• FAIR – supporting auto accident victims through advocacy and education
  • FAIR – supporting auto accident victims through advocacy and education
  • FAIR – supporting auto accident victims through advocacy and education
  • FAIR – supporting auto accident victims through advocacy and education

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 unqualified, 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.

**********************************************************************

 

CPSO is currently reviewing its Third Party Reports and Medical Expert: Reports and Testimony policies

 

College of Physicians and Surgeons of Ontario Consultation

Have your say about IMEs (Third Party Insurer Medical Examinations aka IEs, DMEs) and how your experience shapes your opinion about the current regulatory oversight of insurer doctors who work in the Ontario auto insurance system.

Submit your comments by February 9, 2020   

The College is currently reviewing its Third Party Reports and Medical Expert: Reports and Testimony policies. These policies set out expectations for physicians who: complete or prepare third party reports, conduct independent medical examinations, and provide medical expert reports and testimony. The reports, examinations and testimony are for purposes other than the provision of health care (e.g. for insurance benefits, or in respect of workplace issues, attendance in educational programs, legal proceedings, or other third party process). We are inviting feedback at this preliminary stage to help inform our review of the policies.

 View the current Third Party Reports policy. 

Complete the brief online survey.
Post your comments on the consultation discussion page and/or read the feedback.

Comments are closed.

Assessor’s medical opinion evidence, libel, and public interest case

Webcast of the Supreme Court of Canada Hearing on 2019-11-12 38374 Maia Bent, et al. v. Howard Platnick, et al. https://www.scc-csc.ca/case-dossier/info/webcastview-webdiffusionvue-eng.aspx?cas=38374&id=2019/2019-11-12–38374-38376&date=2019-11-12

For portion to do withBent/Platnick scroll to 1:39:09

More detail re SCC leave to appeal: Maia Bent, et al. v. Howard Platnick, et al. (Ontario) (Civil) (By Leave) 38374

https://www.scc-csc.ca/case-dossier/info/dock-regi-eng.aspx?cas=38374

Factums: https://www.scc-csc.ca/case-dossier/info/af-ma-eng.aspx?cas=38374

Maia Bent, et al. v. Howard Platnick, et al., 2019 CanLII 35199 (SCC)

Platnick v. Bent, 2018 ONCA 851 (CanLII)

Platnick v. Bent, 2018 ONCA 687 (CanLII)

Platnick v Bent, 2017 ONSC 585 (CanLII)

Platnick v. Bent – Endorsement (1) ONSC 7340 20161201

Platnick v. Bent – Endorsement Re Preliminary Motion (2) ONSC 7474 20161201

Statement of Claim – FILED – 3334-15 – September 3

The original media story: http://www.insurancebusiness.ca/ca/news/auto/medical-files-routinely-altered-to-suit-insurers-claims-fair-186692.aspx?p=1

The latest stories in the media:

https://www.theglobeandmail.com/news/investigations/doctors-insurance-independent-medical-examinations/article37141790/

https://www.thestar.com/news/gta/2016/12/08/md-who-wrote-misleading-insurance-report-under-investigation.html

http://news.nationalpost.com/news/ontario-doctor-misrepresented-views-on-catastrophic-injuries-to-benefit-insurer-judge-rules

https://www.thestar.com/news/canada/2016/12/06/toronto-doctor-cant-sue-over-substantially-true-warning-he-altered-medical-reports-to-thwart-insurance-claims.html

Letter to MPPs regarding medical file manipulations Dec 23 2014

more info see: http://www.fairassociation.ca/the-independent-medical-examination-imeie/  and   http://www.fairassociation.ca/ime-providers-adverse-comments/

http://www.fairassociation.ca/muzzling-criticism/ 

Comments are closed.

Applicant vs. Portage La Prairie Mutual Insurance Company, 2019 CanLII 101649 (ON LAT),

Applicant vs. Portage La Prairie Mutual Insurance Company, 2019 CanLII 101649 (ON LAT),  http://canlii.ca/t/j33x1

[15]        Multiple neuropsychological assessments were performed by Dr. Schmidt. I do not find the reports of Dr. Schmidt to be compelling and grant them little weight. They are inconsistent with the medical records documenting the applicant’s injuries and impairments. Dr. Schmidt concluded that the applicant’s test scores were invalid, however the neuropsychologist who performed the catastrophic assessment on behalf of the respondent — Dr. Wiseman — reviewed Dr. Schmidt’s test data and determined that the scores were within valid ranges.

