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  • FAIR – supporting auto accident victims through advocacy and education

IME

Written Submissions By:, 2016 CanLII 96168 (ON LAT)

http://canlii.ca/t/gx0m2
  1. On October 20, 2016, the Licence Appeal Tribunal (the “Tribunal”) issued an Order following a Motion in S.  G. and The Personal Insurance Company. The order excluded an audio recording (the “recording”) from being admitted as evidence at the upcoming hearing. The recording was made by the applicant while attending an insurer’s examination conducted by Dr. Mascarenhas on January 16, 2015.

Ability to Cross Examine

 

  1. 19.The applicant submits that the Tribunal erred by improperly limiting the applicant’s ability to cross-examine a witness’ credibility. By excluding the recording evidence without considering whether the probative value outweighs its prejudicial effect, the Tribunal improperly limited the scope of the applicant’s cross-examination.

 

  1. 20.The applicant submits that the Tribunal erred in law because the applicant is not able to put forth any questions to the expert witness on cross-examination that relates to inadmissible evidence.  Therefore, if the recording is excluded then the applicant will not be able to question the witness’ credibility.

 

  1. 21.I agree with the respondent’s submission that the Tribunal found that the purpose of the recording was to assess the credibility of Dr. Mascarenhas and that this can be accomplished at the hearing through the evidence of the parties.

 

  1. 22.The applicant can provide oral testimony at the hearing regarding the assessment and his interactions with the doctor and then cross-examine the doctor on any alleged discrepancies.

 

K.H. v M.W.R., 2017 CanLII 465 (ON HPARB)

http://canlii.ca/t/gwtdp

  1. 3.                The Applicant’s insurance company required the Applicant to undergo an independent Temporomandibular Joint Disorders (TMJ) medical examination following a motor vehicle accident on November 24, 2012. The Respondent, who is a general dentist, conducted the examination in the presence of a nurse on October 9, 2013.

 

  1. 4.                Following the appointment, the Applicant raised a number of concerns about the Respondent’s conduct while conducting the examination and the contents of the resulting report, which he detailed in a number of letters.

 

  1. 5.                Specifically, the Applicant felt pain in his ears and face, and experienced swelling. He had soreness and numbness and tingling in his upper lip and problems with his left eye. He associated these symptoms with the examination and reported difficulty holding up his head after the examination.
  1. 6.                Generally, the Applicant was of the view that the Respondent physically and psychologically abused him and prepared a report that was “misleading, inaccurate and biased.”  In his view, the Respondent was motivated to abuse him as “reprisal for rebutting and complaining about the two previous Examiners.”

Federico and State Farm 2016-10-17 Arbitration, Final Decision, FSCO 5029

Turning now to the merits of the case at hand, I find that these two treatment plans were not assessed in an appropriate manner by the Insurer’s assessor, Angela Bertolo of D & D Disability Management.  Without belabouring the point, State Farm’s assessor admitted on cross-examination that if she had been given all of the available information and had more carefully considered the O.T. in-home assessment report dated July 16, 2015 prepared by Theresa Rector and provided by Ms. Federico to State Farm, AND/OR if she had been informed by State Farm that Ms. Federico had not received any occupational therapy modalities whatsoever prior to submitting these two treatment plans in 2015, then her decision and recommendation(s) may/ would have been different.  More telling than this, however, was the admission by State Farm in its final submissions that it conceded that the assessments were of no great value and that they would not be relying upon them.

Shanmuganathan and State Farm 2016-10-17 Arbitration, Final Decision, FSCO 5034

https://www5.fsco.gov.on.ca/AD/5034

Drs. Kavanaugh and Caterer provided reports following their assessments. They also gave evidence. A large part of their income is derived from insurance company assessments. Both do not treat for pain alone. They look for “objective” signs of impairment and try to improve function. Dr. Caterer says that chiropractors who treat pain alone without any “objective” signs of injury are not behaving properly. Treatment for pain alone is not reasonable and necessary. Dr. Kavanaugh says that you don’t get stronger by rubbing body parts, suggesting that massage and physiotherapy are not of much value. These reports do not yield much assistance to the diagnosis of chronic pain by Dr. Wong.[10] I believe the 3 rehabilitation plans are reasonable and necessary.

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Melanie Robbins derives her income from insurance assessments. She performed 2 in-home assessments on the Applicant. Her evidence was strongly influenced by the report of Dr. Kavanaugh. She believed based on the Kavanaugh Report that the Applicant had recovered.

