IME

http://www.canlii.org/en/on/onhparb/doc/2014/2014canlii28540/2014canlii28540.html

DECISION

1.                  It is the decision of the Health Professions Appeal and Review Board to confirm the decision of the Inquiries, Complaints and Reports Committee of the College of Psychologists of Ontario to offer the following advice to the Respondent:

It is important to remain attentive to the perceptions of clients surrounding confidentiality. Where possible you and your staff should consider appropriate safeguards to minimize the risk of breach, whilst taking steps to assure and maintain client confidence.

2.                  This decision arises from a request made to the Health Professions Appeal and Review Board (the Board) by J.C. (the Applicant) to review a decision of the Inquiries, Complaints and Reports Committee (the Committee) of the College of Psychologists of Ontario (the College). The decision concerned a complaint regarding the conduct and actions of C.W., Ph.D., C.Psych (the Respondent). The Committee investigated the complaint and decided to offer advice to the Respondent as described above.

II.        BACKGROUND

3.                  The Applicant was in a motor vehicle accident in August of 2008. The Economical Insurance Group referred the Applicant to the Respondent for an independent neuropsychological assessment report.

4.                  The assessment took place on May 3, 2012.

5.                  As part of the assessment, the Respondent asked the Applicant to complete a test. The Respondent left before the Applicant completed the test and directed the Applicant to leave it with the building receptionist when he finished the test.

6.                  The Respondent reported that, from a neuropsychological perspective, the Applicant was not experiencing significant psychological or emotional impairment.

III.      REQUEST FOR REVIEW

10.              Dissatisfied with the decision of the Committee, in a letter dated April 25, 2013, the Applicant requested that the Board review the Committee’s decision. In his six-page letter, he summarized, “The issue I wish to dispute was related to [the Respondent’s] professional conduct, wrong diagnosis, and the inaccuracies in his reporting … I wish to be treated fairly. I am not after financial reward for this complaint. I only make the complaint because his report did to me a serious injustice, and I would not like the same done to another in my position. If I were to get one thing, it would be that [the Respondent’s] report on me be invalidated.”

Issue Three: Confidentiality

48.              The Committee noted the Applicant’s concern about this incident serving to breach his confidentiality. While noting that it would have been impossible to determine the extent of any potential breach of confidentiality, the Committee expressed concern that the Applicant, as a client, perceived that his confidentiality had not been secure. The Committee expressed the view that it was important for members to take appropriate action to ensure that confidentiality and the perception of confidentiality is maintained at all times.

49.              In view of this, the Committee offered the Respondent the following advice in an effort to both improve his practice and prevent similar occurrences in the future:

It is important to remain attentive to the perceptions of clients surrounding confidentiality. Where possible you and your staff should consider appropriate safeguards to minimize the risk of breach, whilst taking steps to assure and maintain client confidence.

50.            The Board finds the Committee’s conclusion in this regard to be reasonable. The Board considers significant that the advice will remain on the Respondent’s permanent (although private) record with the College, and may be considered should another complaint arise in the future. Thus, the Board finds that the advice issued to the Respondent communicates the seriousness of his conduct and importantly, acknowledges the merits of the Applicant’s complaint. The advice is both educative and remedial. An advice is one of the options available to the College to enable it to fulfill its mandate to protect the public.

http://www.canlii.org/en/on/onhparb/doc/2014/2014canlii30272/2014canlii30272.html

32.              In her complaint letter dated September 1, 2011, the Respondent indicated, “[the Applicant’s] medical opinion as set out in the report contained inappropriate personal opinions as to her character. … [The Applicant] improperly permitted these personal opinions to inform his medical opinion as evidenced by the report itself.” The Respondent stated that the Applicant’s ill-informed and personal opinions as to her “personality style” were not relevant or proper in discussing her medical diagnosis.

33.              The Committee indicated it had an opportunity to review the IME report that the Applicant produced following the Applicant’s assessment of the Respondent. The Committee stated that it “found [the report] skimpy, almost casual, and simply unacceptable as a serious and credible psychiatric evaluation.” In the Committee’s view, “it showed many deficiencies of diagnosis and formulation.” The Committee stated that its concerns about the Applicant’s approach in this case was compounded by the fact that it was aware that the Applicant had, in the past, been the subject of complaints to the College regarding his approach to psychiatric IMEs, and that the Committee had sanctioned him in the past regarding aspects of his practice. The Committee also stated that the Applicant’s “approach betrays deficiencies in his management of patients who may have PTSD. He needs to be aware of all criteria for PTSD so he can screen for it, and manage it, if found.”

