Applicant v. Intact Insurance Company, 2018 CanLII 130843 (ON LAT), <http://canlii.ca/t/hxfbv
The Independent Insurer Medical Examination IME/IE
‘FAIR – supporting auto accident victims through advocacy and education’
DUTY OF EXPERTRules 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.
18-000456 v Aviva Insurance Canada, 2018 CanLII 130867 (ON LAT), <http://canlii.ca/t/hxfcr
 Dr. Oshidari conducted the other IE and drafted a multidisciplinary report dated March 6, 2018. He found the applicant had reached maximal medical recovery from a physical standpoint in relation to the 2016 Accident related injuries. Dr. Oshidari found that the applicant’s recent weight gain was the cause of the back issues and nerve issues. He recommended an exercise program to address the applicant’s weight. In addition, Dr. Oshidari found that the applicant no longer had any impairment related to the 2016 Accident.
 I give little weight to Dr. Oshidari’s report as it relates to the applicant’s entitlement to a chronic pain Treatment Plan. Dr. Oshidari’s report was mostly a copy and paste of an earlier report on June 20, 2017. It was light on details and not well developed. For example, he notes that applicant has gained weight and puts in brackets “(not related to Accident)”. Dr. Oshidari does not explain why he believes the weight gain is not related to the applicant’s symptoms nor what information he relied on to reach that conclusion. Dr. Oshidari also suggested the applicant simply needs a gym membership to address his weight which would presumably address his ongoing pain symptoms. However, the applicant had already stated to Dr. Brown that he was unable to go to the gym as a result of his chronic pain caused by the 2016 Accident.
J. C. v B. G. M., 2019 CanLII 1192 (ON HPARB), <http://canlii.ca/t/hwz85
• the relationship between the Respondent and the Applicant was that of examiner- examinee and not that of the physician-patient;
• it expressed no concerns regarding the Respondent’s billing, found it reasonable and consistent with the Ontario Medical Association’s Guide to Uninsured. Services and, thus, did not amount to a “bribe” or fee splitting;
• under PIPEDA, the Respondent was not required to provide information regarding his fees since this is commercial information between the Respondent and CIRA and not personal information. Similarly, the Respondent was not required to provide emails, unless the emails were the only place where personal information was recorded;
• it explained that physicians bill the party that retains them to prepare the third-party report which in this case was CIRA, and the amount the insurer pays to CIRA is not relevant to the issue at hand. The Committee noted that the SABS impose limits on the amount an insurer may pay for medical assessments, but this provision is directed at insurers and not physicians;
• it concluded that the various amounts billed by the Respondent as evidenced by his invoices were all below the limit of $2000 for fees and expenses for any one assessment as set out in the SABS; it noted that the Committee has jurisdiction over physicians conduct and is not required to determine whether an insurer has met their obligations under the SABS or any other legislation; and
• it found that there was nothing in the Record to suggest that the Respondent was splitting fees with CIRA in exchange for CIRA’s referral of the matter to him.
30. The Committee, in a clear line of analysis concluded that the SABS regime imposes a limit of $2000 for payments an insurer may make for each medical assessment and that this provision applies to insurers and not to physicians. It explained that the amounts billed by the Respondent were consistent with the OMA’s Guide to Uninsured Services, were reasonable and did not amount to a bribe.
… the focus of section 25 (5) is on the maximum amount that an insurer shall pay (emphasis added). This issue is separate and distinct from the question of whether or not a physician has charged a reasonable fee for the services provided. While the Committee has the ability to consider, as a matter of professional conduct, whether a physician’s fees are reasonable, the question of whether an insurer has complied with section 25 of the SABS is not within the Committee’s authority.
▪ Evidence of Dr. Faris
 The qualification of Dr. Faris as an expert witness was relatively brief; there was no cross-examination. This qualification process followed a pattern that had developed over time (in particular subsequent to the discharge of the jury). When possible, counsel agreed prior to the qualification process, as to the wording of the qualification ruling the court would be requested to make.
