Author Archives: Admin4

http://www.fairassociation.ca/wp-content/uploads/2013/02/Cowans-and-Motors-Insurance-+-Arbitration-2010-10-15-FSCO-A09-003237.pdf

Dr. Finkel’s testimony provided some insight into the details of the assessment process in this matter. Dr. Finkel, of course, was part of the multidisciplinary assessment arranged by Health Impact. Dr. Finkel’s prime occupation is doing psychiatric assessments, principally for a variety of insurers mostly in the automotive sector.

He is not, however, usually directly retained by an insurer but rather by an assessment company such as Health Impact whose raison d’être is the provision of assessments services. Dr. Finkel also confirmed that Mr. Cowans’ assessment was a brief, one-time interview, one of up to 45 to 50 he might do in a month. [See note 19 below]

Note 19: Although it was possible to infer even higher numbers of examinations from Dr. Finkel’s cross-examination, for the purpose of this analysis I accept that the number was intended to be on a monthly basis, a presumption that would be consistent with Dr. Finkel’s projected income from assessments being in the range of some $600,000 per year.

He would receive the paperwork, including the documents indicated on his report, proceed to the assessment location, interview the insured, and then write a report. Given the volume of examinations, it could not be supposed that there was significant time for detailed reflection on each assessment.

Although Dr. Finkel was apparently provided with a copy of the Insurer’s FAE assessment for comment, his evidence was that, following the initial assessment, there was no contact from Motors nor any other further relevant documents sent to him for consideration. In fact, Dr. Finkel stated that there was never any direct communication between him as an assessor and Motors.

More importantly, with the exception of the provision of the FAE report, there is no evidence of a co-ordinated attempt to reach a consensus between assessors or to deal with disability other than in the narrow view of each discipline. Given that Mr. Cowans claimed that he was disabled due to a mixture of psychological problems, pain issues, and physical constraints, such an omission, is highly problematic.

Although much was made of Dr. Finkel’s preconceptions as to accident victims, and his obvious dependence on the insurer’s goodwill for his lucrative assessment business, I do not believe that this is a central problem in Mr. Cowans’ case. Rather, the problem would appear to be more systemic.

Assuming for example that the 40–50 assessments figure related to a month, that would mean that Dr. Finkel on some weeks may have performed at least 10 assessments per work week. The time permitted to review, assess and report on any individual would have been at most 4 hours from start to finish, including the reading of voluminous documentation. [See note 20)

Note 20: Assuming a 40-hour work week. Even doubling this figure to 80 hours per week would still leave little room for a considered, professional assessment, given that Dr. Finkel also still saw some OHIP patients in the same work week.

Whether Dr. Finkel was biased or prejudiced or not, I find that it tests credulity to believe that an assessment mill [See note 21 below] such as described by Dr. Finkel could ever generate meaningful results.

Read: http://www.torontosun.com/2011/08/18/put-auto-insurers-under-microscope

https://www5.fsco.gov.on.ca/AD/244

Once again the difficulty here really is evidentiary in nature. As an arbitrator I find Dr. Robert’s report to be unhelpful in making a decision as to whether Mr. Atkinson’s treatment plan was reasonable and necessary.  The doctor may have reasonably believed that the conclusion he reached was warranted, but nothing in his report helps me to understand “why” he believed that. If Bertie and Clinton chose to rely on this “less is more” form of expert report, then I conclude that they did so at their peril.  There is simply no helpful reasoning contained within it for anyone looking at the circumstances from the outside.  One has to note that if medical assessments ultimately come down to nothing more than “he said/she said” types of arguments, then the burden of proof presumptions in the law will ultimately be the sole warrant for determining the outcome of disputes.

Useful expert reports are those which help the ultimate decision maker, whether circumstantially, that is an insurance adjuster or an adjudicator, to understand the evidence in support of, as well as challenging, the conclusion that a claimed benefit is reasonable and necessary.  Reports that only record the evidence on one side of the case are generally unhelpful; they do very little to assist the ultimate decision maker in understanding the complexity of the situation.  If a dispute reaches an adjudicator, it is reasonable to assume that there are rational arguments on both sides of the case. If expert reports do not rationally help the ultimate decision maker in making her or his decision they serve no useful purpose. Given the high cost associated with generating many of these reports they should address the situation in a helpful, rather than a partisan way.

http://www.fairassociation.ca/wp-content/uploads/2013/02/Saunders-and-Royal-SunAlliance-+-Arbitration-2007-06-20-FSCO-A07-000499.pdf

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.

