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w w w . C A N A D I A N L a w y e r m a g . c o m A P R I L 2 0 1 6 39 insurance company clients. "I have seen it in my practice in cases affecting my own clients — and it's well-documented in cases right across the province." The OTLA says the system is broken when it comes to assessments, leading to increased conflict, unnecessary denials, and poor rehabilitation for victims. The independent evaluation process has been a challenge for the personal injury bar for years, says Darcy Merkur, a partner with Thomson Rogers in Toronto. "The idea 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," he says. "It's typically sent to an assessment agen- cy 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 opin- ions favourable to the insurer." Merkur says he would like to see a process where plaintiff lawyers could vet the assessors or give the insurers a list of experts they would suggest they use. "That would result in opinions we would actually accept as opposed to ones we challenge. We need to make it a process where it's not insurers picking a hired gun but insurers going to reputable treatment providers — people who are used to treat- ing people as opposed to just assessing and typically denying treatment." The OTLA called for the inquiry into the use of medical experts together with the FAIR Association of Victims for Acci- dent Insurance Reform. They believe Ontario's auto accident victim's medical files are regularly being changed to suit the needs of insurers in Ontario to save money by diminishing a victim's injuries. "The independence one would expect in situations like this simply isn't there," says Rhona DesRoches of FAIR. "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 treat- ment and the insurers will spend $10,000 getting medical documents saying they don't need this treatment." The issue of medical expert reports being altered isn't new in Ontario, but the OTLA says the situation has reached a perfect storm in which victims are receiv- ing less for accident benefits while the public pays more for premiums. Bent recalls a case commonly referred to from a decade ago — Macdonald v. SunLife Assurance Co. of Canada — in which a doctor was sitting in the witness box when it was revealed the report the doctor had written had been rewritten by an assessment company. "They had changed it without his knowledge or con- sent and it came out in cross examination when he was looking at the report handed to him by one of the lawyers and he said, 'I didn't write this.'" The judge refused to allow the testimony of an insurer doctor when the court confirmed the report was considerably different than the report in the file. That was 10 years ago, but the problem persists. In a more recent case, one of Bent's clients had applied for catastrophic injury designation and was sent to a number of independent medical examinations. "The reports the doctors produced through www.hshlawyers.com | 1-877-474-5997 | OFFICES IN TORONTO AND ACROSS ONTARIO LIFE ISN'T CHEAP Congratulations to Adam Wagman on becoming President of OTLA as of May 2016. View Adam's touching reunion with Bob at hshlawyers.com/reunions It's a cold reality: the survivor of a catastrophic incident will require a huge sum of money over the course of their life for rehabilitation and care. That's why we dedicate all of our experience and skill to pursuing the maximum award in every one of our cases. In addition to providing compassion and support for our clients, we fi ght for their lives. Literally. Untitled-3 1 2016-03-15 2:42 PM

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