at the trial lawyers’ request, suggesting that one area that hasn’t been examined is the amount of money personal injury lawyers make on claims." Classic obfuscation. What does that have to do with the independence of expert witnesses and the use of hired guns? What about how much money the executives and CEO's of insurance companies make? How would that be relevant to this discussion at all.
  • Vetted out - Yeah when?

    Jokelee Vanderkop
    It's not a problem for Festeryga because he is a defence lawyer. The reality is that unscrupulous expert witnesses will hire themselves out to whoever pays the most - it's the industry's dirty little secret. Unfortunately, the insurers have the advantage because they have the bucks to consistently pay for partisan testimony, bucks that most plaintiffs, (who just happened to be in the wrong place and got hit in the process and injured) don't have as an additional disbursement for already high contingency fees. As for vetting out, if that really occurred, all the biased insurer medical assessors would have been vetted out a long time ago. So much for that theory.
  • About time!

    Jokelee Vanderkop
    When you juxtapose Alan Shanoff's article of February 8, "Social Justice: Expert witnesses and access to justice" to the OTLA's article in the Law Times on the same day charging that medico-legal experts distort evidence to satisfy insurance company clients, along with a call for a public inquiry, I say, "It's about time" that the OTLA took a stand. Shanoff has been writing articles that expose the rot in the system and the indifference by many personal injury lawyers for a long time. The auto victims group, FAIR, has also been vocal. Only lagging behind has been the OTLA. They had everything to gain by letting this corruption continue. It's great for billing. Less so now that the court option is soon off the table. Is this what has led to a more progressive and ethical streak? So maybe under Maia Bent we are seeing the beginnings of positive change. If so, it's about time.
  • Not a problem?

    Rhona DesRoches
    Only the insurers think this isn't a problem because this deceptive practice of using biased medical experts benefits them and not victims.

    There is evidence that Ontario’s auto accident victim’s medical files are being altered to suit Ontario’s insurers. Portions of medical reports are removed, manipulated or even changed entirely without the author’s knowledge or consent. Signatures have been forged or used without permission in some cases. All of these deceitful acts are done to mislead our justice system and to lower claims costs for Ontario’s wealthy insurance companies.

    Claimants know about the deceptive nature of claims handling in Ontario. It’s time that our legislators and law-makers acknowledge Ontario’s insurance industry fraud, whether it be an adjuster, an assessor, assessment centers, treatment facility or the insurer themselves whose policies support or encourage swindling legitimate claimants out of the coverage they paid for.
  • "amateurism, bias and fraud"

    brian francis
    OTLA see a problem. The CDL sees none. But what does the Canadian Society of Medical Evaluators (comprised of medico-legal experts) say about the quality of the medical evidence being churned out by some of it members in the Ontario auto accident injury context? See below:

    RE: “I don’t think it’s a problem,” says Festeryga.

    CSME 2012 Newsletter - President's Message:
    Dear Members & Colleagues, We have all to realize that times are changing-amateurism, bias and fraud in the domain of IMEs will be tolerated less and less in the future....For those of you doing IMEs for years, it is time to notice this approaching shift: the cost of litigation, cost of automobile insurance and lack of quality control of IMES, leading to public scandals, might soon lead the parties requesting IMES to be more critical when the appraising medico-legal credentials of an expert before hiring his/her services.”

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