IME

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

by Admin2

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

Czombos v Wawanesa – Summary of Decision

Jedean and Aviva FSCO Arbitration, 2018-01-11

by Admin2

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.

Cruz v. Saccucci, 2017 ONSC 7737 (CanLII)

by Admin4

http://canlii.ca/t/hphjh

Corrected Decision: A short style of cause and neutral citation number was added for publishing purposes on December 28, 2017.

December 28, 2017: CITATION: Cruz and Cruz v. Saccucci, 2017 ONSC 7737 was added.

[7] The surreptitious recording of the examination was improper. The effect of this recording is the doctor would now, most likely, be subject to cross-examination on issues as to what exactly happened in the course of the examination. The evidence of the plaintiff is also relevant. Mr. Cruz may be examined or cross-examined on the transcript. If the doctor was aware of the recording, he may have conducted his examination a different way. He may have been clearer in the language used. He may have been more specific is instructions given to the plaintiff. Much of the communication that goes on is nonverbal. The doctor was denied an opportunity to ensure that his words and conduct were being accurately recorded.

[8] The defendant has now been placed in the position that the evidence of her expert may be undermined. In any event, there is an additional layer added to the testimony of the plaintiff and the doctor.

[9] The defendant’s expert is required to execute his acknowledgement of duty. He has a duty to the court. The defendant is entitled to expect that her experts will provide the court with his or her opinions relevant to the issues in this proceeding. The issues in this proceeding are the damages suffered by the plaintiffs as a result of the motor vehicle accident. It is unfair to the defendant to have her expert potentially compromised based on some improper conduct on the part of the plaintiff.

What the court thinks of secretly recorded medical exams

by Admin4

A plaintiff in a motor vehicle bodily injury lawsuit should not have secretly recorded a medical exam conducted by a doctor hired by the defendant, an Ontario court ruled last week.

https://www.canadianunderwriter.ca/insurance/court-thinks-secretly-recorded-medical-exams-1004125790/

Insurance assessment firms altered, ghostwrote accident victim reports

by Admin4

Globe investigation finds billion-dollar companies that are paid by auto insurers hire doctors to assess accident victims in a process called independent medical evaluations, and then edit and package those medical reports. In some cases, arbitrators and judges have rejected the assessment reports because the companies altered the medical professionals’ opinions in the insurer’s favour.

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

Surreptitious recording of IME warrants a re-do

by Admin4

The surreptitious recording of the examination was improper. The effect of this recording is the doctor would now, most likely, be subject to cross-examination on issues as to what exactly happened in the course of the examination. The evidence of the plaintiff is also relevant. Mr. Cruz may be examined or cross-examined on the transcript. If the doctor was aware of the recording, he may have conducted his examination a different way.

https://allaboutinformation.ca/2018/01/03/surreptitious-recording-of-ime-warrants-a-re-do/

Medical experts as third-party referees

by Admin4

The legal system could use medical experts as third-party experts and not witnesses who appear in court either for the defendant or the plaintiff, says Toronto orthopaedic spine and trauma surgeon Dr. Michael Ford.

http://www.advocatedaily.com/michael-ford-medical-experts-as-third-party-referees.html

FAIR letters to Colleges regarding insurer medical (IME) assessors Dec 2017

by Admin2

FAIR letter to CPSO re investigating Drs Dec 14 17

FAIR letter to CPO re investigating Dr Lawson

FAIR letter to COTO re investigating OTs Jan 18 2018 and additional info: Transcripts of Hadassah Lebovic

On behalf of our members and the public we requested that CPSO, the CPO and the COTO investigate the medical assessors who were the focus of recent media attention.

Licensed to bill: How doctors profit from injury assessments that benefit insurers

Insurance assessment firms altered, ghostwrote accident victim reports

Hired gun in a lab coat: How medical experts help car insurers fight accident claims

We are asking Colleges to be pro-active before more harm takes place.

The list of insurer physicians and assessors mentioned in these articles is extensive and it appears most, if not all, of these doctors have been in front of their regulatory College on more than one occasion. Every judicial criticism is a reflection of harm to victims and a statement on the lack of regulatory authority; it is a failure to be pro-active then and now as Ontario’s accident victims are attending medical exams today.

CPP Benefit Claims – Does Choosing Your Own Doctor Affect Your Success?

by Admin4

Any person who makes a claim for Canada Pension Plan (CPP) disability benefits must supply medical evidence that he or she has a “disability” within the governing legislative definition. This is routinely done through expert evidence provided by a qualified, impartial doctor to whom the claimant has been referred by other treating physicians.

http://www.vandykelaw.ca/2017/12/cpp-benefit-claims-choosing-doctor-affect-success/

Is An Expert Diagnosis Required to Prove Mental Injury?

by Admin4

In an action for negligence, a plaintiff may make a claim for mental injury resulting from the defendant’s conduct. For years, the common law has struggled with the question of whether the plaintiff needs to tender expert evidence to prove that she has suffered a recognized mental illness. A 2017 decision of the Supreme Court of Canada, Saadati v. Moorehead, 2017 SCC 28, puts this question to rest and reflects an important evolution regarding the legal treatment and understanding of mental injury.

https://www.lexology.com/library/detail.aspx?g=350c62bd-20cc-4887-9691-8a0772d8efef&utm_source=lexology+daily+newsfeed&utm_medium=html+email+-+body+-+general+section&utm_campaign=lexology+subscriber+daily+feed&utm_content=lexology+daily+newsfeed+2017-12-08&utm_term=