 Dr. Faris was qualified as a litigation expert (a) in the field of physical medicine and rehabilitation, and (b) to give opinion evidence with respect to causation, pre-collision diagnoses, post-collision diagnosis, present condition, future condition, and future treatment—all related to Mark’s injury-related physical impairment including traumatic brain injury, musculoskeletal matters, and chronic pain.
 The concerns with respect to Dr. Faris’ testimony did not arise at the qualification stage; the concerns arose both during examination-in-chief and cross-examination. Regardless of timing, because of the court’s gatekeeping function, it is incumbent on the court to carry out a cost-benefit analysis with respect to Dr. Faris’ testimony. The Ontario Court of Appeal describes this aspect of the court’s function as a “discretionary gatekeeping step” (Bruff-Murphy v. Gunawardena, 2017 ONCA 502 (CanLII), 414 D.L.R. (4th) 65, at para. 36).
 I have both general and specific concerns with respect to Dr. Faris’ testimony. My first general concern is Dr. Faris’ practice of not taking comprehensive notes during the interview portion of a defence medical examination. In keeping with that practice, Dr. Faris does not have any notes from his interview of Mark.
 While Mark answered questions during the interview portion of the defence medical examination, Dr. Faris wrote “cues”, not notes, upon which he relied later in dictating his report. The cues consist of single words, statements, and acronyms that might be organized or might be scattered on a page. Dr. Faris uses the same approach in his clinical practice—on cues only to dictate his clinical records.
 For the physical examination part of the evaluation, Dr. Faris followed his practice of recording only abnormal findings. In some circumstances, he records a number only; the meaning of the number is clear only to him.
 Dr. Faris described the cues and other records made as a “tool” for dictation. Dr. Faris acknowledged that if the pages were still available he would not necessarily be able to decipher them now; the cues are neither structured nor elaborate enough to be a record of the encounter.
 Relying on the cues, Dr. Faris dictated his report on the night following the day on which he interviewed and examined Mark. The invoice for Dr. Faris’ work identifies that he spent seven hours dictating the report. He testified that the entire report was dictated in one session subsequent to the examination.
 The concerns with respect to Dr. Faris’ practice go beyond the issue of the quality of his note-taking; the concerns extend to what he did with his cues and other notes. Once Dr. Faris had dictated his report, he shredded the pages on which he wrote the cues from the interview with Mark.
 At paragraph 25 of its decision in Bruff-Murphy, the Court of Appeal described the trial judge as “highly critical” in his analysis of the evidence of an expert witness called by the defendant. The criticisms included the expert’s practice of “discarding any notes he may have made during his interview of [the plaintiff] as to what she allegedly told him” (para. 25).
 My second general concern with Dr. Faris’ testimony is that for the purpose of his examination-in-chief, Dr. Faris prepared pages of handwritten notes in which he set out the evidence as he intended to give it. In essence, he had prepared a script. The notes are 25 pages in length. The existence of and reliance on the notes were identified part way through Dr. Faris’ examination-in-chief. The notes were made an exhibit (Exhibit 38) and Dr. Faris was cross-examined on their contents.
 The reliance on prepared notes alone is a concern. I am also concerned about Dr. Faris’ evidence as to how he made decisions with respect to the records or reports to which he would refer during his testimony. Dr. Faris attempted to portray, as something other than deliberate, the bases for his decision to exclude from his script a number of pre-collision records that (a) make reference to some stability in Mark’s condition, and/or (b) provide evidence that the post-collision cognitive difficulties Mark has been experiencing differ from the pre-collision cognitive difficulties, if any, from which Mark suffered.
 I reject Dr. Faris’ explanation in that regard. I find that Dr. Faris was deliberate in his approach to the contents of the prepared notes; he struck out references to records or reports that did not support his opinion.
