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://canlii.ca/t/2cl96
[53] With respect to parties or witnesses, however, whether lay or expert, the dynamics of an adversarial system introduce pressures that leave the door open to conscious or even subconscious polarization. In situations where experts are regularly retained by either plaintiffs or defendants, financial considerations add to the potential for polarization. It is naive to assume, without more, that a medical expert who generates significant income from providing IME’ s for a particular “interest group” is completely immune to these pressures, whether they are acted on or not. It should also be recognized that the pressures may well increase in the presence of a large institution that regularly requires IME experts to provide opinions taking a particular view of the issues. While obvious instances of unreliable expert evidence may be infrequent, anytime an expert is less than honest, the potential for a just result is undermined.
The pressures facing medical experts which are inherent in an adversarial system are inevitably exacerbated in an IME setting where the party being examined (often the plaintiff) is cognitively or emotionally vulnerable, or where the person being examined has limited language skills or faces cultural inhibitions that impact on the assessment. Clearly one hopes that a medical expert will not only be qualified to conduct a competent assessment but will also be independent and unbiased in formulating his/her opinion. But what if he or she is not? Experiences in many settings involving interactions between persons in positions of authority and those in positions of vulnerability (e.g. residential schools, prisons and seniors homes) demonstrate that the greater the imbalance of power and the less accountability there is in the system, the more potential there is for abuse. How does a plaintiff with functional or memory impairments challenge the evidence of a highly trained,articulate and experienced expert? The optics of forcing a vulnerable party to be examined by an opposing expert who will be able to testify from a position of power and prestige and depriving the party of any independent record of the event, are not good. Justice must not only be done but be seen to be done. Experts can and should be given a mandate of independence. This cannot be confused with granting them a presumption of independence.
[76] The Court expects and relies upon frank and unbiased opinions from its Experts. This is a major sea change which requires practical improvements to past opaque processes. How are long time plaintiffs’ and defendants’ experts to be “trusted” to change their stripes? At the initial stages skilled, licenced professionals clearly must be taken at their word that on principal they take their Form 53 Undertaking to Court seriously. They are clearly promising to bring a new, transparent and objective mind set to the drafting of their reports and to their subsequent testimony.
[77] In this case I am obliged to consider a proposed expert who has on at least 3 occasions had his opinions disregarded by the Court for bias and advocacy for the Defence. He has been criticized by a judge of this Court for delivering his evidence as “an advocate for the party calling him as a witness.”
https://www5.fsco.gov.on.ca/AD/1082
I have two concerns with MDAC’s assessment of Mr. Fournie. Firstly, there was no evidence presented at the hearing to indicate that the MDAC assessors had consulted on the final opinion, had seen the executive summary or, in fact, agreed with the final opinion. The executive summary and final report did not indicate that the individual assessors had signed off on it. Dr. Ameis, who is the controlling mind behind MDAC, stated that before completing the executive summary he did not consult with the psychiatrist or occupational therapist who assessed Mr. Fournie for MDAC. He gave evidence that he had consulted with Dr. MacCallum, but could not remember where or when and would not be able to provide proof of a consensus meeting with him. He gave evidence on cross-examination that he did not consult with the psychiatrist or occupational therapist when determining Mr. Fournie’s final WPI percentage. Demetrios Kostadopoulos, the occupational therapist who gave evidence for Coachman, stated that he did not know if his assessment was provided to subsequent assessors. Furthermore, he was not provided with other assessors’ reports, nor did he have any recollection of MDAC’s executive summary being provided to him.
Secondly, Dr. Ameis’ evidence on assigning a WPI of 26% to Mr. Fournie also causes me concern. Dr. MacCallum, in his report, clearly states that he leaves the determination of the final WPI to the consensus process. Dr. MacCallum does not give his opinion on Mr. Fournie’s final WPI and Dr. Ameis provided no evidence that he ever got an opinion from Dr. MacCallum on Mr. Fournie’s final WPI. Dr. Ameis stated that he did consult with Dr. MacCallum, but cannot remember when. For an issue as important as the determination of an individual’s impairments and that individual’s access to future benefits, one would think MDAC would have taken more care in keeping records of its assessments. I find that Dr. MacCallum did not give a final opinion on Mr. Fournie’s WPI. Instead, I find that the final WPI percentage score is Dr. Ameis’ opinion.
https://www5.fsco.gov.on.ca/AD/2313
On the other hand, I have continuing references in reports to ongoing dental problems, as well as the unchallenged testimony of the Applicant. The CAT DAC report, itself, notes continuing complaints in this regard, but as Dr. Ameis conceded, “all of us may have missed the dietary problems arising from the facial smash.” Dr. Ameis was of the view, however, that there was insufficient information to presently make a rating; he recommended repeating the CAT DAC. He was of the view that a nutritionist, a dentist or a dental specialist was required.
