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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http://www.canlii.org/en/on/onhparb/doc/2013/2013canlii46994/2013canlii46994.html?searchUrlHash=AAAAAQAFSFBBUkIAAAAAAQ
11. The Committee investigated the complaint.
12. The Committee determined that, on a technical level, it was satisfied that the Applicant`s assessment of the Respondent, his clinical findings and opinion, and his ensuing report (which fully set out the information he based his opinion on) were reasonable and in keeping with the expectations set out in the College’s policy on Third Party Reports. The Committee accepted that the Applicant’s reference to the Respondent’s weight as 225 pounds was an inadvertent error, which he has acknowledged.
13. The Committee noted, however, that it had previously received other complaints from patients regarding the Applicant’s unprofessional communication, many in the IME context. In addition, it noted two concurrent complaints about communications concerns before it at the same time as this complaint. It stated that this information had served to heighten the Committee’s concern in this case.
14. It concluded that it was very troubled by the Applicant’s communication and what appeared to be a sustained pattern of issues related to unprofessional behaviour. Therefore, the Committee decided to caution the Applicant and to require the Applicant to complete a specified continuing education or remediation program, as set out in paragraph two above.
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The requirement to consider prior decisions is couched in mandatory terms under section 26(2) of the Code.
Prior decisions
(2) A panel of the Inquiries, Complaints and Reports Committee shall, when investigating a complaint or considering a report currently before it, consider all of its available prior decisions involving the member, including decisions made when that committee was known as the Complaints Committee, and all available prior decisions involving the member of the Discipline Committee, the Fitness to Practise Committee and the Executive Committee, unless the decision was to take no further action under subsection (5). [Emphasis added]
23. The Committee has not complied with this legislative provision as it has considered only summaries of the matters detailed in the “CPSO Physician Profile” rather than the entire decisions.
24. Further, the Committee has not complied with the section 25 (6) (c) which provides as follows:
Notice to member
(6) The Registrar shall give the member, within 14 days of receipt of the complaint or the report,
(a) notice of the complaint, together with a copy of the provisions of sections 28 to 29, or notice of the receipt of the report;
(b) a copy of the provisions of section 25.2; and
(c) a copy of all available prior decisions involving the member unless the decision was to take no further action under subsection 26 (5).
25. The Committee did not comply with section 25 (6) (c) because it provided the Applicant with the summary of the matters contained in the “CPSO Physician Profile” but did not provide the Applicant with the actual available prior decisions.
26. The Board finds the Committee’s investigation to be inadequate as a result of its failure to comply with section 25(6) (c) and 26(2) of the Code.
27. The Board, therefore, returns this matter to the Committee and requires it comply with sections 25(6) (c) and 26 (2).
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20.
PFR v BU, 2013 CanLII 46994 (ON HPARB) — 2013-07-25
Health Professions Appeal and Review Board — Ontario
complaint — pounds — prior decisions involving the member — assessments — require
21.
PFR v EH, 2013 CanLII 46912 (ON HPARB) — 2013-07-25
Health Professions Appeal and Review Board — Ontario
complaint — prior decisions involving the member — unprofessional — require — remediation
22.
PFR v GJR, 2013 CanLII 46913 (ON HPARB) — 2013-07-25
Health Professions Appeal and Review Board — Ontario
patient — fracture — nonunion — complaint — prior decisions involving the member
http://canlii.ca/t/fzsxg
4. The Respondent, an orthopaedic surgeon, conducted an independent medical assessment (IME) of the Applicant on June 29, 2011 as part of a multi-disciplinary assessment.
……• he did not recall telling the Applicant to “suck it up” or “toughen up” and noted that he does not use such language;
• he may have said something about insurance companies being taken advantage of as part of a general discussion with the Applicant but he did not suggest that the Applicant was making a false claim as evidenced by his report which confirmed that the Applicant suffered serious and extensive injuries; and
• he has given serious consideration to the Applicant’s complaint and acknowledged that he has had previous complaints about his demeanour and ability to communicate well with patients; he has taken a communications course with Dr. Dawn Martin.
