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The Independent Insurer Medical Examination IME/IE

‘FAIR – supporting auto accident victims through advocacy and education’

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.
                                                                                                                              ________________________________________________________________________________

FAIR believes that our government can and should do a better job to ensure that all accident victims are treated fairly so that they have the best possible chance of reaching maximum recovery after an automobile accident.

Ontario’s accident victims are legislated to attend Independent Medical Examinations (IME or IE) when they make an insurance claim. Unlike any other visit to a doctor, claimants have no choice in who their assessor might be, that decision is made by their insurer.

During an IME, vulnerable and injured accident victims are no longer ‘patients’ but are now ‘clients’ to whom the physician owes no ‘duty of care’. Far too often the assessor provides an unqualified, biased or shoddy assessment that becomes part of a claimants’ medical file. Rehabilitation and benefits are often discontinued based on a flawed report and it can take years to have treatment and benefits reinstated.

Worse yet, our government now intends to fine claimants $500 for failing to appear at an assessment when ordered to do so. Accident victims should be very concerned when attending these assessments when there is no real and reliable oversight, no way of knowing whether that assessor has a multitude of complaints about the quality of their work that their College has kept secret and out of sight. A recent search of the FSCO Arbitration Unit Decisions found that the Arbitrators have described what they are asked to accept as ‘evidence’ as “inaccurate, failed, misleading, defective, incomplete, deficient, not correct and flawed” in only two of the more recent Decisions.

How is the vulnerable and sometimes brain-injured accident victim supposed to ferret out the information on secret College censures that have kept the public in the dark about the quality of the medical services provided to Ontarians? Are accident victims supposed to call the FSCO for passwords so that their Decisions are accessible for reading? Adverse comments about IME vendors are deeply buried in Decisions few accident victims ever read. So the accident victim is kept in the dark about the qualifications of the IME assessors and must attend at his/her own risk. For this reason alone, Ontario’s MVA victims shouldn’t attend assessments without a family member or friend to accompany them to keep notes and records.

This has worked out well for Ontario’s insurance industry and for those for-hire physicians who provide insurers with the medical reports used to decide whether or not an injured claimant is entitled to treatment and benefits. The lack of accountability has allowed a small group of pro-insurer physicians and assessors to operate without fear of consequences while providing insurers and our courts with flawed and substandard IME reports. Reports that are then used to disqualify legitimately injured auto accident victims.

Seriously injured claimants will never get fair treatment unless/until the quality of insurer assessments (IMEs) denying them policy benefits (including treatment benefits) finally improves.

Poor quality insurer assessments have been an enduring problem for Ontario auto accident victims. Some of the medical assessors and medical authorities who have been the key architects of our insurance compensation system have the opinion that many injured claimants exaggerate their impairments for opportunistic gain.

Some of these ‘experts’ have been sketchy characters. For example, when No-Fault insurance was first adopted, for several years Dr. James N. Sears http://www.torontosun.com/news/torontoandgta/2008/12/31/7891486.html passed himself off as the Ontario “medical authority” on opportunistic fraud in the auto insurance casualty context. Dr. Sears wrote many articles denigrating injured Ontario auto accident claimants by painting them as “fraudsters”. But as it turned out – the auto insurers’ “medical authority” on fraud, Dr. Sears, wasn’t even a licensed physician. His licence to practice medicine had been revoked a year before he became the industry’s most prolific “medical authority” on medical fraud. But Dr. Sears set a standard of claimant bashing and abuse that became acceptable and it continues to this day. Some physicians whose sole source of income is through insurer sponsored IMEs have, through their reports, disqualified many thousands of legitimate and vulnerable accident victims.

Sure, there are good and bad assessors, but that is the problem in a nutshell. Shouldn’t ALL IME reports be accurate when the quality of life for our most vulnerable citizens lays in the balance?

So FAIR will instead be looking to more credible voices. We will be looking to the impartial Judges and Arbitrators to see what they have had to say on the topic of the quality of the IME product in Ontario. Surely we can trust the Judges and triers of fact. They speak to us through their Decisions and so we will look to those Decisions and provide their commentary aimed at the assessments they wade through on a daily basis as they adjudicate cases.

FAIR believes all ‘rogue’ assessors ought to be purged from the system – whether providing (on a fee for service basis) substandard, unqualified or flawed assessments to insurers – or to plaintiff lawyers – or to both.

FAIR believes that any assessor who has been the subject of repeated adverse judicial commentary due to unqulaified, incomplete, or shoddy assessments – that assessor should be barred from participating in the system (a suggestion made in a recent Toronto Sun column).“If a judge or arbitrator has made critical or adverse comments concerning a health professional make the comments public rather than leave them buried in decisions that few read. Allow adverse comments made about a health professional to be used against the health professional in subsequent cases and disallow the use of any professional who has been the subject of three adverse comments. We can get rid of shoddy, biased independent medical examinations — but only if we want to.”     (http://www.torontosun.com/2012/11/30/concern-for-professional-reps) Saturday December 01, 2012.

In the interests of ending the practice of tolerating substandard IMEs/IEs, here are links to cases with quotes from the triers of fact that speak to the quality of these (IME/IE) assessments. We’ve posted the links to columns and articles related to the decisions at the bottom of the excerpts.

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Daggitt v Campbell, 2016 ONSC 2742 (CanLII), <http://canlii.ca/t/gpqm3

Positions of the Parties

[4]                    The plaintiff’s position is two-fold. Firstly, the plaintiff submits that the defendant is not entitled to an independent medical examination by a psychiatrist as the plaintiff was never treated by a psychiatrist and because there is insufficient evidence of why an assessment by a psychiatrist is warranted. The plaintiff asks that the motion be dismissed. Secondly, the plaintiff submits that Dr. Monte Bail, the psychiatrist chosen by the defendants, has demonstrated such clear and definitive defense bias in many previous cases that the court should decline to make any order allowing any independent medical examination by Dr. Monte Bail in particular.

[5]                    The defendants’ position is that they can decide what speciality of medical doctor they wish to have examine the plaintiff. The defendants submit that to properly defend the claim, they need to provide opinion evidence as to the plaintiff’s depression and mental healthrelated injuries from a psychiatrist and that they can select any qualified psychiatrist of their choice.  Dr. Monte Bail is the psychiatrist of choice selected by Mr. Todd McCarthy, trial counsel for the defendants, in spite of objections raised by the plaintiff as to previous findings that Dr. Bail was not credible and failed to honour his written undertaking to the court in Rule 4.1.01.  The defendants ask that the motion be granted.  A tentative date for the examination by Dr. Bail has been booked for May 30, 2016.

[26]               While it is unnecessary for me to decide the second issue of the relief requested by the plaintiffnamely, whether to not allow Dr. Monte Bail to conduct a defense psychiatric examination due to his failure to adhere to the principles of fairness, objectiveness and impartiality and his defense biasI make the following observations and comments by way of obiter dicta. I find the plaintiff’s argument on this issue compelling.  Rule 4.1.01 makes it clear that an expert’s duty to the court prevails over any obligation owed by the expert to a party. The Supreme Court of Canada has held that an expert witness who is unable or unwilling to comply is not qualified to give expert opinion evidence and should not be permitted to do so. (See White Burgess Langille Inman v. Abbott and Haliburton Co.2015 SCC 23 (CanLII), [2015] 2 S.C.R. 182).

[27]               When an expert and that expert’s report is notably partisan, acts as judge and jury, advocates for the insurer rather than being impartial, is not credible, and fails to honour the undertaking to the court to be fair, objective, and non-partisan, it directly affects a party’s right to a fair trial.

[28]               Kane J. in Bruff-Murphy v. Gunawardena2016 ONSC 7 (CanLII)held that Dr. Bail was not a credible witness and that he failed to honour his obligation and written undertaking to be fair, objective and non-partisan pursuant to Rule 4.1.01 (see paras. 53-125). He did not meet the requirements under Rule 53.03. Justice Kane found that Dr. Bail’s report and testimony was not of a psychiatric nature but was presented under the guise of expert medical testimony and the common initial presumption that a member of the medical profession will be objective and tell the truth.  He further held that the purpose of Rule 4.1.01 is to prohibit and prevent such testimony in the guise of an expert, and that “Dr. Bail undertook and thereby promised to not do what he did in front of this jury.” Importantly, Justice Kane held that, “I will not qualify witnesses as experts in the future whose reports present an approach similar to that of Dr. Bail in this case.”

[29]               Additional critical findings in relation to Dr. Bail can be found in Gordon v. Greig (2007), 46 C.C.L.T. (3d) 212 (Ont. S.C.J.), at paras. 43-48;Sidhu v. State Farm Mutual Automobile Insurance Co., 2014 CarswellOnt 18595 (F.S.C.OArb.), at para. 68; Sohi v. ING Insurance Co. of Canada, 2004 CarswellOnt 3236 (F.S.C.O. Arb.), at paras. 35-41; Gabremichael v. Zurich Insurance Co., 1999 CarswellOnt 4480 (F.S.C.O. Arb.), at para. 132; and Rocca v. AXA Insurance (Canada), 1999 CarswellOnt 5506 (F.S.C.O. Arb.), at para. 66.

[30]               The recent changes to the Rules to require experts to undertake to the court to be fair, objective, and non-partisan has done little if anything to curb the use of certain favoured biased “hired guns” by the parties. The consequences of an expert signing the undertaking and failing to honour their obligation in their expert report or evidence is simply the rebuke of the court.  This does nothing to prevent that same expert from being further retained and repeating the process over again in other trials as long as trial counsel are willing to retain them.

[31]               Rule 33.02 provides that the court shall name the health practitioner by whom the independent medical examination is to be conducted. It could be argued that the court, in the exercise of its discretion, should therefore consider and determine in appropriate cases whether or not the proposed named health practitioner is biased in favour of a party on the balance of probabilities and therefore fails to qualify as an expert under Rule 4.1.01. The court’s discretion would therefore include the discretion not to name a particular health practitioner if that health practicioner fails to meet the criteria set out inRule 4.1.01 on the basis of bias. While it would be uncommon to find an expert biased and impartial, such an expert so found should not be allowed to have any role in the court process.

[32]               Considering the highly intrusive nature of these independent medical assessments, and the serious issue of ensuring a fair trial, the plaintiff’s argument to deny the right to have an expert that has been found to be biased conduct the assessment in the first place is worthy of consideration in appropriate circumstances considering the potential for a miscarriage of justice that can be caused by such an expert biased in favour of one party, particularly in front of a jury.

Conclusion

[33]               As the defendants have failed to establish that they are entitled to an independent medical examination to be conducted by a psychiatrist, the motion is dismissed. Costs of the motion are reserved.

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Parra v Laczko, 2016 ONSC 911 (CanLII), <http://canlii.ca/t/gn8g0

[11]        The other defence medical witness was Dr. Debow who was a psychiatrist.  I conclude that he was an advocate for the defence for the following reasons.

[12]        Dr. Debow administered a “mini-mental status” exam to Ms. Parra on which he said she scored accurately.  He agreed the Montreal Cognitive test is more complex and takes longer to administer.  He was asked why he didn’t place some weight on Ms. Parras’ results on the Montreal Cognitive test, administered by an occupational therapist who was called as a defence expert, which showed some cognitive impairment.  He responded that he was not sure of the qualifications of an occupational therapist to administer the test.

[13]        Dr. Debow was asked why he didn’t place some weight on findings by a speech and language pathologist that Ms. Parra had severe cognitive impairment.  Dr. Debow responded that he didn’t know what testing the speech and language pathologist was qualified to do and so he disregarded it.

[14]        An impartial expert who didn’t know if prior, and potentially highly relevant, testing was valid would try to find out if it was.  Dr. Debow was content to simply dismiss the testing out of hand.

[15]        Dr. Debow testified that Ms. Parra told him she could only work 4-8 hours a week.  It was pointed out to him in cross-examination that pre-accident she reported working 8-12 hours a day for six days a week.  Dr. Debow was challenged as to how this difference (4-8 hours a week as opposed to 48 to 72 hours a week) could not be regarded as significant.  Dr. Debow testified that was not a big difference from his perspective.  He then proceeded to offer up that in a poor market an agent might not be busy and might not have any transactions for a month or two.  Dr. Debow was obviously prepared to step way outside of his area of expertise to try to help the defence.  As such, I place no weight on the evidence of Dr. Debow.

_______________________________________

Bruff-Murphy v Gunawardena, 2016 ONSC 7 (CanLII), <http://canlii.ca/t/gmr5x

Dr. M. Bail

Qualifications As Expert Witness

[53]           Unlike Dr. Maistrelli and numerous medical doctors and experts called by the plaintiff, Dr. Bail is of the belief that the plaintiff is faking and is not credible in her description of her injuries and incapacity as a result of the MVA.

[54]           The plaintiff during the trial sought to prevent Dr. Bail from testifying as an expert on the basis of bias as evidenced in his expert’s report and several reported decisions which held that Dr. Bail had:

(a)               Become an advocate for the party calling him as a witness which is not the role of an expert: Morrison v. Greig, 2007 CarswellOnt 343;[2007] O.J. No. 225 (ONSC) paras. 47-48.

(b)               Appropriated the role of advocate of the insurer rather than an impartial witness. His partisan approach and focus on inconsistencies are troubling, seriously weaken his credibility and weight of his testimony which should be disregarded: Gabremichael v. Zurich Insurance Co., [1999] O.F.S.C.I.D. No. 198, paras. 31-33.

(c)               Presented as a notably partisan witness: Sohi v. ING Insurance Co. of Canada, [2004] O.F.S.C.D. No. 106, para. 38.

[55]           On the authority of R. v. Karaibrahimovic2002 ABCA 102 (CanLII) paras. 7-8; R. v. Ghorvei (1999), 1999 CanLII 19941 (ON CA), 46 O.R. (3d) 63 (ONCA), para. 31 and Desbiens v. Mordini2004 CanLII 41166 (ON SC), [2004] O.J. No. 4735, paras. 273-274, I ruled Dr. Bail could not be cross-examined as to these prior court determinations rejecting his testimony and role as an expert witness in those cases.

***

[69]           The only semi-psychiatric element of Dr. Bail’s report is entitled “Mental Status Examination” which consumes one half a page of the 20 page report.

[70]           Had Dr. Bail read any of the plaintiff’s medical records before interviewing her, he would have known her medical records during the six years before the MVA contained numerous periodic notations of anxiety, neck and back pain and prescriptions in relation to the same. In order to be fair and objective, someone like Dr. Bail would have asked the plaintiff why her verbal reporting of her prior medical condition was so vastly different from her prior medical records. Dr. Bail could not do that because his alleged “methodology” in conducting IMEs is to not read such medical records before the interview. When asked why, unlike other physicians, he does not read the medical records before the IME interview, Dr. Bail responded that some people scheduled for IMEs do not attend.

[73]           Dr. Bail testified that he discarded any notes he may have made during his interview of the plaintiff as to what the plaintiff allegedly told him. His only record of her comments is contained in his report dictated after he interviewed the plaintiff and after his subsequent lengthy review of her medical records.  

[74]           The above quoting for 10 pages by Dr. Bail of excerpts from prior medical records and comparing that to what the plaintiff told him, resembles work legal defence counsel might do in identifying potential discrepancies between the plaintiff’s transcript from discovery and her medical records. The difference in this analogy however is the existence of a discovery transcript to evaluate the reported discrepancies.

[75]           A psychiatrist brings no particular knowledge or expertise to this 10 page portion of his report. 

[76]           Dr. Bail in testimony stated he told the plaintiff that she could not audio record his assessment. Without notes or a recording of what was said in the assessment, the expert becomes a witness as to what the plaintiff said to the expert which then becomes an issue as to the expert’s alleged discrepancies as to what the plaintiff told him.

[77]           Dr. Bail in the engagement letter from counsel was retained in 2013 “to provide his opinion as to the nature of injuries suffered by the plaintiff in the MVA, her current condition and his prognosis for the future.”

[78]           Subsequent to its ruling, the court noted that Dr. Bail’s report cites terms of engagement different than those communicated to him by legal counsel. Dr. Bail’s report states he was engaged “to provide his psychiatric opinion in relation to the issue of damages.” Damages are normally a focus of legal counsel, not a psychiatrist.

[79]           Dr. Bail did not have the authority to re-write his terms of engagement. He testified he has conducted 5,500 IME during his career. Dr. Bail was very experienced in IME engagements.

[80]           This alteration of the terms of engagement directly impacts the expert’s obligation in R. 53.03 (2.1),  to include in his report the instructions provided to him or her, the nature of the opinion sought and each issue in the proceeding to which the opinion relates.

[81]           In the conclusions of his report, Dr. Bail states that the plaintiff:

(a)               Was not forthright with him as to her accident related claims, her prior medical and psychological history;

(b)               Her reported medical history since the MVA cannot be relied upon;

(c)               Has serious credibility issues as to her MVA claim; and

(d)               Lacks reliability, credibility and validity.

[82]           The above credibility conclusions are not part of the terms of engagement from defence counsel, nor in Dr. Bail’s misstatement of his terms of engagement. These conclusions reflect points made in submissions made by defence counsel to the jury. They are issues for determination by the jury. The court on the motion to exclude him for bias, ordered that Dr. Bail could not express these conclusion opinions directly.

***

[90]           It is not credible that the plaintiff in two defence IMEs conducted within 2 weeks, reported multiple areas of pain and inability to move to Dr. Maistrelli and then reported feeling no immediate neck or back pain to Dr. Bail, who concludes she is exaggerating her post-MVA condition. One obvious explanation for this discrepancy is that Dr. Bail is not accurately reporting what the plaintiff said to him.

***

[104]      Dr. Bail testified these question results demonstrated internal inconsistencies which caused him doubt as to what she was reporting and why he concluded there was something going on with the plaintiff. This constitutes the quasi-psychiatric extent of Dr. Bail’s analysis in this IME.

[105]      Dr. Bail has no record of the above questions asked, or answers given, except as recorded in his report. His testimony that the plaintiff correctly subtracted by 7s to 93, but incorrectly subtracted 7 in her answers of 81 and 17, are not facts recorded in his report as required under R. 53.03(5). It is not credible that Dr. Bail in 2015 recalled these specific correct and incorrect details two years after this IME in 2013 given the number of IMEs he subsequently conducted.

***

[120]      Dr. Bail includes reference in his report to the plaintiff reporting back pain in July 2008, as showing she had the same prior complaint and not admitting that to him in regards to this MVA. He admitted in cross-examination that this reference omits her doctor’s then notation that it was “diagnosis of pregnancy related back pain”, which is obviously different from post-MVA, non-pregnancy related back pain.

[121]      Dr. Bail in his report refers to a clinical notation on July 12, 2008 of “complains of intermittent back pain.” He admitted in cross-examination that the plaintiff at that time was in labor. That added detail is not mentioned in his report.

[122]      Dr. Bail was not a credible witness. He failed to honor his obligation and written undertaking to be fair, objective and non-partisan pursuant to R. 4.1.01. He did not meet the requirements under R. 53.03. The vast majority of his report and testimony in chief is not of a psychiatric nature but was presented under the guise of expert medical testimony and the common initial presumption that a member of the medical profession will be objective and tell the truth.

[123]      The vast majority of Dr. Bail’s testimony to the jury amounted to nothing other than the following:

(a)               The plaintiff did not tell me the truth in my interview;

(b)               Here are all the instances I found in my 10 to 12 hour review of her medical records which prove that she did not tell me the truth;

(c)               If I as a psychiatrist cannot believe her; how can you? 

[124]      The primary purpose of R. 4.1.01 is to prohibit and prevent such testimony in the guise of an expert. Dr. Bail undertook and thereby promised to not do what he did in front of this jury.

[125]      I will not qualify witnesses as experts in the future whose reports present an approach similar to that of Dr. Bail in this case.

_______________________________________________

A.L. v R.N., 2015 CanLII 70170 (ON HPARB)

The Complaint

 5.                The Applicant complained that the Respondent:

  •       provided a third party report that was dishonest, inaccurate and biased;
  •       made diagnoses for which there was no medical evidence, nor was he qualified to make;
  •       discriminated against her because she was an “MVA [motor vehicle accident] patient”;
  •       used his authority as a physician to aid and abet the insurance company;
  •       was cruel and inconsiderate to her during the assessment; and
  •       accused her of not being truthful.

6.                The Committee met on February 19, 2014  to consider the Applicant’s complaint and made the preliminary determination that it would take no action with respect to the Applicant’s complaint on the basis that the complaint was frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process.

9.                That letter set out that the Committee’s preliminary determination was based on the following:

  •       This is just one of several similar complaints brought by the Applicant for which the Committee took no action; and
  •       In the similar complaints investigated, the Committee found no evidence of bias, there was no credible evidence to support the claim that the physicians were engaged in a conspiracy with the insurance company to deny treatment, and there was nothing objective in the investigative records to support the concerns.

11.            The Applicant made a number of submissions including:

  •       she maintains that other physicians are continuing to deny her treatment based on the Respondent’s report that she was “feigning and malingering.”;
  •       information about the Respondent’s report  was used in a previous College investigation (file TB84359) without her consent, yet the notation in the Committee’s decision indicates that she provided the material;
  •       she disputes that the Committee’s reasons for not investigating fall within the Act section 26(4) and (5);
  •       she believes that the Respondent responded to the College and his response should have been disclosed to her;
  •      she disagrees that her complaint about the Respondent is similar to others, in that:  (i)        the Respondent is a psychiatrist and the other physicians she complained  about were not;

(ii)               “the Respondent’s report is the only defence medical report I have filed a complaint about.”;

(iii)            “the Respondent was the only one who said her symptoms were “bizarre” and that she was “feigning and malingering.”;

  •            she suggests that the fact that there were similar complaints concerning other physicians should be a reason to investigate, not a reason to not investigate, since multiple similar complaints would indicate a more “widespread and repetitive problem.”;
  •         she disagrees with the Committee’s reason that there was no evidence to support her claim, and points to evidence gathered in the previous investigations, already disposed of by the Committee;
  •         she believes that relying on the outcomes of previous investigations in order to make a decision in this case is prejudicial;
  •         she claims that she “was told 3 times by the College itself that they have no intentions of finding a doctor guilty of anything, regardless of the evidence, or severety [sic] of harm to the patient.”;
  •         by refusing to investigate, the College is denying her “right to complain without consequences.”;
  •         she concludes that by not obtaining a written retraction from the Respondent, which would then permit her to receive continued health care, the College is, in effect, “resinding [sic] my right to OHIP and Insurance benefits.”

12.            The Committee met on May 21, 2014 and determined that it would take no action, pursuant to section 26(5) of the Code on the basis that the complaint was frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process.

40.            For the reasons as stated, the Board finds the Committee’s decision to be reasonable. It is based upon information in the Record, the Committee’s analysis and consideration of the Applicant’s complaint and the allegations contained therein, and the Committee’s review of previous dispositions concerning similar facts and allegations. The Committee’s decision is one of the possible, acceptable outcomes that are defensible in respect of the facts and the law.

_______________________________

Waldock and State Farm  [+] Arbitration, 2014-11-10, Reg 403/96. Preliminary Issue FSCO 4315.