The search for the truth is crucially important. Finality and cost effectiveness is also important. Having had a chance to review the medical documentation and to examine Ms. G, and having failed to properly assess all of her impairments, the present applicable remedy in this particular case is not a “do over” by the CAT DAC, which may then require assessments by other practitioners, followed by recalling witnesses or calling new experts. Rather, in my view, the proper course is for an adjudicative assessment to be made as best one can on the basis of the available evidence. I am strengthened in this decision by a concern in this specific case as to whether the open minded neutrality expected of a CAT DAC may be somewhat clouded by, perhaps subconsciously, a very human impulse to sometimes endeavour to justify one’s prior conclusion.
http://www.fairassociation.ca/wp-content/uploads/2013/02/Fisher-and-Allstate-+-Arbitration-2006-07-19-A04-002455.pdf
The assessment team assembled by Independent Claims Evaluators Inc. consisted of Dr. Michael Lacerte, a specialist in physical medicine and rehabilitation, Dr. Paul Cooper, a neurologist, and Ms. Moira Hunter, an Occupational Therapist. There was no psychiatrist. As well, there is no dispute that, of this team, only Ms. Hunter met with and assessed Mr. Fisher.
A second, perhaps even more serious problem with the approach taken by the DAC is their failure to conduct an in-person assessment of Mr. Fisher. While the protocol clearly allowed a record review only where the records clearly supported a finding of catastrophic impairment, and the DAC so found, a negative finding demanded an in-person assessment.
While Mr. Kirby pointed to the participation of the occupational therapist as satisfying any mandate for an in-person assessment, I do not agree that the assessment by one member of the DAC team, who is not a mandatory discipline for such an examination, constituted the necessary in-person examination for the purposes of the guidelines. [See note 5 below.]
Note 5: I also accept that Ms. Hunter’s report appears to reach conclusions significantly at odds with the conclusions of other examiners without accounting for such differences. However, given my findings as to the technical shortcomings of the DAC, I need make no specific finding as to the actual conclusions made by any of the assessors.
Having found that the record review would likely lead to a finding of not catastrophically impaired, the assessment team should have moved on to an in-person assessment. Apart from sending Ms. Hunter to Thunder Bay, it did not take this step. Indeed, its own characterization of the assessment was as a “paper review.”
Consequently, whatever the conclusion reached by the DAC team assigned to Mr. Fisher’s case, the process of assessment was doubly flawed.
These flaws in Mr. Fisher’s case are not inconsequential. The failure of the DAC to have the capacity to properly evaluate Mr. Fisher’s claimed cognitive, behavioural and psychological deficits, meant simply that he could not get either a fair or adequate assessment, something to which he had an absolute right under the Schedule.
https://www5.fsco.gov.on.ca/AD/2890
In mid-November 2003, a Designated Assessment Centre reviewed Dr. Simone’s proposal to continue Mrs. Ritorto’s therapy. Dr. Ameis relied on the recommended time periods for treatment in theGuideline protocols for his opinion that the plan expense was not reasonable or necessary. In his testimony, he agreed with the underlying theory that no further healing or pain control results from treating soft tissue injuries of this nature beyond six weeks.
Dr. Ameis did not examine Mrs. Ritorto and therefore did not have the opportunity to assess her pre-existing condition or the possibility that her symptoms might fall outside usual norms that would take her out of the Guideline’s treatment protocols. The undisputed evidence is that Mrs. Ritorto’s poor posture aggravated her accident-related symptoms, and Dr. Ameis’ failure to address her poor posture is my reason not to rely on his opinion about Gateway’s treatment.