http://canlii.ca/t/1q596

[1]            In the course of this jury trial I ruled that Dr. Frank Lipson, who had conducted a defence medical of the plaintiff, not be permitted to testify as an expert witness on behalf of the defence. Dr. Lipson had testified that a medical report purportedly signed by him had not been signed by him.  He stated that his signature stamp had been affixed to the report without his authority by an individual at Riverfront Medical Evaluations Limited (Riverfront) the company who had retained him to conduct the defence medical. I made my ruling based on the evidence before me at the time. The case proceeded and the jury ultimately delivered a verdict awarding the plaintiff damages and that verdict has not been appealed. However, in view of the serious allegations that had been made against Riverfront I felt that Riverfront should be given an opportunity to respond before I delivered the full reasons for my ruling. Subsequent to the conclusion at the trial, counsel for Riverfront appeared before me and called evidence and made submissions.

[2]            I have deliberated for a very long time before delivering these reasons. Although the action out of which the problem arose has long been concluded, this case raises vexing issues as to what role may be properly played by organizations such as Riverfront in the formulation of an expert witness’ opinion.

[22]        When asked whether he knew who had highlighted the portion of the report under the heading “Impression” Dr. Lipson stated that Linda would have done this to direct his attention to that portion of his report and to suggest that “perhaps” he would like to change the wording. He said it was a common occurrence for Linda to suggest changes to his reports.

[27]        Dr. Lipson agreed that although the served report dated March 11, 2005 could not have been prepared by Riverfront on that date because it included Dr. Lipson’s list of goods and services required, that he did not send to Riverfront until March 13, 2005.  He also admitted that his recommendation about future goods and services as set out in his email of March 13, 2005 differed in some respects on what appeared in the served report.  He had expressed the opinion that nortriptylin 25 mg. was necessary for a “minimum of two years” whereas in the served report the words “up to 5 years” were added which was not his opinion.  Similarly he had recommended a fitness membership without a time limitation, however, in the served report the recommendation was for “fitness membership for 5 years”.  He testified that these changes must have been made by Riverfront without his authority.

[28]        Based on the evidence before me on the voir dire I ruled that Dr. Lipson was not entitled to testify as an expert witness on behalf of the defendant.

[56]        Linda is a medical secretary who has worked at Riverfront for 14 years.  Her title is Director of Quality Control.  Her job involves reviewing reports received from the experts to assess grammar, style and format to ensure that they are free of any errors, inconsistencies, and redundancies and that the questions posed by the client are answered.  After she reviews the reports, they are given to Dr. Levy or Anna for final proofreading.  If she thinks that a report contains inconsistencies or redundancies she would raise it with Dr. Levy.  Linda testified she never recommends a change to a report to make it more beneficial to the client who retained Riverfront.

[100]   Expert witnesses play a vital role in proceedings before the courts both in civil and in criminal matters. In personal injury actions in particular, the evidence of the expert witness may be the determining factor in the resolution of the plaintiff’s claim In the case of health practitioners, section 52 of the Evidence Act provides under certain conditions, the report may be filed in place of the viva voce evidence of the health practitioners. The court is entitled to assume that the report represents the impartial opinion of the expert.

[101]    In my view Riverfront in this case, went far beyond what can be considered a proper “quality control” function. While I am not prepared to find that they were motivated by a desire to assist the defendant, nonetheless I find their actions constituted an unwarranted and undesirable interference with the proper function of an expert witness.

[102]   The function of an expert witness is to provide an independent and unbiased opinion for the assistance of the court. An expert witness’ evidence should be and should be seen to be the independent product of the expert uninfluenced as to form and content by the exigencies of litigation.[2]  This principle has often been cited with approval in our courts, and has been considered a factor to be considered in assessing the weight to be given to the expert’s testimony.  It has occasionally been treated as the basis for the disqualification of the witness entirely.[3]

[103]   In my view any activity that may tend to detract from this all-important objective diminishes the integrity of the litigation and trial process and should be met with appropriate sanctions designed to send a clear message that such conduct will not be tolerated.

http://www.fairassociation.ca/wp-content/uploads/2013/02/Keyes-and-Personal-Insurance-+-Arbitration-2006-07-21-FSCO-A06-001156.pdf

It is also submitted by Ms. Keyes that the DAC has breached the Guidelines in failing to avail themselves of an assessment by an appropriate specialist such as a psychologist, neurologist or psychiatrist where there is “concern about a brain-injured claimant’s ability to exercise appropriate judgement without supervision.” It is also alleged that the report of the DAC reveals that they have gone beyond assessment to become advocates for a point of view. By way of example, Ms. Keyes alleges that the DAC misquotes reports of treating practitioners and without foundation accuses them of conflicts of interest.