Dr. Cashman’s assessment was deficient in several areas.  As earlier stated, I find that these deficiencies fail to support the position of State Farm in refusing to accept the assessment that Mr. Waldock is catastrophically impaired.  During cross-examination of Dr. Waisman, counsel for State Farm, perhaps inadvertently, emphasized that Dr. Cashman’s assessments did not follow the requirements of the Schedule and the AMAGuides.  Thus, I find I must give a little weight to Dr. Cashman’s assessments (as expressed in his written report), for there is no evidence offered by the insurer to contradict Dr. Waisman’s evidence.

Waldock and State Farm  [+] Arbitration, 2015-11-16, Reg 403/96. Expenses FSCO 4689.

In my decision on the preliminary issue, issued on November 10, 2014, I referred to the oral evidence of Dr. Waisman wherein he was critical of the report prepared and submitted by Dr. Cashman to State Farm.  State Farm relied upon Dr. Cashman’s report to deny that Mr. Waldock had suffered a catastrophic impairment.  State Farm did not bring Dr. Cashman as a witness to that Hearing and thus, I found that his report was untested and less credible evidence than that of Dr. Waisman and his colleagues at Multidisciplinary Designated Assessment Centre (“MDAC”), including Dr. Ameis.

Arbitrator orders rare special award against insurer

Emily Casey of Tkatch & Associates says the lesson to be learned is that it is not enough for the insurer to have reports stating the claimant is not impaired catastrophically. She notes State Farm did not have its medical expert attend the hearing and that forced the arbitrator to give less weight to State Farm’s medical arguments.

“Standing by a flawed report in denying catastrophic benefits resulted in a significant punitive award,” she says.

_________________________________________

Kraja and Wawanesa Mutual  [+] Arbitration, 2015-08-19 FSCO 4602

The Insurer argues that there is “absolutely no evidence of a brain impairment in this case.” It points out that no obvious head trauma was noted by ambulance or hospital personnel immediately after the accident; a CT scan taken on the day of the accident was normal; Mr. Kraja was able to actively clench his eyes, implying consciousness; his condition seemed to improve when he was assessed by the emergency room physician in that he became verbally responsive and was able to move all his extremities on command; and, he was discharged from hospital within three hours, into the care of his family physician.

However, the Insurer’s bald assertion is unsupported by the evidence…….

Dr. Robert Yufe, neurologist, also testified at the hearing, but he gave conflicting evidence. At first, Dr. Yufe said that the emergency physician’s diagnosis of concussion could not be supported by the physician’s own notes. However, he did not explain that statement. Later, he agreed that the Applicant may have sustained a concussion. By the end of his cross‑examination, Dr. Yufe stated that the diagnosis of concussion was valid and that he had never challenged it.

____________________________________________

Baldassi and Primmum [+] Arbitration, 2015-07-06, Reg 403/96. FSCO 4558.

Dr. Platnick carried out a paper review and on the basis of Dr. Platnick’s assessment, the Insurer determined, on February 4, 2013, in a letter to the Claimant, the OCF-18 was not reasonable and necessary to treat the impairment arising out of the March 5, 2008 motor vehicle accident. For specific details of the denial, the Applicant was referred to “a report of examination under Section 44 dated January 15, 2013, and completed by Dr. Howard Platnick, Physician”.

Before I proceed to my analysis, I have to comment on the assignment of a general practitioner by Primmum to conduct this Section 44 Assessment. The Insurer’s denial, and the origin of this dispute, was based on Dr. Platnick’s conclusions that the cost of the private school funding was not reasonable and necessary.  Dr. Platnick’s reports are found in the Joint Brief at Tab 31(e) and 31(f). The reports in the Joint Brief are described, incorrectly, as “Physiatry” Paper File Review Report of Dr. Platnick, MD.

Dr. Platnick’s reported expertise, as set out in the preamble of his report, has no relation to the expertise required to assess the Applicant’s OCF-18. His expertise, as a family physician, as stated in his “Assessor Qualifications”, is described as having a special interest in neuromusculoskeletal disorders, disability management and rehabilitation. He treats adult, pediatric, and geriatric populations and is involved in the treatment of chronic pain (chronic non-malignant pain – musculoskeletal and neuropathic) and headache patients including narcotic and adjunct medication prescribing/monitoring.

By the time of Dr. Platnick’s report in January 2013, almost five years had elapsed since the motor vehicle accident in 2008. The medical reporting, the exchange of letters between the Applicant’s counsel and Primmum, and prior Section 44 assessments during this timeframe indicated that the impairment symptoms in this very young Applicant were related to anxiety and its interaction with her learning disability, socialization and mood related issues and sleep disturbances. The school records at the time of his assessment reported early learning and fine motor skills development delays as well as below grade level academic performance.

With the exception of a more recent report from a treating psychologist, the Joint Brief indicates that the Insurer had access to most of the medical and school records as I have before me at the time Dr. Platnick completed his assessment.

By contrast, all prior Section 44 assessments – six are listed in the Joint Brief – were conducted by Dr. Amena Syed, an assessor with more relevant expertise. Dr. Syed states her qualifications in the preamble, as a registered psychologist with areas of competence in clinical, rehabilitation and neuropsychology. Her resume states she is qualified to provide these services to children, adolescents and adults. She has experience working with genetic, neurological, developmental and psychiatric/psychological illnesses providing consulting, assessment and treatment services.

The Insurer had to be aware of the required Section 44 assessment expertise when the OCF-18 Treatment Plan of August 2012 was submitted to the Insurer by Dr. Bremermann. The doctor made it clear in the Form that her patient:

is having learning difficulties and anxiety arising from the motor vehicle collision on March 5, 2008 which is affecting her studies at school. She is requiring private school funding to support her learning needs.

From the statements made by Dr. Bremermann on the submitted OCF-18 and the prior reporting history, showing the nature of the impairment and the numerous assessments of Dr. Syed, (seven are listed as having been reviewed by Dr. Platnick) it had to be evident to Primmum what the required Section 44 assessment expertise was to be. But for some reason, the Insurer selected a family physician.

Dr. Platnick concluded from the paper review that the treatment plan was not reasonable and necessary. The medical documentation in his view did not support a “head-trauma-acquired brain injury as a result of the MVA”, consequently, there was no organic-based, cognitive, accident-related impairment that would require the proposed “goods and services”, i.e., the tuition fees for Tall Pines School. Included in this conclusion, Dr. Platnick reviewed a neuropsychological assessment report prepared by Dr. Janine Hay, C. Psych., Clinical Neuropsychologist.

Dr. Hay’s report was not an assessment of a neuromusculoskeletal disorder. Prior to Dr. Platnick’s assignment in January 2013, the Insurer agreed to fund a neuropsychological assessment on the Applicant and her report was not available to Dr. Platnick at the time so his conclusions were delayed until he completed his review of  Dr. Hay’s report.

Again, as with Dr. Syed, Dr. Hay’s expertise is more in keeping with the assessment requirements. Dr. Hay works at Holland Bloorview Kids RehabilitationHer expertise, as stated in her testimony at this Hearing, is carrying out neurological assessments to assess cognitive functioning with respect to brain behaviour relationships and to understand the cognitive profiles, learning profiles and make recommendations for academic planning and rehabilitation.

It has to be questioned then, why the Insurer assigned a family doctor, with an interest in neuromusculoskeletal disorders, to review, comment, and making findings on a neuropsychological assessment report. It also has to be noted that the history of the claim in this case did not centre on a neuromusculoskeletal disorder but rather the interaction of anxiety and behavioural concerns with developmental learning skills.

Other documents in the Joint Brief show that the Insurer was aware that the Applicant’s anxiety and related issues were interrelated with the Applicant’s learning and educational development.

On August 9, 2012, five months prior to Dr. Platnick’s assessment, Ms. Edmonds wrote that in her view, the force of the impact “were sufficient to cause brain injury whether or not Kristen exhibited any signs of it immediately after the collision”. She goes on to write: “Your Neuropsychologist has already commented that there is evidence of symptoms of post-traumatic stress disorder and anxiety as well as developmental and cogitative impairments”.  Again, in a letter to Primmum, dated October 9, 2012, Ms. Edmonds wrote: “The purpose of Dr. Hay’s Assessment is to determine the nature and etiology of Kristen’s cognitive impairment, learning difficulties and anxiety”. In explaining the hoped for outcome of Dr. Hay’s assessment Ms. Edmonds stated:

I must determine whether her assessment, which is directed to cognitive problems and learning disabilities, will focus sufficiently on emotional and anxiety issues, as it is my understanding that the purpose of the  Psychological assessment was not only to assess Kristen’s difficulties and determine their relationship of them to the collision, but to formulate a treatment plan.

On October 22, 2012, the prior Section 44 assessor, Dr. Syed, wrote Primmum a clarification letter to show the difference between Neuropsychological assessment and a Psychoeducational assessment. Writing about the investigation of Kristen’s symptom aetiology, she stated: “The aetiology of her symptoms need to be understood from a brain behaviour perspective and investigated as such”.

From the history of the Applicant’s symptoms in the intervening almost 5 years, as documented in the Joint Brief; the medical reporting; and the investigations and assessments by the Insured, it is reasonable to infer that the Insurer was in error by assigning Dr. Platnick and accordingly, his conclusions can not to be relied upon. Dr. Platnick has neither the qualifications to review the submitted OCF-18, dated August 27, 2012, nor the qualifications to review Dr. Hay’s Neuropsychological Assessment Report. The reasons Primmum relied on in denying the Applicant’s claim have to be removed from consideration.

______________________________________________________

M.L. v G.D., 2015 CanLII 46 (ON HPARB),   2015-01-06

51.              The Committee considered the information in the Record and concluded that it remained extremely troubled by the Applicant’s apparent lack of understanding of his role as independent medical examiner or third party assessor.

52.              The Committee noted that the Applicant conducted the appointments with the Respondent without obtaining the express consent and clarifying the purposes of the assessments; he communicated certain aspects of the Respondent’s health information directly to the Respondent’s employer also without the express consent of the Respondent; he provided medical treatment over several appointments to an individual whom he had been hired to assess by that individual’s employer, creating a conflict of interest between his role as third party assessor and treating physician to the individual; and he did not document the treatment provided to the Respondent nor the rationale for such treatment.

53.              The Committee determined to issue a caution in person to the Applicant as he acted far beyond the scope of what is appropriate for an examiner or assessor, and appeared not to have an adequate understanding of the role of such a physician.

54.              The Committee required the Applicant to attend the College to be cautioned regarding his obligations as an independent medical examiner or third party assessor and particularly with respect to:

•           assessing a patient without adequate, informed consent;

•           treating an individual who was not a patient;

•           failing to obtain written consent to discuss his findings with the employer of the individual being assessed; and

•           failing to document the treatment provided.

55.              The Applicant and his Counsel made strong objections to the Committee’s analysis of the Applicant’s actions and submitted that he should not be judged by the Third Party Policy as he is a “company doctor” and practices in the Occupational Health and Safety Field and does not view himself as being subject to that policy.

56.              The Board notes that this issue was addressed previously in this decision under ‘Adequacy of the Investigation,’ wherein the Board found that the Committee had retained an IOP practising in the occupational health field in order to have sufficient expertise to address the issues involved in this complaint.

57.              As stated, the Committee, after considering the independent opinion, found that the Applicant is subject to the standards as set out in the Third Party Policy.

58.              The Committee has considered the Applicant’s conduct and actions with the lens of the Third Party Policy and the assistance of an IOP practising in the Occupational Health and Safety field.

59.              The Committee has based its findings on information in the Record.

60.              Notwithstanding the Applicant’s strong objections, the Committee’s decision is a decision that falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and the law and is thus reasonable.

_________________________________________________

Tomec v. Magnat, 2015 ONSC 1928 (CanLII)

[34]      Further, the plaintiff asserts that the defendant’s witness, Dr. Clark, repeatedly and in the face of my clear instructions gave improper evidence, which resulted in considerable delay and expense. Further, defence counsel was aware, at least partly, of the change in Dr. Clark’s evidence before he testified; however, the Court was not made aware of it prior to Dr. Clark testifying. As a result, the plaintiff submits that Dr. Clark’s disbursements, totaling $11,450.04, should be eliminated or reduced.

[35]      I qualified Dr. Clark to give expert evidence. He testified that previously he has been qualified to give expert evidence in Superior Court. He either knows, or should know, the rules governing the nature of his testimony. His breaches of those rules resulted in a motion to strike the jury. His breaches caused considerable cost and delay to the trial.

 

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State Farm accepted the opinions of its medical advisors to support its routine denials of benefits

Jazey and State Farm  Arbitration, 2014-12-09, Reg 403/96. FSCO 4330 

Result:

1.         Mr. Jazey is entitled to attendant care benefits in the amount of $4,027.21 for attendant care services provided by Lauralee Bushan-Jazey and Dianne Jazey from October 20, 2009 to December 31, 2009.

2.         Mr. Jazey is entitled to receive the following medical and rehabilitation benefits pursuant to the Schedule:

a.       $15,931.90 for purchase and installation of a hot tub, pursuant to an OCF-18 prepared by Elizabeth Fox, dated January 24, 2011;

b.      $1,500.64 and ongoing incurred sums for massage therapy pursuant to an OCF-18 dated February 14, 2012, prepared by Amy Buffone, subject to a deduction for Mr. Jazey’s wife’s workplace extended heath benefit plan;

c.       $1,008.70 representing the outstanding balance for psychological counseling, pursuant to an OCF-18 dated November 30, 2011, prepared by Dr. Jeffery McKillop; and

d.      $38,176.10 for occupational therapy treatment and the current cost of ergonomic equipment pursuant to an OCF-18 dated May 26, 2011, and prepared by Nancy Gowan, OT.

3.         Mr. Jazey is entitled to interest for the overdue payment of benefits pursuant to s. 46(2) of the Schedule.

4.         State Farm is liable to pay a special award in the amount of $32,852.07, pursuant to s. 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Jazey.

5.         State Farm is liable to pay Mr. Jazey’s expenses in respect of this arbitration.

State Farm denied Ms. Gowan’s treatment plan for the occupational therapy and ergonomic equipment on July 1, 2011.  In its documentation, State Farm provided a report by Ms. Leslie Hisey, an occupational therapist who had conducted an Insurer’s examination to determine the reasonableness of Ms. Gowan’s occupational therapy and ergonomic treatment plan.  The evidence indicated that that Ms. Hisey reviewed an incomplete list of medical records and apparently spent slightly over an hour undertaking her assessment.[7]  In her conclusion, she stated that there is little medical evidence to confirm the etiology (the cause) of any motor vehicle accident-related neurological impairments.  She opined that she needed greater confirmation of any link between the accident and the alleged impairments.  However, State Farm did not bring Ms. Hisey as a witness to elucidate about what information she felt was lacking.
()

Mr. Jazey requests that State Farm be liable to pay a special award pursuant to section 282(10) of the Insurance Act because State Farm unreasonably withheld or delayed payments to Mr. Jazey.

Section 282(10) of the Insurance Act states:

Special Award

If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50% of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

Pursuant to section 282(10) of the Insurance Act, I find that State Farm has unreasonably withheld or delayed payments to Mr. Jazey in denying treatments and withholding payments; State Farm accepted the opinions of its medical advisors to support its routine denials of benefits; and it should have been aware that these denials would cause Mr. Jazey undue stress and financial hardship and reduce the opportunity for him to recover from his injuries.

In paragraphs 203 to 221 and Schedules C and D of Mr. Jazey’s closing submissions, Mr. Jazey has detailed the particulars of his claim for a special award in the amount of $131,408.27, representing 50% of the benefits and interest to which he claims entitlement.

State Farm vigorously opposes Mr. Jazey’s entitlement to a special award.  State Farm submits that Mr. Jazey “has failed to provide any records or evidence outlining the professional attendant care services provided by the CCAC for the period that the Applicant (Mr. Jazey) required attendant care.  This information would provide a professional perspective in detail what attendant care was required, the specified period for which attendant care was required, and what ongoing attendant care may be required.”

State Farm also “submits that the evidence led by the Applicant provides no definitive insight into what services, if any, were required in addition to those professional services provided by the CCAC.”

Considering all the relevant factors in this matter, I agree with Mr. Jazey’s contention that State Farm has acted unreasonably and Mr. Jazey is entitled to a special award.

The Insurance Act states that an Arbitrator shall award a lump sum of up to 50% of the amount to which the person was entitled, etc.  It does not set a quantum but leaves it to the Arbitrator to determine whether that amount should be one dollar or the maximum of 50%.  In this matter, because State Farm has provided some benefits to Mr. Jazey and Mr. Jazey has been able to return to his self-employment, albeit to a limited degree compared to his pre-accident ability, and Mr. Jazey has failed to provide some specific documentation to State Farm, I am fixing the special award at 25% of the amount to which he claims entitlement.

I hereby order that State Farm shall pay a lump sum to Mr. Jazey of 25% of the amount to which he is entitled, which amount shall be $32,852.07.

_______________________________________________

Maxwell v. Luck, 2014 ONSC 7179 (CanLII),  http://canlii.ca/t/gfnxd

3.  Is the impairment serious?

[18]           The court heard from the defence expert medical witness, Dr. Michael Ford, a spine and trauma surgeon at Sunnybrook dealing with serious fracture cases. He is still active as a surgeon and does a significant amount of medico-legal assessments. He does not practice in the area of chronic pain but he is experienced in assessing it as an orthopedic surgeon. He categorically dismisses chronic pain complaints unless, as he said, he can see or understand the mechanism causing the complaint. He dismissed Dr. Alpert’s opinion as supposition.

[19]           Dr. Ford gave this plaintiff a very cursory examination. It was his last appointment of the day. He took Ms. Maxwell’s history in ten to fifteen minutes and the physical examination consisted of Dr. Ford watching her walk, do a neck extension and neck rotation. He never palpated her so he could not have found what Dr. Alpert says he found as his own objective findings during his examination.  He found that:

•         she had a decreased range of motion doing different movements -he saw these as significant and in the 40% to 70% range;

•         she had muscle tightness and tenderness to the touch in the cervical area from C2 to C6 – he could feel the tautness and ropiness in the muscles and ligaments there;

•         she had tenderness to palpation over the occipital nerves.

[20]           These findings were dismissed by Dr. Ford. He saw this case as simple and uncomplicated, where there were no objective mechanisms causing pain, therefore there could be no valid complaint. He understood that she had stopped working because of her pregnancy and that her complaints from the car accident in 2007 had long since resolved.

[21]           If he had asked a few questions about these answers, he probably would have learned that she could not do the strenuous dances that success at her job demanded, being very dependent on tips; she could no longer do the one recreational activity she loved, horse-riding, though she did try and was hit in the head once and fell off a second time. Dr. Ford simply dismissed Ms. Maxwell and wrote a report concluding without even a full examination of the patient, that any complaints she had now must come from her prior or other medical history without any analysis as to what exactly in her past would have caused them but the 2007 collision; all other previous traumas were reported and the treating doctor or chiropractor could see no reason to follow up other than to suggest some rest. I do not accept Dr. Ford’s opinion nor do I sense that Dr. Ford has an understanding of the fundamental aspect of those chronic pain cases, which lack objective proof. Nevertheless they are very real to the patient.  In finding as I do, I am not to be taken to take away from Dr. Ford as an excellent spinal surgeon who works with serious trauma patients often derived from serious fractures, and displacement and other severe physical trauma. But I question his expertise in the area of chronic pain due to his offhand examination, his failure to test by palpation or to observe a variety of movements, and his very brief approach to her medical history which is by no means a simple one to understand, both orally and through the many records from the treating practitioners.

Speaker’s Corner: An expert witness’ friendly advice on information he needs from lawyers

Monday, 11 March 2013 09:00 | Written By Dr. Michael Ford |

As an expert witness in the area of orthopedic trauma surgery, lawyers often ask me what they should provide in order to get an objective and informed opinion. That begs the obvious question: Don’t lawyers already know what to put in the box? In fact, they don’t always know.

What follows, then, is an expert witness checklist offered in the spirit of friendly medical advice.

First, provide the decoded OHIP summary and family physician’s notes. Claimants are not always reliable with respect to the description of their past medical history of neck or back pain and the family physician’s notes are extremely telling. The OHIP summary comes from the Ministry of Health and is a listing by date of all health services provided by all professionals. We need both to arrive at an accurate picture.

We also need the summary and notes to go back several years prior to the event whether it’s a slip and fall or a motor vehicle accident. It’s amazing how often I get notes that are from the time of the incident onward. I don’t care about that. I want to see the notes predating the event. Why? Because some people are dishonest.

In the notes, I will often find that there is a significant prior history of neck or back pain predating the event. They’re not misleading about having the pain; they’re being untruthful about their past medical history. I’ve had situations where I’ve asked for the notes and I’ve seen there have been 50 visits for neck and back pain and 100 treatments from a chiropractor even as the claimants maintain they’ve never had any problems before the event. Surprisingly, they don’t know I’m going to see the records or that I’m going to look at them, which is incredibly naive.

The difficulty is that I have to ask for those notes about 50 per cent of the time as they’re not in the box.

Second, we need imaging. The imaging, including X-rays and MRIs, are very rarely in the package and ideally it’s best if the lawyers could actually send those on a CD-ROM. I’ll see the reports arising from the imaging, but that’s a description by an individual of a picture and not the same thing as seeing it. If the report mentions something with respect to potential pathology, I want to see that imaging to ensure that it is in fact significant.

The issue is that radiologists will call things significant in a report that we don’t agree with. That’s because it’s not their backyard; they don’t get to see the imaging and then go do the surgery and see what’s clinically significant.

I get the imaging in less than 10 per cent of the files and in another 20 per cent I will have to ask for it. Why? I think lawyers for the most part assume the report is as good as seeing the picture. It’s important that lawyers not assume. It’s vital for me to deliver an opinion that is objective and accurate because I could potentially be up on the stand answering questions about whether I actually saw the pictures and I’ll have to respond that I did not. That’s not a situation any expert wants to be in.

Ensure the materials are up to date. It’s unbelievable how often I’ll see someone and all of the records stop two years prior. I’ll hear from claimants that they just had an MRI or surgery six months ago but I have no records. There’s a lag time between my seeing them and the incident.

The need for current records includes the family doctor’s notes, other expert reports, imaging studies, and other tests. Why? Claimants may not offer up the fact that they’ve had surgery or additional investigations and I need that to know what to look for. To be objective, you can’t take what the claimant says at face value.

This is not a situation where you’re seeing a patient who’s there merely to seek your help with a cure or for treatment. This is, for the most part, an adversarial situation and the individuals are seeing me as a defence expert because the lawyer for the other side wants them to see me. It’s a little different when I’m seeing them for plaintiff’s counsel but they’re still not necessarily being completely honest with their lawyer either. So I need to have as much factual material as possible to come to an objective decision.

In addition, the notes must be legible. When I get the family physician’s notes, they’re quite often totally and completely illegible. As a doctor, I can’t even read this other physician’s notes. We’re supposed to be able to, but sometimes they’re so bad you can’t even get a single word or the gist.

So instead of the expert having to ask to go back to the family physician and get them transcribed and typed, lawyers should look at the notes and if they can’t read them, they should save everyone time and get them deciphered.

When it comes to surveillance, it’s typically useless information. Unless it’s one of those rare circumstances where the surveillance shows the claimants doing something they allege they’re totally unable to do, it’s not pertinent. Lawyers should screen it first to see if it addresses their claim but should otherwise not include it in the package and waste time on the expert’s end going through it to come to the same conclusion.

