Ontario Superior Court of Justice Trials

Ensuring Expert Medical Reports Address Threshold Issues – Part 2 of 3

This is part 2 of a 3 part series on medical evidence to address threshold.

Part 1 addresses questions that should be asked of experts in order to meet the requirements of mandatory evidence that must be led in order to meet threshold.

Part 2 focuses on what areas must be covered by medical experts in answering the questions posed as required by Regulation 461/96 under the Insurance Act.  We’ll start with the necessary questions and then comment on the areas that must be covered to address threshold.

1. What is the nature of the injury?

This question is about the diagnosis.

It is important to comment on both the medical diagnosis and the seriousness of the impairment.  The medical diagnosis should obviously reflect accepted medical diagnoses.  For each diagnosis, the seriousness should be discussed, which discussion must cover:

  • Whether there is substantial interference with work despite accommodation;
  • Whether there is substantial interference with training despite accommodation; and/or
  • Whether there is substantial interference with usual activities of daily living considering the person’s age.

2. Is the injury permanent (prognosis)?

This question is about the prognosis.

In order to be permanent, the injury must:

  • Be continuous since the incident;
  • Not be expected to substantially improve, based on medical evidence and the person participating in recommended treatment; and
  • Continue to substantially interfere with work despited accommodation, training despite accommodation or most of the usual activities of daily living considering the person’s age; and
  • Be expected to continue without substantial improvement as compared to other people in similar circumstances.

Therefore medial experts should comment on continuity, expectations, interference with work, study or daily life and comment on other people in similar circumstances.

3. What function(s) is/are impaired?

The answer to this question could include physical, mental and/or psychological functions.  Most experts will focus on either the physical or the mental/psychological according to their area of expertise.

It is important to be as specific as possible in identifying functions and to also consider functions that may be important to work, study, self-care and activities of daily living.

4. How important is/are the impaired function(s) to this specific patient?

In order for a function to be important to the person, the injury must:

  • Be necessary for work even where there is accommodation;
  • Be necessary for training even where there is accommodation;
  • Be necessary for caring for one’s own well-being; or
  • Be important to the usual activities of daily living, considering the person’s age.

Therefore medical experts should comment on how the impairment affects the specific person at work and/or in study as well as commenting on self-care and daily living.

5. Was the patient’s injury caused by the automobile accident?

Causation can be direct or indirect.  A broken leg due to the force of a crash is an example of direct causation.  Depression flowing from a broken leg that impedes involvement in athletics is an example of indirect causation.

6. Corroborration.

Regulation 461/96 under the Insurance Act requires that there be corroborating evidence from the plaintiff, friends and/or family that confirms the change in function.

A line of questions in direct examination must therefore go out to the plaintiff and as many lay witnesses as possible to corroborate the testimony of the medical expert.  The focus will be on the issues raised by questions 1, 3 and 4 above.

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