[16]        Dr. Schmidt initially saw the applicant in March 2017 for a neuropsychological assessment.[5] In his report dated April 13, 2017, Dr. Schmidt noted “there is a discussion of a sustained traumatic brain injury within his medical record, but this seemed to absolve shortly after his accident… He was also able to complete his education post-MVA”. These findings are contrary to the hundreds of pages of medical records, including many items listed in the “Documents Reviewed” section of his report, which establish that the applicant did sustain a severe traumatic brain injury and continued to suffer from ongoing cognitive impairments as a result. Even the neurologist, Dr. Mendis, noted in his report “from a neurological perspective, he sustained a traumatic brain injury, which is well-documented in his medical record” [emphasis added.] Dr. Mendis also administered the MoCA, and the applicant scored 23/30. Further, Dr. Schmidt’s indication that the applicant was able to complete his education post-accident is incorrect — the applicant made multiple attempts to return to school post-accident but was unsuccessful.

[17]        Dr. Schmidt noted in his report that the applicant was having difficulty following instructions during his assessment, including going into a different testing room than the one he was being led to. He did not follow all the instructions during testing and was unable to complete one of the tests. Dr. Schmidt also noted that there were some auditory processing concerns given the applicant’s slow responses. He also demonstrated awkward pen grip and fatigue during testing. However, according to Dr. Schmidt, the validity testing was indicative of symptom exaggeration. Despite the observations noted above, based on the medical records, background history, behavioural observations and testing data, Dr. Schmidt concluded “I am more inclined to side on performance and symptom exaggeration which have affected the interpretation and quality of his testing, and thus complicating diagnostics and treatment recommendation which at this point are nil”. However, Dr. Schmidt requested to review the Ministry of Transportation records, indicating that his opinion may change.

[18]        An addendum report was completed by Dr. Schmidt, dated January 11, 2018.[6] Upon reviewing the additional documentation including the driving assessment and a progress report from the occupational therapist, Dr. Schmidt concluded that he was unable to gather valid and reliable information, and therefore recommended a further evaluation to properly formulate his opinion regarding a “complete inability to carry on a normal life”.

[19]        Accordingly, a new neuropsychological assessment took place in June 2018.[7] Dr. Schmidt again concluded in his June 26, 2018 report that he had “no objective data to support that [the applicant] currently suffers a complete inability to carry on a normal life as a result of the accident from a neuropsychological perspective”. Dr. Schmidt again found that the quality of the testing was impacted by the applicant’s “performance and symptom exaggeration”. Given the lack of reliable and valid testing data, Dr. Schmidt determined that he could not make any recommendations.

[20]        In the fall of 2018, the applicant underwent assessments on behalf of the respondent to determine if he had sustained a catastrophic impairment as a result of the accident.[8] Assessments were performed by an occupational therapist, Ms. Nicholson, and a neuropsychologist, Dr. Wiseman. The respondent’s assessors determined that the applicant was catastrophically impaired per criteria 4 – brain impairment. Dr. Wiseman concluded that the applicant’s level of brain-related cognitive impairment was compatible with Lower Moderate Disability (5) per the Extended Glasgow Outcome Scale (“GOS-E”) at one year or more post-accident.[9]

AWARD PURSUANT TO REGULATION 664

[70]        Section 10 of Ontario Regulation 664, R.R.O. 1990 states that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Tribunal may award a lump sum of up to 50% of the amount to which the person was entitled at the time of the award with interest.

