Cropped shot of young female witness in beige blazer standing by tribune with microphone and testifying in front of jury, judge and protection side

Is an Expert’s Credibility an Important Factor in an Adjudication? DSF’s Personal Injury Lawyers Succeed at the Licence Appeal Tribunal

Devry Smith Frank LLP (“DSF”) lawyers David Derfel and Charlie Fuhr’s resilience in their advocacy for a client proved to be successful in a recent adjudication at the Licence Appeal Tribunal (the “LAT”).

The LAT “is an independent, quasi-judicial agency and is one of the thirteen tribunals in Tribunals Ontario. LAT adjudicates applications and resolves disputes concerning compensation claims and licensing activities regulated by the provincial government, including those activities of delegated administrative authorities.”

Background

The Applicant was involved in an automobile accident (the “Accident”) whereby she was a passenger on a motorcycle when it struck a deer on June 17, 2018. The Applicant sought benefits from the Respondent insurance company, however she was denied. While the parties agreed that the Applicant’s impairments were caused by the Accident, they disagreed over whether the Applicant sustained a catastrophic impairment as defined in the Statutory Accident Benefits Schedule (the “Schedule”). Subsequently, the Applicant applied to the LAT through the Automobile Accident Benefits Service (the “AABS”) process to resolve the dispute by adjudication.

Issue and Result

The main issue in the adjudication was whether the Applicant sustained a catastrophic impairment as defined the Schedule. Ultimately, Adjudicator Brian Norris found in favour of the Applicant on the basis that she suffered a catastrophic impairment under criterion 8 (mental and behavioural disorders) as a result of the Accident.

Analysis

The onus is on the Applicant to prove that she sustained a catastrophic impairment as a result of the Accident.

To support a claim for mental and behavioural disorders, the Applicant retained psychiatrist Dr. Karen Abrams to conduct the necessary tests and assessments. The Respondent insurance company also retained their own expert, a psychologist, to run an assessment of the Applicant (the “Respondent’s Witness”).

Dr. Abrams provided a report to support a finding that the Applicant sustained a marked impairment in the spheres of Activities of Daily Living, Social Functioning, and Adaptation in Work and Work-like Settings. Adjudicator Norris found that the Respondent’s Witness, on the other hand, underdiagnosed the Applicant, in addition to suggesting that the Applicant was malingering or over-reporting her psychological symptoms.

Conflictingly in their oral testimony, the Respondent’s Witness “unequivocally stated that the Applicant was not malingering” (paragraph 22). This inconsistency was heavily reflected in the decision, where Adjudicator Norris further stated that “[t]his is the dominant factor that causes me to prefer Dr. Abrams’ report over the report by [the Respondent’s Witness]” (paragraph 22).

As for the Applicant’s credibility, Adjudicator Norris found the below at paragraph 20:

“I find the Applicant to be a credible witness. The Applicant participated in psychological and psychiatric testing and was cross-examined during the hearing and never showed any indication that her reports were untruthful. Her testimony was supported by the other witnesses and was never questioned or impeached at the hearing.”

Therefore, this decision at the LAT serves as a reminder that clients and the expert witnesses they retain will have better odds of success at a hearing if they are credible, especially in contrast to opposing parties and their witnesses who show poor levels of credibility due to reasons including lack of preparation and sophistication. A good lawyer will ensure their clients and hired witnesses understand the hearing process, how to prepare and what to expect.

If a client has a good case, it is crucial that they are supported with the right resources, especially investing in an expert witness who will be reliable and vigilant in their approach to being examined at a hearing. Your lawyer will help you to locate the right expert based on their expertise and their reputation in the courts.

If you have a dispute with your insurance company regarding your entitlement to accident benefits, it is more time and cost efficient to resolve the issue with the insurance company directly and with the help of your lawyer. Should the dispute not be resolved, your lawyer can help you to escalate the matter through more official avenues, such as the AABS as in the case explained above.

If you have suffered an injury, the legal team at DSF is here to ensure you receive the treatment and compensation that you deserve. DSF is committed to making it easier for our clients to have the best quality of life possible and letting the healing process begin. Please contact David Derfel at David.Derfel@devrylaw.ca (416-847-3580 ext 220), and Charlie Fuhr at Charlie.Fuhr@devrylaw.ca (416 446-3304) for your personal injury needs.

This blog was co-authored by Articling Student, Sanaz Sakhapour.

This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.