Essentials of a Medical-Legal Report

1. Essentials of a Medical-Legal Report

2. MOTOR VEHICLE ACCIDENT Scheme

3. RULE 53.03 – EXPERT WITNESSES • Expert reports must be served no less than 90 days before the Pre-Trial • 60 day and 30 day rules for responding reports also changed • Report must contain : • Name address, and area of expertise • The expert’s CV • Instructions given to the expert

4. RULE 53.03 – EXPERT WITNESSES(Continued) • The nature of the opinions being sought • The expert’s opinion on each issue and reasons • Any factual assumptions • Description of research conducted • A list of documents relied on • An acknowledgement of the expert’s duty.

5. RULE 4.1.01 – DUTY OF EXPERTS 4.1.01 (1) It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules, (a) to provide opinion evidence that is fair, objective and non-partisan; (b) to provide opinion evidence that is related only to matters that are within the expert’sarea of expertise; and (c) to provide such additional assistance as the court may reasonably require to determine a matter in issue.

6. DUTY OF EXPERTS (Continued) Duty Prevails (2)   The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged.

7. (General heading) • ACKNOWLEDGMENT OF EXPERT'S DUTY • My name is ....................................................... (name). I live at ............................................. (city), in the ............................................ (province/state) of ....................................................................................... (name of province/state). • I have been engaged by or on behalf of ............................................................................. (name of party/parties) to provide evidence in relation to the above-noted court proceeding. • I acknowledge that it is my duty to provide evidence in relation to this proceeding as follows: • to provide opinion evidence that is fair, objective and non-partisan; • to provide opinion evidence that is related only to matters that are within my area of expertise; and • to provide such additional assistance as the court may reasonably require, to determine a matter in issue. • I acknowledge that the duty referred to above prevails over any obligation which I may owe to any party by whom or on whose behalf I am engaged. • Date ............................................. • Signature • NOTE: This form must be attached to any report signed by the expert and provided for the purposes of subrule 53.03(1) or (2) of the Rules of Civil Procedure.

8. Onus • Plaintiff must prove • Balance of probability • Any issues in dispute

9. Diagnosis Martin ats. Nova Scotia (SCC) • Martin was injured in N.S. • WCB system limited chronic pain claims • Challenged under s.15(1) which protects the disabled from discrimination

10. Diagnosis (cont) Martin (cont) • SCC stated as follows: “there is no authoritative definition of chronic pain. It is, however, generally considered to be pain that persists beyond the normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques. Despite this lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real”

11. Causation • It is up to the injured person to prove, on the balance of probability that “but for” a specific event the injured person would not be suffering chronic pain (at least not to the same extent) • Relevant in: Motor Vehicle Accident, Slip and Fall, WSIB, Malpractice • Not important in LTD or CPP

12. Causation Snell ats Farrell (SCC) • The “but for” test is established where the injured person demonstrates a substantial connection between the injury and the defendants wrong or negligence • Question to be answered: Is the negligence, on the balance of probability, “a cause” of the injury even if it is not the ultimate cause

13. Causation Snell ats Farrell (SCC) • The causation test is not to be applied too rigidly and does not need to be determined with scientific precision • An inference of causation may be drawn from the evidence without positive scientific proof

14. Prognosis • Crystal balling the future • What is the likely course of condition: • Earning capacity • Homemaking capacity • Cost of care

15. Prognosis Schrump ats. Koot (OCA) • It is not necessary for the injured person to prove that a future loss or damage will occur • Must prove that there is a reasonable possibility of the loss or damage occurring • Can’t be speculative

16. Prognosis Schrump (cont) • Future contingencies which are less than probable are regarded as factors to be considered in the assessment of damages • ie. 25% chance of early retirement gets 25% of the projected loss

17. MOTOR VEHICLE ACCIDENT Scheme

18. Causation/Crumbling Skull Theory Munk ats. ING Insurance (OCA) • Three motor vehicle accidents • After first accident returned to work • After second accident suffered pain and numbness in both arms • Narrowing of the spinal canal • Surgery not required but future risks with any other injuries

19. Causation/Crumbling Skull Theory Munk ats. ING Insurance (OCA) • After second accident settled accident benefits for over a million dollars • Returned to work after second accident • After third motor vehicle accident numbness in arms and legs • After two surgeries her condition is worse – incomplete quadriplegic

20. Causation/Crumbling Skull Theory Munk ats. ING Insurance (OCA) • OCA found as follows: • Determined causation using materialcontribution test applies to accident benefit claims • Crumbling skull principle has no application in a first party system

21. Post 104 IRB Claims • “The insurer is not required to pay an income replacement benefit…(b) for any period longer than 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience;”[sec 5(2)(b)]

22. Terry and Wawanesa • FACTS: • MVA May 22/97 • Applicant in paving business for 13 years prior to MVA(seasonal) • Soft tissue injuries: • neck, back, and headachepain • Attempts to return to work as a taxi dispatcher • Unable to complete the job as a taxi dispatcher

23. Terry and Wawanesa (Continued) • Arbitrator Palmer Found: • The applicant does not have to prove that he is unable to do more than 50% of any suitable employment. • “Somehow the ability to engage in a reasonably suitable job, considered as a whole, including reasonable hours and productivity must be addressed.” • Therefore the applicant was entitled to ongoing IRBs.

24. Horne and CIBC • Define “suitable employment” FACTS • Mr. Horne 47 years old at time of accident • Welder for 25 years • Grade 9 education • Annual salary 40,000 per year • After accident: • Returns to work as a car jockey • Works overtime • Makes 22,000 per year

25. Horne and CIBC (Continued) • Arbitrator Sone found that suitable employment must be identified with reference to the following points: • Suitable employment is a question of fact • The work must be suitable to the individual applicant • The work must be realistic considering the applicant’s background • Suitable employment should be related to the applicant’s previous experience • However, employment is not suitable just because the applicant has done a stint in the past

26. Horne and CIBC (Continued) • To determine suitable employment, one must consider such factors as the nature and status of the work compared with what the applicant did before, including: • Hours of work • Level of remuneration • Applicant’s employment experience • Length of time spent in different jobs • His or Her age • His or Her qualifications • The primary focus is on an applicant’s functional limitations; however job market considerations are relevant in determining suitable employment

27. Horne and CIBC (Continued) • Employment will not be considered suitable if the injured person requires further training in order to qualify for the position.

28. Payment of Reports • When and how much you get paid for your reports is up to you. • Make sure everyone understands the terms before the work begins