http://www.fairassociation.ca/wp-content/uploads/2013/02/Rumak-and-Personal-Insurance-Special-Award-+-Arbitration-2004-10-07-FSCO-A01-000065.pdf

For the following reasons I find that in the period between when Personal terminated Mr. Rumak’s income replacement benefit and the DAC report, Personal acted unreasonably in withholding Mr. Rumak’s income replacement benefit.

Terminating an applicant’s income replacement benefits is a very serious matter with potentially serious consequences. An insurer contemplating the termination of income replacement benefits, or maintaining a denial, must act reasonably and consider all of the documentation before it. An insurer cannot pick and choose information that favours its own position while ignoring relevant information that favours the applicant.

I find that Personal had a paucity of medical evidence to support its termination of Mr. Rumak’s income replacement benefit and that it acted unreasonably in ignoring relevant information that favoured Mr. Rumak.

I find it unreasonable that Personal would choose to rely on Insurer’s Examinations in 1998 as a basis to terminate Mr. Rumak’s income replacement benefit in September 2000 and yet completely disregard Mr. Rumak’s medical evidence in 1998 because it was outdated.

(a)  Report of Dr. Shah

Dr. Shah’s report of his assessment on August 10 and 11, 1998 concludes:

At this time, Mr. Rumak is considered substantially psychologically disabled from returning to a part-time employment . However, following approximately eight cognitive-behaviour therapy sessions to help him cope with his anger, it will be advisable for him to return to employment concurrent with on-going therapy.

The psychological impairment is reducible and reversible.

An Independent Psychiatric Examination is considered essential to further clarify/modify diagnosis and treatment recommendations provided within this report.

Based on the results of this assessment, neuro-cognitive rehabilitation is not indicated. Mr. Rumak has made a remarkable cognitive recovery, which is likely to improve further as Mr. Rumak begins to resolve some of the psychological issues.

[emphasis added]

The first thing to note in the report is that Dr. Shah found Mr. Rumak was “substantially psychologically disabled” and had only opined that after “eight cognitive-behaviour therapy sessions … it will be advisable for him to return to employment concurrent with on-going therapy.” In short, this report recognizes that Mr. Rumak has cognitive-behavioural problems that interfere with his ability to work part-time and that even if he would return to working part-time he would need further treatment.

Personal did not terminate Mr. Rumak’s benefits in 1998 on the basis of this report. Neither did it seek a follow-up neuro-psychological assessment to confirm Dr. Shah’s findings that “Mr. Rumak has made a remarkable cognitive recovery.” I note this latter fact because Personal knew from the Catastrophic DAC report dated October 26, 1999 that Dr. Shah was not qualified to do a neuropsychological assessment on Mr. Rumak. [See note 5 below.]

Note 5: In the Catastrophic DAC report, which found Mr. Rumak had suffered a catastrophic impairment as a result of the car accident, Dr. H. Becker noted that “Dr. Shah is not registered by his college to undertake such neuropsychological assessments.”

In short, at the time that Personal terminated Mr. Rumak’s income replacement benefit in September 2000, Personal had clear notice that Dr. Shah’s neuropsychological assessment of Mr. Rumak in 1998 was not valid because of his lack of qualifications to do so. The only valid neuropsychological report that Personal had in 1998 was from Dr. Brooker, who had been recommended by Personal’s case manager to assess Mr. Rumak. In his report of February 18, 1998, six months before Dr. Shah’s report, Dr. Brooker states that, “There is no fundamental change from his report of December 19, 1997.”

find that Personal’s one-sided view in ignoring relevant information that supported Mr. Rumak’s claim in favour of its own clearly superficial and weak Insurer’s Medical to be unreasonable as basis to terminate Mr. Rumak’s income replacement benefit.

I do not agree with Personal’s submission that there were no substantial flaws that could easily be discerned from reading the DAC report. For the following reasons I find that there were obvious discrepancies, contradictions and omissions that should have given Personal pause for concern.

I find that in weighing all of the evidence and for the reasons given above, Personal, in choosing to ignore the obvious flaws in the Disability DAC, namely the superficiality, lack of neutrality, and the serious omission of the DAC not commenting on Dr. Ouchterlony’s report, acted unreasonably in relying on the DAC and in continuing to withhold Mr. Rumak’s benefits.

At the arbitration hearing Personal had little evidence to contradict Mr. Rumak’s testimony and his supporting evidence regarding his inability to sustain any employment. The one report that Personal relied upon, the Disability DAC report, proved to be substantially flawed.

It was very clear at the arbitration hearing on entitlement that the Disability DAC report, which Personal was relying to support its position, had substantive failures in respect of its accuracy, completeness and impartiality. As well, the DAC proved to have seriously failed in following the proper DAC procedures. These failures have all been articulated in my decision on entitlement dated November 5, 2003.

What is most significant is the fact that the DAC’s flaws, especially the procedural flaws, were brought out in examination-in-chief by Personal’s own witnesses, Dr. Bauer and Dr. Kim. This included the facts that there had been no consensus meeting by the DAC assessors, nor did the DAC assessors see or sign the consensus report. It was also under examination-in-chief that Dr. Bauer revealed that she provided a computer disk of her report which was incompatible with the computer of the AIM DAC facility so that her report would not be changed without her knowledge.

Dr. Bauer was the first to testify. Therefore, by the time Dr. Kim testified, Personal not only knew that there had been no consensus meeting at that DAC, but also that the AIM DAC facility in Whitby had a practice of changing the content of an assessor’s report without his or her knowledge.

