Early prep, rebuttals, and client-centred advocacy matter — especially during trauma season
This article was produced in partnership with Thomson Rogers.
As a former insurance defence lawyer, Thomson Rogers’ Matthew Sutton is well acquainted with the bias that exists in insurer medical examinations (IMEs).
“I’d be shocked if anyone claimed that less than 90-95% aren’t insurer-favourable,” Sutton says. “If I ever got a report that was in favour of the applicant, it was because there were such clear and objective injuries that no one could dispute — but if there’s any room for argument, the assessor favours the insurance company.”
Now sitting firmly on the other side of the table, he credits his experience for shaping his approach to advocating for clients before the License Appeal Tribunal (LAT). As trauma season approaches, Sutton underscores the importance of preparation and persistence — not to mention continued calls for reform — in navigating a system many feel leans toward insurers and has increasingly done so since its 2015 inception.
Sutton sees several patterns in IMEs that contribute to unfair denials and ultimately systemic disadvantage for claimants. One common issue is the assessors’ lack of education on invisible injuries, such as soft tissue pain, mental health issues, behavioural problems, or concussions.
Another is inadequate information gathering, where assessors fail to obtain sufficient background through collateral sources or thorough document review, resulting in skewed assessments. There’s also the common occurrence of misrepresentation.
“Many clients report that assessors are kind in person during the examination but then produce written reports that are not factually accurate to what was said,” Sutton says. “They might cut and paste certain points that are favourable to the insurance company while ignoring those that support the need for treatment.”
Joining forces with like-minded advocates at Thomson Rogers gives Sutton the opportunity to push back against what many see as a structurally imbalanced process. When asked what can be done in the quest for a more client-centred approach to LAT adjudication and assessments, he puts it simply: “Keep fighting the good fight.”
Sutton recommends a multi-pronged approach, including the use of rebuttal reports. For every insurer examination, he turns to a practitioner who has treated his client and understands their condition more fully to review and provide an opinion. He also relies on those treatment providers to testify in support of his client’s needs during hearings, noting that these professionals make strong and credible witnesses. Sutton is also unafraid to go straight to the source.
“I’ll speak directly about my concerns to the adjustor if I feel there’s other evidence that would help us view the file more holistically,” Sutton explains. “Most are great one-on-one and willing to work with you if you have strong medical evidence. If they’re not as open to conversations, it doesn’t hurt to remind them of their obligation as part of a first-party relationship. Denial decisions need to rely on more than just a report.”
While trauma season brings a spike in accidents and a corresponding jump in clients, there’s not an immediate increase in LAT applications. Insurance companies often approve at first and deny more confidently after some months have passed and they’re still seeing treatment plans cross their desks.
But Sutton encourages fellow plaintiff-side lawyers to get ahead of the post-trauma season denial wave. He recommends developing individualized plans for each client based on their specific needs by initiating document request early, compiling robust medical records, and establishing a trail of evidence to support ongoing treatment.
“Anticipate denials, particularly when dealing with invisible injuries, and lay the groundwork,” Sutton says. “That way you can give insurance companies what they need to make the right decisions at a time when you’re faced with an influx of clients with various immediate problems.”
This strategic frontloading approach not only mitigates harm from denials down the road but also ensures the system works the way it’s intended.
“The core purpose of the accident benefits regime was to provide fast treatment — life preservers — for clients in the initial months and years after an accident, while lawsuits are being contemplated,” Sutton adds.
Holding out hope: ‘I’ve seen a lot of great lawyers do a lot of great things’
Sutton reports a welcome shift to more level decisions from the LAT recently, illustrating there is hope that the system can course correct. He’s “seen a lot of great lawyers do a lot of great things with reconsiderations,” and expects those efforts will continue.
The courts are stepping up to take the LAT to task, with several divisional court rulings reversing decisions when it found, procedurally or otherwise, the claimant hadn’t received a fair hearing. This judicial oversight is creating a pathway for more balanced outcomes and may compel participants re-examine its approach.
Sutton has seen insurance companies change their approach, for example, because there’s now more of a risk associated with lengthy appeals, both from a cost perspective and a reputation perspective. These companies are becoming concerned with public perception when their names appear in some of these decisions.
“The process of the courts reviewing those that need to be reviewed and acting as a backstop really does help,” he notes.
There are calls for widespread reform, which Sutton believes the LAT would benefit from. A focus on the reasonableness and necessity of certain treatments rather than the distinctions between minor, non-catastrophic, and catastrophic designations — “Getting through those gates is the most significant initial barrier to treatment in a hearing,” Sutton says — is one avenue.
There’s also the argument that adjudicators should have more specialized education, such as expertise in motor vehicle accident (MVA) law. While the vast majority do great work, there was fallout from the institutional reset that saw the end of the Financial Services Commission of Ontario (FSCO) and the onset of the LAT. Adjudicators with decades of experience relying on a deep body of precedent were replaced by decision makers hailing from many different backgrounds, with the risk that they may not fully appreciate the complexity and nuances of accident benefits disputes.
Finally, the removal of cost consequences means insurers face less deterrent against denying treatment or forcing cases to hearing. This impacts negatively on accident victims’ access to benefits and on the incentive for plaintiff lawyers to pursue legitimate claims.
“It’s difficult for some to justify the investment of time and resources in LAT hearings, especially when dealing with modest benefit amounts,” Sutton explains, leading to many plaintiff lawyers focusing on lawsuits against at-fault third parties instead.
While reform may not be imminent, plaintiff-side lawyers can still strive to obtain the access to benefits — and to justice — that injured parties deserve. Especially when dealing with the increase in clients that comes over trauma season, Sutton’s advice is clear:
“Proactive case management and a willingness to keep challenging unfair denials — that’s how we reclaim balance.”
