• FAIR – supporting auto accident victims through advocacy and education
  • FAIR – supporting auto accident victims through advocacy and education
  • FAIR – supporting auto accident victims through advocacy and education

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.
                                                                                                                              ________________________________________________________________________________

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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Czombos and Wawanesa 2017-12-28, Arbitration, Final Decision, FSCO 5447

by Admin2
North York Rehabilitation Centre
In the Insurer’s Examination Catastrophic Determination, Catastrophic Impairment Rating, dated April 24, 2015, Dr. J. Castiglione, of North York Rehabilitation Centre, provided whole person impairment scores under criterion 7 (physical impairment) for Ms. Czombos’ injuries and impairments sustained as a result of the accident.  They are summarized as follows:
1.  Neck Pain
Dr. Soriano, Orthopaedic Surgeon, examined Ms. Czombos’ neck injury and concluded that overall he “does not think this lady has any musculoskeletal issues that are directly attributable to the accident of 2009.”  From a musculoskeletal perspective, her cervical spine injury falls under Diagnostic Related Estimates (DRE) Category I cervicothoracic impairment, which equates to a 0% whole person impairment. (Chapter 3, Page 103 of the Guides).
2.  Back Pain
Dr. Soriano, Orthopaedic Surgeon, examined Ms. Czombos’ back injury and concluded that overall he “does not think this lady has musculoskeletal issues that are directly attributable to the accident of 2009”.  From the musculoskeletal perspective, her lumbar spine injury falls under DRE Category I, which equates to a 0% whole person impairment. (Chapter 3, Page 102 of the Guides).
3.  Bilateral Shoulder Pain
Dr. Soriano, Orthopaedic Surgeon, examined Ms. Czombos’ neck injury and concluded that overall he “does not think this lady has any musculoskeletal issue that are directly attributable to the accident of 2009”.  Shoulder ranges of motion were entirely normal and Dr. Soriano did not specifically apply a shoulder diagnosis in his report, which would extrapolate to a 0% whole person impairment for the shoulders. Chapter 3, Section 3.1j of the Guides (pages 41- 45) addresses impairment ratings related to loss of shoulder motion; however, as there is no loss of motion as per Dr. Soriano’s examination there are no findings on which a rating would apply.
……
In his report, dated April 24, 2015, Dr. Soriano stated:
 
Overall I do not think this lady has any musculoskeletal issues that are directly attributable to the accident of 2009.  Her medical history is very complicated and convoluted with significant psychological overtones together with overlapping injuries over the past 20 years or so, some work related and some related to the three motor vehicle accidents she was involved in.
The opinions expressed here are those of the evaluator. The evaluation has been conducted on the basis of a medical examination and documentation provided with the assumption that this information is true and correct.  If more information becomes available, an additional report or service may be required.  Such information may or may not alter the opinion of this evaluation.
From a musculoskeletal perspective, her cervical and lumbar spine injuries both fall under Diagnostic Related Estimates (DRE) Category I.
There is 0% impairment of the whole person.  I suggest a psychologist determine the nature of her psychological impairment.  However, the post-traumatic stress disorder diagnosis preceded the accident of 2009.
In the Insurer’s Examination Catastrophic Determination Multidisciplinary Addendum, dated December 5, 2016, Dr. Soriano stated that, “she has no specific musculoskeletal issues that are solely attributable to the accident of June 29, 2009.”
 
I prefer the opinion of Dr. Ranney over that of Dr. Soriano.  I accept Dr. Ranney’s opinion and give it significant weight.  I give less weight to Dr. Soriano’s opinion.  My reasons for these conclusions follow.
 
