Two members of the Ontario Trial Lawyers Association appeared before the Public Utilities Board (PUB) automobile insurance review hearings in St. John’s Wednesday afternoon to relate their experience with changes to the automobile insurance system in their province.
GM recalls over 1M pickups, SUVs for power steering problem
DETROIT — General Motors is recalling 1.2 million big pickup trucks and SUVs mainly in North America because of power-assisted steering problems that have been cited in a number of accidents.
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How Not Wearing a Seat Belt Can Affect Your Car Accident Claim
Ontario law requires everyone in a motor vehicle to wear his or her seat belt. Adults who do not wear their seat belts are subject to charges and fines under the Highway Traffic Act. If a police officer catches a child not wearing his or her seat belt, the officer will charge the parent or the adult in the car.
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Doug Ford’s Use of the Notwithstanding Clause from a personal injury lawyer’s perspective
This instalment of the Toronto Injury Lawyer Blog is not your typical personal injury piece. Reason being, this has not been your typical week in the world of the law and politics in Ontario. As detailed below, this has been a historic week.
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Doug Ford, no power grab is worth undermining Canada’s solid foundation
It’s time for a lesson on law and government 101. I doubt that Ontario Premier Doug Ford will take me up on the offer of a one-on-one lesson, and since it appears that none of those advising our Premier have thought to take on this task, here it goes.
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The public’s view on minor injury caps in this province
Nearly seven in 10 people polled in Newfoundland and Labrador support a cap on auto insurance payouts for minor injuries,
Insurance Bureau of Canada (IBC) revealed in a new study.
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Applicant v J.S., 2018 CanLII 68724 (ON HPARB), <http://canlii.ca/t/hsqds
24. The Board notes that in the College’s Third Party Reports’ Policy, it expects:
Objectivity & Impartiality
The distinct nature of third party reports can, in some instances, give rise to claims that the report is biased. To avoid such claims, the College expects physicians to ensure that reports are comprehensive, contain accurate information, and are written in an objective manner.
Comprehensiveness
Physicians should ensure that they have obtained and reviewed all available clinical notes, records and opinions relating to the patient or examinee that could impact the findings of the report, including physician’s final opinion and/or recommendations.
If despite reasonable requests physicians have not been provided with all available information, they should explicitly note this fact in the report, and clearly indicate that the findings made were based on the information available to them.
[…]
Retention of Reports, Notes and Documents
Requirements relating to the retention of reports, notes and documents will vary depending on the context in which a physician has provided a third party report and may be specified in legislation.
Physicians are expected to retain third party reports and related documents in accordance with their legal obligations. The College recommends that physicians familiarize themselves with the specific obligations that are applicable to their circumstances and seek independent legal advice where necessary.
In circumstances where there are no applicable legal obligations which govern the type of information physicians should retain, the College advises physicians to retain the following:
• Consent obtained;
• Contract with the third party, outlining scope, purpose, timelines and fee arrangements;
• Audio or video recording of the examination, where applicable, if the recording was made by the physician;
• Documents, or information not created by the physician which the physician relied upon when preparing the report; and
• A list of sources of ancillary information, and any audio or visual information recorded by another person.
25. The Board notes the Committee indicated in its decision that an investigation pursuant to section 75 allows it to obtain documents and information that would otherwise be protected by confidentiality. The Board notes that the College issued a summons to the other Health College dated October 1, 2015 requesting the Respondent’s written IME report regarding the Applicant.
26. Although the Board finds that the Committee’s investigation covered the events in question, the Committee did not obtain the documents the Respondent relied on and itemized in his report and attached to his IME report. The Record provided to the Board does not contain any of the documents the Respondent listed in his IME report and so it is uncertain what the Applicant’s file consisted of, or what additional information was provided to him by the other Health College to prepare his IME report.
27. In the Board’s view, those documents are relevant and necessary for the Committee to assess the complaint against the standard expected of the physician as set out in the Third Party Report policy. As in another decision rendered by this Board[1], the Board finds that the Committee ought to obtain the essential information relevant to making an informed decision regarding the issues raised in the complaint. In failing to make reasonable efforts to obtain the relevant documents in the Respondent’s file in connection with his IME consultation, the Board finds the Committee was unable to assure itself the Respondent met the standard of the profession expected of him in the circumstances.
28. Accordingly, the Board finds that the Committee’s investigation is inadequate and returns the matter to the Committee and requires it to conduct a further investigation and reconsideration of its decision.
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V. D. v C. Z., 2018 CanLII 53333 (ON HPARB), <http://canlii.ca/t/hshp3
30. In reviewing the Committee’s investigation and its decision, the Board has concerns regarding the adequacy of the investigation:
(1) the Committee did not request directly from the Respondent his report nor did it investigate whether the Respondent had the documents he is expected to retain after the report is prepared;
(2) although the Applicant provided to the College written consents from Mr. X, it did not obtain from either the Respondent or the insurance company the Respondent’s IME report and the supporting documents that were listed in the Respondent’s IME report; and
(3) in its decision, the Committee indicated it reviewed Mr. X’s file but the Record provided to the Board does not contain any of the documents the Respondent listed in his IME report and so it is uncertain what the patient file consisted of.
