Author Archives: Admin2

FAIR letter to Civil Rules Committee and AG Feb 2 2018

UPDATE: The response to our third letter to the Civil Rules Committee in respect to the poor quality of the medical ‘expert’ evidence used in Ontario courts to deny auto insurance claims. Civil Rules Committee letter to R DesRoches – Feb 12 2018

February 2, 2018

To the attention of the Civil Rules Committee,

On September 5, 2017 and November 5, 2107 FAIR sent your office letters via email and regular post in respect to the poor quality of the medical evidence used in personal injury civil suits in Ontario. We have not yet received an acknowledgement of your receipt of our correspondence.

Assuming that the Rules Committee takes an interest in the over 58,000 auto insurance related cases on the docket in Ontario courts and thousands more at the Financial Services and the Licensed Appeal Tribunal I thought it important that you be aware of how ineffective rules or rules broken without consequences is playing out in our courts and in the media.

Insurer’s father-daughter psychology team blasted for dodgy testing of severely hurt motorcyclist http://nationalpost.com/news/canada/insurers-father-daughter-psychology-team-blasted-for-dodgy-testing-of-severely-hurt-motorcyclist

Licensed to bill: How doctors profit from injury assessments that benefit insurers https://www.theglobeandmail.com/news/investigations/doctors-insurance-independent-medical-examinations/article37141790/

Insurance assessment firms altered, ghostwrote accident victim reports https://www.theglobeandmail.com/news/investigations/insurance-assessment-firms-altered-ghostwrote-accident-victim-reports/article37193127/

Attached is a list of some of the medical ‘experts’ associated with these articles and the comments we have on our website in respect to the adverse comments made by past triers-of-fact. Surely these experts shouldn’t be welcomed in our courts after such demonstrations of bias and or incompetence while ‘assisting’ the court.

We look forward to hearing back from your office about what action you might take to protect the integrity of Ontario’s courts.

Respectfully,

Rhona DesRoches

FAIR, Board Chair

Lawson, Kerry, Psychologist http://www.fairassociation.ca/wp-content/uploads/2017/11/Lawson-Kerry-Psychologist1.pdf

Dr. Howard Platnick http://www.fairassociation.ca/wp-content/uploads/2017/09/Platnick-Howard-A.-Family-Physician.pdf

Dr. Lawrence Reznek http://www.fairassociation.ca/wp-content/uploads/2017/12/Reznek-Lawrence-Raphael-Psychiatrist.pdf

Dr. Rajka Soric http://www.fairassociation.ca/wp-content/uploads/2016/12/Soric-Rajka-Physiatrist.pdf

Dr. Richard Hershberg http://www.fairassociation.ca/wp-content/uploads/2017/04/Hershberg-Richard-Ian-Psychiatry.pdf

Dr. Alborz Oshidari http://www.fairassociation.ca/wp-content/uploads/2017/11/Oshidari-Alborz-Physiatrist.pdf

Dr. Monte Bail http://www.fairassociation.ca/wp-content/uploads/2016/01/Bail-Monte-Psychiatrist.pdf

Dr. Stanley Debow http://www.fairassociation.ca/wp-content/uploads/2017/11/Debow-Stanley-Lawrence-Psychiatrist.pdf

Dr. Katherine Isles http://www.fairassociation.ca/wp-content/uploads/2018/02/Isles-Katherine-Occupational-Medicine.pdf

Dr. Leslie Kiraly http://www.fairassociation.ca/wp-content/uploads/2018/02/Kiraly-Leslie-Tamas-Psychiatrist.pdf

Dr. Adrian Upton http://www.fairassociation.ca/wp-content/uploads/2018/02/Upton-Adrian-Richard-Mainwaring-Neurologist.pdf

Dr. Anthony Graham

DUTY OF EXPERT 

Rules of Civil Procedure 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’s area of expertise; and

(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue.

