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 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.
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n the recently reported case of Daggitt v. Campbell[i], the Court reviews the requirements for a Court ordered defence medical pursuant to Section 105 of the Courts of Justice Act and Rule 33 of the Rules of Civil Procedure. In this motion, heard in April of 2016, with the case scheduled for Trial in September, defence counsel sought to have a third defence medical conducted by a psychiatrist. The Plaintiff had already undergone defence medicals by a physiatrist and an orthopedic surgeon. The Plaintiff did not have a psychiatric expert report, but Plaintiff counsel did intend to rely, at Trial, upon the evidence of a psychologist who prepared a report for the accident benefit insurer and a neuropsychologist who treated the Plaintiff flowing from the accident benefits assessment.
http://www.millerthomson.com/en/blog/mt-insurance-law-blog/court-ordered-defence-medicals
Economical however relied on the reports of Dr. Saplys, an orthopaedic surgeon, and Ms. Delize L. Rollocks-Roberts, an O.T., to suggest that Ms. Comito did not require attendant care services, and hence that the provision of such services was neither reasonable nor necessary.
Dr. Saplys briefly examined Ms. Comito for the Insurer. He testified without the benefit of his notes, since he shredded them shortly after the examination. Ms. Comito was not offered the services of a Spanish interpreter, although she is a native Spanish speaker whose English appears to be variable.
It was Dr. Saplys’ opinion that Ms. Comito:
…suffered uncomplicated soft tissue injuries, that being musculoligamentous strains to the paracervical and paralumbar structures. It is my orthopaedic opinion she has no significant functional orthopaedic impairment as of today’s assessment.
Dr. Saplys in cross admitted that he did not have the family doctor’s records, nor any radiographic images when he made his assessment and did not consider requesting them. Also missing from the documentation to be considered was the actual attendant care report. Nonetheless Dr. Saplys stated that he was satisfied in assessing Ms. Comito without such background information.
That Dr. Saplys took a narrow view of impairment was clear. He did not consider that either pain or a limp such as displayed by Ms. Comito could constitute a functional impairment. Indeed, extension of the aural spine that was 50% of normal was likewise unworthy of comment. In cross-examination, Dr. Saplys was blunt, never willingly conceding anything that ran contrary to his view.
Ms. Comito did not allege that she suffered any fractures or other skeletal injuries. She claimed she suffered from pain arising from the accident. Dr. Saplys would not have known that these reports of pain were endorsed by a family physician some two weeks after the accident and ongoing treatment recommended, since he did not bother to ask for family physician notes.
Sometimes, however, even the most perfunctory assessor can inadvertently be right. I note, however, that while Dr. Saplys rejected attendant care, he recognized that some physical therapy treatment was called for. As such, he agreed (without knowing it) with Dr. Dakhil, the family physician.
http://www.canlii.org/en/on/onhparb/doc/2015/2015canlii70170/2015canlii70170.html
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.
http://www.fairassociation.ca/wp-content/uploads/2015/12/Waldock-and-State-Farm-Preliminary-issue-FSCO-4315.pdf
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.
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.
http://www.fairassociation.ca/wp-content/uploads/2015/08/Kraja-and-Wawanesa-Mutual.pdf
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.