34.              In reaching its decision, the Committee noted that the Applicant’s comments in his report about the Respondent’s personality style were odd in that the Applicant focussed on the fact that the Respondent went on holiday with a colleague and did not address questions relevant to assessing the Respondent’s premorbid personality. The Committee noted that the Applicant did not document anything about premorbid personality in his report. The Committee also noted:

Personality is relevant to a psychiatric consultation or assessment. [The Applicant], however, did not explain it in the context of a proper diagnostic grid. Axis II refers to personality disorders and traits and [the Applicant] did not present a formal and detailed diagnosis. Under “Axis II” in [the Applicant’s] report, he marked nil. [The Respondent’s] psychologist and psychiatrist did not document anything about personality. Her psychiatrist also put “nil” for Axis II.

35.              Given the totality of this information, the Committee decided to caution the Applicant in person regarding the thoroughness of his IME assessment and report and further required that the Applicant provide a written report with respect to assessment and management of PTSD and the components of a psychiatric assessment.

36.              At the Review, the Applicant submitted that the Committee’s conclusion regarding the Applicant’s practice management of patients with PTSD was outside the scope of this complaint. The Applicant argued that the Committee’s conclusion was too broad given that it limited the investigation to the Respondent’s IME. Furthermore, the Applicant submitted that if the Committee had concerns about his practice management of patients with PTSD, it should have given him the opportunity to respond to this aspect of the Committee’s concerns. He commented that this aspect of the Committee’s decision should be further investigated and reconsidered. The Applicant noted that his comments in the IME report regarding the Respondent’s personality style may have been clearer under another section of the report rather than under the DSM IV and diagnosis section.

37.              As indicated earlier, the Board finds that the scope of the Respondent’s complaint involved the accuracy and appropriateness of the IME report, including her concerns about the inclusion of comments about her character and her personality style. In examining the Committee’s decision, the Board observes that the Committee examined the IME report and other information in the Record and found it had concerns about the Applicant’s approach, stating more specifically that his “approach betrays deficiencies in his management of patients who may have PTSD” and the criteria for PTSD. The Committee commented that the Applicant “referred to personality disorders and traits and [the Applicant] did not present a formal and detailed diagnosis.” The Committee noted that under Axis II (personality disorders and traits), the Applicant marked “nil”. The Committee further noted that the Respondent’s psychologist and her psychiatrist did not document anything about personality and also put “nil” under Axis II.

41.              The Committee noted that the Applicant’s approach betrayed deficiencies in his management of patients who may have PTSD. The Committee indicated that the Applicant needed to be aware of all criteria for PTSD so he can screen for it, and manage it, if found. The Board does not agree with the Applicant’s submission that this conclusion falls outside the scope of the Respondent’s complaint or that it required additional records to arrive at this conclusion. The Committee reviewed the Applicant’s approach to the IME in this case, considered his conduct history and identified areas where he could improve his future practice regarding patients who may have PTSD. Given the College’s legislated public interest mandate and its duty to maintain professional standards, the Board finds reasonable the Committee’s request that the Applicant provide the Committee with a written report with respect to assessment and management of PTSD and the components of a psychiatric assessment.

45.              Pursuant to section 35(1) of the Code, the Board confirms the Committee’s decision to:

i)                    require that the Applicant attend the College to be cautioned in person with respect to the requirement of maintaining confidentiality of personal health information, and with respect to the thoroughness of his IME assessment and report; and

ii)                  request that the Applicant provide the Committee with a written report, approximately 2-4 pages in length, with respect to assessment and management of PTSD, and the components of a psychiatric assessment, and with respect to law and policy regarding privacy of personal health information.

https://www5.fsco.gov.on.ca/AD/4199

There is no evidence before me that Mr. Basra is not trustworthy or that he purposely mislead assessors. Dr. Edward Mah, a chiropractor who conducted an insurer examination, testified that he detected exaggerated pain responses, inconsistent tenderness and overreaction when there was nothing physical to explain Mr. Basra’s pain. However, in cross-examination, he agreed that pain amplification could be a descriptor of chronic pain disorder and clarified that he did not test Mr. Basra for chronic pain.