Under examination-in-chief, Dr. Kim confirmed Dr. Bauer’s testimony regarding the lack of consensus meeting. It was also during Dr. Kim’s testimony that it was revealed that the DAC co-ordinator had changed Dr. Kim’s original assessment report in significant ways – including Dr. Kim’s conclusion. In my decision on entitlement, I found that these changes were more likely done without Dr. Kim’s knowledge.

http://canlii.ca/t/1gkwm

[323]       Dr. Shah’s health problems, his difficulties with the College of Psychologists and the program ‘Prove It If You Can’ all impacted his work and business. Prior to July of 1997, AssessMed kept no computer records of the number of assessments performed by Dr. Shah. From July to December of 1997, when computer records are available, Dr. Shah performed 94 assessments at AssessMed.

[324]       In 1998, he did 204 assessments. In 1999, his assessments dropped to 87. Following 1999, he performed the following number of assessments:

2000 –   132 assessments

2001 –     121 assessments

2002 –      96 assessments

[325]       Dr. Shah’s income tax returns reveal he earned the following annual income from 1997 to 2001:

1997  –                 $117,399

1998 –                    137,015

1999 –                     44,431

2000 –                       26,342

2001 –                       48,085

[326]       Dr. Shah estimated his net income for 2002 at between $40,000 and $50,000. All of his income was from assessments he performed at AssessMed. He testified the decline in his income was due to the reduction of referrals from AssessMed. Dr. Shah believes he had a potential to earn as much as $175,000 per year at AssessMed. Had his health not deteriorated, it was his plan to work until 2008.

 http://canlii.ca/t/1gw2g

[14]      The plaintiffs’ only evidence of a possible breach of the defendants’ standard of care is that of Dr. Richman dated July 26, 2001. Dr. Richman graduated in medicine in 1967 and has practiced occupational medicine and pain management. Between 1968 and 1977 he also practiced family medicine. His practice includes evaluation, management and treatment of pain in the context of occupational medicine. He is neither an obstetrician nor an anaesthetist. He has no expertise in these areas of medicine or in the treatment of pain in an obstetrical ward.

[15]      Dr. Richman’s report indicates that he did not have before him the clinical notes of the obstetrician, Dr. Livingstone, or the Hospital’s records respecting Mrs. Reid’s labour, delivery and post delivery treatment and care.

[16]      Dr. Richman’s report is stated to be an independent medical evaluation and functional abilities evaluation.

[17]      His conclusion was based on information provided to him, including statements by Mrs. Reid. He lacked two critical pieces of information, the obstetrician’s notes and the Hospital’s records. He concluded that Mrs. Reid’s complaints of injury are related to the treatment during her pregnancy and delivery. He states that “based on the information provided” that “best medical practices did not seem to be followed”.

[18]      This report is highly qualified and does not address the critical issue of whether the defendants met the standards of care applicable to their treatment of Mrs. Reid.

[19]      Furthermore, Dr. Richman did not give an affidavit confirming his opinion and whether it remains the same. Accordingly, his report was not admissible in evidence on this motion. See Ewaskiw v. Zellers 1998 CanLII 14866 (ON SC), (1998), 40 O.R. (3d) 795; Beland v. Kieffer,  [2002] O.J. No. 709 paras. 5-10.

http://www.fairassociation.ca/wp-content/uploads/2013/02/Oppedisano-and-Zurich-Insurance-1999-07-06-FSCO-A97%E2%80%93001443.pdf

Dr. Paul H. Grant’s Report and Qualifications:

At Zurich’s request, on October 19, 1995, a work capacity evaluation was conducted at AssessMed Inc. by Dr. Paul H. Grant, with the assistance of an Italian interpreter. [See note 16 below.] I attach very little weight to Dr. Grant’s report for the reasons outlined in the following paragraphs:

Note 16: Exhibit 2, Tab 16 (Evaluation/Report)

Although Dr. Grant has a resume which describes him as a specialist in sports and orthopaedic medicine, Mr. Oppedisano’s counsel challenged Dr. Grant’s credentials at the hearing. As a consequence, Zurich’s counsel telephoned Dr. Grant during a recess. Dr. Grantconfirmed that he is not an orthopaedic specialist and has no specialist certification. A certificate of status of registration from the College of Physicians and Surgeons lists Dr. Grant as having no specialty qualifications. In the context of individual medical assessment, this can be misleading. Dr. Grant would have self described himself more properly as a general practitioner with an interest and experience in sports medicine.

http://www.fairassociation.ca/wp-content/uploads/2013/02/Mrs.-S-and-Lloyds-Non-Marine-Underwriters-2004-08-03-FSCO-2304.pdf

Lloyd’s retained Dr. Paul H. Grant, a general practitioner, to assess the Applicant. In a number of documents, including Explanations of Benefits Payable by Insurance Company, correspondence, and Lloyd’s counsel’s written submissions, Dr. Grant’s reports are referred to as orthopaedic assessments. On Dr. Grant’s reports, under his signature is “Orthopaedics & Sports Medicine” and he entitles supplementary reports as “Orthopaedic Addendum.” The Applicant’s counsel submitted, and I accept, that this is misleading since Dr. Grant is not an orthopaedic surgeon. Dr. D.J. Ogilvie-Harris, an orthopaedic surgeon, confirms this in his July 19, 2002 report. I therefore regard Dr. Grant as a general practitioner and do not accept Dr. Grant’s opinions as orthopaedic opinions.