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.

http://www.fairassociation.ca/ime-providers-adverse-comments/

____________________________________

FAIR Letter to Civil Rules Committee +AG Feb 2 2018

NOTE to Committee and AG re Letter to Civil Rules Committee September 5 2017

Letter to Civil Rules Committee September 5 2017

 

 

Czombos and Wawanesa 2017-12-28, Arbitration, Final Decision, FSCO 5447

North York Rehabilitation Centre
In the Insurer’s Examination Catastrophic Determination, Catastrophic Impairment Rating, dated April 24, 2015, Dr. J. Castiglione, of North York Rehabilitation Centre, provided whole person impairment scores under criterion 7 (physical impairment) for Ms. Czombos’ injuries and impairments sustained as a result of the accident.  They are summarized as follows:
1.  Neck Pain
Dr. Soriano, Orthopaedic Surgeon, examined Ms. Czombos’ neck injury and concluded that overall he “does not think this lady has any musculoskeletal issues that are directly attributable to the accident of 2009.”  From a musculoskeletal perspective, her cervical spine injury falls under Diagnostic Related Estimates (DRE) Category I cervicothoracic impairment, which equates to a 0% whole person impairment. (Chapter 3, Page 103 of the Guides).
2.  Back Pain
Dr. Soriano, Orthopaedic Surgeon, examined Ms. Czombos’ back injury and concluded that overall he “does not think this lady has musculoskeletal issues that are directly attributable to the accident of 2009”.  From the musculoskeletal perspective, her lumbar spine injury falls under DRE Category I, which equates to a 0% whole person impairment. (Chapter 3, Page 102 of the Guides).
3.  Bilateral Shoulder Pain
Dr. Soriano, Orthopaedic Surgeon, examined Ms. Czombos’ neck injury and concluded that overall he “does not think this lady has any musculoskeletal issue that are directly attributable to the accident of 2009”.  Shoulder ranges of motion were entirely normal and Dr. Soriano did not specifically apply a shoulder diagnosis in his report, which would extrapolate to a 0% whole person impairment for the shoulders. Chapter 3, Section 3.1j of the Guides (pages 41- 45) addresses impairment ratings related to loss of shoulder motion; however, as there is no loss of motion as per Dr. Soriano’s examination there are no findings on which a rating would apply.
……
In his report, dated April 24, 2015, Dr. Soriano stated:
 
Overall I do not think this lady has any musculoskeletal issues that are directly attributable to the accident of 2009.  Her medical history is very complicated and convoluted with significant psychological overtones together with overlapping injuries over the past 20 years or so, some work related and some related to the three motor vehicle accidents she was involved in.
The opinions expressed here are those of the evaluator. The evaluation has been conducted on the basis of a medical examination and documentation provided with the assumption that this information is true and correct.  If more information becomes available, an additional report or service may be required.  Such information may or may not alter the opinion of this evaluation.
From a musculoskeletal perspective, her cervical and lumbar spine injuries both fall under Diagnostic Related Estimates (DRE) Category I.
There is 0% impairment of the whole person.  I suggest a psychologist determine the nature of her psychological impairment.  However, the post-traumatic stress disorder diagnosis preceded the accident of 2009.
In the Insurer’s Examination Catastrophic Determination Multidisciplinary Addendum, dated December 5, 2016, Dr. Soriano stated that, “she has no specific musculoskeletal issues that are solely attributable to the accident of June 29, 2009.”
 
I prefer the opinion of Dr. Ranney over that of Dr. Soriano.  I accept Dr. Ranney’s opinion and give it significant weight.  I give less weight to Dr. Soriano’s opinion.  My reasons for these conclusions follow.
 
I find the evidence of Dr. Ranney persuasive.  His report was thorough and contains detailed supporting reasons for his opinions.  He analyzed Ms. Czombos’ history of motor vehicle accidents, reviewing 69 documents, including radiographic reports/studies (including Dr. Baird’s digital motion x-ray study of Ms. Czombos), he reviewed the treatment received by Ms. Czombos since the motor vehicle accident of June 29, 2009, significant radiographic assessments, Ms. Czombos’ personal history, education, employment, history of past health and functional inquiry, current medications, current symptoms, and disability, reviewed pain diagram and neck and back pain questionnaires completed by Ms. Czombos, examined Ms. Czombos, provided orthopaedic diagnoses that are causally related to the motor vehicle accident of June 29, 2009, and orthopaedic diagnoses unrelated to this accident, answered specific questions, and considered the opinions contained in the Insurer’s Examination of Catastrophic Determination by Rajwani, Castiglione, Soriano, Kiraly, Shaw, and Mark of North York Rehabilitation Centre, that states on page 13 “Ms. Czombos is not considered catastrophic and rates her neck pain and back pain 0% WPI”, which Dr. Ranney strongly rejects regarding her spine because they did not have access to radiographic assessment loaded by gravity and with movement. 
 
I find Dr. Ranney’s evidence to be compelling.  The facts on which his opinions are based are clearly delineated, are accurate and are complete.  The preponderance of the medical and non-medical evidence supports his opinions.  Overall, his testimony withstood a forceful and thorough cross-examination conducted by counsel for Wawanesa. 
 
