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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.
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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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Preparing for an Assessment With the Insurance Company Doctor

http://www.ottawainjurylawyer.co/english/news/what-you-need-to-know-about-the-insurance-doctor-in-your-ottawa-personal-injury-claim-part-1.htm

http://www.ottawainjurylawyer.co/english/news/preparing-for-an-assessment-with-the-insurance-company-doctor-in-your-ottawa-personal-injury-case-part-2.htm

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FAIR submission to CPSO Uninsured Services Billing and Block Fees draft policy May 1 2017

What we are seeing is some very poor quality medical opinions at a very high price being paid for by Ontario’s car accident victims who have no say on how their recovery benefits are being used to line the pockets of insurer doctors. Treating physicians are compensated with far fewer dollars to clean up the harm done to their patients with their own much more reasonably priced medical reports. As you can see from some of the links below, some physicians are becoming very wealthy by overcharging for medical reports that are without value and when MVA victims cancel assessments with these same IME providers, they are again being overcharged.

FAIR submission to CPSO Uninsured Services Billing and Block Fees draft policy May 1 2017

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Disclosure of Expert Retainer Letters

The issue of whether a party must produce a lawyer’s ‘instructional letter’ when retaining an expert was considered by the Ontario Superior Court in Nikolakakos v. Hoque, 2015 ONSC 4738.  This case involved an action for damages arising from personal injuries sustained in a motor vehicle accident in August 2012.  Following examinations for discovery held in August 2014, the Defendants requested that the Plaintiff attend a defence medical examination with an orthopaedic surgeon.  The Plaintiff agreed to attend the medical examination on the condition that the Defendant’s lawyer provide a copy of the letter of instruction to the orthopaedic surgeon in advance of the assessment.

http://www.millerthomson.com/en/blog/mt-insurance-law-blog/disclosure-expert-retainer-letters/

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Nemchin v Green, 2017 ONSC 2283 (CanLII)

[21]           Dr. Hershberg testified that for the past five years or so, 80 to 90 per cent of his income has been generated from conducting defence medical examinations – for defendants in litigation or for insurers in responding to claims.  He estimated that (a) as of 2014 he did 80 to 90 assessments per year and (b) in the five years leading up to the date of trial he had done 400 to 500 assessments in total.  He charges $600 per hour for his services.
[22]           In cross-examination, Dr. Hershberg acknowledged that his curriculum vitae does not portray the extent to which he has been doing assessments for the past five or more years.
[23]           Dr. Hershberg’s experience in conducting assessments includes doing other types of assessments within the motor vehicle insurance system and the Workplace Safety and Insurance context.  The majority of the information about Dr. Hershberg’s assessment work appears in his curriculum vitae under the heading “Ontario Insurance Commission” (the “Commission”).  I find that the appearance created by the manner in which that work is described and included in the curriculum vitae is that the work is in some way done under the auspices of the Commission.  In addition, the manner in which that work is described and is included in the curriculum vitae serve to downplay the prevalence in Dr. Hershberg’s work of the defence medical examinations and assessments for insurers.
[24]           Based on Dr. Hershberg’s level of experience in conducting defence medical and other assessments, I draw the following inferences:
         He is aware that his qualifications are not likely to be tested on cross-examination unless and until the dispute proceeds to trial or to an arbitration;
         He knows that a copy of his curriculum vitae is provided with his reports when they are served on an opposing party and may be provided to the Court in the course of litigation, the latter including for the purpose of pre-trial conferences;
         He understands that the contents of his report are considered, at least in part, in light of his qualifications and experience as set out in his curriculum vitae;
         He is aware that the contents of his report may play a role in the settlement positions adopted by parties to a dispute; and
         He is aware that the contents of his report, including in the light of his experience as detailed in his curriculum vitae, may contribute to settlement recommendations made by judges and others presiding over pre-trial and other forms of settlement conferences.
[25]           It is troubling to me that Dr. Hershberg, carrying out the type of work that he does and understanding the purpose served by his curriculum vitae and reports, is not more careful with respect to the accuracy of and the impression left by the information set out in his curriculum vitae.
[26]           I am also concerned by the lack of attention to accuracy demonstrated by the manner in which Dr. Hershberg dealt with the mechanics of the collision – both when he interviewed the plaintiff and when giving evidence at trial.  Dr. Hershberg testified that he made notes while interviewing the plaintiff.  At the end of the day on which the examination was conducted he would, as was his practice, have dictated his report relying at least in part on his notes.

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Hashi and Certas Direct 2017-03-27 Decision: Arbitration, Final Decision, FSCO 5198

 
Dr. Mills and Dr. Seon differed in their respective Addendum Reports with respect to the Brief Battery for Health Improvement 2 (BBHI-2) scores, the Test of Memory Malingering (TOMM) scores, the Applicant’s language difficulties and the overall treatment of the Applicant. Dr. Mills testified he never uses these tests, which test for attributes such as feigning symptoms, malingering and lying. He said that results from such tests are unreliable. They do not take into account the patient’s different cultural background, the suspicion toward a female assessor, and attitudes towards women (all aspects of cultural differences) which could have an important effect on the outcome of those kinds of testing.
 
As a clinical psychologist he was more interested in the whole picture, which included the fact that the Applicant had come seeking treatment and had endorsed a number of features indicative of serious depression. In his opinion, the Applicant was not feigning his symptoms. He noted that two flags ignored by Dr. Seon were the Applicant’s disclosure at Dr. Seon’s interview that he was taking medication for his pain and had been prescribed anti-depressant medication by his family doctor. These should have alerted her that the Applicant was experiencing real issues of pain and depression, and not feigning symptoms.
[]
In making my overall findings with respect to the Medical Benefits and Costs of Examinations, I must note several things stand out.
 
The first is the marked contrast between the opinion reports of the Applicant and Insurer. This seems endemic to the Adjudication process under the SABS.
That said, I am giving more weight to the Applicant’s testimony and to his self-reported symptoms to the various assessors and his testimony at the Hearing, over the opinions of Drs. Seon and Chiew that the Applicant was likely feigning his symptoms. This is not in any way to question the skills or expertise of these witnesses; I am not qualified to do that. But I am qualified to weigh and prefer particular evidence over other evidence.
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On the psychological side, I prefer the evidence of Dr. Mills given my conclusion that the Applicant was neither malingering nor feigning or exaggerating his symptoms. I accept that Dr. Malik, working under the supervision of Dr. Mills, was providing assistance to the Applicant towards understanding the tests when he required it because of language difficulties. The tests administered through Dr. Malik and interpreted by Dr. Mills supported the Applicant’s symptoms of emotional distress and pain which he attributed to the accident.
 
I support Dr. Mills’ conclusion that the serious and recalcitrant nature of the Applicant’s ongoing physical pain and psychological impairment is a direct result of the MVA. I also endorse Dr. Mills’ finding that the MVA materially contributed to the Applicant’s impairment and poses a significant barrier to his function, an observation I was able to make from the Applicant’s demeanour throughout the Hearing when he attended. His impairments should not be characterized as falling within the MIG.

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