As noted earlier, Royal filed some medical evidence, but at the hearing relied principally upon an insurer’s examination by Dr. Notkin in its argument. Although I did not have the benefit of Dr. Notkin’s direct testimony, his full report was filed as part of Royal’s case. Dr. Notkinconcluded as to impairment:
While I have indicated that there is a possibility of a pain disorder from a psychological perspective, I cannot prove that one exists. I have also indicated that based on my documentation review, I have strong suspicions that there is evidence of symptom exaggeration in regard to litigation. Further, I have highlighted the presence of false imputation of symptoms, a form of Malingering.
Clearly, Dr. Notkin neither believes nor trusts any information that he received from Mr. Saunders. In his more charitable characterizations he refers to Mr. Saunders as an “inaccurate and unreliable historian.”
Dr. Notkin continually uses comments such as “this is discrepant” or “inconsistent” when commenting on notations in the documents he examined. Some incidents commented on are clearly the normal variations in retelling a story after the passage of time, while others are simply puzzling. Indeed, I am at loss to understand how Mr. Saunders’ credibility is brought into question by the number of lovers his mother may have had or not.
Dr. Notkin’s report consists of some 77 pages, the most of which consists of comparisons of statements drawn from the records he was provided, with statements elicited in Dr. Notkin’s interview with Mr. Saunders. Indeed, most of the “psychiatric report” involves such cross- examination on the record, combined with speculation about various “scenarios” hypothesized by Dr. Notkin on the basis of his prior experience.
While I accept that the credibility of a person in recounting subjective feelings and experiences to a psychiatrist is a relevant consideration, there is relatively little of Dr. Notkin’s report that could actually be construed as an appropriate expert opinion on Mr. Saunders’ psychiatric status.
An expert is not an advocate for one side or another. He or she is present for the benefit of the tribunal, not a particular party. This is true whether the report is merely filed, or whether the expert testifies in person. [See note 12 below.] Courts, including the Supreme Court, have spoken clearly as to the use of expert testimony:
Note 12: See Lurtz v. Duchesne [2003] O.J. No. 1541
The function of the expert witness is to provide for the jury or other trier of fact an expert’s opinion as to the significance of, or the inference which may be drawn from, proved facts in a field in which the expert witness possesses special knowledge going beyond that of the trier of fact. The expert witness is permitted to give such opinions for the assistance of the jury. Where the question is one which falls within the knowledge and experience of the triers of fact, there is no need for expert evidence and an opinion will not be received. [See note 13 below.]
Note 13: McIntyre J., speaking for the Supreme Court of Canada in The Queen v. Beland and Phillips (1987) 36, C.C.C. (3d) 481
I have no hesitation in finding that the limited direct observations and measurements of Dr. Notkin could constitute the “proved facts” [See note 14 below.] required for the foundation of an expert opinion as identified by McIntyre J. in Beland (supra).
Note 14: The only objective test actually administered was a “Mini Mental Status Exam” which is a test for dementia, something which was not at issue in this claim.
I am not so willing to accept that Dr. Notkin’s endless examination of previous statements and records in the search for inconsistencies is the proper role of an expert witness. Royal has able counsel in Ms. Brownlee, who is quite capable of pointing out any inconsistencies in testimony and to ask me to draw any appropriate inferences. Remarking on inconsistencies is not a specific psychiatric skill-set and Dr.Notkin has no particular expertise in the truth-seeking process that is not otherwise available to the tribunal.
I should note that I found Mr. Saunders at the hearing to be generally credible and forthright. His testimony both in chief and on cross-examination was straightforward, and he made no attempt to cover up any previous health concerns, although he always tried to place them in context. In this arbitration, he appears to have supplied all records requested by the Insurer, and has willingly signed authorizations for other information to be obtained. This is not the hallmark of a dissembler.
Whatever the merits of Dr. Notkin’s actual views on Mr. Saunders’ psychiatric condition, there is another element of the report that is disquieting: As noted earlier it stands totally at odds with the opinions of the treating physicians who have seen and examined Mr.Saunders over a considerable period of time. If Mr. Saunders was such a notoriously unreliable historian, I think it unlikely that skilled physicians would not have noticed the constant change in Mr. Saunders’ background information.
Dr. Notkin’s conclusions simply do not seem consistent with the balance of the materials submitted, nor with Mr. Saunders’ evidence. Dr.Notkin’s comment that “(F)rom a psychological perspective, this man has not been reporting psychological symptoms of significance” simply cannot be supported in the light of the medical records supplied on this motion, including the diagnosis of his own psychiatrist.
Notwithstanding the importance given to Dr. Notkin’s report by Ms. Brownlee, the report appears to be tainted by the bias and the prejudice of the examiner and simply cannot be accepted as significantly credible evidence against disability.
On the balance I prefer the cumulative evidence of Mr. Saunders’ treating physicians which appears to provide a fair assessment of both Mr. Saunders’ current status and the causation of the disabilities he appears to suffer.