[71]        Just because I have found that the respondent was wrong in its denial of the non-earner benefit does not automatically entitle the applicant to an award. An insurer is not to be held to a standard of perfection, but rather, it should be held to a standard of reasonableness. The purpose of an award is to punish an insurer for misconduct and to deter it and others from future similar actions.[25]

[72]        The case law has established that an award should be granted only where there was unreasonable behaviour by an insurer in withholding or delaying payments, which can be seen as excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

[73]        The respondent cited a Tribunal decision which determined that the threshold is not met when an insurer withholds payment based on its section 44 examinations.[26] The respondent relies on the conclusions of its section 44 examinations in denying the applicant’s entitlement to the disputed benefits. However, I find that “papering” a termination by obtaining a compliant report from an assessor is not necessarily protection against an award if an insurer closes its mind to other information available to it that may affect its decision.[27]

[74]        In this case, I find that the respondent acted unreasonably when it denied benefits to the applicant based on the conclusions of its section 44 assessors. The reports of Dr. Schmidt determined that there was some impairment, it was suspected to be exaggerated, and the data was found to be invalid. However, I find that the respondent ignored other medical information available to it in maintaining its denial, including the respondent’s own catastrophic assessment reports. I find that after receiving the report of Dr. Wiseman in which she concludes that Dr. Schmidt’s interpretation of the data was incorrect – the scores fell within a valid range – and given her conclusions about the applicant’s level of impairment, the respondent acted unreasonably in continuing to deny the applicant’s claim for non-earner benefits. The respondent has an ongoing obligation to consider new information as it becomes available and reconsider its prior determinations.

[75]        The respondent called no witnesses to testify at the hearing, but forced the applicant to proceed to a four day in-person hearing despite the conclusions of its own catastrophic assessors which challenged the conclusions of the assessors the respondent relied upon in refusing to pay the benefits. I find this conduct amounts to unreasonable behaviour by an insurer in withholding or delaying payments, which can be seen as excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

[76]        The quantum of a special award should be proportionate to: (i) the blameworthiness of the respondent’s conduct; (ii) the vulnerability of the applicant; (iii) the harm or potential harm directed at the applicant; (iv) the need for deterrence; (v) the advantage wrongfully gained by the insurer from the misconduct; and (vi) should take into account any other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct.[28] The Tribunal has added a seventh factor, being the overall length of the delay.[29]

[77]        I have considered the amount of benefits withheld from the applicant, and the length of time that payment has been withheld.  I have also taken into account the applicant’s vulnerability given his brain injury, and dependence on others. The respondent should have taken a second look at the evidence prior to the hearing, however, the catastrophic assessment reports were received only a few days prior to the hearing.  Considering these factors, I find that the appropriate quantum is 40% of the amount to which the applicant is entitled for the disputed benefits, plus interest in accordance with the Schedule. I leave the calculation of the exact amount of the award and interest to the parties – given that the parties agreed that the quantum of benefits is not to be determined by the Tribunal in this hearing. If there is disagreement in the calculation of this amount, either party may contact the Tribunal to schedule a case conference with me within 30 days of the release of this decision.

ORDER

[78]        The applicant is entitled to weekly non-earner benefits from February 1, 2017 to date and ongoing. The benefits shall be paid forthwith, with interest in accordance with the Schedule.

[79]        The applicant is entitled to an award under Regulation 664 corresponding to 40% of the amount to which he is entitled to on the date of this decision, with interest in accordance with the Schedule.

Comments are closed.

17-001337 v. Coachman Insurance Company, 2018 CanLII 139515 (ON LAT)

17-001337 v. Coachman Insurance Company, 2018 CanLII 139515 (ON LAT), <http://canlii.ca/t/hzm7j

[45]        West Park Assessment Centre conducted a catastrophic evaluation for Coachman in 2016, and addendums in 2017. Coachman called the team’s psychologist and orthopaedic surgeon, and relied on the reports of the Occupational Therapist.

[46]        Dr. David Prendergast conducted a psychology IE on July 20, 2016, and issued a report dated October 12, 2016, and a “Material Review” report dated April 21, 2017. His key finding was that “this gentleman was not being entirely straight with me, and I didn’t find any objective evidence of psychological problems.” He concluded that [the applicant] had a 0% WPI rating and a Class 1 (no impairment) under the four domains. There were several noteworthy points to his testimony.