I find the evidence of Dr. Ranney persuasive.  His report was thorough and contains detailed supporting reasons for his opinions.  He analyzed Ms. Czombos’ history of motor vehicle accidents, reviewing 69 documents, including radiographic reports/studies (including Dr. Baird’s digital motion x-ray study of Ms. Czombos), he reviewed the treatment received by Ms. Czombos since the motor vehicle accident of June 29, 2009, significant radiographic assessments, Ms. Czombos’ personal history, education, employment, history of past health and functional inquiry, current medications, current symptoms, and disability, reviewed pain diagram and neck and back pain questionnaires completed by Ms. Czombos, examined Ms. Czombos, provided orthopaedic diagnoses that are causally related to the motor vehicle accident of June 29, 2009, and orthopaedic diagnoses unrelated to this accident, answered specific questions, and considered the opinions contained in the Insurer’s Examination of Catastrophic Determination by Rajwani, Castiglione, Soriano, Kiraly, Shaw, and Mark of North York Rehabilitation Centre, that states on page 13 “Ms. Czombos is not considered catastrophic and rates her neck pain and back pain 0% WPI”, which Dr. Ranney strongly rejects regarding her spine because they did not have access to radiographic assessment loaded by gravity and with movement. 
 
I find Dr. Ranney’s evidence to be compelling.  The facts on which his opinions are based are clearly delineated, are accurate and are complete.  The preponderance of the medical and non-medical evidence supports his opinions.  Overall, his testimony withstood a forceful and thorough cross-examination conducted by counsel for Wawanesa. 
 
By contrast, I find Dr. Soriano’s opinion less persuasive and therefore give it less weight than the opinion of Dr. Ranney.  Dr. Soriano’s reasoning with respect with to causation and Ms. Czombos’ level of impairment of the whole person is not compelling.  There is a lack of detailed supporting reasons and analysis to provide a solid foundation for his opinion.  His opinion is not supported by the weight of the medical and non-medical evidence.  His diagnosis is based on inadequate evidence and assessments.  Ms. Czombos’ impairments are simplistically described and the analysis is not carried sufficiently further.  During his examination of Ms. Czombos, Dr. Soriano did not attempt downward pressure on her neck (Spurlings test) which, according to Dr. Ranney, he should have.  Dr. Soriano did not have access to the voluminous documents, including a radiographic assessment loaded by gravity and with movement, namely, Dr. Baird’s June 9, 2015 Digital Motion X-ray study of Ms. Czombos, which were reviewed by Dr. Ranney.  Dr. Soriano focuses on whether Ms. Czombos has any musculoskeletal issues that are directly or solely attributable to the accident of June 29, 2009, instead of conducting the requisite analysis in respect of apportionment or aggravation of a pre-existing medical condition or infirmity as required under the Guides.[22]
Dr. Soriano’s reports are unhelpful and warrant little weight.
See:

 

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Jedean and Aviva FSCO Arbitration, 2018-01-11

by Admin2

https://www5.fsco.gov.on.ca/AD/5464

The Applicant was questioned on a number of statements in Dr. Karabatsos’ report and she did not disagree with the range of motion in her back that he noted.  She testified that she can move her neck but she has pain.  She is able to bend and move her back but she has pain.  She did not mention her anxiety and sleep difficulties to Dr. Karabatsos.  He had misstated the extent of her functioning on a day-to-day basis including elements that she testified she could not in fact do.  He agreed that he knew she was on modified duties at work at the time of the assessment but chose not to include that in his report, “a simple omission on our part”.

Dr. Karabatsos did acknowledge in cross-examination that some people take longer to recover than others and some can develop chronic pain.  He testified under cross-examination that older people will take longer to recover and that pre-existing conditions can affect recovery time if the injury is to the joint itself.  The severity of the impact of the accident may also play a role and in this case he viewed the accident impact as moderate.  Further, he is familiar with chronic pain as persistent pain and to satisfy a chronic pain diagnosis there must be significant psychological sequelae.  In his experience such patients are reliant on significant medications and treatment and tend to become socially withdrawn.

…..

I do not accept the evidence of Dr. Karabatsos in this matter.  He specializes in lower extremities reconstruction and general orthopaedics according to his qualifications set out in his report.  He gave too little weight and regard to the fact that at the time of her assessment she was in the midst of regular treatment that provided relief from her symptoms and under prescription medication that would, if it were effective, give her relief from inflammation and pain allowing her to move more easily.  He appears to have ignored her pain complaints, that she was taking medication that would impact both her movement and her pain level, and that her functioning was compromised, i.e. he omitted to include in his report that she was on modified work duties.  He testified that in his practice his patients post-surgery have a follow-up appointment with him and a physiotherapist who instructs them on exercises to do at home and “they all get better”, an outcome many accident victims only dream of.

