Is an Insurer’s Examiner an “Expert”?

“When is an expert not treated as an expert?”  That was the question Ontario Superior Court judge Thomas Lederer asked in the case of Babakar v. Brown .

The Babakars were involved in a motor vehicle collision and were insured by State Farm.  They applied to State Farm for accident benefits.  At some point, State Farm required the Babakars to attend insurer examinations under section 42 of the Statutory Accident Benefits Schedule with psychologist Dr. Hoath, orthopaedic surgeon Dr. Kadish, and physiotherapist Mr. Diaz.  Based on the reports of Dr. Hoath, Dr. Kadish and Mr. Diaz, State Farm terminated the Babakars’ accident benefits.

at the examination for discovery of State Farm’s representative, the Babakars’ lawyer askedState Farm to make the following inquiries of Dr. Hoath, Dr. Kadish, and Mr. Diaz:

1.                  To ask Dr. Hoath whether pre-accident or other historical records were needed and if he ever made a request to State Farm for the records.

2.                  If pre-accident records were information Dr. Hoath thought he needed, why didn’t he request it?  To ask Mr. McCready, when he had the report, if he ever considered sending such information to Dr. Hoath.

3.                  To ask Dr. Kadish what use he made of or what possible benefit to him Mr Diaz’ s Functional Ability Evaluation Report was given that Mr. Diaz says in his report he can’t tell you anything without the Functional Demands Analysis.

4.                  With respect to Farzana, ask Dr. Hoath why he didn’t have the pre-accident records of Dr. Sheikh, whether he thought they were necessary, did he ever ask for them?  Did the adjuster, after having reviewed the report, think to send the records to Dr. Hoath or ask Dr. Hoath if the pre-accident reports were important?

5.                  Ask Dr. Dorman to confirm at page 3 (Tab 127) that his notation about bruising of her legs at the hospital was information that he received from Mrs. Babkar as opposed to otherwise.

6.                  Refusal – To ask Dr. Dorman if his answer in question no. 2 on page 8 of 9 of his report, if he is referencing Farzana’s right knee problem.

7.                  To ask Dr. Dorman why he was answering questions that he was not asked by the insurer to address.

State Farm refused to make the inquiries on the basis that Dr. Hoath, Dr. Kadish and Mr. Diaz were expert witnesses.  The Babakars’ lawyer brought a motion for an order requiring State Farm to make the inquiries of Dr. Hoath, Dr. Kadish, and Mr. Diaz.  Master Hawkins heard the motion and ordered State Farm to make the inquiries.  State Farm appealed Master Hawkins’ decision.

Justice Lederer was the judge on the appeal.  In response to his own question of when an expert is not treated as an expert Justice Lederer wrote:

An expert is not treated as an expert when his or her opinion is a proximate or immediate cause of the harm, loss or damage.

Based on that principle, Justice Lederer concluded that Dr. Hoath, Dr. Kadish, and Mr. Diaz should not be treated as expert witnesses in the case:

The claims being made (the cause of action) arise from the legislation.  Where the plaintiff qualifies, it obliges the insurer to pay.  The “facts” on which the claims rest are the injuries suffered by the plaintiffs.  The determination of the facts, in part, rests on the reports of the assessors.  These reports are not prepared to assist the court in understanding technical information that is outside the knowledge of the judge or jury.  The information in the reports is used by the insurer to assist in determining whether the party claiming the benefit qualifies.  If, as here, it is suggested that a determination that a party does not, or no longer qualifies, was made in bad faith, the basis upon which the determination was made is directly pertinent.  The actions of the assessors are at the core of what does or does not substantiate the claim.

Accordingly Justice Lederer dismissed the appeal.  State Farm has appealed Justice Lederer’s decision and the hearing of that appeal was scheduled to proceed early this month.  No doubt, plaintiffs and insurers alike will be watching closely for the result of that decision.

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