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Case Law Report: What if you Disagree with the Insurance Company’s Expert?

October 29, 2018

In motor vehicle accident cases and other claims, insurance companies are permitted to refer you to their own medical experts to provide “independent” legal opinions.  It is well documented that in some instances, these experts are simply “hired guns”, paid by the insurance company to write reports favourable to the insurance company.

What can you do if your no-fault accident benefits insurer or the defendant’s insurance company sends you for an assessment, and the doctor who examines you provides an opinion that is simply not true, or that you do not agree with?

The first thing you can do, with the assistance of your personal injury lawyer, is to obtain your own opinions; either from the health care practitioners who are treating you or from your own experts hired to assist the court.  Often this isn’t enough to sway the insurer, and you will have to proceed to trial or arbitration to prove your case.

That is exactly what happened in the Ottawa decision Dadi v. Aviva Canada Inc.  FSCO A16-004703.  In this case Mr. Dadi was injured in a car accident on June 10, 2015.  Mr. Dadi suffered a concussion and went on to develop post-concussion syndrome, with symptoms including among other things dizziness, chronic pain, headaches, a sleep disorder, malaise and fatigue.

The Aviva Insurance Company, Mr. Dadi’s no-fault accident benefits insurer sent Mr. Dadi to see their expert, Dr. Aiello, for an opinion as to whether Mr. Dadi suffered from a minor injury, which is defined generally as a muscular injury (sprain or strain), a bruise, or laceration (cut).  After examining Mr. Dadi, Dr. Aiello concluded that Mr. Dadi suffered only a minor injury in the accident.  Aviva relied upon Dr. Aiello’s opinion to refuse certain benefits available only to injured victims who have more than minor injuries.

For obvious reasons, Mr. Dadi disagreed with the opinion that he only had a minor injury, and brought an application to the Financial Services Commission of Ontario to dispute the minor injury determination, among other things.

In making a decision (that was upheld on appeal: P17:00074) the arbitrator determined that Dr. Aiello could not be qualified as an expert to give an opinion.  The arbitrator further determined that he was “unable to give any credence or weight to this doctor’s report”.  The arbitrator in reaching this determination noted that Dr. Aiello:

 . . . did not believe that he should give any relevance or weight to any pre-existing medical conditions, nor did he appreciate or give emphasis to any other medical documentation when conducting his assessments or writing his reports. The doctor did not request further medical records despite the fact that the patient before him was complaining about

  • Hitting his head on the steering wheel during the accident;
  • Losing consciousness at the time of the accident;
  • Headache;
  • Anxiety attacks;
  • Neck and shoulder pain that interrupts his sleep; and
  • Tingling in his arms when the pain is severe.

After rejecting Dr. Aiello as an expert witness and giving no credence or weight to his opinion, the arbitrator concluded that Aviva should have taken Mr. Dadi out of the minor injury guideline earlier than it did.  The Arbitrator held that Mr. Dadi was therefore entitled to the benefits in dispute.

If Mr. Dadi had not disputed this determination, Aviva would have continued to maintain its refusal, based upon the opinion of Dr. Aiello; and Mr. Dadi would have been denied the treatment and benefits he was rightly entitled to.

The moral of the story in this case is that if you disagree with the “independent” expert hired by the insurance company, you do not have to accept his or her opinion.  You should contact an experienced personal injury lawyer who can help prove the true extent of your disability.  If need be, your lawyer can help you take the dispute to an arbitration or trial.

 

 



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