However, in cross-examination, Dr. Mah admitted that pain amplification could be a descriptor of chronic pain and agreed that there could be a physical cause for chronic pain. However, at no time, according to Dr. Mah, did he test Mr. Basra for chronic pain. Dr. Mah confirmed on cross examination that he has never authored a single article on the subject of chronic pain disorder and his last documented hours for chronic pain management were in February 2005. Subsequent to the assessment with Dr. Mah, Mr. Basra was diagnosed with chronic pain by Dr. Ogilvie-Harris. Dr. Ogilvie-Harris, who testified at the hearing, was qualified as an expert in orthopaedic surgery with a special interest in chronic pain. I prefer the expert evidence of Dr. Ogilvie-Harris with respect to Mr. Basra’s chronic pain and give little weight to Dr. Mah’s opinion regarding Mr. Basra’s ability to return to his employment.

https://www.canlii.org/en/on/onhparb/doc/2014/2014canlii24764/2014canlii24764.html?searchUrlHash=AAAAAQAGaHBhcmIgAAAAAAE

The Complaint and the Response

8.                  The Applicant complained that Dr. D.:

•                     failed to conduct an adequate IME and failed to determine that she has a disability;

•                     failed to provide an adequate report resulting from her IME in that the report contained many inaccurate statements; and

•                     failed to administer his office practice in a proper manner in that on July 12, 2011, his elevator was out of service and the floor in his office was uneven, creating a tripping hazard for his patients.

9.                  The Applicant complained that Dr. V.:

•                     failed to provide an accurate report resulting from her IME in that he made an inaccurate diagnosis of her and made many inaccurate statements throughout his report; and

•                     behaved in an unprofessional manner in that he failed to respond to Sibley & Associates when she filed a complaint with them regarding his IME.

27.              A preliminary issue that arose at the Review was whether, in determining whether the Committee’s decision is reasonable, the Board should consider documents submitted to the Board by the Applicant at the Review, including recent information related to the Applicant’s health. While the Board has no reason to question the veracity of the information contained in this documentation, it does question the relevance of the documents as to whether the Committee’s decision is reasonable in light of the information it had before it. As a rule, the Board cannot fault the Committee for failing to consider information that arose after its decision was rendered. One exception to this rule might be post-decision information suggesting bias or conflict of interest on the part of one or more Committee members, but the recent information proffered by the Applicant related to neither of these issues. For these reasons, the Board did not consider this “new” documentation in its deliberations.

48.              The Board finds that given the scarcity of information regarding this matter, and the discrepancies concerning the dates, it was reasonable in the circumstances for the Committee to take no action regarding this aspect of the Applicant’s complaint.

https://www.canlii.org/en/on/onsc/doc/2014/2014onsc2550/2014onsc2550.html

[17]      The novel legal issue raised by the parties to this motion is: “What is the appropriate test for the court to determine whether to exclude a health practitioner from conducting a defence medical assessment?”  That issue requires a consideration of the appropriate test for the court to order that a defence medical assessment be videotaped or audiotaped, which is also relevant to the Plaintiff’s alternative submissions.

[18]      The Plaintiff submitted that the court should exclude a health practitioner from conducting a defence medical assessment when it finds, on the balance of probabilities, that the proposed assessor is not competent, biased or that there is a reasonable apprehension of bias.

[19]      The Defendants submitted that the court should exclude a health practitioner from conducting a defence medical assessment only when it finds, on substantial and compelling reasons or perhaps even a higher threshold, that the proposed assessor is either not competent, biased or that there is a reasonable apprehension of bias.

[20]      For the reasons I discuss below, I accept the Defendants’ position and find that at a minimum, substantial and compelling reasons are required before the motions court can exclude a health practitioner from conducting a defence medical assessment.

[21]      However, while I discuss the applicable legal test since the issue is raised by the parties and has not been directly considered in the case law, the appropriate test to exclude a health practitioner from an assessment is not determinative in this case.  Even on the Plaintiff’s proposed “balance of probabilities” test, the Plaintiff has not led evidence to satisfy the court that Dr. Reznek is not competent or would be biased or present a reasonable apprehension of bias if he were to conduct the medical assessment.  I address the evidentiary issues later in these reasons.

https://www5.fsco.gov.on.ca/AD/4142

(2)  Consequently, State Farm had Ms. Morelli seen at an insurer’s medical examination (“IME”) by three medical examiners, Dr. D. Young, psychologist, Dr. B. Clark, physiatrist and Dr. J. Richman, an occupational medicine specialist.

(5)  State Farm’s examination consisted of all three separate IME reports. The Arbitrator found that State Farm was obliged to ensure that both Ms. Morelli and Dr. Persi received all three IME reports, as well as receiving State Farm’s determination whether Ms. Morelli had sustained a catastrophic impairment. Where only some of the reports are provided, or a summary of several reports and a finding, the insured’s health practitioner is unable to fully examine and dissect the IMEs and determine what to rebut. (2)  Consequently, State Farm had Ms. Morelli seen at an insurer’s medical examination (“IME”) by three medical examiners, Dr. D. Young, psychologist, Dr. B. Clark, physiatrist and Dr. J. Richman, an occupational medicine specialist.

