Author Archives: Admin4

http://www.canlii.org/en/on/onhparb/doc/2015/2015canlii70170/2015canlii70170.html

The Complaint

 5.                The Applicant complained that the Respondent:

•       provided a third party report that was dishonest, inaccurate and biased;
•       made diagnoses for which there was no medical evidence, nor was he qualified to make;
•       discriminated against her because she was an “MVA [motor vehicle accident] patient”;
•       used his authority as a physician to aid and abet the insurance company;
•       was cruel and inconsiderate to her during the assessment; and
•       accused her of not being truthful.

6.                The Committee met on February 19, 2014  to consider the Applicant’s complaint and made the preliminary determination that it would take no action with respect to the Applicant’s complaint on the basis that the complaint was frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process.

9.                That letter set out that the Committee’s preliminary determination was based on the following:

•       This is just one of several similar complaints brought by the Applicant for which the Committee took no action; and
•       In the similar complaints investigated, the Committee found no evidence of bias, there was no credible evidence to support the claim that the physicians were engaged in a conspiracy with the insurance company to deny treatment, and there was nothing objective in the investigative records to support the concerns.

11.            The Applicant made a number of submissions including:

•       she maintains that other physicians are continuing to deny her treatment based on the Respondent’s report that she was “feigning and malingering.”;
•       information about the Respondent’s report  was used in a previous College investigation (file TB84359) without her consent, yet the notation in the Committee’s decision indicates that she provided the material;
•       she disputes that the Committee’s reasons for not investigating fall within the Act section 26(4) and (5);
•       she believes that the Respondent responded to the College and his response should have been disclosed to her;
•      she disagrees that her complaint about the Respondent is similar to others, in that:  (i)        the Respondent is a psychiatrist and the other physicians she complained  about were not;

(ii)               “the Respondent’s report is the only defence medical report I have filed a complaint about.”;

(iii)            “the Respondent was the only one who said her symptoms were “bizarre” and that she was “feigning and malingering.”;

•            she suggests that the fact that there were similar complaints concerning other physicians should be a reason to investigate, not a reason to not investigate, since multiple similar complaints would indicate a more “widespread and repetitive problem.”;
•         she disagrees with the Committee’s reason that there was no evidence to support her claim, and points to evidence gathered in the previous investigations, already disposed of by the Committee;
•         she believes that relying on the outcomes of previous investigations in order to make a decision in this case is prejudicial;
•         she claims that she “was told 3 times by the College itself that they have no intentions of finding a doctor guilty of anything, regardless of the evidence, or severety [sic] of harm to the patient.”;
•         by refusing to investigate, the College is denying her “right to complain without consequences.”;
•         she concludes that by not obtaining a written retraction from the Respondent, which would then permit her to receive continued health care, the College is, in effect, “resinding [sic] my right to OHIP and Insurance benefits.”

12.            The Committee met on May 21, 2014 and determined that it would take no action, pursuant to section 26(5) of the Code on the basis that the complaint was frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process.

40.            For the reasons as stated, the Board finds the Committee’s decision to be reasonable. It is based upon information in the Record, the Committee’s analysis and consideration of the Applicant’s complaint and the allegations contained therein, and the Committee’s review of previous dispositions concerning similar facts and allegations. The Committee’s decision is one of the possible, acceptable outcomes that are defensible in respect of the facts and the law.

http://www.fairassociation.ca/wp-content/uploads/2015/12/Waldock-and-State-Farm-Preliminary-issue-FSCO-4315.pdf

Dr. Cashman’s assessment was deficient in several areas.  As earlier stated, I find that these deficiencies fail to support the position of State Farm in refusing to accept the assessment that Mr. Waldock is catastrophically impaired.  During cross-examination of Dr. Waisman, counsel for State Farm, perhaps inadvertently, emphasized that Dr. Cashman’s assessments did not follow the requirements of the Schedule and the AMAGuides.  Thus, I find I must give a little weight to Dr. Cashman’s assessments (as expressed in his written report), for there is no evidence offered by the insurer to contradict Dr. Waisman’s evidence.

Waldock and State Farm  [+] Arbitration, 2015-11-16, Reg 403/96. Expenses FSCO 4689.

In my decision on the preliminary issue, issued on November 10, 2014, I referred to the oral evidence of Dr. Waisman wherein he was critical of the report prepared and submitted by Dr. Cashman to State Farm.  State Farm relied upon Dr. Cashman’s report to deny that Mr. Waldock had suffered a catastrophic impairment.  State Farm did not bring Dr. Cashman as a witness to that Hearing and thus, I found that his report was untested and less credible evidence than that of Dr. Waisman and his colleagues at Multidisciplinary Designated Assessment Centre (“MDAC”), including Dr. Ameis.

Arbitrator orders rare special award against insurer

Emily Casey of Tkatch & Associates says the lesson to be learned is that it is not enough for the insurer to have reports stating the claimant is not impaired catastrophically. She notes State Farm did not have its medical expert attend the hearing and that forced the arbitrator to give less weight to State Farm’s medical arguments.

“Standing by a flawed report in denying catastrophic benefits resulted in a significant punitive award,” she says.

http://www.fairassociation.ca/wp-content/uploads/2015/08/Kraja-and-Wawanesa-Mutual.pdf

The Insurer argues that there is “absolutely no evidence of a brain impairment in this case.” It points out that no obvious head trauma was noted by ambulance or hospital personnel immediately after the accident; a CT scan taken on the day of the accident was normal; Mr. Kraja was able to actively clench his eyes, implying consciousness; his condition seemed to improve when he was assessed by the emergency room physician in that he became verbally responsive and was able to move all his extremities on command; and, he was discharged from hospital within three hours, into the care of his family physician.

However, the Insurer’s bald assertion is unsupported by the evidence…….

Dr. Robert Yufe, neurologist, also testified at the hearing, but he gave conflicting evidence. At first, Dr. Yufe said that the emergency physician’s diagnosis of concussion could not be supported by the physician’s own notes. However, he did not explain that statement. Later, he agreed that the Applicant may have sustained a concussion. By the end of his cross‑examination, Dr. Yufe stated that the diagnosis of concussion was valid and that he had never challenged it.