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Page 12 June 25, 2018 • Law Times www.lawtimesnews.com out should a similar situation present itself. Preszler, too, says he expects insurance companies will take heed of this decision. "When you get a decision like this, all the insurance compa- nies scramble to modify all of their policies," he says. "I can guarantee you next year, 2019, all the insurance companies, when they renew their policies, they're going to have new language." Preszler says this will make it more difficult for cases such as MacIvor to be successful in the future. In the interim, he says, this decision will be helpful for exist- ing claims where there are previ- ously undiscovered injuries. "This is the leading case now to argue discoverability in this context," he says. Waterloo insurance defence lawyer James Prior, a partner with Miller Thomson LLP, says the importance the court placed on when the plaintiff discovered his injuries in MacIvor is par- ticularly noteworthy. "It's another case which tells us that the cause of action doesn't necessarily run from the date the injury occurs," he says. "It can be extended through the principals of discoverability to the day on which the claimant can be said to have realized the severity of their injuries." Deutschmann says there's a lesson for lawyers here. "The case demonstrates it's worthwhile for them to review the fact situation, read the con- tract and see how it applies to facts to see if there might be something there for the client," he says. "Some may have dismissed MacIvor's queries if they sim- ply looked at the work dates and the delay in time before he sought coverage. I think what this identifies is that there may be potentially other claims that get missed when lawyers don't do their jobs in the early stages." Deutschmann says the way the case was pieced together was "impressive." "The nice thing about this case is it's contractual [and fo- cused on] 'What do the words say, what do the words mean?' The lawyers took the time to review all of that and understand what the contract said," he says. LT Waterloo, Ont., says third-party involvement in the creation of these reports has "become a bit of an industry" and that, despite the judge's comments in Kush- nir, it persists. A service provider is some- times hired to find the necessary experts and co-ordinate every- thing required to create the re- port. That role could include providing backup to review the medical information and create a summary for the expert when the file they're working with is large. Deutschmann says this is where the problem occurs, be- cause the summary that's cre- ated is based on someone else's opinion of what's relevant. "Ideally, it should be one doc- tor, one person, the same person reviewing all the medical infor- mation, preparing the summary and doing the assessment and coming to a conclusion," he says. "But it's become, for some peo- ple, a lucrative industry, prepar- ing medical reports." That process could also in- clude final editing. He points to a problem iden- tified in an FSCO [Financial Services Commission of On- tario] hearing in April. In Harb and Allstate, the insurer's medical expert testified that the final report that was submitted by a service provider hired to co- ordinate the report process was not what he had dictated. The issue was discovered just before the hearing was to begin. FOCUS Continued from page 10 Continued from page 11 Creation of reports has'become a bit of an industry' The insurer told the hearing that the only possible explana- tion was that the third-party ser- vice provider, which polishes the doctor's formatted reports and then submits them to the insurer for dissemination, somehow changed vital sections of the re- port. In adjourning the hearing, adjudicator Charles Matheson determined the report was false and negatively impacted the ap- plicant, possibly affecting the benefits to which the applicant may have been entitled. Deutschmann says the prac- tice is unacceptable because of the risk of it interfering with the one chance an individual suf- fering from permanent chronic pain has of receiving compensa- tion. "If you have one opportu- nity for compensation, then you should have the best medi- cal evidence available on both sides to be fair to that individual. And, in my view, the best medi- cal evidence is where the doctor reviews everything and provides their opinion," he says. "If that medical expert is the one testifying, they should be testifying on the totality of the work they did, not to the work of other people and then present- ing it as if it were their opinion alone." LT Ruling may apply to existing claims Jennifer Hunter says lawyers should ask if parties other than the medical expert were involved in preparing a report. Every time you refer a client to our law firm, you are putting your reputation on the line. IAN FURLONG | STACEY STEVENS | CARR HATCH Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. With a group of 30 civil litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. We welcome the chance to speak or meet with you about any potential referral, and look forward to creating a solid relationship with you that will benefit the clients we serve. YOUR ADVANTAGE, in and out of the courtroom. TF: 1.888.223.0448 T: 416.868.3100 www.thomsonrogers.com IT IS ALL ABOUT TRUST WELL PLACED. Untitled-4 1 2018-06-15 2:20 PM CanadianLawyerMag.com Fresh Canadian legal news and analysis available on any device. Get More Online

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