Just under two years from the date of the accident, Zurich gave notice to Ms. Gabremichael that her benefits would cease on September 19, 1997. Zurich based its decision on a report of a psychiatrist, Dr. M. Bail, and of a chiropractor, Dr. J.A. Nathanson, both of whom had examined Ms. Gabremichael at the behest of the Insurer…
…The Insurer’s position that Ms. Gabremichael is not psychologically disabled is supported principally by Dr. Bail’s report. Since Dr. Bail’s reports and testimony are crucial to an understanding of the circumstances surrounding the stoppage of benefits by Zurich, and have ramifications for all aspects of Ms. Gabremichael’s claim, I will deal with them at this point.
Dr. Bail’s examination
Dr. Bail, a psychiatrist, saw Ms. Gabremichael for about one hour on August 14, 1997, for an insurer’s examination. Dr. Bail concluded in his reports and testified at the hearing that Ms. Gabremichael does not suffer from a psychiatric disorder caused by the motor vehicle accident. Rather, he opined that she has some sort of personality disorder. His conclusion is that Ms. Gabremichael’s reported symptoms really amount to malingering, motivated by gain.
Dr. Bail testified at the hearing that he discounted most of Ms. Gabremichael’s problems, because of perceived inconsistencies in the materials provided to him as well as her presentation during the interview. His reports consist of a listing of Ms. Gabremichael’s supposed inconsistencies and contradictions.
Dr. Bail testified that he gave Ms. Gabremichael no opportunity to explain or correct any of these supposed inconsistencies. He added that he did not confront people with inconsistencies because they would cause bodily harm or destroy his office.
The contradictions that Dr. Bail referred to included Ms. Gabremichael’s expressed interest in returning for a visit to Ethiopia. This was portrayed as being inconsistent with her story of her departure as a refugee. Dr. Bail made no allowance for any change in political climate in Ethiopia since Ms. Gabremichael’s precipitate departure that might have made such a visit possible.
Dr. Bail also assumed from a cursory examination of an OHIP claim summary that Ms. Gabremichael wrongly asserted that prior to the accident she enjoyed good health. A more detailed examination of the record would have shown claims for dental surgery, among others, that did not support Dr. Bail’s conclusion that Ms. Gabremichael’s health was poor prior to the accident, and that she was misleading the Insurer.
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Dr. Bail testified that in evaluating a patient he acts as judge and jury. Unfortunately, from my reading of his reports, and from listening to his testimony, it is obvious that he has appropriated to himself another role, and has become an advocate for the Insurer, rather than an impartial expert witness.
In Harrison and Wellington Insurance Company (FSCO A96-000785, July 23, 1998), Arbitrator Makepeace dealt with the testimony of a partisan medical examiner. She stated: “I reject Dr. Costa’s report in all other respects because he appears to have focussed mainly on identifying discrepancies in the Applicant’s claim.” Likewise, Dr. Bail’s partisan approach and his focus on inconsistencies are troubling and seriously weaken the credibility and weight of his testimony.
I find that Dr. Bail’s opinion on the nature of Ms. Gabremichael’s psychiatric disabilities is not convincing and should be disregarded. I accept Dr. Link’s characterization of Ms. Gabremichael’s condition as chronic depression complicated by Post-Traumatic Stress Disorder, Chronic Pain Syndrome, and relationship stress.