The Arbitrator found that State Farm did not comply with subsection 40(4) because it did not send all of its CAT IME reports to Dr. Persi, having provided only Dr. Clark’s assessment and Dr. Richman’s executive summary.

________________________________________________________________

http://canlii.ca/t/g0c3b

4.                  As part of her practice as a registered physiotherapist, the Respondent is regularly retained by medical assessment companies and insurers as an independent third party assessor to perform examinations to assist in determining the reasonableness and necessity of continued coverage for physiotherapy treatment.

5.                  In performing her assessments, the Respondent reviews the medical records provided to her by the insurer and may conduct an examination, which includes taking a history, and performing a physical examination and testing of the subject. In other cases, the Respondent bases her assessment solely on a paper review of the subject’s medical file. The nature of the assessment and the content of the medical record reviewed by the Respondent are determined by the insurer.

6.                  The Applicant was referred to the Respondent for six independent assessments. The Respondent provided in-person, physical examinations of the Applicant on four occasions and conducted two assessments based on a paper review of the Applicant’s medical records.

7.                  The Respondent’s assessments of the Applicant done on December 7, 2010 and May 17, 2012 each concluded that the proposed treatment plans were entirely reasonable and necessary. The assessments done on March 24, 2011 and July 14, 2011 concluded that the proposed treatment plans were partially reasonable and necessary. The paper review assessments done on August 29, 2011 and March 12, 2012 concluded that the proposed treatment plans were not reasonably necessary.

The Complaint and the Response

8.                  The Applicant complained:

•           The Respondent repeatedly made negative comments about the Applicant’s treating physiotherapist. The Respondent stated that his physiotherapist’s “lack of information provided in reports is hurting [the Applicant] and [resulting in him] having to go through IME after IME”;

•           The Respondent submitted reports that were “riddled with mistakes” and she quoted him making statements that are “completely ludicrous”;

•           He believes that the Respondent’s “opinion seems to be favouring [his] insurance company’s bottom line”;

•           The Respondent failed to amend her report dated March 13, 2012 after additional documentation was provided to her; and

•           At his assessment on July 14, 2011, the Respondent “suggested to [him] that it might be in the best interest for [her] to call [his treating physiotherapist] directly” for clarification of an OCF-18 form; however, the Respondent failed to follow up with the treating physiotherapist.

9.                  The Respondent responded to the areas of concern raised by the Applicant as follows:

•           She advised the Applicant that some of the treatment plans submitted by his treating physiotherapist lacked an explanation as to why the proposed treatment was reasonable and necessary, and that this resulted in the Applicant having to undergo repeated assessments. She meant no disrespect to the Applicant’s treating physiotherapist and, in fact, complimented the progress the Applicant was making under his treating physiotherapist.

•           The Respondent acknowledged that there were some minor inaccuracies in her reports but stated that she relied on information the insurer and the Applicant provided to her and noted that none of the inaccuracies was material to the conclusions in her assessment reports.

•           The Respondent acknowledged that she does copy basic information from one report to another, citing that this is common practice, and thus avoids having to cover this prior ground each time.

•           The Respondent stated that her reports were not biased in favour of the insurer and noted that her opinions were, for the most part, favourable to the Applicant.

•           The Respondent stated that she was not aware of any further information being provided to her after the paper review of March 13, 2012 and noted that she was never asked by the insurer to complete an addendum report based on new information.

•           The Respondent denied that she offered to contact the Applicant’s treating physiotherapist and stated that it was not her usual practice to do so during the assessment process. She suggested that the Applicant may have confused this point with her willingness to speak with treating medical professionals after her assessment and report were completed.

The Committee’s Investigation and Decision

10.              The Committee investigated the complaint and decided to provide the Respondent advice about ensuring the accuracy of her reports and the need to ensure that her practice in this regard is appropriate and to take no further action.

http://canlii.ca/t/g0n2f

The Complaint and the Response

5.                  The Applicant complained about the Respondent’s examination and conclusion. She took issue with many aspects of the assessment. For example, the Respondent concluded that the Applicant suffered from significant lower back pain several times a month while the Applicant asserted she experiences such pain every day. The Respondent noted a curvature of the spine in the IME report, which the Applicant complained was false. The Respondent concluded that the Applicant was not impaired by any accident related injury from continuing her schooling and the Applicant complained that this assessment was false.