[47]        First, he expressed his evaluation showed (in my words) [the applicant] was dishonest and deliberately exaggeratory, based on several factors: (1) His psychometric testing produced invalid results, with results on the “REY” so low that it’s highly unlikely that his limited education would have been the cause, the MSPQ showed over-reporting physical problems, and on the TOMM Memory Test, which should be free of educational concerns, “His responses were quite extreme. You would have to go out of your way to choose the wrong item in order to do as poorly as he did.” (2) Testing by Drs. Becker and Notofonzo also produced invalid or incomplete results. (3) [the applicant]’s interview did not demonstrate any symptoms that indicate post-traumatic stress disorder, depression or a driving phobia, such as tearfulness, agitation or flashbacks. (4) He maintained a sense of humor, yet displayed a high degree to pain related behavior, walking slow, standing several times to stretch, tense facial expressions, and frequent comments upon his pain.

[48]        Second, during Dr. Prendergast’s testimony, it became clear that he was unaware that two different versions of his report existed, creating an inference that his report had been altered without his knowledge. That discovery came to light during his testimony when he was providing page citations that did not match the version that Coachman had previously circulated and entered into evidence. The copy the doctor brought with him was a 60-page report, dated July 25, 2016 on his own letterhead, yet the report Coachman had disclosed was 44-pages, dated October 12, 2016, and on West Park’s letterhead.

[49]        On inquiry, Dr. Prendergast explained that his version was the draft he sent to West Park and the clinical portion would be the same. West Park’s version, he believed, simply included the OT and in-home assessment reports, but yet he would have reviewed those. However, [the applicant]’s counsel’s questioning established that the OT Report was not yet available at the time the draft report was written, at least minor tinkering can be found in the wording, and the focus of his report is somewhat different (Criterion 7 & 8, versus just 8). Still, he maintained, it’s likely he did the editing, but he could not be sure if the editing occurred after his last approval, and he doesn’t recall switching [the applicant]’s name from Mr. R. to Mr. A.R.

[50]        Third, his testimony changed on questioning. At first, he said he was disagreeing “to an extent” with prior assessors that found [the applicant] had diagnoses from the work-related accident, but when pressed during cross-examination, he broadened his opinion to even disagree with prior assessments, including Dr. Notorfonzo’s, despite it being several years earlier. Then on re-examination, he again changed his answer, correctly limiting it to that he can only comment as to the date of his assessment. His waiver back and forth on this point of inherently claiming [the applicant] had fooled so many previous assessors, may simply be due to strong cross-examination, but it weakens his testimony. Ultimately, for balance, he did clarify that while he could not confirm objective evidence of a psychological impairment or distress based on his interview and test data to formally diagnose [the applicant] with a disorder – he did acknowledge [the applicant] could still have distress, a history of pain problems, or limitations.

[69]        Regarding the diagnosis, I find that [the applicant] does have a pain disorder and depression, although possibly not to the full extent that [the applicant] suggests. Thus, I accept Dr. Becker’s conclusion on diagnosis over Dr. Prendergast’s, for several reasons.

                                   a.         [The applicant] has been consistently diagnosed with a pain disorder and/or depression since at least 2008, by numerous assessors, including Coachman’s own, who did so despite “invalid” indicators.

                                   b.         Both psychological assessors agreed that a lack of formal education and cultural and language issues could at least partially explain the poor validity results. Dr. Becker concluded that validity tests were not particularly reliable, and tried to interpret the remaining data. Dr. Prendergast concluded that regardless of educational issues, the results were so extreme, and not supported by other objective evidence, that he concluded that [the applicant] “wasn’t being straight” with him.

                                    c.         While [the applicant] wasn’t entirely “straight” with Dr. Prendergast, Dr. Becker’s approach fit with the overall evidence – [the applicant]’s behavior, other diagnoses (including IE assessor Dr. Notarfonzo’s on “invalid” results).

                                   d.         While I accept some of Dr. Prendergast’s testimony on other points, the altered report and his comment that he disagreed with long-past prior diagnoses, a comment he soon retracted, weakened the strength of his opinion in this matter.

Comments are closed.

Allstate Insurance Company of Canada and Adel Harb https://www5.fsco.gov.on.ca/AD/5636

Allstate Insurance Company of Canada and Adel Harb https://www5.fsco.gov.on.ca/AD/5636
Decision Date: 2019-02-13Appeal, Final Decision, FSCO 5636

According to the Appellant, a “stand-alone” determination regarding catastrophic impairment in the absence of any dispute regarding accident benefits constituted a binding declaration of right, which fell within the exclusive jurisdiction of the Court of Appeal or the Superior Court.[3]

Further, the FSCO arbitrator’s jurisdiction derived solely from sections 279, 280 and 281 of the Insurance Act, and any power they have must be “… limited to dealing with those questions that must be answered in order to make a ruling on an applicant’s entitlement to benefits.”[4]  As the Courts have held that a designation of catastrophic impairment is not, in and of itself, an accident benefit, an arbitrator cannot determine the stand-alone issue of catastrophic impairment when no accident benefits are sought in the arbitration proceeding.