By contrast, I find Dr. Soriano’s opinion less persuasive and therefore give it less weight than the opinion of Dr. Ranney.  Dr. Soriano’s reasoning with respect with to causation and Ms. Czombos’ level of impairment of the whole person is not compelling.  There is a lack of detailed supporting reasons and analysis to provide a solid foundation for his opinion.  His opinion is not supported by the weight of the medical and non-medical evidence.  His diagnosis is based on inadequate evidence and assessments.  Ms. Czombos’ impairments are simplistically described and the analysis is not carried sufficiently further.  During his examination of Ms. Czombos, Dr. Soriano did not attempt downward pressure on her neck (Spurlings test) which, according to Dr. Ranney, he should have.  Dr. Soriano did not have access to the voluminous documents, including a radiographic assessment loaded by gravity and with movement, namely, Dr. Baird’s June 9, 2015 Digital Motion X-ray study of Ms. Czombos, which were reviewed by Dr. Ranney.  Dr. Soriano focuses on whether Ms. Czombos has any musculoskeletal issues that are directly or solely attributable to the accident of June 29, 2009, instead of conducting the requisite analysis in respect of apportionment or aggravation of a pre-existing medical condition or infirmity as required under the Guides.[22]
Dr. Soriano’s reports are unhelpful and warrant little weight.
See:

 

Jedean and Aviva FSCO Arbitration, 2018-01-11

https://www5.fsco.gov.on.ca/AD/5464

The Applicant was questioned on a number of statements in Dr. Karabatsos’ report and she did not disagree with the range of motion in her back that he noted.  She testified that she can move her neck but she has pain.  She is able to bend and move her back but she has pain.  She did not mention her anxiety and sleep difficulties to Dr. Karabatsos.  He had misstated the extent of her functioning on a day-to-day basis including elements that she testified she could not in fact do.  He agreed that he knew she was on modified duties at work at the time of the assessment but chose not to include that in his report, “a simple omission on our part”.

Dr. Karabatsos did acknowledge in cross-examination that some people take longer to recover than others and some can develop chronic pain.  He testified under cross-examination that older people will take longer to recover and that pre-existing conditions can affect recovery time if the injury is to the joint itself.  The severity of the impact of the accident may also play a role and in this case he viewed the accident impact as moderate.  Further, he is familiar with chronic pain as persistent pain and to satisfy a chronic pain diagnosis there must be significant psychological sequelae.  In his experience such patients are reliant on significant medications and treatment and tend to become socially withdrawn.

…..

I do not accept the evidence of Dr. Karabatsos in this matter.  He specializes in lower extremities reconstruction and general orthopaedics according to his qualifications set out in his report.  He gave too little weight and regard to the fact that at the time of her assessment she was in the midst of regular treatment that provided relief from her symptoms and under prescription medication that would, if it were effective, give her relief from inflammation and pain allowing her to move more easily.  He appears to have ignored her pain complaints, that she was taking medication that would impact both her movement and her pain level, and that her functioning was compromised, i.e. he omitted to include in his report that she was on modified work duties.  He testified that in his practice his patients post-surgery have a follow-up appointment with him and a physiotherapist who instructs them on exercises to do at home and “they all get better”, an outcome many accident victims only dream of.

Also he did not have a full documentary record.  In September 2014, he assessed the Applicant about a week after the disability certificate was signed but this document was not provided to him; he was given only the Application for Accident Benefits dated August 14, 2014 and the disputed OCF-18.  He did not have and apparently was never given the clinical notes and records of the Applicant’s family doctor, all of which dating back to 2010 have now been made available together with imaging results.  At the time of Dr. Karabatsos’ assessment the Applicant was only seven weeks post-accident and had had only seven treatments which had started August 5, 2014.  She was therefore within Block 2 of the treatment under the MIG (Section 8(ii)).  The MIG contemplates that only if the insured person has achieved maximal recovery at the end of eight weeks is treatment to be stopped.  Therefore, even if the injuries fall within the MIG, the Applicant was entitled as of right to at least two more weeks of treatment under Block 2 or the full 12 weeks or 3 blocks of treatment, whereas Dr. Karabatsos seems to be of the view that even at this stage, and despite her experiencing pain in the test for range of motion, she has had “extensive” or enough treatment.