6.                  In addition, the Applicant complained about the way in which the Respondent conducted the IME, alleging that the Respondent rushed through the assessment, failed to conduct a physical examination, and failed to consider x-ray and radiographic reports.

7.                  The Respondent provided a detailed rebuttal of the allegations, explaining the basis for each conclusion in his observations during the IME or the available medical records. He noted that all available records were reviewed, and that a physical examination was not necessary for the IME. Further, he denied that the IME was rushed, or conducted in an improper fashion.

http://canlii.ca/t/g0c3g

7.           […]The Respondent notified the Committee that, through the complaints process, she had discovered that Riverfront Medical Services (Riverfront), the company through which the Applicant’s assessment was contracted, had changed the Respondent’s report without her prior knowledge or consent.

9.                  As a result of its investigation, the Committee decided to take no further action, noting that the Respondent reported information that she considered to be accurate and that there did not appear to be any indication that the Respondent intentionally falsified factual information in the report or that she misrepresented information about the Applicant’s abilities during the assessment.

10.              However, the Committee did express concern about the information uncovered during the course of the investigation related to Riverfront having altered the Respondent’s report. The Committee noted the “egregious” impact that these changes could have had on the Applicant’s entitlement to benefits. In the result, the Committee decided to offer advice to the Respondent about the importance of ensuring that she personally reviews and approves any assessment report she completes prior to the report being issued.

http://canlii.ca/t/1q596

[1]            In the course of this jury trial I ruled that Dr. Frank Lipson, who had conducted a defence medical of the plaintiff, not be permitted to testify as an expert witness on behalf of the defence. Dr. Lipson had testified that a medical report purportedly signed by him had not been signed by him.  He stated that his signature stamp had been affixed to the report without his authority by an individual at Riverfront Medical Evaluations Limited (Riverfront) the company who had retained him to conduct the defence medical. […]

[2]            I have deliberated for a very long time before delivering these reasons. Although the action out of which the problem arose has long been concluded, this case raises vexing issues as to what role may be properly played by organizations such as Riverfront in the formulation of an expert witness’ opinion.

[43]        Twenty percent of their physicians conduct their assessments off site in which case the physicians will prepare their reports and send it to Riverfront by fax or other electronic means.  Riverfront performs its quality control function and sends the report to the physician for comments if required.  After consultation with the physician, the report will be prepared on Riverfront’s letterhead and signed by the physician or as in the case at bar a signature stamp is affixed to the report, which is sent to the referring client.

[44]        In many cases Riverfront has a signature stamp of the doctor, which the doctor authorizes them in writing to use. Dr. Levy produced a letter dated January 5, 2004 in which Dr. Lipson authorized Riverfront to utilize a signature stamp/electronic signature when issuing assessment reports – “when I am unable to directly provide my signature”.  The authorization provides that signature stamp would only be used “once I have approved the final copy of my report”.

[88]        It is stating the obvious that an expert’s report delivered for the purpose of compliance with the Rules of Civil Procedure and the Evidence Act is an extremely important document. Anyone involved in the preparation of such reports must know that courts place a very strong reliance on the contents of these reports and that the proper administration of justice demands that these reports accurately reflect the opinion of the expert who has written them. The requirement in the Rules of Civil Procedure and the Evidence Act that the expert sign the report is intended to provide assurance that the statements in the report are those of the expert.

[100]   Expert witnesses play a vital role in proceedings before the courts both in civil and in criminal matters. In personal injury actions in particular, the evidence of the expert witness may be the determining factor in the resolution of the plaintiff’s claim In the case of health practitioners, section 52 of the Evidence Act provides under certain conditions, the report may be filed in place of the viva voce evidence of the health practitioners. The court is entitled to assume that the report represents the impartial opinion of the expert.

[101]    In my view Riverfront in this case, went far beyond what can be considered a proper “quality control” function. While I am not prepared to find that they were motivated by a desire to assist the defendant, nonetheless I find their actions constituted an unwarranted and undesirable interference with the proper function of an expert witness.

[102]   The function of an expert witness is to provide an independent and unbiased opinion for the assistance of the court. An expert witness’ evidence should be and should be seen to be the independent product of the expert uninfluenced as to form and content by the exigencies of litigation.[2]  This principle has often been cited with approval in our courts, and has been considered a factor to be considered in asessing the weight to be given to the expert’s testimony.  It has occasionally been treated as the basis for the disqualification of the witness entirely.[3]

[103]   In my view any activity that may tend to detract from this all-important objective diminishes the integrity of the litigation and trial process and should be met with appropriate sanctions designed to send a clear message that such conduct will not be tolerated.