There is little doubt that there are significant issues with the North York DAC assessment. The assessment was conducted on March 13, 2006. A report, signed by both assessors, was released on March 31, 2006 with attached Form 1 indicating that no attendant care was required. A second report appeared on April 13, 2006. The clinic coordinator, Dr. Rocco Guerriero, in a cover letter, indicates that the first report was issued in error and contained only the views of one assessor, as well as lacking an executive summary. Here is the salient text of Dr. Guerriero’s letter:

As part of our quality assurance measures, we recognized that this Attendant Care DAC Assessment report recently released was done so in an incomplete manner. The report that was released dated March 31, 2006, only included the Registered Nurse’s component (pages 1 to 34). It did not include the Occupational Therapist’s component by Lyn Cook. It also did not include the Executive Summary by Lyn Cook. We are releasing the corrected report.

We apologize to all parties for this oversight. This does not change the outcome of this Attendant Care DAC Assessment report.

It is clear that the cover letter underplays the extent of the problem with the DAC assessment reports. It might have been more accurate to describe the portion that was initially released as a partial draft. It is manifestly not the same report as was issued later and, rather than being incomplete in the sense of parts of the true report of the assessors being inadvertently not included, even those portions that are largely reproduced in the so called erratum report (the April 13^th report) have been changed. To cite just one example, the description of an incident where Jessica Keyes found herself fighting a small fire in a trailer is quite different from one report to the other. In particular, the first description of the incident has Jessica Keyes in the trailer with a friend, who put a hat over the candle causing the fire. In the second description, it is said that Jessica Keyes is alone in the trailer. Both cannot be accurate, of course. The fact that both versions of the report purport to carry the signatures of both assessors calls into serious question whether or not the DAC complied with Part 4 of the Attendant Care DAC Assessment Guidelines.

The North York DAC report also contains significant errors. For example, despite the assertion to the contrary, Jessica Keyes’ pre-accident conditions are acknowledged by several of her treating personnel and other assessors. Dr. McKinnon, for example, deposed that when she first assessed Ms. Keyes in September 2004, she was aware of the diagnosis of ADHD. This is confirmed in her various reports predating the North York DAC. Indeed, it is simply not accurate to claim as the North York DAC assessors do, that most of Jessica Keyes’ treating practitioners ignore or downplay her pre-existing conditions. The documents are replete with comments on these pre-existing difficulties, in particular the diagnosed ADHD, but for many assessors the pre- existing diagnoses could well mean that Jessica Keyes would have even greater difficulties as a consequence of her brain injury.

By way of another example, whether this is an error, or an attempt to mislead, I will leave to the hearing arbitrator, however it is suggested in the report that Ms. Maria Hren who conducted an assessment on behalf of the Personal questioned the need for attendant care. This is simply not the case, as is evident from a fair reading of Ms. Hren’s July 9, 2004 report.

Returning to a consideration of the DAC assessment at issue here, it is significant in my view that the North York DAC expressly declined to consider whether or not Jessica Keyes’ noted vulnerabilities pre-accident have been exacerbated by the injuries sustained in the accident. This is at the heart of the controversy in this case and the failure of the North York DAC to address the “thin skull” issue, leaving it rather to the “court or arbitrator” to grapple with, is remarkable in the circumstances.

I also accept Ms. Keyes’ contention that the North York DAC failed to ensure that it had access to the appropriate assessment team in the circumstances contrary to the expectation of the Guidelines as set out earlier. In this regard, I also accept the contention of the Applicant that the North York DAC relied, to its detriment, too much on the report of Jessica Keyes and downplayed the input of her mother. In some instances, this caused them to get it entirely wrong. To cite just one example noted in the material, on page 30 of the second North York DAC report, it is noted that Jessica Keyes reported no major changes with her caloric intake since the motor vehicle accident. This is contrary to the well documented difficulties with diet that the Applicant has experienced since the accident.

The tone of the DAC is markedly partisan. Ms. Fitzhenry Bedard in particular is singled out with a suggestion that she is in a conflict because the Personal is funding the treatment she provides, the suggestion being that she is motivated to support more rather than less treatment. On the other hand, the assessments conducted by Aneez Virani and Dr. Kumchy are characterized as independent assessments as opposed to assessments requested by the Personal. The North York DAC team also critiques an earlier attendant care DAC which supported entitlement to the benefit, by the use of possibly confidential information somehow obtained from another DAC assessment.