In his decision, the Arbitrator addressed these arguments. He acknowledged the determination of catastrophic impairment was not an accident benefit: “Reaching the status of catastrophic impairment does not itself determine entitlement to any specific benefit. It is only a gateway to entitlement to the highest tier of enhanced benefits under the Schedule.”[5]

Nonetheless, the Arbitrator held he was not persuaded that an arbitrator did not possess the jurisdiction to decide all disputes in respect of a person’s entitlement to accident benefits, or the amount of benefits to which the person is entitled. He found section 282(3) of the Insurance Actspecifically allowed an arbitrator to determine all issues in dispute, whether raised by the insured or the insurer.

The Arbitrator also noted that the Court of Appeal had recognized that within the realm of accident benefits, the courts do not have the sole jurisdiction to make a catastrophic determination. He was unconvinced a finding of catastrophic impairment was declaratory or equitable relief; it was a question that needed to be answered prior to determining whether a specified benefit was reasonable and necessary.

Once he made that determination, the Arbitrator went on to find the Respondent was indeed catastrophically impaired.
____________________________________________
 
Decision Date: 2018-04-04 Arbitration, Final Decision, appeal pending, FSCO 5530

Mid-Hearing Motion #1

Upon closing his case and prior to the Insurer calling Dr. Sharma, an orthopaedic surgeon, the Applicant objected to the doctor taking the stand in order to testify.

The Applicant argues that the doctor did not assess the Applicant for a catastrophic impairment, but opined on the Applicant’s income replacement benefit (“IRB”) issue. This case is only about a catastrophic determination, under mental and behavioural issues. There is no relevance to Dr. Sharma’s testimony or in other words there is not a relationship with the doctor’s expertise and the issues in dispute. There is no probative value to his testimony, which may be prejudicial to the Applicant. The Applicant is unsure as to the intention of this witness’ testimony. Thus the evidence as it relates to the issue in dispute is unknown to the opposing party.

The Applicant argues that all non-relevant evidence should be excluded.

The Insurer argues that there is no prejudice in this instance and the fact that the Applicant does not know what the relevance of his evidence is, is not in itself prejudicial to the Applicant. The Applicant has the doctor’s reports and the diagnosis and the conclusions of the reports. The Insurer argues that the Applicant suffers from a constellation of symptoms, as has been already evidenced in this Hearing, according to the Guides[17]: chronic pain under Chapter 15, a closed head injury under Chapter 4, and not just the narrow issue of mental and behavioural issues under Chapter 14. Therefore the Insurer argues it has the right to bring this case to the attention of the trier of fact and present its case as it sees fit. The Insurer argues that the Applicant best fits Criterion 7 and not Criterion 8.

The Applicant replies that Dr. Sharma did not have any expertise in chronic pain. This is subjective and goes to the credibility of the Applicant which cannot be allowed as the doctor did not ask the correct questions to the Applicant directly.

The Insurer argues that Dr. Sharma is not being called for credibility issues alone, but he has tracked the Applicant’s physical condition, and the Insurer wants to argue this case on that basis. Further the Insurer suggests that it will not be asking for a whole person impairment (“WPI”) rating from the doctor, which has not been provided in the doctor’s report.

Decision

In the interest of fairness to the Insurer, I will allow the witness to testify to his reports and the implications of those reports on the Insurer’s perspective of this case. In my view, the Insurer also has the right to present its best evidence for its best defense. This of course does not have an impact on the Applicant’s ability to present his case as he ultimately has the burden of proof of entitlement.

Mid-Hearing Motion #2

During the examination of the Insurer’s expert, Dr. Sharma, counsel for the Insurer and Dr. Sharma recognized that his final report was not the report that the doctor had dictated or submitted to the service provider known as “CVE”.