31. In his IME report, the Respondent indicated that on the basis of his clinical assessment “coupled with [his] review of the entire file”, he concluded that the Treatment and Assessment Plan (OCF-18) was not considered to be reasonable and necessary. In his report, the Respondent listed four appendices which were not provided to the Committee by the Respondent nor were they requested by the Committee from the Respondent himself. The documents listed as appendices to the report, included the Examination Notice to the Assessor from the insurance company, the Treatment and Assessment Plan (OCF-18), the authorization and direction signed by Mr. X and the Application for Accident Benefits (OCF-1) dated February 12, 2015. Although the Respondent stated he reviewed Mr. X’s “entire file”, his report did not itemize any further medical documents other than the four items enumerated previously.
32. The Board notes that in the College’s Third Party Reports’ Policy, it expects:
Objectivity & ImpartialityThe distinct nature of third party reports can, in some instances, give rise to claims that the report is biased. To avoid such claims, the College expects physicians to ensure that reports are comprehensive, contain accurate information, and are written in an objective manner.
ComprehensivenessPhysicians should ensure that they have obtained and reviewed all available clinical notes, records and opinions relating to the patient or examinee that could impact the findings of the report, including physician’s final opinion and/or recommendations.
If despite reasonable requests physicians have not been provided with all available information, they should explicitly note this fact in the report, and clearly indicate that the findings made were based on the information available to them.[…]
Retention of Reports, Notes and DocumentsRequirements relating to the retention of reports, notes and documents will vary depending on the context in which a physician has provided a third party report and may be specified in legislation.
Physicians are expected to retain third party reports and related documents in accordance with their legal obligations. The College recommends that physicians familiarize themselves with the specific obligations that are applicable to their circumstances and seek independent legal advice where necessary.
In circumstances where there are no applicable legal obligations which govern the type of information physicians should retain, the College advises physicians to retain the following:
• Consent obtained;
• Contract with the third party, outlining scope, purpose, timelines and fee arrangements;
• Audio or video recording of the examination, where applicable, if the recording was made by the physician;
• Documents, or information not created by the physician which the physician relied upon when preparing the report; and
• A list of sources of ancillary information, and any audio or visual information recorded by another person.
In the Board’s view, the Committee ought to have obtained the documents listed in the Respondent’s IME report and ensure the Respondent has complied in other respects with its expectations as set out in the Third Party Reports policy.
33. As in other decisions rendered by this Board[1], the Board finds that the Committee ought to obtain the essential information relevant to making an informed decision regarding the issues raised in the complaint. In failing to make reasonable efforts to obtain the Respondent’s entire file in connection with his IME consultation the Board finds the Committee was unable to assure itself the Respondent met the standard of the profession expected of him in the circumstances. The Board finds the outcome of the investigation might be different once this information is obtained, or, if it is no longer available to the Respondent, the Committee is better able to assess whether the Respondent met the standard expected of him with respect to the retention of information following an IME.
34. Accordingly, the Board finds that the Committee’s investigation is inadequate and returns the matter to the Committee for further investigation and reconsideration.
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L.F. v K.T., 2018 CanLII 65823 (ON HPARB), <http://canlii.ca/t/ht2d1
30. However, the Board is not persuaded that the Committee conducted an adequate investigation into the other concerns raised by the Applicant that relate to the accuracy of the ICE reports and their recommendations. Although the Applicant provided to the College a written consent for the release of her information, the Committee did not obtain from either the Respondent or the insurance company, the Respondent’s ICE reports and the supporting documents.
35. The College’s Standard of Practice S-018: Third-Party Independent Chiropractic Evaluations states that an independent chiropractic evaluator “shall provide a professional opinion in an accurate, impartial and objective manner that is substantiated by fact and sound clinical judgment and defensible through the identification of objectives related to the issues under dispute.”
36. With regard to the records and health information, the Standard of Practice states that an independent chiropractic evaluator “has an obligation to create a file and maintain proper records as outlined in Standard of Practice S-002: Record Keeping” and that “[a]n ICE report shall… be based on all relevant health information available to the [independent chiropractic evaluator].”
37. In the Board’s view, the Committee ought to have obtained the documents reviewed and used by the Respondent in preparing her ICE reports. The information contained in these documents might have changed the Committee’s decision regarding the accuracy and recommendations of the reports.
38. Accordingly, the Board finds that the Committee’s investigation is inadequate and returns the matter to the Committee for further investigation and reconsideration.
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M. V. W. v D. M., 2018 CanLII 65215 (ON HPARB), <http://canlii.ca/t/ht1m5>
24. The Committee appears to have interpreted the terms “independent review” and “Quality Assurance” as indicating that the Respondent’s role in the IME process was simply one of assembly and packaging, and that his role was administrative. The Board observes that those same terms (“independent review” and “Quality Assurance”) might indicate a more active and substantive role by the Respondent, as was alleged by the Applicant. Had the Committee requested additional details from the Respondent and Core IHR as to his role and responsibilities, it would have been significantly better informed in assessing this aspect of the complaint.
25. Notwithstanding any potential interpretation of the Respondent’s role in the IME process, the Board finds that the Record does not support the Committee’s conclusion on this aspect of the complaint, and hence its decision is unreasonable.
26. In returning the matter to the Committee, and in requiring it to conduct a further investigation and render a new decision, the Board recommends that the Committee request more detailed and specific information regarding the Respondent’s role and responsibilities in the IME process, from both the Respondent and Core IHR, and provide the Applicant with an opportunity to comment on such new information.