Read: http://www.canadianunderwriter.ca/news/letter-to-the-editor-independent-medical-examinations-provide-necessary-check-and-balance/1001950950/ 

http://www.fairassociation.ca/wp-content/uploads/2013/02/SOHI-and-ING-INSURANCE-July-15-2004-FSCO-A03B-001125.pdf

The Insurer, in taking its position, was bolstered by the opinions of Dr. Monte Bail, a psychiatrist who assessed Mr. Sohi as part of the West Park Attendant Care DAC. Dr. Bail stated:

From a review of the extensive medical file material, and the assessment today, it seems that Mr. Sohi was suffering from a Major Depressive Disorder, Anxiety, and Alcoholism for a long time prior to the motor vehicle accident, even though he denied all of these things today…

While Dr. Bail accepted that Mr. Sohi suffers from serious psychiatric disorders, including a Major Depressive Order, he concluded:

I do not feel that the aftermath of his burn injury, including the scars, and restricted range of motion, is significantly related to the motor vehicle accident, and as such, from a psychiatric point of view, the psychiatric aftermath of living with the results of his self immolation [suicide attempt] are not related to the motor vehicle accident.

In his testimony, Dr. Bail downplayed the likelihood of suicide as the result of motor vehicle accidents, stating that he had never seen a similar situation in his examination of some 4,000 motor vehicle accident cases. Dr. Bail’s observation, while perhaps literally correct, is at the very least, somewhat misleading.

While the specific act of self immolation following a motor vehicle accident may well be a rarity, attempts at suicide in that context are not unheard of, even in Dr. Bail’s practice. Nor are they unknown to accident-related jurisprudence. [See note 10 below.] [See note 11 below.]

Note 10: See Gabremichael and Zurich Insurance Company (FSCO A97-002061, October 12, 1999).

Note 11: In the case of Cotic v. Gray , 33 O.R. (2d) 356, the Court of Appeal dealt with a suicide taking place some 16 months after a motor vehicle accident, upholding a finding that the suicide directly resulted from the motor vehicle accident, notwithstanding the passage of time. See also Murdoch v. British Israel World Federation (New Zealand) Inc . et al. [1942] 61 N.Z.L.R. 600.

Counsel for Mr. Sohi introduced as an exhibit, a copy of an interview with Dr. Bail posted on the website of Riverfront Evaluations, a medical assessment company which uses his services. In the interview, Dr. Bail focussed on opportunistic claims and his view of motivating factors for what he saw as an increase in claims involving “psychosocial gain .” While I accept that the excerpt of an interview by itself does not conclusively establish bias on the part of Dr. Bail, I find the attitudes expressed disquieting when taken in conjunction with his testimony in this hearing.

Dr. Bail testified at the hearing that he discounted much of Mr. Sohi’s stated concerns, because of perceived inconsistencies in the materials provided to him as well as his presentation during the interview. His reports and testimony featured a listing of Mr. Sohi’s supposed inconsistencies and contradictions. He also, in his testimony, derided the opinions of psychologists, characterizing them as little more than psychometrists, capable, if at all, of administering tests. Indeed, Dr. Bail presented as a notably partisan 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.

By way of contrast, I found both Dr. Pilowsky and Dr. Koepfler to be more balanced and professional in their assessments and their approach to Mr. Sohi’s history, even when their opinions diverged. Rather than attempting to discredit Mr. Sohi by searching for inconsistencies and divergencies, they sifted through his records, statements and history, looking for a credible explanation for his presentation.

I give little weight to Dr. Bail’s conclusions concerning the characterization of Mr. Sohi’s suicide attempt, and its triggers, especially when they conflict with the opinions of Drs. Pilowsky and Koepfler.

Even had Dr. Bail’s assessment been even-handed and unprejudiced, I would tend to discount his conclusion that the “self immolation” as he termed Mr. Sohi’s suicide attempt was due only to pre-existing and co-existing causes, and unrelated to the accident.

http://www.fairassociation.ca/wp-content/uploads/2013/02/GABREMICHAEL-and-ZURICH-INSURANCE-October-12-1999-FSCO-A97-002061.pdf

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.
.
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.

GEOFFREY LLOYD: I think a number of things. First of all, one could ensure that the person making the statement, by virtue of his background, training and education, had received an education that would allow him to make that judgement. As a practising physician I see examples, and I will if it’s appropriate cite specific examples, where the person making statements is either not aware of the literature or, alternatively, by virtue of his background training and education, has not received the training. As a physician, for example, it is mandated by the college that I must know prognosis in my area of discipline.

http://canlii.ca/t/fngnw

[10]         In July 2004, Echelon retained Dr. Kwok, an orthopaedic surgeon, to examine Ms. McQueen.  Echelon did not give Dr. Kwok a copy of Ms. Foster’s report.