The Insurer moved that I allow the correct version of the report in as evidence despite the late service.

Arguments

The Insurer argued that under Rule 39.3 (c) of the Dispute Resolution Practice Code (the “Code”), I may allow the evidence due to extraordinary circumstances. This section reads as follows:

39.3 The hearing arbitrator will determine the relevance, materiality, and admissibility of evidence submitted at the hearing, but will not admit evidence at a hearing that:

(c) was not served on the opposing party in accordance with Rules 39.1 and 39.2, unless the hearing arbitrator is satisfied that extraordinary circumstances exist to justify an exception.

The Insurer argues that the only explanation it or Dr. Sharma can offer is that the third party service provider, who polishes the doctor’s formatted reports and submits them to the Insurer for dissemination, somehow and inexplicably changed vital sections of his report. Unfortunately, this has just been discovered and is out of the control of either party or the doctor. The doctor testified that he does not see the finished product prior to it being sent out to the parties. The doctor dictates the report, it is transcribed, and he then reviews it, makes any adjustments and then approves it for the proper formatting and the auto-signature to be applied. The doctor admitted it has not been his practice to review final reports in their final format in the past.

The Applicant argues that I should not allow the new report into evidence, for three reasons: first, the Code does not permit it, second, he has already objected to the doctor’s evidence, and third, it is not consistent with the principles of natural justice as he has been taken by surprise and/or ambushed. He is unable to properly cross-examine the witness. The Applicant has not been able to request the doctor’s notes and records in order to understand his evidence.

The Insurer’s remedy to the Applicant’s concerns of prejudice is to adjourn the Hearing, for two weeks, in order for the Applicant to read any documents he may want to review in order for him to properly cross-examine the doctor.

Decision

In my view, extraordinary circumstances are situations that appear as a surprise, and the surprise is out of the control of the parties. This is the case before me today. Essentially, CVE submitted a false report that negatively impacted on the Applicant, as the Insurer relied on this report in determining benefits the Applicant may have been entitled to, to one degree or another. This is verified by Insurer’s counsel. This issue was discovered on the day, just hours prior to the commencement of this proceeding and was reported immediately thereafter.

For the reasons above I adjourned the Hearing, after the doctor’s examination-in-chief had been completed, for two weeks, in order for the Applicant to properly prepare his cross-examination.

[]

In regards to Dr. Sharma’s evidence that he believes that the underlying pain experienced by the Applicant can be attributed to his arthritis, I remain unconvinced that all of the Somatic Symptom Disorder, with predominant pain, persistent, as diagnosed by the Insurer’s own psychiatrist in June 2015,[50] is associated solely with the arthritis. There is no direct evidence to that effect. I also note that Dr. Sharma only makes a suggestion that a possible head trauma occurred and that this went unverified, therefore, in my view, means a Chapter 4 impairment rating and subsequent WPI rating are not necessary or required.

[]

The Applicant argues that the special award is warranted on the following grounds:

1.      The Insurer refused to accept the CAT application based on Dr. Scott’s flawed report, as the evidence shows the doctor clearly did not follow the Guides recommendations;

2.      Mr. Landry’s OT report was not provided to Dr. Scott prior to the release of Dr. Scott’s CAT report, despite the critical role it should have played as part of a CAT determination team’s assessment of the Applicant;

3.      The Insurer relied upon a falsified or ghost written report of Dr. Sharma, which the Insurer had relied upon in making its decision not to accept the Applicant’s CAT application. As such the Insurer should be held vicariously liable for the conduct of a third party assessment firm it hired. The Applicant relies in part on the Supreme Court Decision in Bazley.[56]

In light of these facts the Applicant requests a finding of a 50% special award on benefits that the Applicant would have been entitled to from the date of the denial on November 2015 to date.

The Insurer argues, in part, that in respect of a special award, it does not believe that there are either grounds for or a jurisdictional basis upon which a special award can be granted. Further, the Insurer objects to the argument that it ought to be held responsible for the actions of CVE.Upon becoming aware of the error it communicated that fact to the Commission. It acted honourably and reasonably in all the circumstances. It is submitted that neither the error nor the report played a role in the determination of whether the Applicant had suffered acatastrophic impairment.

 
 

Comments are closed.