14. The Committee noted that there had been previous complaints about the Respondent’s communications. The Committee accepted that the Respondent’s contrition in this case was sincere and stated that it was pleased that he had entered into a communications course with Dr. Martin. Nevertheless, the Committee felt that the Respondent would benefit from reflection and education in the area of communications and decided to issue a written caution to the Respondent to be aware that patients with post-traumatic chronic pain and disability who attend for an IME may not appreciate the Respondent’s efforts at small talk and that the Respondent should refrain from discussing systemic issues or details of his personal life.
24. The Applicant submitted that the Committee’s decision was unreasonable because the caution issued to the Respondent did not reflect the serious impact that the Respondent’s conduct during the IME had on the Applicant and would not ensure that other patients would not experience the same trauma. The Applicant submitted that the Committee should have imposed a requirement that the Respondent should not be permitted to conduct an IME without someone else being present.
VI. DECISION
37. Pursuant to section 35(1) of the Code, the Board confirms the Committee’s decision to caution the Respondent to be aware that patients with post-traumatic chronic pain and disability who attend for an IME, such as [the Applicant], may feel vulnerable, may not appreciate his efforts at “small talk,” and that he should refrain from discussing systemic issues or details of his personal life.
http://www.canlii.org/en/on/onscdc/doc/2013/2013onsc4261/2013onsc4261.html?searchUrlHash=AAAAAQAGSFBBUkIgAAAAAAE
Divisional Court — Ontario
[1] This is an application for judicial review to quash the May 3, 2012 decision of the Health Professions Appeal and Review Board, which upheld the decision of the Inquiries Complaints and Reports Committee of the College of Physicians and Surgeons of Ontario to verbally caution the applicant. The applicant was alleged to have acted unprofessionally and with bias in administering an independent medical examination to a patient.
[2] The applicant seeks to have the decision set aside and to have the matter remitted to a differently reconstituted panel.
[3] The applicant is an orthopaedic surgeon. On December 20, 2006, Ms. Nancoo sustained several injuries when she was struck by a motor vehicle while crossing the road. On May 4, 2010, Ms. Nancoo submitted an application to the insurer for catastrophic benefits in accordance with theInsurance Act.
[4] The applicant was retained by the insurer to conduct an orthopaedic Independent Medical Examination (IME) of Ms. Nancoo. The applicant met with Ms. Nancoo on August 11, 2010 and conducted the IME. On August 24, 2010, the College received a complaint for Mr. Warren, Ms. Nancoo’s lawyer regarding Dr. Fielden’s behaviour during the course of the IME.
[5] The Committee found that Dr. Fielden’s behaviour when conducting the IME was inconsiderate and inappropriate. The Committee decided not to refer the matter to the Discipline Committee but rather to verbally caution Dr. Fielden in person regarding being professional, objective and courteous in performing IME’s. HPARB dismissed Dr. Fielden’s appeal and determined that the Committee’s investigation was adequate and that its decision to caution Dr. Fielden was reasonable.
[6] The applicant seeks judicial review. Assuming that the decision is reviewable at all, it is accepted that the standard of review is reasonableness.[1]
[7] We do not agree that the Board erred in not finding that the Committee’s Decision was unreasonable by failing to make a credibility finding in the circumstances of this case and particularly the applicant’s submission that these facts required the Committee, in effect, to make a determination with respect to Ms. Nancoo’s credibility.
[8] First, it is clear that the Committee has no jurisdiction to make credibility findings per se. (See McKee v. Health Professions Appeal and Review Board, [2009] O.J. No. 4112). The Committee exercises a screening function. It conducts an investigation and renders a decision as to the existence of sufficient evidence to warrant referral to the Discipline Committee. It does not hold any hearing to determine with finality what the facts were. Here, the Committee decided not to refer the matter to the Discipline Committee. This decision was amply justified on the record and particularly on the basis of the admissions and statements made by Dr. Fielden.