[11]         Dr. Kwok wrote a report dated July 23, 2004, in which he stated that Ms. McQueen was capable of conducting her own housekeeping, was not disabled from driving a motor vehicle and was able to take public transportation.

[12]         After receiving Dr. Kwok’s report, Echelon immediately stopped paying Ms. McQueen housekeeping and transportation benefits.

[13]         Ms. McQueen requested, and Echelon sought, the advice of an independent medical occupational therapist.  That therapist advised that Ms. McQueen required assistance with her housekeeping but that an in-home assessment should be performed first.  Echelon told Ms. McQueen that the assessment would cost $620.11 but it refused to pay for the assessment because it was not “reasonable and necessary”.

[14]         Despite Ms. McQueen’s repeated entreaties for the SABS benefits, and the provision of additional medical documentation showing that she needed them, Echelon refused to reinstate the benefits.  The trial judge found that in a three-year period, Ms. McQueen received 21 denials for 16 separate benefits.

b)  More than a simple denial of benefits

[52]         Echelon also submits that this is merely a case about the denial of benefits and the simple denial of benefits does not amount to bad faith.

[53]         I accept that a lack of good faith is not to be inferred simply because an insurer does not pay a claim.  However, based on the findings of the trial judge, it cannot be said that this case was one in which Echelon simply denied benefits.

[54]         The reasons of the trial judge must be read as a whole.  The specific section of the judgment in which he deals with damages for bad faith and mental distress cannot be separated from the balance of the judgment in which he makes findings in relation to Echelon’s conduct.  It is evident that those findings lay the foundation for his reasoning on damages.

[55]         As early as para. 12 of the reasons, the trial judge refers to Fidler v. Sun Life Assurance Co. Ltd., 2006 SCC 30 (CanLII), 2006 SCC 30, [2006] 2 S.C.R. 3 (Fidler), noting that in Fidler, the Supreme Court of Canada held that an insurer owes a common law duty to act in good faith in all its dealings with an insured and has an additional duty not to inflict unnecessary mental distress.  He returns to Fidler in paras. 51 and 52 of the reasons, stating that in a case of alleged mental distress, the court must be satisfied that:

a)                  an object of the contract was to secure a psychological benefit that brings mental distress upon breach within the reasonable contemplation of the parties; and

b)                 the degree of mental suffering caused by the breach was of a degree sufficient to warrant compensation.

[56]         Throughout the reasons, the trial judge repeatedly notes that Echelon refused to provide benefits on the basis that they were not “reasonable and necessary” but Echelon gave no reasons for why they were not reasonable and necessary: see, for example, para. 33.

[57]         It is also clear that the trial judge was critical of Echelon for relying on Dr. Kwok’s report, which was based on a “superficial examination lasting only 30 minutes” (para. 39), especially as Echelon had not given Dr. Kwok a copy of the report its own occupational therapist, which was favourable to Ms. McQueen (paras. 34 and 36).

[74]         The court explained, at paras. 56-58, that it was an object of the contract:

The bargain was that in return for the payment of premiums, the insurer would pay the plaintiff benefits in the case of disability. This is not a mere commercial contract. It is rather a contract for benefits that are both tangible, such as payments, and intangible, such as knowledge of income security in the event of disability. If disability occurs and the insurer does not pay when it ought to have done so in accordance with the terms of the policy, the insurer has breached this reasonable expectation of security.

Mental distress is an effect which parties to a disability insurance contract may reasonably contemplate may flow from a failure to pay the required benefits. The intangible benefit provided by such a contract is the prospect of continued financial security when a person’s disability makes working, and therefore receiving an income, no longer possible. If benefits are unfairly denied, it may not be possible to meet ordinary living expenses. This financial pressure, on top of the loss of work and the existence of a disability, is likely to heighten an insured’s anxiety and stress. Moreover, once disabled, an insured faces the difficulty of finding an economic substitute for the loss of income caused by the denial of benefits.

People enter into disability insurance contracts to protect themselves from this very financial and emotional stress and insecurity. An unwarranted delay in receiving this protection can be extremely stressful. Ms. Fidler’s damages for mental distress flowed from Sun Life’s breach of contract.  To accept Sun Life’s argument that an independent actionable wrong is a precondition would be to sanction the “conceptual incongruity of asking a plaintiff to showmore than just that mental distress damages were a reasonably foreseeable consequence of breach”. [Citations omitted. Emphasis in original.]     

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http://www.lawtimesnews.com/Focus-On/Claim-for-mental-distress-puts-pressure-on-insurance-companies