There are a few things we don’t need. For instance, correspondence from insurance companies is a total waste. The forms sent to the insurance company for approval of care and benefits aren’t useful from a medical perspective, nor is any correspondence between them and counsel.

Psychological reports don’t help either except from the perspective of getting more insight into the individual.

Finally, I have a few tips on how to present the information. I’ll sometimes get a package that isn’t indexed and is just a pile of materials. It’s a waste of time and money because I spend more time than I should have to in order to generate a report. At the same time, if the individual is someone who has difficulties with English, an interpreter would help. By the same token, it’s surprising how many times an interpreter shows up for no reason. Don’t assume the need for one.

It can also be helpful to provide police reports and photos of vehicle damage. Often, there’s a discrepancy between the claimant’s description of the event and reality.

 


Dr. Michael Ford is an orthopedic spine and trauma surgeon at Sunnybrook Health Sciences Centre who has more than 20 years of medical legal experience. He can be contacted at michael.ford@sunnybrook.ca This email address is being protected from spambots. You need JavaScript enabled to view it. or 416-480-6775.

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Burwash v. Williams, 2014 ONSC 6828 COURT FILE NO.: 09-43777 DATE: 2014/11/25

[6]               Cira is not a party to this litigation. It is a national company in the business of providing medical assessments and health services for several corporate, insurance and medical legal communities through a network of independent health professionals. Cira was created in June 2012 and is a combination of two companies, namely, Riverfront Medical Services (“Riverfront”) and Medisys IMA.

[7]               The Defendants retained Cira to co-ordinate defence medical examinations of Ms. Burwash conducted pursuant to s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[8]               The Defendants do not object to the production of the files.

[9]               The Defendants have requested disclosure of Cira’s complete files.  The Plaintiffs allege that only partial production of the files has been made to date.

Timing of the Motion

[10]           The Plaintiffs assert that they had no reason to suspect that Cira was involved in the review, revision and editing of draft expert reports until the examination for discovery of Dr. St. Pierre when answers and subsequent productions indicated that Cira may be using third parties to review and revise the Defendants’ expert reports.

[11]           I am satisfied that the Plaintiffs have brought this motion at the earliest opportunity and that they could not have reasonably discovered that the issue existed any earlier.

[28]             Rule 53.03 of the Rules of Civil Procedure is designed to ensure the independence and integrity of the expert witness. The duty of the expert witness is to be of assistance to the court. Each expert witness is required to sign an acknowledgement that they are providing an independent and unbiased opinion. If there is reason to believe that the expert’s report or opinion has been influenced by unknown third parties and is therefore not entirely the expert’s opinion, the fundamental rationale for accepting expert opinion evidence is no longer present and hence the report is not only not helpful to the court but may become misleading. This is an issue that is directly related to trial fairness.

_________________________________________________________
 
  CF v HTMD, 2014 CanLII 41239 (ON HPARB), <http://canlii.ca/t/g86m8>

3.                  The Applicant was involved in a motor vehicle accident on September 17, 2006. Subsequently, she developed a number of symptoms especially related to her neck, left shoulder, left trunk and headaches. The Applicant contends that prior to her involvement in the accident she was asymptomatic regarding these symptoms.

4.                  Superior Independent Medical Assessment Centres requested the Respondent, a specialist in physical medicine and rehabilitation medicine, to perform an independent medical assessment (IME) for the Applicant’s insurance company. The Respondent examined the Applicant on March 8, and June 5, 2007. He subsequently provided two paper file review reports, dated September 12, 2007 and February 27, 2008.

5.                  After assessing the Applicant on March 8, 2007, the Respondent provided a report to the Applicant’s insurer with the following conclusions:

         The restriction of range of movement in her left shoulder girdle cannot be explained by an underlying impairment, similarly her history of no improvement in her pain complaints over the past 5 to 6 months has not been in keeping with an underlying musculoskeletal injury. At this time, the issue is that of ongoing pain, though the source of this is not known.

         I do not believe any further testing is indicated.

•         On the basis of an identifiable musculoskeletal impairment, [the Applicant] does not have a substantial inability to carry on her essential care-giving tasks.

•         [The Applicant’s] limitations are that of her ongoing pain complaints, though there are no objective findings, but rather just subjective findings with respect to pain.

6.                  The Respondent concluded that the Applicant was then able to return to care-giving activities and further expressed the opinion that he did not believe that the Applicant had a substantial inability to perform her pre-accident housekeeping or home maintenance activities given her current findings and history

7.                  The Respondent next assessed the Applicant on June 5, 2007 and was requested by the Applicant’s insurer to offer an opinion regarding whether the proposed Treatment Plan dated April 18, 2007 was reasonable and necessary. The proposed Treatment Plan recommended a cervical epidural injection, a greater occipital neuralgia injection and a soft tissue injection. The Respondent provided an opinion to the Applicant’s insurer that the treatment was neither reasonable nor necessary.

8.                  On September 12, 2007, the Respondent provided a paper review to the Applicant’s insurer regarding whether a proposed physiatry assessment was reasonable and necessary for the Applicant’s treatment and rehabilitation. The Respondent noted that the Applicant was being followed by Dr. A. Kachooie who is a physiatrist and advised the insurer that it was his opinion that the proposed physiatry assessment was neither reasonable nor necessary.

9.                  On February 29, 2008, the Respondent provided a further paper review to the Applicant’s insurer regarding whether another proposed physiatry assessment was reasonable and necessary for the Applicant’s treatment and rehabilitation. The Respondent concluded that there was no new information different from any previous information that he had reviewed regarding this issue and again noted that Dr. Kachooie continued to follow the Applicant on an ongoing basis. Accordingly, the Respondent provided an opinion to the insurer that the requested physiatry assessment was not reasonably required.

10.              In February 2009, the Applicant filed a complaint with the College regarding the conclusions of the Respondent based on his assessments.

11.              The Inquiries, Complaints and Reports Committee (ICRC) investigated the complaint and concluded, “the Respondent’s opinion regarding the Applicant’s condition was informed and based on the clinical information before him at the time.” The ICRC decided to take no action regarding the matter.

12.              The Applicant requested the Board review that decision. In a January 2012 decision (HPARB10-CRV-0073), the Board returned the matter for further investigation. Specifically, they instructed the ICRC “to have an independent physician review the matter and provide an opinion to the Committee concerning the standard of care” and for the Committee to reconsider its decision. In addition, the Board found that the Respondent’s conclusions in his IME report appeared to be inconsistent with and contradicted by information in the Record.

13.              The Committee reconsidered the matter as requested by the Board and issued a new decision dated February 14, 2013. The Applicant requested that the Board review the second decision of the Committee.  _____________________________________________________________

Shokat and AXA Insurance  [+]  Arbitration, 2014-10-03, Reg 403/96. Final Decision FSCO 4290.

AXA’s medical evidence

AXA relies on two Insurer Examination (IE) reports: one by Dr. Urovitz dated August 25, 2010[16] and the other by Dr. Waisman dated August 23, 2010[17], which state that Mrs. Shokat does not suffer a substantial inability to engage in her pre-accident housekeeping duties.

Dr. E. Urovitz

Dr. Urovitz, an orthopaedic surgeon, who assessed Mrs. Shokat on behalf of AXA, stated in his report dated August 25, 2010[18] that Mrs. Shokat’s complains at the time of her visit were constant daily pain in her right wrist, right ankle, right fifth finger, central neck and central lower back. He diagnosed her with a “soft tissue injury to the right wrist and right ankle, contusional injury to the right lower extremity, neck strain … and lower back strain” … as a result of the motor vehicle accident.

He opined that Mrs. Shokat had suffered a soft tissue injury to her right wrist and that, from an orthopaedic perspective, Mrs. Shokat did not suffer a substantial inability to engage in her pre-accident housekeeping duties.

He however recommended an MRI of the right wrist because of the ongoing complaints to her wrist to rule out the possibility of an internal derangement particularly meniscal damage.

Dr. Waisman

Dr. Waisman, a psychiatrist, assessed Mrs. Shokat on behalf of AXA on July 30, 2010. In his report dated August 23, 2010[19], Dr. Waisman stated that Mrs. Shokat reported having mood fluctuations based on the degree of pain felt. She further reported having poor concentration and memory since the accident. He opined that Mrs. Shokat was not substantially unable to perform her pre-accident housekeeping tasks from a psychiatric perspective.

Findings on Disability

There is no evidence that Dr. Urovitz or any of AXA’s assessors reviewed the results of the MRI of December 2010 which revealed a triangular fibrocartilage tear to Mrs. Shokat’s right wrist.[20] I find it pertinent that the only assessors who had the benefit of reviewing the MRI of her wrist before forming an opinion on Mrs. Shokat’s physical injuries were her assessors.

Albeit, Dr. Schofield, who assessed Mrs. Shokat in October of 2011, seemed to have a different opinion from Dr. Tuli in that he did not think that surgery would be beneficial to Mrs. Shokat’s hand and instead recommended ongoing exercise to gradually improve her grip strength, I note that his report is indicative of the fact that her symptoms continued to persist at the time of her visit. Therefore, I find it reasonable to infer that resuming her pre-accident housekeeping tasks at that time would result in an exacerbation of her symptoms.

I find on a balance that the objective medical evidence does not support AXA’s evidence on Mrs. Shokat’s inability to perform her pre-accident housekeeping tasks, particularly Dr. Urovitz’s opinion. I find that the objective medical evidence supports the disability certificate − therefore, I prefer this evidence.

__________________________________________________________

Nguyen and Federation Insurance (Economical)  [+]  Appeal, 2014-10-03, Reg 403/96. Final Decision FSCO 4291.

Mrs. Nguyen submits that Dr. Monte Bail, the psychiatrist at Lorak, wrote a report that “purposely contained errors, changed and edited information from Ms. Nguyen’s previous insurer’s examination reports to ultimately fit his opinion that Ms. Nguyen’s caregiver benefits should be terminated.” However, as noted above, the Arbitrator did not assign great weight to Dr. Bail’s report. He found that Dr. Bail “did not fairly assess Mrs. Nguyen. His report was profoundly impacted by his belief that Mrs. Nguyen was not truthful about taking medications prior to the motor vehicle accident. In fact, Mrs. Nguyen’s family doctor had made an error which led Dr. Bail to reach the conclusion that he did.”

________________________________________

DH v SH, CanLII 43864 http://canlii.ca/t/g8gcq 2014-08-06 (Docket: 13-CRV-0412)

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 Occupational Therapists of Ontario to:

(i)                 issue a caution to D.H., OT, to attend before a panel of the Inquiries, Complaints and Reports Committee for a verbal caution regarding his obligations as a regulated health care professional to accurately report on a client’s functional presentation, to adequately inquire about, review and consider the impact of a client’s cognitive deficits in his assessment, and to use appropriate language and tone in his reports;

(ii)               to provide guidance to D.H., OT by:

(a)    recommending that he try to strike a better balance, and to ensure that he thoroughly reviews and analyzes the reports of his client’s practitioners which relate to psychological and cognitive health, and not merely physical health and;

(b)    encouraging him to carefully review, and where appropriate, to cite healthcare practitioners reports that raise salient points which do not support his point of view.

2.                  This decision arises from a request made to the Health Professions Appeal and Review Board (the Board) by D.H., OT (the Applicant and Respondent by cross-review) to review a decision of the Inquiries, Complaints and Reports Committee (the Committee) of the College of Occupational Therapists of Ontario (the College). The decision concerned a complaint made by S.H., (the Respondent and Applicant by cross-review) regarding the conduct and actions of the Applicant.

8.                  The Respondent complained that the Applicant:

•                     made false claims and inaccurate statements in his assessment report

about the patient;

•                     misused the reports of other healthcare professionals;

•                     is incompetent because he failed to ask appropriate questions during

the assessment and has poor observational skills; and

•                     is biased in his report in favour of the insurance company that hired him

The Committee’s Decision

13.              The Committee investigated the complaint and decided to:

(i)                 issue a caution to the Applicant to attend before a panel of the Committee for a verbal caution regarding his obligations as a regulated health care professional to accurately report on a client’s functional presentation, to adequately inquire about, review and consider the impact of a client’s cognitive deficits in his assessment, and to use appropriate language and tone in his reports;

(ii)        to provide guidance to the Applicant by:

(a)    recommending that he try to strike a better balance, and to ensure that he thoroughly reviews and analyzes the reports of his client’s practitioners which relate to psychological and cognitive health, and not merely physical health and;

(b)    encouraging the Applicant to carefully review, and where appropriate, to cite healthcare practitioner’s reports that raise salient points which do not support his point of view.

38.              The Committee noted the Applicant’s conduct history before this Committee and that it has previously offered him guidance with respect to the fact that tone and overall presentation of findings can affect interpretation of such findings and to be mindful of verbal and non-verbal communication. It stated that the similarity between the current complaint and prior matters before the Committee was of concern and it decided to issue a verbal caution to the Applicant about the use of appropriate language and tone in his reports.

45.              In addition, the Board finds reasonable the Committee’s decision to caution the Applicant due to its concerns. Among the array of educative or remedial dispositions available to the Committee, the decision to caution is one of the available dispositions. A caution is advisory and intended to be remedial; it is not a sanction. The Code requires the Committee to consider the Applicant’s conduct history and, as noted by the Committee, it had previously offered him guidance with respect to the fact that tone and overall presentation of findings can affect interpretation of such findings and to be mindful of verbal and nonverbal communication. The Committee reasonably took this fact into consideration in determining to issue a verbal caution.

Declining to partake in tests and Cognitive Assessment

46.              The Committee considered that the Respondent asserted that the patient did not decline to partake in tests but simply sought rests, whereas the Applicant disagreed.

47.              The Committee considered the information contained in the report of the patient’s treating occupational therapist, who was present for the Applicant’s assessment and who disagrees with the Applicant’s position in this regard.

48.              The Committee concluded that the patient did not decline to participate in all range of motion testing as reported by the Applicant, based on the information before it from the patient, the Respondent and the patient’s treating occupational therapist.

49.              The Committee thus found that there was evidence before it that the Applicant’s report contained inaccuracies with regard to the issue of declining to partake in tests.

50.              The Committee then considered the issue of cognitive assessment and concluded that the patient demonstrated significant cognitive deficits on the Montréal Cognitive Assessment test (MOCA) related to visual spatial and executive function, naming, memory, attention, language, orientation and delayed recall. The Committee concluded these are serious concerns which appear to have been heavily discounted by the Applicant.

51.              The Committee further found that the Applicant appeared to have ignored the emotional social sequelae that the patient seems to have experienced as a consequence of her motor vehicle accident. In particular, the Committee noted that the Applicant made little reference to the patient’s diagnosis of post-traumatic stress disorder as well as the grief she experienced as a consequence of the loss of her husband in the accident.

52.              The Committee concluded that it had significant concerns about the Applicant’s assessment of the patient as it related to her cognitive presentation and the consequence to her function.

53.              In the Committee’s opinion, there was sufficient information before the Committee demonstrating the presence of inaccurate statements in the Applicant’s report.

54.              For these reasons, the Committee decided to issue a verbal caution to the Applicant about the importance of accurately and completely reporting on the patient’s functional presentation, as well as his obligation to adequately inquire about, review and consider the impact of the patient’s cognitive deficits in his assessment.

Concern two

The Applicant misused the reports of other healthcare providers

61.              The Committee concluded that it does not believe the Applicant is in a position to make an assessment as to the honesty of the other healthcare provider reports. It noted that, as required by standard 2B of the Standards for Occupational Therapy Assessments, he can review the reports, compare them to the information he obtained during the assessment, and make a reasonable effort to ensure currency and accuracy of information collected from other sources. It further noted that he is not obliged to determine if the report of another health practitioner has false information. Accordingly, the Committee determined it would take no further action in response to this concern.

62.              However, the Committee was concerned that the Applicant quoted largely from the practitioners whose opinions coincided with his own. The Committee noted that it appears that the Applicant sought evidentiary support from a select few practitioners to reinforce his decision and disregarded evidence from practitioners whose opinions he did not share. The Committee decided to recommend to the Applicant that he try to strike a better balance, and to ensure that he thoroughly reviews and analyzes the reports of his client’s practitioners which relate to psychological and cognitive health, not merely physical health. Moreover, the Committee encouraged the Applicant to carefully review, and where appropriate, to cite other health care practitioners’ reports that raise salient points which do not support his point of view. Other than offering this guidance to the Applicant, the Committee determined it would take no further action in response to this concern.

63.              The Board finds these determinations by the Committee to be reasonable. They were within the realm of the Committee’s expertise. There is no persuasive information in the Record or advanced at the Review to demonstrate that the Committee’s opinions on these points are inappropriately applied or that the rationale was unsupported.

Concern Three

The Applicant is incompetent because he failed to ask appropriate questions during the assessment and has poor observational skills.

64.              The Committee agreed with the Applicant’s statement that the patient’s shower bars are not assistive devices and that there is no information before it that the Applicant’s observations and reporting of the patient sitting tolerances were due to a lack of observational skills.

65.              Accordingly, the Committee made no finding that the Applicant lacks observational skills.

66.              Regarding the Respondent’s submission that the Applicant failed to make adequate inquiries about the patient’s ability to take public transit, the Committee was of the opinion that the Applicant did not sufficiently probe into the patient’s transportation and travel concerns. The Committee found that he did not inquire about her ability or inability to take public transit but relied instead on the information in the physician’s report to draw the conclusion that public transit was an option for the patient.

67.              The Committee determined that this fact, combined with the Applicant’s failure to make further inquiries about the patient’s cognitive impairments (as discussed previously), led the Committee to agree that the Applicant failed to ask appropriate questions of the patient during the assessment.

68.              The Committee noted that occupational therapists are required to use safe tools and assessment methods together with adequate information for the analysis of the patient’s occupational performance issues in relation to the request for service.

69.              The Committee stressed the importance of gathering adequate subjective and objective information from the client as accurately as possible. For the reasons as stated, the Committee determined to issue a verbal caution to the Applicant in response to this concern.

70.              In addition, the Board finds these determinations by the Committee to be reasonable. They were within the realm of the Committee’s expertise. There is no persuasive information in the Record or advanced at the Review to demonstrate that the Committee’s opinions on these points are inappropriately applied or that the rationale was unsupported.

71.              The Board finds the Committee’s decision to issue a verbal caution as a result of its concerns to be reasonable as the decision to issue a verbal caution is one of the dispositions available to the Committee amongst its array of dispositions. It is advisory and intended to be remedial; it is not a sanction.

Concern Four

The Applicant’s report is biased in favour of the insurance company that hired him.

72.              The Committee determined that there was no information before the Committee that indicated that the Applicant was biased in favor of the referral source, the insurer. It noted that inaccuracies in the report are not evidence of bias, nor are differences of opinion between occupational therapists.

73.              For this reason, the Committee took no further action with respect to this concern.

74.              The Board finds the Committee’s conclusion regarding this issue to be reasonable as it is based on information in the Record and the Committee’s expertise. There was no persuasive information in the Record or advanced at the Review to demonstrate that the Committee’s opinion on this point was inappropriately applied or that its rationale was unsupported.

Conclusion

75.              For the reasons as stated, the Board finds the Committee’s investigation to be adequate and its decision to be reasonable.

VI.      DECISION

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

(i)                 issue a caution to the Applicant to attend before a panel of the Committee for a verbal caution regarding his obligations as a regulated health care professional to accurately report on a client’s functional presentation, to adequately inquire about, review and consider the impact of a client’s cognitive deficits in his assessment, and to use appropriate language and tone in his reports;

(ii)               to provide guidance to the Applicant by:

(a)    recommending that he try to strike a better balance, and to ensure that he thoroughly reviews and analyzes the reports of his client’s practitioners which relate to psychological and cognitive health, and not merely physical health and;

(b)    encouraging the Applicant to carefully review, and where appropriate, to cite healthcare practitioners reports that raise salient points which do not support his point of view.

_________________________________________________________

Burgess and Pembridge  [+] Arbitration, 2014-06-06, Reg 403/96. Final Decision FSCO 4201.

Pembridge shall pay Ms. Burgess a special award in the amount of $10,000.00 on account of weekly income replacement benefits unreasonably withheld for the period August 6, 2007 to December 11, 2008.

Although he found that she continued to have symptoms substantially similar to complains identified in his earlier assessment, Dr. Best concluded that Ms. Burgess had made progress, and her ongoing complaints were likely not related (or at least no longer mainly related) to the accident. As a result, Dr. Best found that Ms. Burgess no longer suffered from a substantial inability to return to her pre-accident employment. On the basis of this follow-up assessment, Pembridge terminated Ms. Burgess’ entitlement to IRBs on the basis of disability in an OCF-9 dated December 11, 2008. 

Dr. Best’s conclusion that Ms. Burgess could return to her pre-accident employment is problematic on a number of fronts. First, he did not comment on the work Ms. Burgess had been doing and, on cross-examination, stated that he arrived at his conclusion on the understanding that Ms. Burgess was working as an accountant. He does not appear to have considered her work as owner/operator of Docktails. Dr. Best also testified that, according to his understanding, “substantial inability” means being able to do less than 50% of a job.[19] It was his opinion therefore that Ms. Burgess was capable of doing 51% or more of the tasks of an accountant. However, he could not say how much more than 51%. Dr. Best also testified that Ms. Burgess’ ongoing cognitive symptoms, fatigue and sleep disorder could be attributed to a number of factors not related to the accident, such as the stress of her job as an accountant and weight gained after stopping the drug topiramate following her first rhizotomy.[20] However, Dr. Best’s evidence was not clear regarding how much weight Ms. Burgess may have gained after she stopped taking topiramate.

I find that Dr. Best’s opinion that Ms. Burgess’ ongoing symptoms were likely no longer mainly related to the accident was, in large part, a reflection of his expectation that Ms. Burgess’ post-concussive symptoms should have resolved by the time of his second assessment. As stated in his December report, “the contribution from the motor vehicle accident itself is fading into the distant past, or should be at least.” [my emphasis] Dr. Best did admit on cross-examination that, in a minority of cases, post-concussive symptoms linger, and he agreed that this was possibly the case with Ms. Burgess, although he resisted that conclusion.

In summary, Pembridge terminated IRBs on the basis of Dr. Best’s follow-up assessment in December 2008. The assessment is fraught with problems, including a misapprehension of Ms. Burgess’ pre-accident employment and the test of disability, as well as what seemed to be a bias toward the conclusion that Ms. Burgess’ recovery from post-concussive syndrome should have followed the rule, rather than the exception.

________________________________________________________

 JC v CW, 2014 CanLII 28540 (ON HPARB) — 2014-06-04

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.

________________________________________________

JLD v LE, 2014 CanLII 30272 (ON HPARB) — 2014-06-11

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.

_____________________________________________

Basra and Allstate  [+] Arbitration, 2014-06-05, Reg 403/96. FSCO 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.

_________________________________________________________
An example of how accident victims complaints about the independence and competence of Ontario’s IME vendors are sloughed off and minimized by CPSO and HPARB policy of secret cautions and ‘remedial education’ rather than meaningful sanctions that protect innocent accident victims below. Hard at work protecting their members and keeping the public in the dark and at risk.

CAK v EAAMD, 2014 CanLII 24764 (ON HPARB) — 2014-05-20  Health Professions Appeal and Review Board — Ontario

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.