Also he did not have a full documentary record.  In September 2014, he assessed the Applicant about a week after the disability certificate was signed but this document was not provided to him; he was given only the Application for Accident Benefits dated August 14, 2014 and the disputed OCF-18.  He did not have and apparently was never given the clinical notes and records of the Applicant’s family doctor, all of which dating back to 2010 have now been made available together with imaging results.  At the time of Dr. Karabatsos’ assessment the Applicant was only seven weeks post-accident and had had only seven treatments which had started August 5, 2014.  She was therefore within Block 2 of the treatment under the MIG (Section 8(ii)).  The MIG contemplates that only if the insured person has achieved maximal recovery at the end of eight weeks is treatment to be stopped.  Therefore, even if the injuries fall within the MIG, the Applicant was entitled as of right to at least two more weeks of treatment under Block 2 or the full 12 weeks or 3 blocks of treatment, whereas Dr. Karabatsos seems to be of the view that even at this stage, and despite her experiencing pain in the test for range of motion, she has had “extensive” or enough treatment.

Further, while the answers to the questions at the conclusion of his report are given without qualification, in the body of his report, Dr. Karabatsos is careful to note the limitation of his expertise and to confine himself to testing the neck, upper and lower extremities and spine.  He opines only on the neck, back and shoulder injuries.  He was well aware that she suffered other injuries.  He failed to address the hand tremor which she said was made worse by the accident and pain in the temporal mandibular joint and headaches in stating his opinion on the MIG.  He did not even flag these as areas that might well be investigated by someone with the expertise to do so before Aviva drew a conclusion as to the nature of her injuries or her ability to recover under the MIG course of treatment.

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Cruz v. Saccucci, 2017 ONSC 7737 (CanLII)

by Admin4

http://canlii.ca/t/hphjh

Corrected Decision:  A short style of cause and neutral citation number was added for publishing purposes on December 28, 2017.

 

December 28, 2017: CITATION:  Cruz and Cruz v. Saccucci, 2017 ONSC 7737 was added.

[7]                The surreptitious recording of the examination was improper. The effect of this recording is the doctor would now, most likely, be subject to cross-examination on issues as to what exactly happened in the course of the examination. The evidence of the plaintiff is also relevant. Mr. Cruz may be examined or cross-examined on the transcript. If the doctor was aware of the recording, he may have conducted his examination a different way. He may have been clearer in the language used. He may have been more specific is instructions given to the plaintiff. Much of the communication that goes on is nonverbal. The doctor was denied an opportunity to ensure that his words and conduct were being accurately recorded.

[8]               The defendant has now been placed in the position that the evidence of her expert may be undermined. In any event, there is an additional layer added to the testimony of the plaintiff and the doctor.

[9]               The defendant’s expert is required to execute his acknowledgement of duty. He has a duty to the court. The defendant is entitled to expect that her experts will provide the court with his or her opinions relevant to the issues in this proceeding. The issues in this proceeding are the damages suffered by the plaintiffs as a result of the motor vehicle accident. It is unfair to the defendant to have her expert potentially compromised based on some improper conduct on the part of the plaintiff.

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What the court thinks of secretly recorded medical exams

by Admin4

A plaintiff in a motor vehicle bodily injury lawsuit should not have secretly recorded a medical exam conducted by a doctor hired by the defendant, an Ontario court ruled last week.

https://www.canadianunderwriter.ca/insurance/court-thinks-secretly-recorded-medical-exams-1004125790/

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Insurance assessment firms altered, ghostwrote accident victim reports

by Admin4

Globe investigation finds billion-dollar companies that are paid by auto insurers hire doctors to assess accident victims in a process called independent medical evaluations, and then edit and package those medical reports. In some cases, arbitrators and judges have rejected the assessment reports because the companies altered the medical professionals’ opinions in the insurer’s favour.

https://www.theglobeandmail.com/news/investigations/insurance-assessment-firms-altered-ghostwrote-accident-victim-reports/article37193127/

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