 In cross-examination, Dr. Faris was referred to a Policy Statement by the College of Physicians and Surgeons of Ontario (Exhibit 36). Policy Statement #2-12 is titled, “Third Party Reports: Reports by Treating Physicians and Independent Medical Examiners”. That Policy Statement was approved in 2002, reviewed and updated in 2009 and 2012, and appears to have most recently been published in 2012 (i.e. three years prior to the year in which the defence medical examination was conducted by Dr. Faris).
Third party reports may relate to a physician’s patient, or to individuals with whom physicians do not have a treating relationship. The request for the report may come from the physician’s patient directly, or from an external party, such as a representative from an insurance company or a lawyer.
The College acknowledges that the third party reports process often gives rise to unique issues that can be difficult to navigate. The expectations articulated in this document are intended to assist physicians in navigating these issues effectively, so that they are able to participate in the third party reports process in a manner that is respectful, objective and that uphold the reputation of the profession. The policy does not, however, provide an exhaustive catalogue of the totality of requirements that may apply to specific third party reports requests.
 I find that Dr. Faris’ reliance on cues, his failure to retain meaningful notes of the interview, and his failure to retain meaningful notes of the examination fall far short of preparation of a third party report “in a manner that is respectful, objective and that uphold[s] the reputation of the [medical] profession.”
 I also have a number of specific concerns with Dr. Faris’ testimony. The first such concern is with respect to the contents of a Consultation Note prepared by Dr. Grabowski and dated June 2011. Dr. Grabowski saw Mark at the Ottawa Hospital Pain Clinic, on referral from the Cancer Clinic.
 In her note, Dr. Grabowski states, “Mr. Rolley describes an approximately 15-year history of significant total body pain.” During his examination-in-chief, Dr. Faris identified that portion of Dr. Grabowski’s note as “one of the most significant areas of [Mark’s] past history”, adding that “there was really extensive documentation over many years of a pattern of wide-spread body pain.”
 In cross-examination, Dr. Faris acknowledged that he was unable to corroborate the statement made by Dr. Grabowski regarding a “15-year history of chronic pain”. Dr. Faris then testified that the reference to the 15-year history of chronic pain was not significant to his analysis on causation. Dr. Faris’ flip-flopping in his testimony, in particular on the critical issue of causation, is one of the specific concerns contributing to my conclusion that Dr. Faris was not objective when giving evidence.
 Dr. Faris’ lack of objectivity is also evident from the manner in which he testified with respect to the contents of the ambulance call report—in particular the lack of any record having been made at the scene of the collision of loss of consciousness or loss of awareness.
 Dr. Faris was dogmatic in (a) emphasizing the contents of the ambulance call report, and (b) refusing to acknowledge the potential lack of reliability of the contents of that report. By contrast, Dr. Judge, acknowledged the potential lack of reliability of the ambulance call report. Dr. Faris’ unwavering approach to the contents of this document is another factor in my conclusion that he was not objective when testifying.
 Like Drs. Mendella and Judge, Dr. Faris testified that a brief loss of consciousness is a factor in diagnosing mTBI. For Dr. Faris’ opinion to prevail, it was important that a finding be made that there was no reliable evidence of loss of consciousness. In his testimony, Dr. Faris expressed the opinion that Mark did not suffer an mTBI.
 Dr. Faris’ obligations as a defence medical examiner and a litigation expert testifying at trial do not end with the obligations quoted from the Policy Statement. On November 5, 2015, Dr. Faris executed a Form 53, Acknowledgement of Expert’s Duty. That is also the date on which the defence medical examination was carried out and on which Dr. Faris dictated his report.
 On the basis of the general and specific concerns discussed above, I find that Dr. Faris did not fulfill his obligation pursuant to para. 3(a) of Form 53: “to provide opinion evidence that is fair, objective and non-partisan”. That finding is determinative of whether the prejudicial effect of admitting Dr. Faris’ evidence outweighs the benefits of that testimony—it does. Exercising the court’s gatekeeper function, I exclude Dr. Faris’ evidence in its entirety.