[9] We also find no error of procedural fairness on the part of the Committee. The Committee was entitled to take into account all of the information it obtained in its investigation in determining the appropriate course of action. What the applicant refers to as “add on issues”, in fact came from Dr. Fielden’s responses to the complaint which raised additional concerns. These did not give rise to any further notice entitlements.
[10] The decision of the Committee to caution the applicant in person is not a “sanction”. Cautions are entirely remedial in nature and intended to assist the applicant to improve his practice. A caution administered by the Committee is not a penalty and must be contrasted with the range of penalties that can be imposed by the Discipline Committee of the College consequent to a finding of professional misconduct. The Discipline Committee of a College can impose a variety of sanctions, which may be recorded on the permanent and public record of a member. By contrast, a caution is remedial only, cannot involve any finding of professional misconduct (a finding which is outside the jurisdiction of the ICRC and the Board), and does not appear on the register or in any public document of the College.
[11] The Committee required that Dr. Fielden be cautioned on being objective, professional and courteous in performing independent medical exams. One of the basis upon which the Committee expressed concern was factual errors which it stated Dr. Fielden had made in his report. For example, stating that he had incorrectly asserted that Ms. Nancoo had been treated in a private rehab facility when the record indicates that she had been. Given the absence of support for the finding that Dr. Fielden made factual errors in this case, there is no reasonable basis for cautioning him on this point. With this one exception, we find the Committee’s decision to caution Dr. Fielden was reasonable as was the HPARB decision.
[12] The application is therefore dismissed. The Board does not seek costs.
http://canlii.ca/t/flplv
HUMAN RIGHTS TRIBUNAL OF ONTARIO
[2] The Application alleges discrimination in goods, services, and facilities because of disability, marital status and age regarding erroneous information the respondent relayed in the context of an independent medical evaluation for an insurance company. The applicant was involved in motor vehicle accident in December 2005 and his insurance company required him to undergo an independent medical evaluation, which was performed by the respondent. The respondent provided his initial evaluation on May 23, 2006. The insurance company provided further medical records for the respondent to review and he responded by letter to the insurance company on July 11, 2006. In this second letter, the respondent provided erroneous information regarding the applicant, based on a misreading of the notes provided by the applicant’s family physician. This erroneous information had negative consequences for the applicant regarding his insurance claim.
[8]…Neither the CPS or HPARB have expertise in the human rights law of Ontario; therefore, it was not reasonable for the applicant to rely on any advice he may have received from either body regarding his rights under the Code. As noted above, waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will also generally not constitute a valid explanation for delay in filing an Application.
[9] In the circumstances, I find that applicant has not provided a reasonable explanation for the delay and therefore has not established that the delay was incurred in good faith. Having found the delay was not incurred in good faith, I need not address the issue of prejudice.
[10] The Application is dismissed.
https://www5.fsco.gov.on.ca/AD/3759
…Dr. R.H.N. Fielden, an orthopaedic surgeon and Dr. Douglas Saunders, a psychologist, conducted the first assessments for Old Republic on October 4, 2005. They authored reports dated October 11, 2005 [See note 31 below] and October 19, 2005. [See note 32 below] Dr. Fielden concluded that Mr. Xavier was suffering from no residual impairment as a result of the accident and could return to all pre-accident activities, including work.
Mr. Xavier told Dr. Fielden that he continued to experience shoulder and back pain. Dr. Fielden was aware of the treatment Mr. Xavier was receiving from Dr. Raghunan. Dr. Fielden’s observations on physical examination include restricted range of shoulder and lumbar motion. His report does not contain an explanation of how he arrived at his opinion.
…I do not accept Dr. Fielden’s conclusion in his report of October 11, 2005 [See note 50 below] that Mr. Xavier suffered no ongoing physical impairment. The report contains no explanation of how he arrived at this conclusion and his opinion is at odds with the findings of his own examination which included restricted range of shoulder and lumbar motion.