 _____________________________________________

2014-05-06 Alladina v. Calvo, 2014 ONSC 2550 (CanLII) CV-10-401845

[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.

______________________________________________________________

Morelli and State Farm  [+] Appeal, 2014-03-21, Reg 403/96. Final Decision FSCO 4142.  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.

________________________________________________________________

Singh and State Farm  [+] Arbitration, 2014-02-21, Reg 403/96.
Expenses FSCO 4128.
I also found that State Farm did unreasonably delay the IRBs to which Mrs. Singh was ultimately entitled.  It had no reasonable answer for not reconsidering her benefits after May 2, 2008 and relied on defective or incomplete reports to terminate those benefits, hence the special award.
 _____________________________________________________________________________

DE v GC, 2013 CanLII 55436 (ON HPARB) — 2013-09-05  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.

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JV v HAP, 2013 CanLII 59329 (ON HPARB) — 2013-09-20 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.

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MC v KE, 2013 CanLII 55435 (ON HPARB),  2013-09-04  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.

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Macdonald v. Sun Life Assurance Company of Canada, 2006 CanLII 41669 (ON SC), http://canlii.ca/t/1q596 2006-12-13

[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.

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Three Toronto-area rehabilitation clinics have been convicted of several offences, resulting in maximum fines of $100,000 per conviction, the Insurance Bureau of Canada said Tuesday.  http://www.canadianunderwriter.ca/news/three-ontario-rehabilitation-clinics-convicted-in-auto-insurance-fraud-cases/1002853624/

1. McCowan Rehabilitation Clinic
2. Physiotherapy Clinic
3. North York Health and Rehabilitation

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2014-01-16  Future Health Inc. v. State Farm Mutual Automobile Insurance Company of Canada, 2014 ONSC 356 (CanLII)

Introduction:

[1]     State Farm seeks leave to appeal the decision of Lococo J. 2013 ONSC 2941 (CanLII), (2013 ONSC 2941)  dismissing the motion of the Applicant seeking to have the claims of the Plaintiffs, for punitive and aggravated damages only, declared a nullity. For the reasons that  follow I would dismiss this motion.                       

Backgound:

[2]        Future Health Inc. was in the business of providing treatment plans and health care services to patients injured in motor vehicle accidents.  The patients were covered by automobile insurance policies issued by general insurance companies, including State Farm Mutual Automobile Insurance Company of Canada.

[5]           In this action, the Plaintiff has claimed damages for intentional interference with economic relations, inducing breach of contract, bad faith and conspiracy.  The Plaintiff also seeks aggravated damages as well as punitive and exemplary damages against State Farm.

[24]         The motion before Lococo J. was certainly important to the parties as it was an attempt to eliminate a major part of the claims advanced by the Plaintiff. That however, is not the test under the rule. The onus is on the Applicant to persuade me that the issue decided by Lococo J. is of such public importance to the development of the law and the administration of justice that leave to appeal should be granted. The Applicant has not so persuaded me. The law under Rule 21 has been established for decades. There is no reason to revisit it. The decision of the motions judge was a simple case of him properly exercising his discretion under a rule which has a long, well established history, and is used only to dismiss cases where it is plain and obvious they cannot succeed. That is not this case.

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Ross v. Bacchus, 2013 ONSC 7773 (CanLII),  http://canlii.ca/t/g2dfc

[4]  ….The only witness offered by the defendant was one overused expert who submitted a report in which he offered his opinion on matters outside the expertise of a physician together with an inaccurate curriculum vitae. The witness lost his temper during reasonable cross-examination and made a bad impression.

[6]….Mediation took place on November 14, but the defendant’s insurer stood firm. I infer that it took a six-day trial with all its attendant risk for the sake of $50,000. This is a litigation strategy that the defendant could well afford, but the plaintiff could not. I infer that the insurance company conducted itself this way in the hopes of intimidating the plaintiff and deterring other plaintiffs who have meritorious cases. It did not attempt to settle the action expeditiously as required by s.258.5 of the Insurance Act.

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D.B. and Economical Mutual  [+]  Arbitration, 2013-10-02

I prefer the testimony and ratings of D.B. provided by Dr. L. Becker to those of Dr. Paitich. Dr. L. Becker’s findings were consistent with other reports and were the result of detailed observations. Dr. Paitich made no actual measurements and found that D.B. could stand independently although she had one hand on the examining table for support and was vertical for a very short time. The foundation of Dr. Paitich’s WPI rating was flawed in that he refused to assess D.B. as she appeared in his office but instead, persisted in treating her as an amputee, which is not in keeping with the Guides. He compounded his error by not rating D.B.’s chronic neck, shoulders and low back pain, her scarring and skin condition, her hernia and daily use of opioid medications…

…Dr. Paitich calculated SOMA’s overall WPI rating for D.B. In Dr. Paitich’s opinion, D.B. does not qualify for the catastrophic impairment designation. He assigned her a WPI rating of 35%. Dr. Reznek found no impairment in his mental/behavioural evaluation while Ms. Freedman, the occupational therapist, rated it a mild impairment. Dr. Paitich determined 10% based on the report of Ms. Freedman, the occupational therapist. By choosing 10%, he appeared to have rejected his own psychiatrist’s opinion about D.B.’s impairments. Dr. Paitich disagreed and testified that 10% was a compromise between the two findings.

…Dr. Paitich applied no objective tests to rate D.B.’s mobility. He accepted that she used a walker indoors but he never asked her how far she used it. Ms. Freedman, the occupational therapist, was far more specific in her examination and noted D.B.’s inability to adopt a single leg stance, tandem gait, and her inability to stand independently. D.B. was not asked by Dr. Paitich about the walker and there was no demonstration by D.B. of her mobility using a single point cane. Instead, Dr. Paitich chose to treat D.B. as analogous to an amputee with a 28% WPI rating. There also was no acknowledgement of D.B.’s functional limitations in her knees, neck, shoulders and back which should have been rated. However, the Guides speak to evaluating impairment of different body systems by rating the scores for each system independently.[25]

…Dr. Harold Becker has also answered the unspoken question as to why Omega devoted so much care to assessing and calculating D.B.’s discrete impairments if the ultimate conclusion is that she is wheelchair dependent. The answer is that the constellation of D.B.’s impairments, both physical and mental/behavioural, created a perfect storm of impairment which resulted in her wheelchair dependency. For that reason, each of her discrete impairments must be evaluated and appreciated. I do not agree with Economical’s position that D.B. must be either paraplegic or quadriplegic to qualify as wheelchair dependent. No such requirement can be found in the Guides…

…It is understandable that D.B. is reluctant to consent to a lower limb amputation when she is uncertain about the result. I attach no weight to the WPI rating assigned by SOMA, which was based on an amputation D.B. has not had. Dr. Paitich also insisted that D.B. could walk with a single point cane and an air cast but I was presented with no evidence to support that assertion.

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R.J. and Dominion of Canada  Arbitration, 2013-09-17

Ms. J. has particularly taken exception to Dr. Hines’ role in the assessment process, claiming that his psychiatric assessment was flawed and that he overlooked key elements of potential evidence. Dr. Hines is also said to have made assumptions about Ms. J.’s recovery that stood in stark contrast to the opinions of her treating health professionals.

In other words, Dr. Hines essentially missed the boat on a woman who had severely disabling depressive symptoms to the degree that she became a suicide risk. She could not on any reasonable examination of her treatment records be said to be in remission, either with regard to her substance abuse or her depression.

I accept Ms. J.’s submissions that Dr. Ahmed, her treating psychiatrist, was better placed to evaluate Ms. J.’s progress or lack of progress over a lengthy period of time, and I would accept that his view of Ms. J.’s psychological state will carry more weight than any brief snapshot by a non-treating assessor, even without the alleged misapprehension by Dr. Hines of the underlying conditions.

Rebuttal reports became important with the paring back of the DACs and other consumer protection inventions that had been intended to provide some degree of objectivity to the assessment and determination process.

With the demise of DACs, the final determination as to entitlement was made by the Insurer, presumably on the advice and with the assistance of its own assessors. Most of these assessors were drawn from an informal roster of professionals who gave their professional opinions to litigants. Not a few of these were characterized as “hired guns” by those disagreeing with an assessor’s opinion.

Thus, when an insurer’s expert conducted an insurer’s examination on a claimant, it made sense that the claimant could commission his or her own report to address the shortcomings, if any, of the insurer’s experts’ analysis…

…In the context of this interim benefit hearing, barring unforeseen new evidence to support Dr. Hines’ opinion of remission, I believe that an arbitrator hearing all the evidence would be inclined to ascribe any evidence of remission to misinformation, wishful reporting or a minor short-term variation of a chronic condition. Indeed, Dr. Ahmed, Ms. J.’s treating psychiatrist, is unequivocal: Ms. J. is not suited to any work.

While many issues which were the subject of I.E’s and rebuttal reports verged on the trivial, others were not. In Ms. J.’s case, she applied for and was denied recognition of catastrophic impairment arising from the accident. Catastrophic impairment would allow her to access further attendant care, housekeeping and medical expenses so that her long-term care needs could be properly addressed.

Ms. J.’s accident happened in 2007. In the absence of a catastrophic designation, access to attendant care and housekeeping benefits would have ended in 2009. Likewise her access to medical benefits would be cut off in 2017. Consequently, access to the catastrophic designation is critical to the availability of what she sees as critical care.

Given Dr. Hines’ apparent misinformation about remission of symptoms, GAF score and psychosocial issues, the importance of a credible rebuttal is critical to Ms. J..

Having a rebuttal report available can assist an insurer in making a fair determination and, to an arbitrator hearing this matter, should streamline the process by drawing together and placing in a medical context the alleged shortcomings of the insurer’s medical legal reports.

In short, a rebuttal report in Ms. J.’s case would be not only reasonable but would facilitate the claims process. Consequently, if there is a basis to fund the report, it should be funded.

…In the context of this interim benefit hearing, barring unforeseen new evidence to support Dr. Hines’ opinion of remission, I believe that an arbitrator hearing all the evidence would be inclined to ascribe any evidence of remission to misinformation, wishful reporting or a minor short-term variation of a chronic condition. Indeed, Dr. Ahmed, Ms. J.’s treating psychiatrist, is unequivocal: Ms. J. is not suited to any work.

While many issues which were the subject of I.E’s and rebuttal reports verged on the trivial, others were not. In Ms. J.’s case, she applied for and was denied recognition of catastrophic impairment arising from the accident. Catastrophic impairment would allow her to access further attendant care, housekeeping and medical expenses so that her long-term care needs could be properly addressed.

Ms. J.’s accident happened in 2007. In the absence of a catastrophic designation, access to attendant care and housekeeping benefits would have ended in 2009. Likewise her access to medical benefits would be cut off in 2017. Consequently, access to the catastrophic designation is critical to the availability of what she sees as critical care

…In the context of this interim benefit hearing, barring unforeseen new evidence to support Dr. Hines’ opinion of remission, I believe that an arbitrator hearing all the evidence would be inclined to ascribe any evidence of remission to misinformation, wishful reporting or a minor short-term variation of a chronic condition. Indeed, Dr. Ahmed, Ms. J.’s treating psychiatrist, is unequivocal: Ms. J. is not suited to any work.

While many issues which were the subject of I.E’s and rebuttal reports verged on the trivial, others were not. In Ms. J.’s case, she applied for and was denied recognition of catastrophic impairment arising from the accident. Catastrophic impairment would allow her to access further attendant care, housekeeping and medical expenses so that her long-term care needs could be properly addressed.

Ms. J.’s accident happened in 2007. In the absence of a catastrophic designation, access to attendant care and housekeeping benefits would have ended in 2009. Likewise her access to medical benefits would be cut off in 2017. Consequently, access to the catastrophic designation is critical to the availability of what she sees as critical care..

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College of Psychologists of Ontario  -Marlin, Richard G (Richard)

https://members.cpo.on.ca/members_search/show/1012?section=discipline#ui-tabs-12

[The following was placed on the Public Register on March 6, 2013]

The Inquires Reports and Complaints Committee referred the following specified allegation to the Discipline Committee:

Dr. Richard Marlin committed an act of professional misconduct in that the
governing body of a health profession in a jurisdiction other than Ontario has
found that Dr. Marlin committed an act of professional misconduct that would be
an act of professional misconduct as defined in the regulations, as per s.51(1)(b)
of the Health Professional Procedural Code, being Schedule 2 to the Regulated
Health Professions Act, 1991, S.O. 1991, c. 18.

Specifically, the Hearing Tribunal of the College of Alberta Psychologists found that Dr. Marlin:
(i) Conducted a psychometric test with a client when the client was averse to doing so;
(ii) Wrote to the client’s other care providers without having clear consent from the client to do so;
(iii) Limited access to the client’s family physician and other specialists, contrary to the client’s choice;
(iv) Failed to create a relationship in which the respect and dignity of the client was maintained;
(v) Conducted a psychometric test when the client was under duress/emotional stress; and,
(vi) Failed to ensure that there were sufficient professional attendances directly with the client when the pre-existing history and conditions of the client mandated a higher level of interaction than once per month.

A hearing will take place at 10:00 a.m. on Wednesday, September 4, 2013 at Atchison & Denman Court Reporting Services, 155 University Avenue, Suite 302, Toronto, Ontario M5H 3B7.

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Nagle v. Thomas, 2009 NBQB 66 (CanLII) http://canlii.ca/t/232nn

[59]         Dr. Richard Marlin was qualified at trial as an expert psychologist with respect to the diagnosis and treatment of minor brain injuries.

 [60]         It must be born in mind that Dr. Marlin did not meet with and examine Mr. Nagle.  He did not review the neuropsychological tests data upon which Dr. Mills formed her opinion nor did he attend at the trial to listen to the testimony of Mr. Nagle, the lay witnesses nor the other medical experts.  He did not engage in any psychotherapeutic sessions with Mr. Nagle.

 [61]         Dr. Marlin agreed that a mild traumatic brain injury was suffered by Mr. Nagle at the time of the accident.  He testified “the brain was not so traumatized that it was not unable to remember what happened ”.  However, he is of the view that none of the complaints which Mr. Nagle and Dr. Leckey associate with the mild traumatic brain injury have anything to do with it but are rather due to psychological factors which are treatable and stem from the other injuries sustained by Mr. Nagle.  Dr. Marlin’s report is focused mainly upon refuting the diagnosis that Mr. Nagle had suffered a mild traumatic brain injury as a consequence of the accident.  In his report and on direct examination, Dr. Marlin did not retract his criticisms of the medical evidence.  However, on cross-examination he agreed with the diagnosis of a mild traumatic brain injury.  In my opinion this diminished Dr. Marlin’s credibility as does the following testimony which is laced with sarcasm.

[69]         However as noted at trial, Dr. Marlin contradicted his report and conceded that it is possible that Mr. Nagle’s current symptoms are caused by the mild traumatic brain injury suffered by Mr. Nagle as the result of the accident.  For these reasons it is without hesitation that I elect to accept the evidence of Dr. Leckey and Dr. Mills over that of Dr. Marlin.

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Hedstrom v. Manufacturers Life Ins. Co., 2002 BCSC 1502(CanLII) http://canlii.ca/t/5gkd

[18]   …On 29 May 2002, two psychologists, Dr. Marlin and Dr. Mok both of Odyssey Health Services, examined Hedstrom.  They concluded that Hedstrom was not totally disabled with respect to gainful employment.  In a report to Manulife made on the same date, Odyssey opined that no objectively demonstrable or definable underlying disease or pathology had been identified to account for Hedstrom’s symptoms; that Hedstrom showed no evidence of any underlying psychopathology or psychological disorder to account for his symptoms; and that, the “presence of significant variations in the available history and reported events”, coupled with the other factors, led to their conclusion that Hedstrom was not totally disabled.

[19]   Counsel for Hedstrom objected strenuously that the Odyssey report was inadmissible on the application.  I would have little difficulty acceding to the objection if Manulife was attempting to tender the report as opinion evidence at trial.  While the authors are qualified to express opinions about whether the testing disclosed any evidence of psychological disorder capable of explaining full disability, they went well beyond that function.  In expressing opinions on medical matters far outside their expertise, as well as on the truthfulness and reliability of Hedstrom, the authors travelled well outside the permissible bounds of expert evidence.

[20]   But the report was not prepared for admission into evidence as an expert opinion and Manulife seeks to rely on it for a different more limited purpose.  Odyssey prepared the report to assist the claims-handler who had requested it.  Manulife then relied on the report in deciding to terminate benefits.  It became part of the claims file and is properly before the court to be considered in assessing the relative strengths and weaknesses of the legal positions of the parties.

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http://www.fsco.gov.on.ca/en/drs/counselforum/Pages/2011-03-25.aspx

5. “Doctored” Reports:

Senior Arbitrator Nastasi reported that a recent unit meeting arbitrators reported two separate hearings in which in the middle of testimony by a doctor or assessor, it became clear that the report issued / produced by the Clinic or assessor was not the same report created by the doctor / assessor on the witness stand. Liz put the issue out to the group to assess whether this has been a recent issue or new trend that counsel have also experienced.
Counsel Response:
In the past IR adjusters would contract out to individual assessors and defence counsel could potentially request certain doctors that they liked to work with BUT today – to save money almost 100% of the assessment work is farmed out to Brokers leaving very little choice about who will do the assessment.
Stan P. – 100% of ALL assessments are “doctored” – in that the actual doctors and assessors are not able to do MOST of the report for $2000. The result is that the clinic administrators are the ones setting up most of the report and then doctors actually write a small portion of the actual report.
Eric G – the $2000 cap is “unworkable” – most of the work is done by the broker because of the limited amount of money available to pay for the report.
Suggestion – FSCO needs to look at this in a more systemic way
Query – what is FSCO’s or an arbitrators’ responsibility when this issue comes up during a hearing ? – When an arbitrator does encounter this during a hearing then they need to report on it and this will have an effect in the future on whether that company or assessor receives any further business

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Allstate Insurance Company v. Fairview Assessment Centre, 2013 ONSC 5446 (CanLII), http://canlii.ca/t/g06vv

Analysis

[11]           In my view, the doctrine of merger should apply in this case such that the claim for conspiracy cannot stand together with the claim in tort for fraudulent misrepresentation.  Applying the unassailable logic of Lord Denning in the English case of Ward v Lewis, [1955] 1 All E.R. 55 (C.A.), at 56, an allegation of a prior conspiracy to commit a tort adds nothing to the pleading.  This is not a case where conspiracy is pleaded in the alternative because it is uncertain to the plaintiff whether the benefit claims were submitted or the charges incurred.  If it were, then a claim for unjust enrichment could hardly be supported.  There is nothing that needs to be left to the trial judge here; the claim in conspiracy adds nothing to the pleading as constituted.  It is redundant.  Applying the doctrine of merger, therefore, the claim in conspiracy cannot be maintained and must be struck.

[12]           I am unable to agree with the defendants that the pleading does not disclose a cause of action in unjust enrichment.  The alleged enrichment is plain to see, if not plainly worded: the defendants received a benefit to which they were not entitled, namely fees for approved services. The corresponding deprivation to the plaintiffs was the payment of those fees.  The absence of a juristic reason is not specifically pleaded, but a generous reading of the claim makes it clear that the entire scheme alleged to have been operated by the defendants was unlawful.  I find that paragraphs 17, 18 and 19 of the claim, read in context, are sufficient to constitute the third element of a cause of action in unjust enrichment.

[13]           I agree with the defendants that the allegations as against the personal defendants must be struck.  There are simply insufficient facts pleaded of alleged wrongdoings by the personal defendants against the plaintiffs directly to support any cause of action against them personally.  I acknowledge that directors and officers of corporations may be held personally liable for certain tortious acts; however, standing alone, the allegations in paragraphs 17 and 19 do not support a cause of action against these defendants individually.  Greater care must be taken to set out with some specificity the acts which would expose the personal defendants to liability to the plaintiffs.  The conduct identified in paragraph 17 may indeed be the kind which the law may frown upon and which may attract scrutiny by licensing authorities, but setting up a corporation for an improper purpose is not a cause of action known at law.  The claims against the personal defendants are therefore struck.

[14]           I find that the statement of claim does set out sufficient facts to found a cause of action in fraudulent and negligent misrepresentation.  It is not plain and obvious that the claims would fail. The law recognizes both torts being advanced.  A generous and liberal reading of the pleading allows one to identify the essential elements of both torts. In respect of fraudulent misrepresentation, the representations are the information contained on the submitted OCF-22 forms; they are alleged to be false or to contain false information (paragraph 10); paragraph 10 speaks to the defendants intentions and their knowledge; paragraphs 13 and 14 set out what the submitted forms induced the plaintiffs to do, with the attached schedule to the claim providing specific references to claim numbers.  In respect of the fifth element from the Corfax case, it was not, practically speaking, open to the plaintiff to void any contract with the defendants.  As an insurer with responsibilities to its insured under the regulations of the Insurance Act, R.S.O. 1990, c.I.8, the course open to it on any particular submitted claim was merely to deny the  benefit or service.

[15]           I also find that the allegations of fraud are sufficiently pleaded.  The description of the acts taken by the defendants provides sufficient detail of the nature of the alleged fraud: that of submitting insurance claim forms containing incorrect information, falsifications or bogus claims.

[16]           I find that the pleading discloses a reasonable cause of action in negligent misrepresentation and negligence. The essential elements of those torts pleaded are found at paragraphs 20 and 21. The duty of care owed by the defendants to the plaintiffs, although not specifically set out, may be gleaned from a reading of the claim in its entirety.  The defendants, as assessment centres for individuals with injuries arising out of motor vehicle accidents, would be submitting authorized forms to the plaintiffs as insurer for those individuals.  The duty to provide honest and reliable information to the insurer can be viewed as inherent to that relationship.  A degree of reliance on the assessment centre to submit legitimate claims on behalf of injured persons was to be expected; indeed, the nature and extent of the reliance by insurer is set out clearly at paragraphs 8 and 9 of the claim.

_____________________________________________________________

PFR v BU, 2013 CanLII 46994 (ON HPARB) — 2013-07-25

Health Professions Appeal and Review Board — Ontario

The Committee’s Investigation and Decision

 11.              The Committee investigated the complaint.

12.              The Committee determined that, on a technical level, it was satisfied that the Applicant`s assessment of the Respondent, his clinical findings and opinion, and his ensuing report (which fully set out the information he based his opinion on) were reasonable and in keeping with the expectations set out in the College’s policy on Third Party Reports. The Committee accepted that the Applicant’s reference to the Respondent’s weight as 225 pounds was an inadvertent error, which he has acknowledged.

13.              The Committee noted, however, that it had previously received other complaints from patients regarding the Applicant’s unprofessional communication, many in the IME context. In addition, it noted two concurrent complaints about communications concerns before it at the same time as this complaint. It stated that this information had served to heighten the Committee’s concern in this case.

14.              It concluded that it was very troubled by the Applicant’s communication and what appeared to be a sustained pattern of issues related to unprofessional behaviour. Therefore, the Committee decided to caution the Applicant and to require the Applicant to complete a specified continuing education or remediation program, as set out in paragraph two above.

……………………………………………………………………………………………………………………………..

The requirement to consider prior decisions is couched in mandatory terms under section 26(2) of the Code.