Medical experts aren’t ‘hired guns’ for insurance companies: Ford

Physicians who are medical experts in personal injury cases are neither “advocates” for patients nor insurance companies but rather, are there to provide objective reports about real physiological injuries, says Toronto orthopedic spine and trauma surgeon Dr. Michael Ford.

http://www.advocatedaily.com/michael-ford-medical-experts-arent-hired-guns-for-insurance-companies-ford.html?utm_content=buffer93cbc&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer

S.M. v M.S.R., 2016 CanLII 84119 (ON HPARB)

http://canlii.ca/t/gvx92

  1. 4.                The Applicant was involved in an ongoing accident benefits claim with her own insurer and an ongoing civil action regarding the motor vehicle accidents. From 2006 to 2014, she attended more than 40 independent medical examinations (IMEs) in relation to her accident benefits claim and civil action.
  1. 6.                By letter dated February 17, 2015, the Applicant complained to the College about the Respondent’s conduct at the IME. She expressed concern as follows:

 

  1. i)                  “at an IME with [the Respondent] I felt so uncomfortable that at one point I excused myself, went outside and felt suicidal.  He came out to get me and I returned to complete the session…”
  2. ii)                “I don’t recall exactly what we were talking about but all of a sudden I felt like my whole world was coming to an end. It was the way he was asking me questions… I felt as if he had led me on with his friendliness and then used some kind of interrogation technique, like they would use with a criminal or in a war zone …”

iii)               “Upon leaving I felt as if I had been mentally raped.”

  1. iv)             “I continue to suffer severe stress and anxiety attacks relating to this incident.”

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

In the years after being rear-ended in a car accident, Liese Bruff-McArthur saw a small army of medical professionals. Most agreed the crash had left her with chronic pain, depression, PTSD and other troubles, making a return to work untenable.

http://news.nationalpost.com/news/hired-gun-in-a-lab-coat-how-medical-experts-help-car-insurers-fight-accident-claims?__lsa=2a71-139d

Judge supports Bent’s concerns over changed medical reports

A judge has dismissed a libel suit against London personal injury lawyer Maia Bent, who warned members of the Ontario Trial Lawyers Association (OTLA) of concerns over a doctor’s medical reports, the Toronto Star and National Post report.

http://www.advocatedaily.com/maia-bent-Judge-supports-Bents-concerns-over-changed-medical-reports.html

Wednesday: What’s Hot on CanLII

1. Platnick v Bent, 2016 ONSC 7340

[2] The email communication giving rise to this litigation was made by Ms. Bent – then president-elect of the Ontario Trial Lawyers Association – to a confidential “Listserve” accessible only by those OTLA members who subscribed to it. The email alerted subscribers to an incident that had occurred during the course of her representation of a client in a catastrophic injury claim and provided them with advice for the conduct of similar claims in future. 

http://www.slaw.ca/2016/12/14/wednesday-whats-hot-on-canlii-195/

Bobeta and Aviva 2016-10-31, Arbitration, Expenses, FSCO 5049

 
Aviva relies on the evidence of its assessors set out above as well as on the Applicant’s achievements despite her impairments in successfully completing high school, in being accepted at two universities, in having several friends and extracurricular activities, and in her maintaining a close relationship with her family.  I am not persuaded by Dr. Valentin’s reports or the others prepared by Centric Health Medical Assessments that the Applicant does not suffer a complete inability to carry on a normal life.  I note that, despite the frequent references in the body of Dr. Valentin’s Psychology Report to the Applicant’s tearfulness and anxiety, Dr. Valentin’s conclusions on the non-earner benefits make not a single reference to the Adjustment Disorder with Anxiety which she diagnosed, but instead she included references to physical conditions (not psychological) and the Applicant’s use of Advil for headaches.  Her observations of the Applicant’s emotional stress are consistent with the observations of the treating therapists made during the same time period as this assessment, as well as the evidence of the family and the Applicant.  I find that the Applicant was well aware at least by Grade 11 that she could not process the information in class or in her self-study as quickly as her peers, and that she could not meet the expectations of her teachers and her parents as to the workload and speed that she could work at.  I find that this caused her considerable stress and confusion, and the Adjustment Disorder and Anxiety diagnosed by Dr. Rathbone.  More weight should have been given and further analysis provided regarding the interrelationship between her impairments and her activities.
[]
The Applicant’s trajectory of life, both in its path over the past five years and in its direction in the future, has been significantly altered, and it is not yet clear that the Applicant will have a successful university experience or work career.  The opinions of Dr. Rathbone and Dr. Gates have been confirmed in the Applicant’s work experience since graduating from high school, and I prefer their evidence to that of Dr. Valentin.  The accomplishments relied on by Aviva are only a cover that hides the significant impact on the functioning of this person, who struggles with the symptoms of Adjustment Disorder and Anxiety and the cognitive deficiencies identified by Dr. Gates and Dr. Rathbone.
[]
I am satisfied on the evidence that the denial of the non-earner benefits in November 2013 was not properly supported by the assessments relied on by Aviva, and that the Applicant did suffer a complete inability to lead a normal life as defined in her life.  Her impairments are a significant restriction on her participation in the significant activities and relationships in her life.  Throughout high school, the manner in which she participated in school and the quality of the performance, not just the grades she achieved, but the way she achieved those results, is such that she was substantially unable to live a normal life as defined by her pre-accident life.  She required significant increases in time to accomplish tasks post-accident.  She required significant support from her family, MM, and her therapists.  Time constraints and supports were required that her trajectory would never have contemplated but for the accident.  She has been left behind by her school friends.  She contends with an Adjustment Disorder and Anxiety and cognitive deficiencies which are well-documented in the evidence.