Further, while the answers to the questions at the conclusion of his report are given without qualification, in the body of his report, Dr. Karabatsos is careful to note the limitation of his expertise and to confine himself to testing the neck, upper and lower extremities and spine.  He opines only on the neck, back and shoulder injuries.  He was well aware that she suffered other injuries.  He failed to address the hand tremor which she said was made worse by the accident and pain in the temporal mandibular joint and headaches in stating his opinion on the MIG.  He did not even flag these as areas that might well be investigated by someone with the expertise to do so before Aviva drew a conclusion as to the nature of her injuries or her ability to recover under the MIG course of treatment.

FAIR letter to LSUC re how low can a defense lawyer go to save insurer $$$

UPDATE: On January 22 2018, we did hear from LSO that they are reviewing our complaint

On behalf of Ontario’s vulnerable and injured car accident victims who bring their insurance cases to hearings in Ontario’s justice system, FAIR asks that you investigate the behavior of Mr. Harry P. Brown as documented in the attached FSCO decision S.P. and RBC General (now Aviva) 5453. The FSCO arbitrator’s words lead us to believe that this case calls into question whether Mr. Brown’s conduct meets the standards and expectations of the LSUC/LSO and the Rules of Professional Conduct.

FAIR complaint to LSUC Jan 17 2018

Read the decision  S.P. and RBC General A16-000329

Michelle Mandel’s Sun article http://torontosun.com/news/local-news/mandel-shameful-attempts-by-auto-insurer-to-fight-paying-a-teen-with-catastrophic-injury

Auto insurer defence lawyer says injured woman “too pretty to be sick”

Read the full decision S.P. and RBC General A16-000329

Ms. Aliza Karoly for S.P.

Mr. Harry Brown for RBC General Insurance Company

At an earlier time in the Applicant’s claim, the Insurer’s lawyer stated the “Applicant looked too pretty to be sick.”…

The Insurer questioned the Applicant as to some photographs that she was in.  As part of the Insurer’s evidence, it produced pictures of a Toronto Sun Sunshine girl posing in a costume.  The Insurer asked the Applicant how she was able to pose for pictures as part of a Sunshine Girl photoshoot while she claimed to be suffering from the medical issues.  The Applicant replied much to the surprise of Insurer’s counsel that it was not her in these pictures, it was another girl.  At the same time that this revelation took place, it was noted that Insurer’s counsel, Mr. Brown, swore an affidavit affirming this Sunshine girl to be the Applicant when it was proven to be someone else.  This photo and others that were not of the Applicant were sent to many witnesses as evidence, when in fact it was not the Applicant in the pictures.[4]….

Further, the conduct and borderline harassment demonstrated by the Insurer as it related to some witnesses that the Insurer called is rarely ever seen.  The Insurer had its investigator attempt to serve witnesses in a hostile and confrontational manner, including threatening to have witnesses arrested if they did not comply with their summons.  In addition, the Insurer used photocopied pre-signed summonses to serve individuals, which did not afford an Arbitrator or FSCO the opportunity to oversee who was being summonsed and why.  It left the Insurer with unchecked power in which it overstepped its bounds on numerous occasions.  Insurer’s counsel misled the court when requesting a bench warrant and stated before the court that a witness failed to attend this Hearing when in fact Mr. Brown knew that this was false.

 

Insurer’s father-daughter psychology team blasted for dodgy testing of severely hurt motorcyclist

The decision is one of the most striking in a string of cases where adjudicators questioned the objectivity of health professionals testifying about accident victims

http://nationalpost.com/news/canada/insurers-father-daughter-psychology-team-blasted-for-dodgy-testing-of-severely-hurt-motorcyclist#comments-area

3 Major Causes of Car Accidents & How To Prevent Them

“Distracted and inattentive driving causes more road deaths than drinking and driving and speed combined, according to the Ontario Provincial Police.” And that article was from 2012! Things haven’t improved since then.

http://derekwilsonlaw.ca/3- major-causes-of-car-accidents- how-to-prevent-them/

What your video surveillance can’t prove

An adjudicator with Ontario’s licence appeal tribunal placed little weight on eight days’ worth of an insurer’s video surveillance because the demands of the job a claimant had abandoned due to injury were not the same as the demands of the job where the surveillance took place.

https://www. canadianunderwriter.ca/ insurance/video-surveillance- cant-prove-1004125471/

Income security reform

In 2016, Ontario asked three working groups to examine the income security system and make recommendations on how to improve it.

Read the groups’ report and recommendations for improving income security for people receiving support through programs like Ontario Works and  ODSP .

https://www.ontario.ca/page/ income-security-reform

Canada Pension Plan disability benefits

https://stepstojustice.ca/ category/legal-topic/income- assistance/canada-pension- plan-disability-benefits