Prior decisions

 (2)   A panel of the Inquiries, Complaints and Reports Committee shall, when investigating a complaint or considering a report currently before it, consider all of its available prior decisions involving the member, including decisions made when that committee was known as the Complaints Committee, and all available prior decisions involving the member of the Discipline Committee, the Fitness to Practise Committee and the Executive Committee, unless the decision was to take no further action under subsection (5). [Emphasis added]

23.              The Committee has not complied with this legislative provision as it has considered only summaries of the matters detailed in the “CPSO Physician Profile” rather than the entire decisions.

24.              Further, the Committee has not complied with the section 25 (6) (c) which provides as follows:

 Notice to member

 (6)   The Registrar shall give the member, within 14 days of receipt of the complaint or the report,

(a)      notice of the complaint, together with a copy of the provisions of sections 28 to 29, or notice of the receipt of the report;

(b)     a copy of the provisions of section 25.2; and

(c)   a copy of all available prior decisions involving the member unless the decision was to take no further action under subsection 26 (5).

25.              The Committee did not comply with section 25 (6) (c) because it provided the Applicant with the summary of the matters contained in the “CPSO Physician Profile” but did not provide the Applicant with the actual available prior decisions.

26.              The Board finds the Committee’s investigation to be inadequate as a result of its failure to comply with section 25(6) (c) and 26(2) of the Code.

27.              The Board, therefore, returns this matter to the Committee and requires it comply with sections 25(6) (c) and 26 (2).

______________________________________________

20.
PFR v BU, 2013 CanLII 46994 (ON HPARB) — 2013-07-25
Health Professions Appeal and Review Board — Ontario
complaint — pounds — prior decisions involving the member — assessments — require
21.
PFR v EH, 2013 CanLII 46912 (ON HPARB) — 2013-07-25
Health Professions Appeal and Review Board — Ontario
complaint — prior decisions involving the member — unprofessional — require — remediation
22.

PFR v GJR, 2013 CanLII 46913 (ON HPARB) — 2013-07-25

Health Professions Appeal and Review Board — Ontario
patient — fracture — nonunion — complaint — prior decisions involving the member
____________________________________________________________________

SS v GC, 2013 CanLII 45566 (ON HPARB), 12-CRV-0656 2013-07-24 http://canlii.ca/t/fzsxg

4.                  The Respondent, an orthopaedic surgeon, conducted an independent medical assessment (IME) of the Applicant on June 29, 2011 as part of a multi-disciplinary assessment.

……•        he did not recall telling the Applicant to “suck it up” or “toughen up” and noted that he does not use such language;

•        he may have said something about insurance companies being taken advantage of as part of a general discussion with the Applicant but he did not suggest that the Applicant was making a false claim as evidenced by his report which confirmed that the Applicant suffered serious and extensive injuries; and

•        he has given serious consideration to the Applicant’s complaint and acknowledged that he has had previous complaints about his demeanour and ability to communicate well with patients; he has taken a communications course with Dr. Dawn Martin.

14.              The Committee noted that there had been previous complaints about the Respondent’s communications. The Committee accepted that the Respondent’s contrition in this case was sincere and stated that it was pleased that he had entered into a communications course with Dr. Martin. Nevertheless, the Committee felt that the Respondent would benefit from reflection and education in the area of communications and decided to issue a written caution to the Respondent to be aware that patients with post-traumatic chronic pain and disability who attend for an IME may not appreciate the Respondent’s efforts at small talk and that the Respondent should refrain from discussing systemic issues or details of his personal life.

24.              The Applicant submitted that the Committee’s decision was unreasonable because the caution issued to the Respondent did not reflect the serious impact that the Respondent’s conduct during the IME had on the Applicant and would not ensure that other patients would not experience the same trauma. The Applicant submitted that the Committee should have imposed a requirement that the Respondent should not be permitted to conduct an IME without someone else being present.

VI.       DECISION

37.              Pursuant to section 35(1) of the Code, the Board confirms the Committee’s decision to caution the Respondent to be aware that patients with post-traumatic chronic pain and disability who attend for an IME, such as [the Applicant], may feel vulnerable, may not appreciate his efforts at “small talk,” and that he should refrain from discussing systemic issues or details of his personal life.

______________________________________________________________

Fielden v. Health Professions Appeal and Review Board, 2013 ONSC 4261 (CanLII) — 2013-06-19

Divisional Court — Ontario

[1]               This is an application for judicial review to quash the May 3, 2012 decision of the Health Professions Appeal and Review Board, which upheld the decision of the Inquiries Complaints and Reports Committee of the College of Physicians and Surgeons of Ontario to verbally caution the applicant.  The applicant was alleged to have acted unprofessionally and with bias in administering an independent medical examination to a patient.

[2]               The applicant seeks to have the decision set aside and to have the matter remitted to a differently reconstituted panel.

[3]               The applicant is an orthopaedic surgeon.  On December 20, 2006, Ms. Nancoo sustained several injuries when she was struck by a motor vehicle while crossing the road.  On May 4, 2010, Ms. Nancoo submitted an application to the insurer for catastrophic benefits in accordance with theInsurance Act.

[4]               The applicant was retained by the insurer to conduct an orthopaedic Independent Medical Examination (IME) of Ms. Nancoo.  The applicant met with Ms. Nancoo on August 11, 2010 and conducted the IME.  On August 24, 2010, the College received a complaint for Mr. Warren, Ms. Nancoo’s lawyer regarding Dr. Fielden’s behaviour during the course of the IME.

[5]               The Committee found that Dr. Fielden’s behaviour when conducting the IME was inconsiderate and inappropriate.  The Committee decided not to refer the matter to the Discipline Committee but rather to verbally caution Dr. Fielden in person regarding being professional, objective and courteous in performing IME’s.  HPARB dismissed Dr. Fielden’s appeal and determined that the Committee’s investigation was adequate and that its decision to caution Dr. Fielden was reasonable.

[6]               The applicant seeks judicial review.  Assuming that the decision is reviewable at all, it is accepted that the standard of review is reasonableness.[1]

[7]               We do not agree that the Board erred in not finding that the Committee’s Decision was unreasonable by failing to make a credibility finding in the circumstances of this case and particularly the applicant’s submission that these facts required the Committee, in effect, to make a determination with respect to Ms. Nancoo’s credibility.

[8]               First, it is clear that the Committee has no jurisdiction to make credibility findings per se. (See McKee v. Health Professions Appeal and Review Board, [2009] O.J. No. 4112).  The Committee exercises a screening function.  It conducts an investigation and renders a decision as to the existence of sufficient evidence to warrant referral to the Discipline Committee.  It does not hold any hearing to determine with finality what the facts were.  Here, the Committee decided not to refer the matter to the Discipline Committee.  This decision was amply justified on the record and particularly on the basis of the admissions and statements made by Dr. Fielden.

[9]               We also find no error of procedural fairness on the part of the Committee.  The Committee was entitled to take into account all of the information it obtained in its investigation in determining the appropriate course of action.  What the applicant refers to as “add on issues”, in fact came from Dr. Fielden’s responses to the complaint which raised additional concerns.  These did not give rise to any further notice entitlements.

[10]           The decision of the Committee to caution the applicant in person is not a “sanction”.  Cautions are entirely remedial in nature and intended to assist the applicant to improve his practice.  A caution administered by the Committee is not a penalty and must be contrasted with the range of penalties that can be imposed by the Discipline Committee of the College consequent to a finding of professional misconduct.  The Discipline Committee of a College can impose a variety of sanctions, which may be recorded on the permanent and public record of a member.  By contrast, a caution is remedial only, cannot involve any finding of professional misconduct (a finding which is outside the jurisdiction of the ICRC and the Board), and does not appear on the register or in any public document of the College.

[11]           The Committee required that Dr. Fielden be cautioned on being objective, professional and courteous in performing independent medical exams.  One of the basis upon which the Committee expressed concern was factual errors which it stated Dr. Fielden had made in his report.  For example, stating that he had incorrectly asserted that Ms. Nancoo had been treated in a private rehab facility when the record indicates that she had been.  Given the absence of support for the finding that Dr. Fielden made factual errors in this case, there is no reasonable basis for cautioning him on this point.  With this one exception, we find the Committee’s decision to caution Dr. Fielden was reasonable as was the HPARB decision.

[12]           The application is therefore dismissed.   The Board does not seek costs.

_______________________________________________________________

Silas v. Fielden, 2011 HRTO 1057 (CanLII) http://canlii.ca/t/flplv

HUMAN RIGHTS TRIBUNAL OF ONTARIO

[2]               The Application alleges discrimination in goods, services, and facilities because of disability, marital status and age regarding erroneous information the respondent relayed in the context of an independent medical evaluation for an insurance company. The applicant was involved in motor vehicle accident in December 2005 and his insurance company required him to undergo an independent medical evaluation, which was performed by the respondent. The respondent provided his initial evaluation on May 23, 2006. The insurance company provided further medical records for the respondent to review and he responded by letter to the insurance company on July 11, 2006. In this second letter, the respondent provided erroneous information regarding the applicant, based on a misreading of the notes provided by the applicant’s family physician. This erroneous information had negative consequences for the applicant regarding his insurance claim.

[8]…Neither the CPS or HPARB have expertise in the human rights law of Ontario; therefore, it was not reasonable for the applicant to rely on any advice he may have received from either body regarding his rights under the Code. As noted above, waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will also generally not constitute a valid explanation for delay in filing an Application.

[9]               In the circumstances, I find that applicant has not provided a reasonable explanation for the delay and therefore has not established that the delay was incurred in good faith. Having found the delay was not incurred in good faith, I need not address the issue of prejudice.

[10]           The Application is dismissed.

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Xavier and Old Republic Insurance Company  [+]  Arbitration, 2009-02-06, Reg 403/96.

…Dr. R.H.N. Fielden, an orthopaedic surgeon and Dr. Douglas Saunders, a psychologist, conducted the first assessments for Old Republic on October 4, 2005. They authored reports dated October 11, 2005 [See note 31 below] and October 19, 2005. [See note 32 below] Dr. Fielden concluded that Mr. Xavier was suffering from no residual impairment as a result of the accident and could return to all pre-accident activities, including work.

Mr. Xavier told Dr. Fielden that he continued to experience shoulder and back pain. Dr. Fielden was aware of the treatment Mr. Xavier was receiving from Dr. Raghunan. Dr. Fielden’s observations on physical examination include restricted range of shoulder and lumbar motion. His report does not contain an explanation of how he arrived at his opinion.

…I do not accept Dr. Fielden’s conclusion in his report of October 11, 2005 [See note 50 below] that Mr. Xavier suffered no ongoing physical impairment. The report contains no explanation of how he arrived at this conclusion and his opinion is at odds with the findings of his own examination which included restricted range of shoulder and lumbar motion.

_________________________________________________________

Turner and State Farm  [+]  Arbitration, 2004-04-28, Reg 403/96. Preliminary Issue

…This examination was done by Dr. Robert Fielden, an orthopaedist…..State Farm knew of the diagnosis and of Mr. Turner’s history of treatment in this regard, when it chose to have Dr. Fielden examine him in 2002.

He concluded that Mr. Turner “does not suffer a complete inability to engage in any employment.” A Functional Abilities Evaluation done by Jodi Levstein on the same day resulted in the same conclusion. Based on the conclusions of Dr. Fielden and Jodi Levstein, State Farm terminated weekly income replacement benefits on July 9, 2002 .

…as far back as 1999, long before Mr. Turner was examined by Dr. Fielden in April 2002. It made its adjusting decision on the basis of the opinion it obtained from Dr. Fielden’s report. Nothing has changed. There is no ongoing adjusting of a changing or evolving claim. State Farm has maintained its position.

Indeed, when I asked counsel for State Farm how the requested examination would contribute to an adjusting decision, she could offer no insight at all in this regard. Her reply was that the decision was up to the adjuster. She submitted that the Insurer had stated the purpose of the examination in the notice sent to Mr. Turner, and it was not open to an arbitrator to “second- guess” ; that decision. As I pointed out above, the cases do not support this approach.

In the circumstances of this case, where some six months after mediation failed and four months after Mr. Turner applied for arbitration, the Insurer seeks to clarify information it has been aware of for years, the Insurer must provide a better explanation lest the inference be drawn that what the Insurer really seeks is ammunition for the arbitration proceeding. I conclude that this is the likely reason for the request.

________________________________________________________________

________________________________________________________________

KI v LK, 2013 CanLII 332 (ON HPARB) 2013-01-11 http://canlii.ca/t/fvkrt

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 theCollege of Physicians and Surgeons of Ontario to issue a caution to Dr. K.I. regarding her inadequate and inaccurate report and to further recommend that the Applicant review the College policy, “Third Party Reports”.

5.                  The Respondent complained that the Applicant failed to provide an accurate opinion of her claim for psychological services to the Respondent’s insurer; for example, the Applicant provided an opinion that may be outside of her expertise, since she opined regarding psychological services but is an occupational medicine specialist.

8.                  The Committee, however, noted that the Applicant’s report contained inaccuracies with respect to the details of what happened at the time of the collision. The report indicates that the Respondent was backing out of her driveway and was hit by an oncoming car, while the information before the Committee indicated that the Respondent was hit by a car backing out of a driveway. The report omitted the fact that the police were called, the car was damaged to the extent that it had to be towed away and was written off, which the Committee wrote, “speaks to the extent of the motor vehicle accident”.

9.                  Further, the Committee found that the Applicant failed to address important information that supported a claim for psychological services. It wrote that the Applicant “commented that the physiotherapist did not mention psychological issues, but she failed to mention that [the Respondent’s] family physician felt that a referral for psychological services was indicated” and that it appeared she had “completely disregarded this referral from the family physician.” The Committee stated that the Applicant “completely disregarded the results of the Beck Depression Inventory and Beck Anxiety Inventory, which showed severe depression and anxiety, respectively. Without performing a psychological assessment of [the Respondent], it would be difficult to assess whether or not these conditions pre-existed the accident.”

10.              The Committee determined the appropriate disposition was to caution the Applicant regarding “her inadequate and inaccurate report” and to recommend that the Applicant review the College policy, Third Party Reports.

24.              Counsel submitted that the Respondent should have raised her concerns with the report under the mediation and arbitration processes provided under theInsurance Act and that the College is the wrong forum for the determination of her concerns. He submitted that having determined the Applicant was properly qualified, the Committee should defer to her expertise:  if the College engages in the review of third party assessment undertaken by qualified health professionals, it will deter physicians from conducting assessments.

34.              The Board has reviewed the Policy and finds the Committee’s assessment that the Applicant failed to comply with it is reasonable. The Committee concluded its analysis as follows:

Accordingly, it appears to the Committee that [the Respondent’s] report was both inaccurate and inadequate. It seems that she failed to comply with the College policy, “Third Party Reports,” which notes that when providing a third party report physicians must “take reasonable steps to 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 …” Moreover, the policy also states that physicians “should ensure to the best of their abilities that the information contained in the third party report is accurate.”

 35.              In her May 5, 2011 report, the Applicant referred only to a physiotherapy report written shortly after the accident and did not discuss any of the other 37 documents in the file, including the opinions of the Respondent’s physician and other health professionals that an assessment was required. She then wrote:  “based on the documentation available for review, there was no evidence that [the Respondent] requires a psychological assessment …” (Board’s emphasis). The Board concludes that in light of this, the Committee’s conclusion that the Applicant failed to comply with the obligation “to take reasonable steps to ensure that they have obtained and reviewed all available clinical notes records and opinions” was reasonable.

 36.              Likewise, the Board finds that the Committee’s view regarding accuracy is reasonable as the Applicant made no effort to clarify the inconsistency regarding how the accident occurred. The Board does not find that the Committee’s reference to missing details regarding the apparent severity of the accident is misplaced as it is indicative of the absence of almost any factual content in the report.

37.              The Board finds that that the Committee’s decision to issue a caution is reasonable. The Board notes that a caution is not a sanction. It is remedial in nature.

 VI.       DECISION

38.      Pursuant to section 35(1) of the Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act, 1991, the Board confirms the Committee’s decision to issue a caution to the Applicant regarding her inadequate and inaccurate report and to further recommend that the Applicant review the College policy, Third Party Reports.

Read: 

http://www.torontosun.com/2013/01/25/protecting-docs-reputations

http://www.canadianunderwriter.ca/news/ontario-appeal-board-upholds-caution-issued-to-ime-in-auto-claim/1001993394/

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Ms. M.G. and Economical [+] Arbitration, 2012-11-23 FSCO A09-002443

I disagree with this assessment for a number of reasons. I find Dr. Gnam based his conclusion on limited and inaccurate information. Limited, because neither he nor Ms. Krushed interviewed any family members for insight into what she could, or would, actually do on her own on a daily basis, without cueing, unlike Dr. Levitt, who interviewed Ms. M.G.’s mother for collateral information. I also find it inaccurate because I find Ms. Krushed’s report failed to consider the effect of pain, diminished capacity and lack of motivation on the effectiveness and sustainability of Ms. M.G.’s ADLs.

In relying on Ms. Krushed’s inaccurate report, I find Dr. Gnam’s opinion was based on misleading information.

Secondly, Dr. Gnam failed to consider, compare and differentiate the criteria for moderate, marked and severe impairment before arriving at his conclusion. His statement, that mental impairment that appears to “preclude some but not all useful functioning” [emphasis added] is consistent with Moderate impairment, is not accurate.

I do not believe Dr. Gnam’s opinion to be either correct or reasonable for two reasons. The first is that Ms. M.G.  testified, and I find, that even simple volunteer efforts such as calling out bingo numbers or helping visiting family members at the hospital were overwhelming for her, and she quickly became fatigued, confused, irritable and unable to cope. I find the facts indicate Ms. M.G. has not been able to “maintain some restricted work-like stresses or activities” as Dr. Gnam claims.

The second reason I reject Dr. Gnam’s opinion is that, even if he were not wrong on the facts,  his application of the impairment rating system set out in theGuides is not correct in this case. His conclusion, that Ms. M.G.’s impairment is Moderate because she is “not completely unable to engage and maintain some restricted work-like stresses and activities,” applies the wrong test. The test for Moderate impairment, or even Marked impairment, is not, as he suggests, “complete inability.”

I find Dr. Gnam failed to consider and compare all of the relevant impairment levels and correctly apply them to the facts and his conclusion was flawed as a result.

As can be seen from the chart above, the only assessment of physical impairments that falls short in this case is that of the Custom Rehab team. I did not find their assessment and rating to be as reasonable or as persuasive as those of Dr. Garner or the Drs. Becker for a number of reasons. The first reason is that I do not find the Custom Rehab team had a realistic or accurate grasp of Ms. M.G.’s actual functional abilities for her activities of daily living. As discussed above, I did not find Ms. Krushed’s extrapolations from her observations of Ms. M.G.’s abilities to complete daily living tasks and engage in social activities to be realistic or reasonable.  Consequently, to the extent Dr. Mathoo and Dr. Dost relied on Ms. Krushed’s faulty statements and conclusions, their reports are similarly inadequate.

The second reason I prefer the evidence of Kaplan and Kaplan and Omega over that of Custom Rehab, is that I find the Custom Rehab team’s approach resulted in their under-rating of Ms. M.G.’s physical impairments.  There appear to be a number of reasons for this. One is that the team members did not consult with each other, or even exchange their reports; each simply conducted his or her own assessment and prepared a report, and the team leader, Dr. Mathoo, included their findings in his Executive Summary. I find this lack of communication impeded the exercise of clinical judgment or interpretive analysis by team members – essential components of assessing the impact of impairments on daily functioning.

The effect of this compartmentalized approach can be seen in how the Custom Rehab team members accounted, or rather, failed to account, for the effects of pain on daily functioning. …

Although Ms. M.G. complied with her obligations, and despite requests from her counsel, Economical did not reinstate Ms. M.G.’s IRBs until just before the start of this hearing, two and a half years after stopping them.  Economical did not provide any explanation for the delay. I find both the delay and the lack of any explanation to be completely unacceptable. As it is well-established that an insurer cannot avoid a special award simply by paying an overdue benefit just before the issue is to be adjudicated, I find Economical’s conduct merits a special award in this case.

Read: http://www.torontosun.com/2013/01/18/catastrophic-impairment-cases-continue-to-vex-insurers

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M.M. and Guarantee [+] Arbitration, 2012-09-19 FSCO A10-000338

Guarantee relied on expert opinions that there was no “ongoing” brain impairment, that the GCS score of 9 was “isolated” and that the GCS scored related “primarily” and “predominantly” to hemodynamic instability and/or hypoxemia. Guarantee also relied on the insertion of qualifying language into the relevant provision of the Schedule such as “ongoing”, “durable”, or “significant” before “brain impairment” or “solely” before “results in”. This is not in keeping with the rulings in both Liu and Young.

Many of M.M.’s assessors imported qualifying language into the Schedule, and based on that qualifying language, opined that she did not meet the subsection 2(1.1)(e)(i) criteria. Kaplan and Associates diagnosed a brain injury and agreed there was a GCS score of 9. They also were of the opinion that the brain injury contributed to the lower GCS. However, they discounted M.M.’s GCS score because they did not consider it to be directly and exclusively caused by the brain injury. They concluded that the brain impairment, the disrupted consciousness, was primarily caused by hemodynamic instability due to blood loss and not exclusively by M.M.’s brain injury.

Read Alan Shanoff column An Insurance Nightmare http://www.torontosun.com/2012/10/19/an-insurance-nightmare

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Mr. C. and Coachman – 2 [+] Arbitration, 2011-10-21 FSCO A09-000167

Although she did not provide a diagnosis in her report, Dr. Wilkins testified that she based her conclusion that Mr. C. was not catastrophically impaired because in her view Mr. C. was a malingerer. Dr. Wilkins, however, did not provide any objective, credible evidence to support this conclusion. Her conclusion that Mr. C. is a malingerer stands alone in the face of an abundance of consistent and objective evidence that Mr. C.’s behaviour and complaints are credible. I, therefore, give very little weight to her opinion that Mr. C. is a malingerer.

Accordingly, for all these reasons I give little weight to Dr. Wilkins’ report and testimony that Mr. C. is not catastrophically impaired.

Dr. Lawson, a psychologist, conducted a catastrophic impairment assessment on behalf of Coachman on August 4, 2009.

Like Dr. Wilkins, I find that Dr. Lawson was a poor example of an expert witness. I agree with Mr. C.’s submissions where he states: Dr. Lawson’s demeanour when testifying, was argumentative, evasive, confusing and demonstrated a lack of understanding of his role as an expert to assist the Tribunal in reaching its decision on the complex issue of whether Mr. C. is catastrophically impaired.

In a short report, Dr. Lawson, without providing much information, rationale or analysis, concluded that Mr. C. was not catastrophically impaired. I give little weight to his conclusion.

I find that in failing to follow the Guides to observe and record a description of Mr. C.’s “concentration, persistence and pacing” during the testing, I cannot give much weight to Dr. Lawson’s conclusions regarding Mr. C.’s functionality when they are solely based on the test results.

Like Dr. Wilkins’ report, I find Dr. Lawson’s report to be superficial and biased in favour of Coachman. For example, in his report, Dr. Lawson notes: “Mr. C. stated he was hospitalized within the past two weeks as a result of depression and suicidal ideation.”… “He reiterated he has experienced suicidal ideation at times and has threatened to hurt himself and family members.” (It should be noted at the time of his assessment with Dr. Lawson, Mr. C. had not yet been hospitalized for overdosing on his medication.) [Emphasis added]

In light of this information, Dr. Lawson ignored the significance of Mr. C.’s very recent suicidal/homicidal mental state in relation to Mr. C.’s ability to function in any of the four domains noted in theGuides. I find this to be an important omission, especially since in his conclusion Dr. Lawson states that “Mr. C.’s accident occurred two years prior to his evaluation. As such, his psychological status is considered stable at this time.”

Another significant omission in Dr. Lawson’s report is his failure to comment on or consider the occupational assessment by Ms. Perreras. Dr. Lawson was on the same team as Ms. Perreras, who were carrying out a catastrophic impairment assessment on behalf of Coachman. Nevertheless, Dr. Lawson, without any explanation, ignored this very relevant assessment regarding Mr. C.’s capacity to function.

Although Dr. Lawson found that Mr. C. was not catastrophically impaired, he completely failed to substantiate his conclusions regarding the four areas of function pursuant to the Guides. He did not provide any supporting evidence or rationale for his conclusions. He merely stated that in his view Mr. C.’s impairment in the domains of concentration, persistence and pace and activities of daily living was “mild.” In the domains of social functioning and adaptation, hefound Mr. C. to be “moderately” impaired.

Like Dr. Wilkins, I find that Dr. Lawson ignored consistent, credible medical evidence, which could lead to a finding that Mr. C. suffered a “marked” impairment in one or more domains and accordingly was catastrophically impaired. Accordingly, I give very little weight to Dr. Lawson’s conclusion that Mr. C. is not catastrophically impaired.

I give little weight to Coachman’s submissions. In its written submissions, I find that Coachman engaged in a self-serving summary, “cherry-picking” its way through the evidence, in minute detail, to present a completely distorted, out of context picture of the reality of the objective evidence.

In reviewing the submissions, one easily sees that there are numerous significant distorted assertions of the evidence. [See note 6 below] In his reply submissions, Mr. C. submitted a number of examples which he characterized as “gross mischaracterization of the evidence by Coachman.” [See note 7 below] I note below several additional relevant examples.

Note 6: While parties presenting their submissions will try to put the best spin they can on the evidence, I find that Coachman went beyond what is considered reasonable advocacy and engaged in a pattern of distortions that did not reflect the evidence in a credible manner.

For the reasons stated above, I gave little or no weight to the catastrophic impairment assessments by Drs. Wilkins and Lawson. Both assessors ignored relevant, credible information when coming to their conclusions. Not only did Dr. Wilkins not assess Mr. C. for a catastrophic impairment, nor did she provide any diagnosis in her short three-page report, [See note 15 below] but she completely failed to comment on obvious, relevant and material information in Dr. Rosenblat’s catastrophic impairment assessment report, although she purported to have reviewed his report.

Note 15: At the hearing, Dr. Wilkins stated that her diagnosis of Mr. C. was that he was a malingerer. As noted above, I gave very little weight if any to this diagnosis.

In the case of Dr. Lawson, he not only narrowly relied on his test results in a manner that was contrary to the Guides, but provided no rationale, whatsoever, as to how he arrived at his ratings. His ratings were completely arbitrary and provided no foundation for his conclusions.   ________________________________________________________________

Cowans and Motors Insurance [+] Arbitration, 2010-10-15 FSCO A09-003237

Dr. Finkel’s testimony provided some insight into the details of the assessment process in this matter. Dr. Finkel, of course, was part of the multidisciplinary assessment arranged by Health Impact. Dr. Finkel’s prime occupation is doing psychiatric assessments, principally for a variety of insurers mostly in the automotive sector.

He is not, however, usually directly retained by an insurer but rather by an assessment company such as Health Impact whose raison d’être is the provision of assessments services. Dr. Finkel also confirmed that Mr. Cowans’ assessment was a brief, one-time interview, one of up to 45 to 50 he might do in a month. [See note 19 below]

Note 19: Although it was possible to infer even higher numbers of examinations from Dr. Finkel’s cross-examination, for the purpose of this analysis I accept that the number was intended to be on a monthly basis, a presumption that would be consistent with Dr. Finkel’s projected income from assessments being in the range of some $600,000 per year.

He would receive the paperwork, including the documents indicated on his report, proceed to the assessment location, interview the insured, and then write a report. Given the volume of examinations, it could not be supposed that there was significant time for detailed reflection on each assessment.

Although Dr. Finkel was apparently provided with a copy of the Insurer’s FAE assessment for comment, his evidence was that, following the initial assessment, there was no contact from Motors nor any other further relevant documents sent to him for consideration. In fact, Dr. Finkel stated that there was never any direct communication between him as an assessor and Motors.

More importantly, with the exception of the provision of the FAE report, there is no evidence of a co-ordinated attempt to reach a consensus between assessors or to deal with disability other than in the narrow view of each discipline. Given that Mr. Cowans claimed that he was disabled due to a mixture of psychological problems, pain issues, and physical constraints, such an omission, is highly problematic.

Although much was made of Dr. Finkel’s preconceptions as to accident victims, and his obvious dependence on the insurer’s goodwill for his lucrative assessment business, I do not believe that this is a central problem in Mr. Cowans’ case. Rather, the problem would appear to be more systemic.

Assuming for example that the 40–50 assessments figure related to a month, that would mean that Dr. Finkel on some weeks may have performed at least 10 assessments per work week. The time permitted to review, assess and report on any individual would have been at most 4 hours from start to finish, including the reading of voluminous documentation. [See note 20)

Note 20: Assuming a 40-hour work week. Even doubling this figure to 80 hours per week would still leave little room for a considered, professional assessment, given that Dr. Finkel also still saw some OHIP patients in the same work week.

Whether Dr. Finkel was biased or prejudiced or not, I find that it tests credulity to believe that an assessment mill [See note 21 below] such as described by Dr. Finkel could ever generate meaningful results.

Read: http://www.torontosun.com/2011/08/18/put-auto-insurers-under-microscope

________________________________________________________________

Atkinson and Bertie and Clinton Decision Date: 2009-01-06 FSCO A08-000014

Once again the difficulty here really is evidentiary in nature. As an arbitrator I find Dr. Robert’s report to be unhelpful in making a decision as to whether Mr. Atkinson’s treatment plan was reasonable and necessary.  The doctor may have reasonably believed that the conclusion he reached was warranted, but nothing in his report helps me to understand “why” he believed that. If Bertie and Clinton chose to rely on this “less is more” form of expert report, then I conclude that they did so at their peril.  There is simply no helpful reasoning contained within it for anyone looking at the circumstances from the outside.  One has to note that if medical assessments ultimately come down to nothing more than “he said/she said” types of arguments, then the burden of proof presumptions in the law will ultimately be the sole warrant for determining the outcome of disputes.

Useful expert reports are those which help the ultimate decision maker, whether circumstantially, that is an insurance adjuster or an adjudicator, to understand the evidence in support of, as well as challenging, the conclusion that a claimed benefit is reasonable and necessary.  Reports that only record the evidence on one side of the case are generally unhelpful; they do very little to assist the ultimate decision maker in understanding the complexity of the situation.  If a dispute reaches an adjudicator, it is reasonable to assume that there are rational arguments on both sides of the case. If expert reports do not rationally help the ultimate decision maker in making her or his decision they serve no useful purpose. Given the high cost associated with generating many of these reports they should address the situation in a helpful, rather than a partisan way.

 __________________________________________________________________________

Saunders and Royal & SunAlliance [+] Arbitration, 2007-06-20 FSCO A07-000499

As noted earlier, Royal filed some medical evidence, but at the hearing relied principally upon an insurer’s examination by Dr. Notkin in its argument. Although I did not have the benefit of Dr. Notkin’s direct testimony, his full report was filed as part of Royal’s case. Dr. Notkinconcluded as to impairment:

While I have indicated that there is a possibility of a pain disorder from a psychological perspective, I cannot prove that one exists. I have also indicated that based on my documentation review, I have strong suspicions that there is evidence of symptom exaggeration in regard to litigation. Further, I have highlighted the presence of false imputation of symptoms, a form of Malingering.

Clearly, Dr. Notkin neither believes nor trusts any information that he received from Mr. Saunders. In his more charitable characterizations he refers to Mr. Saunders as an “inaccurate and unreliable historian.”

Dr. Notkin continually uses comments such as “this is discrepant” or “inconsistent” when commenting on notations in the documents he examined. Some incidents commented on are clearly the normal variations in retelling a story after the passage of time, while others are simply puzzling. Indeed, I am at loss to understand how Mr. Saunders’ credibility is brought into question by the number of lovers his mother may have had or not.

Dr. Notkin’s report consists of some 77 pages, the most of which consists of comparisons of statements drawn from the records he was provided, with statements elicited in Dr. Notkin’s interview with Mr. Saunders. Indeed, most of the “psychiatric report” involves such cross- examination on the record, combined with speculation about various “scenarios” hypothesized by Dr. Notkin on the basis of his prior experience.

While I accept that the credibility of a person in recounting subjective feelings and experiences to a psychiatrist is a relevant consideration, there is relatively little of Dr. Notkin’s report that could actually be construed as an appropriate expert opinion on Mr. Saunders’ psychiatric status.

An expert is not an advocate for one side or another. He or she is present for the benefit of the tribunal, not a particular party. This is true whether the report is merely filed, or whether the expert testifies in person. [See note 12 below.] Courts, including the Supreme Court, have spoken clearly as to the use of expert testimony:

Note 12: See Lurtz v. Duchesne [2003] O.J. No. 1541

The function of the expert witness is to provide for the jury or other trier of fact an expert’s opinion as to the significance of, or the inference which may be drawn from, proved facts in a field in which the expert witness possesses special knowledge going beyond that of the trier of fact. The expert witness is permitted to give such opinions for the assistance of the jury. Where the question is one which falls within the knowledge and experience of the triers of fact, there is no need for expert evidence and an opinion will not be received. [See note 13 below.]

Note 13: McIntyre J., speaking for the Supreme Court of Canada in The Queen v. Beland and Phillips (1987) 36, C.C.C. (3d) 481

I have no hesitation in finding that the limited direct observations and measurements of Dr. Notkin could constitute the “proved facts” [See note 14 below.] required for the foundation of an expert opinion as identified by McIntyre J. in Beland (supra).

Note 14: The only objective test actually administered was a “Mini Mental Status Exam” which is a test for dementia, something which was not at issue in this claim.

I am not so willing to accept that Dr. Notkin’s endless examination of previous statements and records in the search for inconsistencies is the proper role of an expert witness. Royal has able counsel in Ms. Brownlee, who is quite capable of pointing out any inconsistencies in testimony and to ask me to draw any appropriate inferences. Remarking on inconsistencies is not a specific psychiatric skill-set and Dr.Notkin has no particular expertise in the truth-seeking process that is not otherwise available to the tribunal.

I should note that I found Mr. Saunders at the hearing to be generally credible and forthright. His testimony both in chief and on cross-examination was straightforward, and he made no attempt to cover up any previous health concerns, although he always tried to place them in context. In this arbitration, he appears to have supplied all records requested by the Insurer, and has willingly signed authorizations for other information to be obtained. This is not the hallmark of a dissembler.

Whatever the merits of Dr. Notkin’s actual views on Mr. Saunders’ psychiatric condition, there is another element of the report that is disquieting: As noted earlier it stands totally at odds with the opinions of the treating physicians who have seen and examined Mr.Saunders over a considerable period of time. If Mr. Saunders was such a notoriously unreliable historian, I think it unlikely that skilled physicians would not have noticed the constant change in Mr. Saunders’ background information.

Dr. Notkin’s conclusions simply do not seem consistent with the balance of the materials submitted, nor with Mr. Saunders’ evidence. Dr.Notkin’s comment that “(F)rom a psychological perspective, this man has not been reporting psychological symptoms of significance” simply cannot be supported in the light of the medical records supplied on this motion, including the diagnosis of his own psychiatrist.

Notwithstanding the importance given to Dr. Notkin’s report by Ms. Brownlee, the report appears to be tainted by the bias and the prejudice of the examiner and simply cannot be accepted as significantly credible evidence against disability.

On the balance I prefer the cumulative evidence of Mr. Saunders’ treating physicians which appears to provide a fair assessment of both Mr. Saunders’ current status and the causation of the disabilities he appears to suffer.  ________________________________________________________________

Macdonald v. Sun Life Assurance Company of Canada, 2006 CanLII 41669 (ON SC), 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. I made my ruling based on the evidence before me at the time. The case proceeded and the jury ultimately delivered a verdict awarding the plaintiff damages and that verdict has not been appealed. However, in view of the serious allegations that had been made against Riverfront I felt that Riverfront should be given an opportunity to respond before I delivered the full reasons for my ruling. Subsequent to the conclusion at the trial, counsel for Riverfront appeared before me and called evidence and made submissions.

[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.

[22]        When asked whether he knew who had highlighted the portion of the report under the heading “Impression” Dr. Lipson stated that Linda would have done this to direct his attention to that portion of his report and to suggest that “perhaps” he would like to change the wording. He said it was a common occurrence for Linda to suggest changes to his reports.

[27]        Dr. Lipson agreed that although the served report dated March 11, 2005 could not have been prepared by Riverfront on that date because it included Dr. Lipson’s list of goods and services required, that he did not send to Riverfront until March 13, 2005.  He also admitted that his recommendation about future goods and services as set out in his email of March 13, 2005 differed in some respects on what appeared in the served report.  He had expressed the opinion that nortriptylin 25 mg. was necessary for a “minimum of two years” whereas in the served report the words “up to 5 years” were added which was not his opinion.  Similarly he had recommended a fitness membership without a time limitation, however, in the served report the recommendation was for “fitness membership for 5 years”.  He testified that these changes must have been made by Riverfront without his authority.

[28]        Based on the evidence before me on the voir dire I ruled that Dr. Lipson was not entitled to testify as an expert witness on behalf of the defendant.

[56]        Linda is a medical secretary who has worked at Riverfront for 14 years.  Her title is Director of Quality Control.  Her job involves reviewing reports received from the experts to assess grammar, style and format to ensure that they are free of any errors, inconsistencies, and redundancies and that the questions posed by the client are answered.  After she reviews the reports, they are given to Dr. Levy or Anna for final proofreading.  If she thinks that a report contains inconsistencies or redundancies she would raise it with Dr. Levy.  Linda testified she never recommends a change to a report to make it more beneficial to the client who retained Riverfront.

[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 assessing 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.

________________________________________________________________

Keyes and Personal Insurance [+] Arbitration, 2006-07-21 FSCO A06-001156

It is also submitted by Ms. Keyes that the DAC has breached the Guidelines in failing to avail themselves of an assessment by an appropriate specialist such as a psychologist, neurologist or psychiatrist where there is “concern about a brain-injured claimant’s ability to exercise appropriate judgement without supervision.” It is also alleged that the report of the DAC reveals that they have gone beyond assessment to become advocates for a point of view. By way of example, Ms. Keyes alleges that the DAC misquotes reports of treating practitioners and without foundation accuses them of conflicts of interest.

There is little doubt that there are significant issues with the North York DAC assessment. The assessment was conducted on March 13, 2006. A report, signed by both assessors, was released on March 31, 2006 with attached Form 1 indicating that no attendant care was required. A second report appeared on April 13, 2006. The clinic coordinator, Dr. Rocco Guerriero, in a cover letter, indicates that the first report was issued in error and contained only the views of one assessor, as well as lacking an executive summary. Here is the salient text of Dr. Guerriero’s letter:

As part of our quality assurance measures, we recognized that this Attendant Care DAC Assessment report recently released was done so in an incomplete manner. The report that was released dated March 31, 2006, only included the Registered Nurse’s component (pages 1 to 34). It did not include the Occupational Therapist’s component by Lyn Cook. It also did not include the Executive Summary by Lyn Cook. We are releasing the corrected report.

We apologize to all parties for this oversight. This does not change the outcome of this Attendant Care DAC Assessment report.

It is clear that the cover letter underplays the extent of the problem with the DAC assessment reports. It might have been more accurate to describe the portion that was initially released as a partial draft. It is manifestly not the same report as was issued later and, rather than being incomplete in the sense of parts of the true report of the assessors being inadvertently not included, even those portions that are largely reproduced in the so called erratum report (the April 13th report) have been changed. To cite just one example, the description of an incident where Jessica Keyes found herself fighting a small fire in a trailer is quite different from one report to the other. In particular, the first description of the incident has Jessica Keyes in the trailer with a friend, who put a hat over the candle causing the fire. In the second description, it is said that Jessica Keyes is alone in the trailer. Both cannot be accurate, of course. The fact that both versions of the report purport to carry the signatures of both assessors calls into serious question whether or not the DAC complied with Part 4 of the Attendant Care DAC Assessment Guidelines.

The North York DAC report also contains significant errors. For example, despite the assertion to the contrary, Jessica Keyes’ pre-accident conditions are acknowledged by several of her treating personnel and other assessors. Dr. McKinnon, for example, deposed that when she first assessed Ms. Keyes in September 2004, she was aware of the diagnosis of ADHD. This is confirmed in her various reports predating the North York DAC. Indeed, it is simply not accurate to claim as the North York DAC assessors do, that most of Jessica Keyes’ treating practitioners ignore or downplay her pre-existing conditions. The documents are replete with comments on these pre-existing difficulties, in particular the diagnosed ADHD, but for many assessors the pre- existing diagnoses could well mean that Jessica Keyes would have even greater difficulties as a consequence of her brain injury.

By way of another example, whether this is an error, or an attempt to mislead, I will leave to the hearing arbitrator, however it is suggested in the report that Ms. Maria Hren who conducted an assessment on behalf of the Personal questioned the need for attendant care. This is simply not the case, as is evident from a fair reading of Ms. Hren’s July 9, 2004 report.

Returning to a consideration of the DAC assessment at issue here, it is significant in my view that the North York DAC expressly declined to consider whether or not Jessica Keyes’ noted vulnerabilities pre-accident have been exacerbated by the injuries sustained in the accident. This is at the heart of the controversy in this case and the failure of the North York DAC to address the “thin skull” issue, leaving it rather to the “court or arbitrator” to grapple with, is remarkable in the circumstances.

I also accept Ms. Keyes’ contention that the North York DAC failed to ensure that it had access to the appropriate assessment team in the circumstances contrary to the expectation of the Guidelines as set out earlier. In this regard, I also accept the contention of the Applicant that the North York DAC relied, to its detriment, too much on the report of Jessica Keyes and downplayed the input of her mother. In some instances, this caused them to get it entirely wrong. To cite just one example noted in the material, on page 30 of the second North York DAC report, it is noted that Jessica Keyes reported no major changes with her caloric intake since the motor vehicle accident. This is contrary to the well documented difficulties with diet that the Applicant has experienced since the accident.

The tone of the DAC is markedly partisan. Ms. Fitzhenry Bedard in particular is singled out with a suggestion that she is in a conflict because the Personal is funding the treatment she provides, the suggestion being that she is motivated to support more rather than less treatment. On the other hand, the assessments conducted by Aneez Virani and Dr. Kumchy are characterized as independent assessments as opposed to assessments requested by the Personal. The North York DAC team also critiques an earlier attendant care DAC which supported entitlement to the benefit, by the use of possibly confidential information somehow obtained from another DAC assessment.

Read: http://www.canadianunderwriter.ca/news/letter-to-the-editor-independent-medical-examinations-provide-necessary-check-and-balance/1001950950/                                                                                     ______________________________________________________________

SOHI and ING INSURANCE July 15, 2004 FSCO A03B 001125

The Insurer, in taking its position, was bolstered by the opinions of Dr. Monte Bail, a psychiatrist who assessed Mr. Sohi as part of the West Park Attendant Care DAC. Dr. Bail stated:

From a review of the extensive medical file material, and the assessment today, it seems that Mr. Sohi was suffering from a Major Depressive Disorder, Anxiety, and Alcoholism for a long time prior to the motor vehicle accident, even though he denied all of these things today…

While Dr. Bail accepted that Mr. Sohi suffers from serious psychiatric disorders, including a Major Depressive Order, he concluded:

I do not feel that the aftermath of his burn injury, including the scars, and restricted range of motion, is significantly related to the motor vehicle accident, and as such, from a psychiatric point of view, the psychiatric aftermath of living with the results of his self immolation [suicide attempt] are not related to the motor vehicle accident.

In his testimony, Dr. Bail downplayed the likelihood of suicide as the result of motor vehicle accidents, stating that he had never seen a similar situation in his examination of some 4,000 motor vehicle accident cases. Dr. Bail’s observation, while perhaps literally correct, is at the very least, somewhat misleading.

While the specific act of self immolation following a motor vehicle accident may well be a rarity, attempts at suicide in that context are not unheard of, even in Dr. Bail’s practice. Nor are they unknown to accident-related jurisprudence. [See note 10 below.] [See note 11 below.]

Note 10: See Gabremichael and Zurich Insurance Company (FSCO A97-002061, October 12, 1999).

Note 11: In the case of Cotic v. Gray , 33 O.R. (2d) 356, the Court of Appeal dealt with a suicide taking place some 16 months after a motor vehicle accident, upholding a finding that the suicide directly resulted from the motor vehicle accident, notwithstanding the passage of time. See also Murdoch v. British Israel World Federation (New Zealand) Inc . et al. [1942] 61 N.Z.L.R. 600.

Counsel for Mr. Sohi introduced as an exhibit, a copy of an interview with Dr. Bail posted on the website of Riverfront Evaluations, a medical assessment company which uses his services. In the interview, Dr. Bail focussed on opportunistic claims and his view of motivating factors for what he saw as an increase in claims involving “psychosocial gain .” While I accept that the excerpt of an interview by itself does not conclusively establish bias on the part of Dr. Bail, I find the attitudes expressed disquieting when taken in conjunction with his testimony in this hearing.

Dr. Bail testified at the hearing that he discounted much of Mr. Sohi’s stated concerns, because of perceived inconsistencies in the materials provided to him as well as his presentation during the interview. His reports and testimony featured a listing of Mr. Sohi’s supposed inconsistencies and contradictions. He also, in his testimony, derided the opinions of psychologists, characterizing them as little more than psychometrists, capable, if at all, of administering tests. Indeed, Dr. Bail presented as a notably partisan witness.

In Harrison and Wellington Insurance Company (FSCO A96-000785, July 23, 1998), Arbitrator Makepeace dealt with the testimony of a partisan medical examiner. She stated: “I reject Dr. Costa’s report in all other respects because he appears to have focussed mainly on identifying discrepancies in the Applicant’s claim.” Likewise, Dr. Bail’s partisan approach and his focus on inconsistencies are troubling and seriously weaken the credibility and weight of his testimony.

By way of contrast, I found both Dr. Pilowsky and Dr. Koepfler to be more balanced and professional in their assessments and their approach to Mr. Sohi’s history, even when their opinions diverged. Rather than attempting to discredit Mr. Sohi by searching for inconsistencies and divergencies, they sifted through his records, statements and history, looking for a credible explanation for his presentation.

I give little weight to Dr. Bail’s conclusions concerning the characterization of Mr. Sohi’s suicide attempt, and its triggers, especially when they conflict with the opinions of Drs. Pilowsky and Koepfler.

Even had Dr. Bail’s assessment been even-handed and unprejudiced, I would tend to discount his conclusion that the “self immolation” as he termed Mr. Sohi’s suicide attempt was due only to pre-existing and co-existing causes, and unrelated to the accident.   ________________________________________________________________

GABREMICHAEL and ZURICH INSURANCE October 12, 1999 FSCO A97-002061

Just under two years from the date of the accident, Zurich gave notice to Ms. Gabremichael that her benefits would cease on September 19, 1997. Zurich based its decision on a report of a psychiatrist, Dr. M. Bail, and of a chiropractor, Dr. J.A. Nathanson, both of whom had examined Ms. Gabremichael at the behest of the Insurer…

…The Insurer’s position that Ms. Gabremichael is not psychologically disabled is supported principally by Dr. Bail’s report. Since Dr. Bail’s reports and testimony are crucial to an understanding of the circumstances surrounding the stoppage of benefits by Zurich, and have ramifications for all aspects of Ms. Gabremichael’s claim, I will deal with them at this point.

Dr. Bail’s examination

Dr. Bail, a psychiatrist, saw Ms. Gabremichael for about one hour on August 14, 1997, for an insurer’s examination. Dr. Bail concluded in his reports and testified at the hearing that Ms. Gabremichael does not suffer from a psychiatric disorder caused by the motor vehicle accident. Rather, he opined that she has some sort of personality disorder. His conclusion is that Ms. Gabremichael’s reported symptoms really amount to malingering, motivated by gain.

Dr. Bail testified at the hearing that he discounted most of Ms. Gabremichael’s problems, because of perceived inconsistencies in the materials provided to him as well as her presentation during the interview. His reports consist of a listing of Ms. Gabremichael’s supposed inconsistencies and contradictions.

Dr. Bail testified that he gave Ms. Gabremichael no opportunity to explain or correct any of these supposed inconsistencies. He added that he did not confront people with inconsistencies because they would cause bodily harm or destroy his office.

The contradictions that Dr. Bail referred to included Ms. Gabremichael’s expressed interest in returning for a visit to Ethiopia. This was portrayed as being inconsistent with her story of her departure as a refugee. Dr. Bail made no allowance for any change in political climate in Ethiopia since Ms. Gabremichael’s precipitate departure that might have made such a visit possible.

Dr. Bail also assumed from a cursory examination of an OHIP claim summary that Ms. Gabremichael wrongly asserted that prior to the accident she enjoyed good health. A more detailed examination of the record would have shown claims for dental surgery, among others, that did not support Dr. Bail’s conclusion that Ms. Gabremichael’s health was poor prior to the accident, and that she was misleading the Insurer.
.
Dr. Bail testified that in evaluating a patient he acts as judge and jury. Unfortunately, from my reading of his reports, and from listening to his testimony, it is obvious that he has appropriated to himself another role, and has become an advocate for the Insurer, rather than an impartial expert witness.

In Harrison and Wellington Insurance Company (FSCO A96-000785, July 23, 1998), Arbitrator Makepeace dealt with the testimony of a partisan medical examiner. She stated: “I reject Dr. Costa’s report in all other respects because he appears to have focussed mainly on identifying discrepancies in the Applicant’s claim.” Likewise, Dr. Bail’s partisan approach and his focus on inconsistencies are troubling and seriously weaken the credibility and weight of his testimony.

I find that Dr. Bail’s opinion on the nature of Ms. Gabremichael’s psychiatric disabilities is not convincing and should be disregarded. I accept Dr. Link’s characterization of Ms. Gabremichael’s condition as chronic depression complicated by Post-Traumatic Stress Disorder, Chronic Pain Syndrome, and relationship stress.   ________________________________________________________________

GEOFFREY LLOYD: I think a number of things. First of all, one could ensure that the person making the statement, by virtue of his background, training and education, had received an education that would allow him to make that judgement. As a practising physician I see examples, and I will if it’s appropriate cite specific examples, where the person making statements is either not aware of the literature or, alternatively, by virtue of his background training and education, has not received the training. As a physician, for example, it is mandated by the college that I must know prognosis in my area of discipline.

Dr. Lloyd has retired from surgical practice since 1999.  Dr. Lloyd has done approximately 1,000 surgical procedures, about 10 percent of these procedures involving the thoracic spine.  He has also written and done research on spinal issues.  He was qualified to give opinion evidence in the field of orthopedic surgery with an emphasis on complex diagnostic issues as it relates to the spine, treatment of the spine and the treatment of disc injuries.  He interviewed the Plaintiff for about one and a half hours.

Dr. Lloyd took the position that without pain for the thoracic region, a fracture was unlikely.  He concluded emphatically that the accident did not fracture Dr. Williams’ thoracic spine.  His opinion was based on a one and a one half hour interview, a review of the contemporary medical history on September the 9th and September 15th.  Dr. Lloyd does 400 independent medical examinations per year.  This is more than one per day.  Dr. Lloyd had not operated since 1996.  He has never done the operation conducted by Dr. Fehlings.  He is not a neurosurgeon.  He could not offer a diagnosis.  He concluded that Dr. Fehlings’ operation on Dr. Williams was unnecessary.  He reaches this opinion on the basis that the Plaintiff’s symptoms were recurring four months post-surgery.  It was his opinion that the surgery did not help with her symptom complex.  He, therefore, disagrees with Dr. King on this point.  He was of the opinion that there was not a fracture.  Surprisingly, he claims there was not even a cord compression.  On this point, he disagrees with Dr. Fehlings who did the actual surgery on Dr. Williams.  He also disagrees with Dr. Brown, who says there was cord compression.  Dr. King was of the opinion that there was cord compression.  It also meant that if Dr. Lloyd was right, the radiologist reached an improper conclusion in his report.

Dr. Lloyd did not impress me with his conclusions.  Dr. Lloyd was asked to do an opinion for the Defendant, as he does for hundreds of other cases.  He interviewed Dr. Williams for one and a half hours and did a review of the medical reports provided and he gave his opinion.   ________________________________________________________________

McQueen v. Echelon General Insurance Company, 2011 ONCA 649 (CanLII) http://canlii.ca/t/fngnw

[10]         In July 2004, Echelon retained Dr. Kwok, an orthopaedic surgeon, to examine Ms. McQueen.  Echelon did not give Dr. Kwok a copy of Ms. Foster’s report.

[11]         Dr. Kwok wrote a report dated July 23, 2004, in which he stated that Ms. McQueen was capable of conducting her own housekeeping, was not disabled from driving a motor vehicle and was able to take public transportation.

[12]         After receiving Dr. Kwok’s report, Echelon immediately stopped paying Ms. McQueen housekeeping and transportation benefits.

[13]         Ms. McQueen requested, and Echelon sought, the advice of an independent medical occupational therapist.  That therapist advised that Ms. McQueen required assistance with her housekeeping but that an in-home assessment should be performed first.  Echelon told Ms. McQueen that the assessment would cost $620.11 but it refused to pay for the assessment because it was not “reasonable and necessary”.

[14]         Despite Ms. McQueen’s repeated entreaties for the SABS benefits, and the provision of additional medical documentation showing that she needed them, Echelon refused to reinstate the benefits.  The trial judge found that in a three-year period, Ms. McQueen received 21 denials for 16 separate benefits.

            b)        More than a simple denial of benefits

[52]         Echelon also submits that this is merely a case about the denial of benefits and the simple denial of benefits does not amount to bad faith.

[53]         I accept that a lack of good faith is not to be inferred simply because an insurer does not pay a claim.  However, based on the findings of the trial judge, it cannot be said that this case was one in which Echelon simply denied benefits.

[54]         The reasons of the trial judge must be read as a whole.  The specific section of the judgment in which he deals with damages for bad faith and mental distress cannot be separated from the balance of the judgment in which he makes findings in relation to Echelon’s conduct.  It is evident that those findings lay the foundation for his reasoning on damages.

[55]         As early as para. 12 of the reasons, the trial judge refers to Fidler v. Sun Life Assurance Co. Ltd., 2006 SCC 30 (CanLII), 2006 SCC 30, [2006] 2 S.C.R. 3 (Fidler), noting that in Fidler, the Supreme Court of Canada held that an insurer owes a common law duty to act in good faith in all its dealings with an insured and has an additional duty not to inflict unnecessary mental distress.  He returns to Fidler in paras. 51 and 52 of the reasons, stating that in a case of alleged mental distress, the court must be satisfied that:

a)                  an object of the contract was to secure a psychological benefit that brings mental distress upon breach within the reasonable contemplation of the parties; and

b)                 the degree of mental suffering caused by the breach was of a degree sufficient to warrant compensation.

[56]         Throughout the reasons, the trial judge repeatedly notes that Echelon refused to provide benefits on the basis that they were not “reasonable and necessary” but Echelon gave no reasons for why they were not reasonable and necessary: see, for example, para. 33.

[57]         It is also clear that the trial judge was critical of Echelon for relying on Dr. Kwok’s report, which was based on a “superficial examination lasting only 30 minutes” (para. 39), especially as Echelon had not given Dr. Kwok a copy of the report its own occupational therapist, which was favourable to Ms. McQueen (paras. 34 and 36).

[74]         The court explained, at paras. 56-58, that it was an object of the contract:

The bargain was that in return for the payment of premiums, the insurer would pay the plaintiff benefits in the case of disability. This is not a mere commercial contract. It is rather a contract for benefits that are both tangible, such as payments, and intangible, such as knowledge of income security in the event of disability. If disability occurs and the insurer does not pay when it ought to have done so in accordance with the terms of the policy, the insurer has breached this reasonable expectation of security.

Mental distress is an effect which parties to a disability insurance contract may reasonably contemplate may flow from a failure to pay the required benefits. The intangible benefit provided by such a contract is the prospect of continued financial security when a person’s disability makes working, and therefore receiving an income, no longer possible. If benefits are unfairly denied, it may not be possible to meet ordinary living expenses. This financial pressure, on top of the loss of work and the existence of a disability, is likely to heighten an insured’s anxiety and stress. Moreover, once disabled, an insured faces the difficulty of finding an economic substitute for the loss of income caused by the denial of benefits.

People enter into disability insurance contracts to protect themselves from this very financial and emotional stress and insecurity. An unwarranted delay in receiving this protection can be extremely stressful. Ms. Fidler’s damages for mental distress flowed from Sun Life’s breach of contract.  To accept Sun Life’s argument that an independent actionable wrong is a precondition would be to sanction the “conceptual incongruity of asking a plaintiff to showmore than just that mental distress damages were a reasonably foreseeable consequence of breach”. [Citations omitted. Emphasis in original.]     

Read:

http://www.lawtimesnews.com/Focus-On/Claim-for-mental-distress-puts-pressure-on-insurance-companies 

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Bakalenikov v. Semkiw, 2010 ONSC 4928 (CanLII) — 2010-09-15 Superior Court of Justice — Ontario http://canlii.ca/t/2cl96 recording — expert — defence medical — examination — taping

[53]         With respect to parties or witnesses, however, whether lay or expert, the dynamics of an adversarial system introduce pressures that leave the door open to conscious or even subconscious polarization. In situations where experts are regularly retained by either plaintiffs or defendants, financial considerations add to the potential for polarization. It is naive to assume, without more, that a medical expert who generates significant income from providing IME’ s for a particular “interest group” is completely immune to these pressures, whether they are acted on or not. It should also be recognized that the pressures may well increase in the presence of a large institution that regularly requires IME experts to provide opinions taking a particular view of the issues. While obvious instances of unreliable expert evidence may be infrequent, anytime an expert is less than honest, the potential for a just result is undermined.

The pressures facing medical experts which are inherent in an adversarial system are inevitably exacerbated in an IME setting where the party being examined (often the plaintiff) is cognitively or emotionally vulnerable, or where the person being examined has limited language skills or faces cultural inhibitions that impact on the assessment. Clearly one hopes that a medical expert will not only be qualified to conduct a competent assessment but will also be independent and unbiased in formulating his/her opinion. But what if he or she is not? Experiences in many settings involving interactions between persons in positions of authority and those in positions of vulnerability (e.g. residential schools, prisons and seniors homes) demonstrate that the greater the imbalance of power and the less accountability there is in the system, the more potential there is for abuse. How does a plaintiff with functional or memory impairments challenge the evidence of a highly trained,articulate and experienced expert? The optics of forcing a vulnerable party to be examined by an opposing expert who will be able to testify from a position of power and prestige and depriving the party of any independent record of the event, are not good. Justice must not only be done but be seen to be done. Experts can and should be given a mandate of independence. This cannot be confused with granting them a presumption of independence.

[76]              The Court expects and relies upon frank and unbiased opinions from its Experts. This is a major sea change which requires practical improvements to past opaque processes. How are long time plaintiffs’ and defendants’ experts to be “trusted” to change their stripes? At the initial stages skilled, licenced professionals clearly must be taken at their word that on principal they take their Form 53 Undertaking to Court seriously. They are clearly promising to bring a new, transparent and objective mind set to the drafting of their reports and to their subsequent testimony.

[77]              In this case I am obliged to consider a proposed expert who has on at least 3 occasions had his opinions disregarded by the Court for bias and advocacy for the Defence. He has been criticized by a judge of this Court for delivering his evidence  as “an advocate for the party calling him as a witness.” ________________________________________________________________

 Fournie and Coachman Insurance  [+]  Arbitration, 2010-02-12

I have two concerns with MDAC’s assessment of Mr. Fournie. Firstly, there was no evidence presented at the hearing to indicate that the MDAC assessors had consulted on the final opinion, had seen the executive summary or, in fact, agreed with the final opinion. The executive summary and final report did not indicate that the individual assessors had signed off on it. Dr. Ameis, who is the controlling mind behind MDAC, stated that before completing the executive summary he did not consult with the psychiatrist or occupational therapist who assessed Mr. Fournie for MDAC. He gave evidence that he had consulted with Dr. MacCallum, but could not remember where or when and would not be able to provide proof of a consensus meeting with him. He gave evidence on cross-examination that he did not consult with the psychiatrist or occupational therapist when determining Mr. Fournie’s final WPI percentage. Demetrios Kostadopoulos, the occupational therapist who gave evidence for Coachman, stated that he did not know if his assessment was provided to subsequent assessors. Furthermore, he was not provided with other assessors’ reports, nor did he have any recollection of MDAC’s executive summary being provided to him.

Secondly, Dr. Ameis’ evidence on assigning a WPI of 26% to Mr. Fournie also causes me concern. Dr. MacCallum, in his report, clearly states that he leaves the determination of the final WPI to the consensus process. Dr. MacCallum does not give his opinion on Mr. Fournie’s final WPI and Dr. Ameis provided no evidence that he ever got an opinion from Dr. MacCallum on Mr. Fournie’s final WPI. Dr. Ameis stated that he did consult with Dr. MacCallum, but cannot remember when. For an issue as important as the determination of an individual’s impairments and that individual’s access to future benefits, one would think MDAC would have taken more care in keeping records of its assessments. I find that Dr. MacCallum did not give a final opinion on Mr. Fournie’s WPI. Instead, I find that the final WPI percentage score is Dr. Ameis’ opinion.

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Ms. G and Pilot Insurance – 2  [+]  Arbitration, 2006-03-16

On the other hand, I have continuing references in reports to ongoing dental problems, as well as the unchallenged testimony of the Applicant. The CAT DAC report, itself, notes continuing complaints in this regard, but as Dr. Ameis conceded, “all of us may have missed the dietary problems arising from the facial smash.” Dr. Ameis was of the view, however, that there was insufficient information to presently make a rating; he recommended repeating the CAT DAC. He was of the view that a nutritionist, a dentist or a dental specialist was required.

The search for the truth is crucially important. Finality and cost effectiveness is also important. Having had a chance to review the medical documentation and to examine Ms. G, and having failed to properly assess all of her impairments, the present applicable remedy in this particular case is not a “do over” by the CAT DAC, which may then require assessments by other practitioners, followed by recalling witnesses or calling new experts. Rather, in my view, the proper course is for an adjudicative assessment to be made as best one can on the basis of the available evidence. I am strengthened in this decision by a concern in this specific case as to whether the open minded neutrality expected of a CAT DAC may be somewhat clouded by, perhaps subconsciously, a very human impulse to sometimes endeavour to justify one’s prior conclusion.

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Fisher and Allstate [+] Arbitration, 2006-07-19 A04-002455

The assessment team assembled by Independent Claims Evaluators Inc. consisted of Dr. Michael Lacerte, a specialist in physical medicine and rehabilitation, Dr. Paul Cooper, a neurologist, and Ms. Moira Hunter, an Occupational Therapist. There was no psychiatrist. As well, there is no dispute that, of this team, only Ms. Hunter met with and assessed Mr. Fisher.

A second, perhaps even more serious problem with the approach taken by the DAC is their failure to conduct an in-person assessment of Mr. Fisher. While the protocol clearly allowed a record review only where the records clearly supported a finding of catastrophic impairment, and the DAC so found, a negative finding demanded an in-person assessment.

While Mr. Kirby pointed to the participation of the occupational therapist as satisfying any mandate for an in-person assessment, I do not agree that the assessment by one member of the DAC team, who is not a mandatory discipline for such an examination, constituted the necessary in-person examination for the purposes of the guidelines. [See note 5 below.]

Note 5: I also accept that Ms. Hunter’s report appears to reach conclusions significantly at odds with the conclusions of other examiners without accounting for such differences. However, given my findings as to the technical shortcomings of the DAC, I need make no specific finding as to the actual conclusions made by any of the assessors.

Having found that the record review would likely lead to a finding of not catastrophically impaired, the assessment team should have moved on to an in-person assessment. Apart from sending Ms. Hunter to Thunder Bay, it did not take this step. Indeed, its own characterization of the assessment was as a “paper review.”

Consequently, whatever the conclusion reached by the DAC team assigned to Mr. Fisher’s case, the process of assessment was doubly flawed.

These flaws in Mr. Fisher’s case are not inconsequential. The failure of the DAC to have the capacity to properly evaluate Mr. Fisher’s claimed cognitive, behavioural and psychological deficits, meant simply that he could not get either a fair or adequate assessment, something to which he had an absolute right under the Schedule.

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Ritorto and Allstate  [+]  Arbitration, 2006-03-03

In mid-November 2003, a Designated Assessment Centre reviewed Dr. Simone’s proposal to continue Mrs. Ritorto’s therapy. Dr. Ameis relied on the recommended time periods for treatment in theGuideline protocols for his opinion that the plan expense was not reasonable or necessary. In his testimony, he agreed with the underlying theory that no further healing or pain control results from treating soft tissue injuries of this nature beyond six weeks.

Dr. Ameis did not examine Mrs. Ritorto and therefore did not have the opportunity to assess her pre-existing condition or the possibility that her symptoms might fall outside usual norms that would take her out of the Guideline’s treatment protocols. The undisputed evidence is that Mrs. Ritorto’s poor posture aggravated her accident-related symptoms, and Dr. Ameis’ failure to address her poor posture is my reason not to rely on his opinion about Gateway’s treatment.

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Desbiens v. Mordini, 2004 CanLII 41166 (ON SC) http://canlii.ca/t/1j79w 

[197]       Dr. Delaney assigned an overall increase in the WPI percentage.     Dr. Ameis criticized Dr. Delaney’s methodology on the grounds that she did not provide adequate reasons explaining her increase in Mr. Desbiens’ WPI percentage. Thus, he contended, it lacked the “defensibility” of his approach.  Reference was made to the following statement at page 64 of the Guides “If the examiner determines that the estimate for the anatomic impairment does not sufficiently reflect the severity of the patient’s condition, the examiner may increase the impairment percent, explaining the reason for the increase in writing.”

[198]       However both experts agreed that once they reached the 55% WPI mark they did not generally spend as much time and detail assessing further impairments.  Dr. Ameis was of the view that the further impairments should be listed but not necessarily quantified to the same extent.  In considering Dr. Ameis’ criticism of Dr. Delaney’s approach it is important to remember that Dr. Delaney, in all of her reports, had found the Mr. Desbiens had at least a 55% WPI without taking into account his paraplegia.  Furthermore, I find that Dr. Delaney did explain the reason for the increase in writing. On page 27 of her report dated March 25, 2001 she states, “If we keep in mind that he was already paraplegic and we add these new impairments, which are responsible for his alteration in function, we can clearly see that he has sustained a catastrophic impairment in the context of his current state and pre-existing medical condition.”  As noted, Dr. Delaney elaborated on these reasons in her testimony.

[202]       I do not accept the approaches used by Dr. Ameis to capture the impact of Mr. Desbiens‘ impairment on his pre-existing paraplegia. With respect to the analogous loss of function approach that Dr. Ameis adopted at trial it will be necessary to refer in some detail to Dr. Ameis report of November 1, 2001 (2001 report) and Dr. Delaney’s report of March 25, 2001 and his testimony at trial to explain how I arrived at this conclusion.

[203]       At page 12 of his 2001 report Dr. Ameis deals with Dr. Delaney’s impairment ratings of Mr. Desbiens right lower extremity as contained in her report of March 25, 2001.  He rejects Dr. Delaney’s impairment scores of 30% for the right hip and 14% for the right knee on the grounds that these impairments were not caused by the car accident but rather arose from the paraplegia.  He then states, “Therefore, I would not accept that the 33% score suggested by Dr. Delaney is in any way applicable.”  It is important to note that Dr. Delaney at page 26 of her report had concluded that the combination of the right knee and right hip impairments resulted in a 40% WPI of the right lower extremity.  Without considering the right lower extremity, Dr. Delaney concluded that the combined whole person impairment would be 33%.  Dr. Delaney testified that she believed that Dr. Ameis’ reference to “the 33% score” was an error as it was clear that he was referring to her impairment rating of the right lower extremity of 40% WPI.  I must say that my impression on reading Dr. Ameis 2001 report was the same as that of Dr. Delaney.

[204]       Following the above quoted statement Dr. Ameis continues:

Final Whole Person Impairment Scoring

Even without entering into a discussion of the applicability of lower extremity scoring of 33%, it should be appreciated that were we to combine 33% with 5% for the neck and 7% for the right upper extremity and 0% for left upper extremity, the AMA Guides table would yield a score of just 41% (which rounds to 40%).  This falls well below the 55% threshold of the definition.

[205]       In my view this clearly confirms that Dr. Ameis’ reference to the 33% score refers to Dr. Delaney’s scoring of the right lower extremity impairment.  I interpret the above quote as meaning that Dr. Ameis did not accept that there was any causal connection between the right lower extremity impairment and the car accident.  However, even if there were no problem with causation, Dr. Delaney’s impairment rating for the lower extremity, when combined with Dr. Ameis’ ratings for the neck (5%) and right upper extremity (7%) still do not achieve the WPI of 55% required by Clause (f).

[206]       When Dr. Ameis was cross examined on this portion of his 2001 report I expected that he would simply say that he had erroneously written 33% instead of 40%.  Had he done so, this would not have altered his conclusion that the final WPI fell short of the 55% requirement.  However, in his cross-examination Dr. Ameis instead insisted that “the 33% came from an out-of-the-box thought that if Mr. Desbiens’ major problem was a loss of ability to transfer then maybe what you should do is try and treat it like someone else who has an inebriated (sic) transfer as for example an individual who has a major abdominal wound and loses their abdominal musculature.”  He then went on to explain how he arrived at the 33% (which has already been described above) and referred to a worksheet which broke the 33% down into its component parts, which he testified was prepared at the time of his report.  Dr. Ameis testified that the 33% was intended to capture all of the impairments other than the shoulder and neck.  When asked why none of this was mentioned in the report Dr. Ameis testified “I did not explain it in the report and that’s my fault…it was not well crafted I did not explain myself.”

[207]       The plaintiff submitted that Dr. Ameis’ explanation of how he arrived at the overall WPI of 40% was essentially an ex post facto modification of his initial opinion in order to create a more reasonable position for the defence.  They submit that it is clear from Dr. Ameis’ 2001 report that he did not accept that there was any impairment caused to the lower extremity by the car accident.  The only impairments that Dr. Ameis found to be attributable to the car accident were the 5% rating for the neck and the 7% for the right upper extremity which results in an overall WPI of 12%.  Counsel for the plaintiffs point out that this is totally inconsistent with Dr. Ameis’ evidence at trial to the effect that had he assessed Mr. Desbiens at a CAT DAC he would have found him to have sustained an overall WPI of about 40%. It seems to me that there is considerable merit to this submission.  However, regardless of his motivation I find that his explanation flies in the face of the clear meaning of his report.  Dr. Ameis has vast experience in preparing medical legal reports.  He acknowledged in cross-examination that great reliance is placed on such reports.   I cannot believe that he would have stated a conclusion based on such a complicated and “out of the box” methodology without referring to it in his report.  If in fact he did do so, his criticism of Dr Delaney’s approach on the grounds that it lacked defensibility, is a case of “the pot calling the kettle black”.

[208]       I also agree with Dr. Delaney that Dr. Ameis’ choice of the hernia to the abdominal wall as causing an analogous loss of function is rather far-fetched.

[209]       With respect to Dr. Ameis’ activities of daily living equivalent approach I agree with Dr. Delaney that the 35% WPI arrived at by Dr. Ameis does not take into account the impact of this impairment superimposed on Mr. Desbiens’ pre-existing paraplegia.

Conclusion

[210]       On this issue I prefer Dr. Delaney’s opinion to that of Dr. Ameis.  I find that when Mr. Desbiens’ impairments are considered in the context of his pre-existing paraplegia that he sustained a catastrophic impairment in the car accident as defined in clause (f) of the Regulation.

Cross-examination of Dr. Ameis On Prior Negative Judicial Comments

[265]        In cross examination, plaintiffs’ counsel sought to impeach Dr. Ameis’ credibility by referring to a number of cases before this court and the Financial Services Commission of Ontario (FSCO) in which negative comments had been made by the judge or arbitrator concerning Dr. Ameis lack of objectivity and impartiality in his role as an expert.

[266]       Defendants’ counsel objected to this line of questioning on the grounds that the credibility of Dr. Ameis should be determined based on the testimony and demeanor of Dr. Ameis in the case before the court and that the comments made by a judicial officer in another case concerning the nature and quality of Dr. Ameis’ evidence is totally irrelevant.

[267]       I indicated to counsel at the time that in the interest of expediency I would permit cross-examination on this issue as well as re-examination and that I would rule on the question of admissibility in my reasons for judgment.

[268]       While both counsel acknowledged that they knew of cases in which this line of questioning did take place they were unable to provide me with any decision in which the issue was the subject of judicial analysis.  However, while the matter was under reserve I came across two cases that, in my view, lead to the conclusion that this line of cross examination is not permissible.

[269]       In R v. Ghorvei[39] the appellant sought to introduce as fresh evidence on appeal, a transcript of a previous trial wherein the main police witness inGhorvei had been the subject of the following comment by the trial judge, “I find that this officer is a compulsive liar.  I do not believe his evidence at all.”[40]  The Court in Ghorvei, after setting out the well-known criteria for the admission of fresh evidence, made the following statement:

The determining issue, therefore, is whether the evidence could reasonably be expected to have affected the result at trial. Of course, it could only have had any effect on the result if it could have been used at trial to impeach Constable Nielsen’s credibility.[41]

[270]       In ruling against allowing this line of cross-examination the court stated:

In my view, it is not proper to cross-examine a witness on the fact that his or her testimony has been rejected or disbelieved in a prior case.[42]

[271]       Ghorvei was followed by R. v. Karaibrahimovic.[43]  In this case the Crown, at trial, cross-examined the accused’s expert witness on the basis that the expert’s testimony was rejected in four other cases.  Furthermore Crown counsel specifically cross-examined the expert by putting to him the conclusions of other trial judges apparently critical of his evidence.[44]

[272]       Based on the inclusion of this cross-examination inter alia the Court allowed the appeal and ordered a new trial.  In doing so the Court specifically stated, “there is no legitimate use to which the trier of fact in this case could have put the evidence arising out of [the expert’s] cross-examination about four other cases in which it was asserted that his opinion was rejected.”[45]

[273]       In my view, I am bound by Ghorvei and influenced by Karaibrahimovic to hold that the fact that Dr. Ameis has been the subject of negative judicial comment respecting his conduct as an expert witness in other cases is not the proper subject of cross examination in this case.

[274]       I do not wish to be understood to say that this line of questioning is impermissible under any circumstances.   If a satisfactory evidentiary basis is laid it may become relevant.  Plaintiffs’ counsel submitted that an adequate evidentiary foundation has been established. He noted that Dr. Ameis, in his examination in chief during the qualification process, stated that he testified in court before.  On cross-examination Dr. Ameis agreed that he may have testified in court on hundreds of occasion prior to this trial and had given expert evidence in arbitrations on perhaps 50 or 60 occasions.  He agreed on cross-examination that an expert medical witness who is not testifying with respect to his or her own patient ought not to act as an advocate and should be as objective or impartial as possible.  When asked whether he had testified as an expert on previous occasions he had done so objectively and impartially and not as an advocate, his answer quite fairly was “I’ve tried”.  In my opinion this is not a sufficient evidentiary basis to support the introduction of the line of cross-examination sought by the plaintiffs.

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Augello and Economical Mutual [+] Arbitration, 2008-12-18 FSCO A07-001204

By way of context, it is no secret that there is a profound disagreement between many medical experts in the field of disability assessment as to the exact role that the AMA Guides play in determining catastrophic impairments under the Schedule. The prime dissident group rallying against the interpretation taken by the courts and arbitrators to date (the Desbiens approach) is centred around the position taken by Dr. Brigham, a prominent American advisor on disability issues.

Dr. Ameis, whose article on Impairment Evaluation is cited by Economical clearly falls into the Brigham camp. Indeed, Dr. Brigham is listed as a co-author of the article.

One of Dr. Brigham’s claims to fame is that he participated in the development of the original guidelines, and claims to have a special insight into what was intended by the committee which draughted the original guidelines. Dr. Ameis and Dr. Brigham have posited that the intention or original meaning of the provision was that no numeric rating could be given to psychological disorders, with the result that such disorders could not directly be added to the numerical physical rating to push the whole person impairment over the necessary threshold for catastrophic impairment.

It is clear from the Catastrophic report of the Custom Rehab team, headed by Dr. Rehan Dost, neurologist, that the Insurer’s experts were firmly in the Brigham/Ameis camp, finding a 20% whole person impairment, when, as they acknowledged in their own report, the amount under a Desbiens approach would have been 55%.

Indeed, Economical has acknowledged that should the Desbiens approach be found to be appropriate, Ms. Augello would meet the criteria for catastrophic impairment.

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Levey and Traders General Insurance  [+]  Arbitration, 1998-06-30, Reg 776/93

…The question of neck spasm and indeed Ms. Levey’s pre-accident condition in general was taken up by Dr. Arthur Ameis in a report he wrote for Traders dated February 20, 1997. Dr. Ameis had some of the same materials that I had before me. For instance, he writes that the summary of the April 1995 report by Dr. Killian indicates habitual pre-morbid positioning and posturing. Having examined the report and the summary, I can find only a reference to “habitual positioning/posturing” but no reference to its being pre-morbid. He also states a strong position on the possible development of torticollis: “One can be certain that if the claimant was to develop torticollis acutely from the accident…it would have developed very rapidly…and definitely presenting at the time of the first medical visit.” Regarding that first medical visit, Dr. Ameis finds it of interest that “a 9-day latency occurs prior to the first post-trauma family doctor visit” (his emphasis — he does not refer to the fact that the emergency department suggested Ms. Levey follow up in seven days with her family doctor, nor that the accident happened on a Saturday evening and that Ms. Levey saw Dr. Liang on Monday, April 18 (1994). He refers to the mild nature of the accident, noting that the damage was $175 (the insurance appraisal sets out parts of $175, but it also shows that straightening of the automobile’s unibody structure required six hours of labour, and the total estimate before taxes comes to over $1,100) and that important secondary gains can be derived from such an “unexpected opportunity” to displace personal distress through misattribution onto the accident. He writes that, to Dr. Punthakee in March 1996, Ms. Levey was “exhibiting behaviours suggesting a spasmodic torticollis which apparently is related in time to the accident” (again, his emphasis).

…I find that Dr. Ameis’s report, in its constant suspicion of Ms. Levey, to be less than helpful. Furthermore, Dr. Paulseth and Dr. Oczkowski are both experts in the area of spasmodic torticollis. Accordingly, I prefer their evidence and find that the onset of spasmodic torticollis may be delayed after trauma. ….

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Guerrero v. Fukuda, 2008 CanLII 49158 (ON SC)  http://canlii.ca/t/20zfs

Legislation

A.   Section 267.5(5)

[1]          Section 267.5(5) of the Insurance Act R.S.O. 1990, c.1.8 (“the Insurance Act”) relieves defendants from liability for pain and suffering damages unless the plaintiff has sustained permanent, serious impairment of an important physical, mental or psychological function.  By way of observation, I am uncertain as to what other functions might exist relating to the body.

[2]          Whiplash may well incorporate all three of these functions to different degrees but the root cause is a physical one emanating from soft tissue, physical injury to the neck and shoulder.

[3]          I think we have transcended the era when whiplash, due to the fact that it is often without objective findings, was equated with faking.

[4]          A whole specialty in medicine now exists dealing with physical medicine and rehabilitation.  This is sometimes referred to a s physiatry.  Experts in this field are relied upon by litigants often.  They do not rely upon the expert for treatment or rehab but rather to determine whether or not the expert believes pain exists.

[5]          Pain, and its degree of severity, are subjective and can exist without any objective finding.  Calling an expert to say that no objective finding equals no pain is on longer acceptable.  That same expert will often treat the pain that exists even though it is without objective findings.

[24]     I reject Dr. Clark’s evidence outright.  He was a physiatrist called by the defence.  His evidence was a classic example of a highly qualified doctor with a pre-existing bias, appearing as a hired gun to discredit Ms. Montero.

________________________________________________________________

 

 Zylstra v. Hughes, 1999 CanLII 5149 (BC SC)  http://canlii.ca/t/1d4dz

[44] The impression I had of Dr. Richman was that he felt able to offer opinion and/or criticism in almost all areas involving the plaintiff whether he was qualified to do so or not.  Dr. Larry Waterman, Registered Psychologist, considered Dr. Richman to “go beyond his area of expertise” when he considered that the plaintiff’s pain complaints were not significant.  Although I accept the vast experience of Dr. Richman, I agree that in some areas he is not the best person to proffer opinions.  I have assessed his evidence with that caution.

Rumak and Personal Insurance – Special Award [+] Arbitration, 2004-10-07 FSCO A01-000065

For the following reasons I find that in the period between when Personal terminated Mr. Rumak’s income replacement benefit and the DAC report, Personal acted unreasonably in withholding Mr. Rumak’s income replacement benefit.

Terminating an applicant’s income replacement benefits is a very serious matter with potentially serious consequences. An insurer contemplating the termination of income replacement benefits, or maintaining a denial, must act reasonably and consider all of the documentation before it. An insurer cannot pick and choose information that favours its own position while ignoring relevant information that favours the applicant.

I find that Personal had a paucity of medical evidence to support its termination of Mr. Rumak’s income replacement benefit and that it acted unreasonably in ignoring relevant information that favoured Mr. Rumak.

I find it unreasonable that Personal would choose to rely on Insurer’s Examinations in 1998 as a basis to terminate Mr. Rumak’s income replacement benefit in September 2000 and yet completely disregard Mr. Rumak’s medical evidence in 1998 because it was outdated.

(a)  Report of Dr. Shah

Dr. Shah’s report of his assessment on August 10 and 11, 1998 concludes:

At this time, Mr. Rumak is considered substantially psychologically disabled from returning to a part-time employment . However, following approximately eight cognitive-behaviour therapy sessions to help him cope with his anger, it will be advisable for him to return to employment concurrent with on-going therapy.

The psychological impairment is reducible and reversible.

An Independent Psychiatric Examination is considered essential to further clarify/modify diagnosis and treatment recommendations provided within this report.

Based on the results of this assessment, neuro-cognitive rehabilitation is not indicated. Mr. Rumak has made a remarkable cognitive recovery, which is likely to improve further as Mr. Rumak begins to resolve some of the psychological issues.

[emphasis added]

The first thing to note in the report is that Dr. Shah found Mr. Rumak was “substantially psychologically disabled” and had only opined that after “eight cognitive-behaviour therapy sessions … it will be advisable for him to return to employment concurrent with on-going therapy.” In short, this report recognizes that Mr. Rumak has cognitive-behavioural problems that interfere with his ability to work part-time and that even if he would return to working part-time he would need further treatment.

Personal did not terminate Mr. Rumak’s benefits in 1998 on the basis of this report. Neither did it seek a follow-up neuro-psychological assessment to confirm Dr. Shah’s findings that “Mr. Rumak has made a remarkable cognitive recovery.” I note this latter fact because Personal knew from the Catastrophic DAC report dated October 26, 1999 that Dr. Shah was not qualified to do a neuropsychological assessment on Mr. Rumak. [See note 5 below.]

Note 5: In the Catastrophic DAC report, which found Mr. Rumak had suffered a catastrophic impairment as a result of the car accident, Dr. H. Becker noted that “Dr. Shah is not registered by his college to undertake such neuropsychological assessments.”

In short, at the time that Personal terminated Mr. Rumak’s income replacement benefit in September 2000, Personal had clear notice that Dr. Shah’s neuropsychological assessment of Mr. Rumak in 1998 was not valid because of his lack of qualifications to do so. The only valid neuropsychological report that Personal had in 1998 was from Dr. Brooker, who had been recommended by Personal’s case manager to assess Mr. Rumak. In his report of February 18, 1998, six months before Dr. Shah’s report, Dr. Brooker states that, “There is no fundamental change from his report of December 19, 1997.”

find that Personal’s one-sided view in ignoring relevant information that supported Mr. Rumak’s claim in favour of its own clearly superficial and weak Insurer’s Medical to be unreasonable as basis to terminate Mr. Rumak’s income replacement benefit.

I do not agree with Personal’s submission that there were no substantial flaws that could easily be discerned from reading the DAC report. For the following reasons I find that there were obvious discrepancies, contradictions and omissions that should have given Personal pause for concern.

I find that in weighing all of the evidence and for the reasons given above, Personal, in choosing to ignore the obvious flaws in the Disability DAC, namely the superficiality, lack of neutrality, and the serious omission of the DAC not commenting on Dr. Ouchterlony’s report, acted unreasonably in relying on the DAC and in continuing to withhold Mr. Rumak’s benefits.

At the arbitration hearing Personal had little evidence to contradict Mr. Rumak’s testimony and his supporting evidence regarding his inability to sustain any employment. The one report that Personal relied upon, the Disability DAC report, proved to be substantially flawed.

It was very clear at the arbitration hearing on entitlement that the Disability DAC report, which Personal was relying to support its position, had substantive failures in respect of its accuracy, completeness and impartiality. As well, the DAC proved to have seriously failed in following the proper DAC procedures. These failures have all been articulated in my decision on entitlement dated November 5, 2003.

What is most significant is the fact that the DAC’s flaws, especially the procedural flaws, were brought out in examination-in-chief by Personal’s own witnesses, Dr. Bauer and Dr. Kim. This included the facts that there had been no consensus meeting by the DAC assessors, nor did the DAC assessors see or sign the consensus report. It was also under examination-in-chief that Dr. Bauer revealed that she provided a computer disk of her report which was incompatible with the computer of the AIM DAC facility so that her report would not be changed without her knowledge.

Dr. Bauer was the first to testify. Therefore, by the time Dr. Kim testified, Personal not only knew that there had been no consensus meeting at that DAC, but also that the AIM DAC facility in Whitby had a practice of changing the content of an assessor’s report without his or her knowledge.

Under examination-in-chief, Dr. Kim confirmed Dr. Bauer’s testimony regarding the lack of consensus meeting. It was also during Dr. Kim’s testimony that it was revealed that the DAC co-ordinator had changed Dr. Kim’s original assessment report in significant ways – including Dr. Kim’s conclusion. In my decision on entitlement, I found that these changes were more likely done without Dr. Kim’s knowledge.

Assessmed Inc. v. Canadian Broadcasting Corp., 2004 CanLII 28479 (ON SC) http://canlii.ca/t/1gkwm

[323]       Dr. Shah’s health problems, his difficulties with the College of Psychologists and the program ‘Prove It If You Can’ all impacted his work and business. Prior to July of 1997, AssessMed kept no computer records of the number of assessments performed by Dr. Shah. From July to December of 1997, when computer records are available, Dr. Shah performed 94 assessments at AssessMed.

[324]       In 1998, he did 204 assessments. In 1999, his assessments dropped to 87. Following 1999, he performed the following number of assessments:

2000 –   132 assessments

2001 –     121 assessments

2002 –      96 assessments

[325]       Dr. Shah’s income tax returns reveal he earned the following annual income from 1997 to 2001:

1997  –                 $117,399

1998 –                    137,015

1999 –                     44,431

2000 –                       26,342

2001 –                       48,085

[326]       Dr. Shah estimated his net income for 2002 at between $40,000 and $50,000. All of his income was from assessments he performed at AssessMed. He testified the decline in his income was due to the reduction of referrals from AssessMed. Dr. Shah believes he had a potential to earn as much as $175,000 per year at AssessMed. Had his health not deteriorated, it was his plan to work until 2008.

Reid v. Livingstone, 2004 CanLII 13020 (ON SC)  http://canlii.ca/t/1gw2g

[14]      The plaintiffs’ only evidence of a possible breach of the defendants’ standard of care is that of Dr. Richman dated July 26, 2001. Dr. Richman graduated in medicine in 1967 and has practiced occupational medicine and pain management. Between 1968 and 1977 he also practiced family medicine. His practice includes evaluation, management and treatment of pain in the context of occupational medicine. He is neither an obstetrician nor an anaesthetist. He has no expertise in these areas of medicine or in the treatment of pain in an obstetrical ward.

[15]      Dr. Richman’s report indicates that he did not have before him the clinical notes of the obstetrician, Dr. Livingstone, or the Hospital’s records respecting Mrs. Reid’s labour, delivery and post delivery treatment and care.

[16]      Dr. Richman’s report is stated to be an independent medical evaluation and functional abilities evaluation.

[17]      His conclusion was based on information provided to him, including statements by Mrs. Reid. He lacked two critical pieces of information, the obstetrician’s notes and the Hospital’s records. He concluded that Mrs. Reid’s complaints of injury are related to the treatment during her pregnancy and delivery. He states that “based on the information provided” that “best medical practices did not seem to be followed”.

[18]      This report is highly qualified and does not address the critical issue of whether the defendants met the standards of care applicable to their treatment of Mrs. Reid.

[19]      Furthermore, Dr. Richman did not give an affidavit confirming his opinion and whether it remains the same. Accordingly, his report was not admissible in evidence on this motion. See Ewaskiw v. Zellers 1998 CanLII 14866 (ON SC), (1998), 40 O.R. (3d) 795; Beland v. Kieffer,  [2002] O.J. No. 709 paras. 5-10.

Oppedisano and Zurich Insurance 1999-07-06 FSCO A97–001443

Dr. Paul H. Grant’s Report and Qualifications:

At Zurich’s request, on October 19, 1995, a work capacity evaluation was conducted at AssessMed Inc. by Dr. Paul H. Grant, with the assistance of an Italian interpreter. [See note 16 below.] I attach very little weight to Dr. Grant’s report for the reasons outlined in the following paragraphs:

Note 16: Exhibit 2, Tab 16 (Evaluation/Report)

Although Dr. Grant has a resume which describes him as a specialist in sports and orthopaedic medicine, Mr. Oppedisano’s counsel challenged Dr. Grant’s credentials at the hearing. As a consequence, Zurich’s counsel telephoned Dr. Grant during a recess. Dr. Grantconfirmed that he is not an orthopaedic specialist and has no specialist certification. A certificate of status of registration from the College of Physicians and Surgeons lists Dr. Grant as having no specialty qualifications. In the context of individual medical assessment, this can be misleading. Dr. Grant would have self described himself more properly as a general practitioner with an interest and experience in sports medicine.

Mrs. S and (Lloyd’s) Non-Marine Underwriters 2004-08-03 FSCO 2304

Lloyd’s retained Dr. Paul H. Grant, a general practitioner, to assess the Applicant. In a number of documents, including Explanations of Benefits Payable by Insurance Company, correspondence, and Lloyd’s counsel’s written submissions, Dr. Grant’s reports are referred to as orthopaedic assessments. On Dr. Grant’s reports, under his signature is “Orthopaedics & Sports Medicine” and he entitles supplementary reports as “Orthopaedic Addendum.” The Applicant’s counsel submitted, and I accept, that this is misleading since Dr. Grant is not an orthopaedic surgeon. Dr. D.J. Ogilvie-Harris, an orthopaedic surgeon, confirms this in his July 19, 2002 report. I therefore regard Dr. Grant as a general practitioner and do not accept Dr. Grant’s opinions as orthopaedic opinions.

Worthman v. Assessmed Inc., 2006 CanLII 7038 (ON SCDC) — 2006-03-09 Divisional Court — Ontario  http://canlii.ca/t/1ms0r              immunity — duty of care — insurer — report — privilege

[20]      It is also important to closely examine the allegations made in the Statement of Claim.  The allegations of wrongdoing are extremely broad.  There are allegations of bad faith; bias; misrepresentation; carelessness; intentional interference with contractual relationships; intention to injure; inducing or attempting to induce a breach of contract; interference with performance of a contract; production of a misleading report; failure to review all relevant materials; production of a blatant falsehood; and other professional misconduct.  These allegations involve very serious allegations of misconduct on the part of the defendants.  Therefore, the plaintiff’s complaints are not simply based on the medical-legal report of Dr. Grant.  The plaintiff’s complaints, in this case, relate to the role played by both AssessMed Inc., its employees, and Dr. Grant with respect to the manner in which the medical examination was conducted, the preparation of the report, and the resulting report.

[28]      I am very mindful of the ramifications of limiting the doctrine of privilege and/or immunity with respect to medical reports and of extending the duty of care to physicians who deliver reports concerning non-patients.  However, it seems to me that the plaintiff should be given an opportunity to prove that some malfeasance was in place from the very beginning.  This is the tenor of Ms. Worthman’s complaint.  As aforesaid, her complaint goes far beyond a mere allegation of negligence.  If her allegations are proven, surely it would be contrary to public policy to clothe the defendants with an absolute privilege or immunity.

Dr. Jack Richman, the fourth recipient of the “Michel Lacerte Award of Excellence” https://m360.csme.org/event.aspx?eventID=87110&instance=0

Read: http://www.lawtimesnews.com/20060424530/Headline-News/Worthman-could-induce-expert-chill

 

 

 

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