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.
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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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- On October 20, 2016, the Licence Appeal Tribunal (the “Tribunal”) issued an Order following a Motion in S. G. and The Personal Insurance Company. The order excluded an audio recording (the “recording”) from being admitted as evidence at the upcoming hearing. The recording was made by the applicant while attending an insurer’s examination conducted by Dr. Mascarenhas on January 16, 2015.
Ability to Cross Examine
- 19.The applicant submits that the Tribunal erred by improperly limiting the applicant’s ability to cross-examine a witness’ credibility. By excluding the recording evidence without considering whether the probative value outweighs its prejudicial effect, the Tribunal improperly limited the scope of the applicant’s cross-examination.
- 20.The applicant submits that the Tribunal erred in law because the applicant is not able to put forth any questions to the expert witness on cross-examination that relates to inadmissible evidence. Therefore, if the recording is excluded then the applicant will not be able to question the witness’ credibility.
- 21.I agree with the respondent’s submission that the Tribunal found that the purpose of the recording was to assess the credibility of Dr. Mascarenhas and that this can be accomplished at the hearing through the evidence of the parties.
- 22.The applicant can provide oral testimony at the hearing regarding the assessment and his interactions with the doctor and then cross-examine the doctor on any alleged discrepancies.
http://canlii.ca/t/gwtdp
- 3. The Applicant’s insurance company required the Applicant to undergo an independent Temporomandibular Joint Disorders (TMJ) medical examination following a motor vehicle accident on November 24, 2012. The Respondent, who is a general dentist, conducted the examination in the presence of a nurse on October 9, 2013.
- 4. Following the appointment, the Applicant raised a number of concerns about the Respondent’s conduct while conducting the examination and the contents of the resulting report, which he detailed in a number of letters.
- 5. Specifically, the Applicant felt pain in his ears and face, and experienced swelling. He had soreness and numbness and tingling in his upper lip and problems with his left eye. He associated these symptoms with the examination and reported difficulty holding up his head after the examination.
- 6. Generally, the Applicant was of the view that the Respondent physically and psychologically abused him and prepared a report that was “misleading, inaccurate and biased.” In his view, the Respondent was motivated to abuse him as “reprisal for rebutting and complaining about the two previous Examiners.”
Turning now to the merits of the case at hand, I find that these two treatment plans were not assessed in an appropriate manner by the Insurer’s assessor, Angela Bertolo of D & D Disability Management. Without belabouring the point, State Farm’s assessor admitted on cross-examination that if she had been given all of the available information and had more carefully considered the O.T. in-home assessment report dated July 16, 2015 prepared by Theresa Rector and provided by Ms. Federico to State Farm, AND/OR if she had been informed by State Farm that Ms. Federico had not received any occupational therapy modalities whatsoever prior to submitting these two treatment plans in 2015, then her decision and recommendation(s) may/ would have been different. More telling than this, however, was the admission by State Farm in its final submissions that it conceded that the assessments were of no great value and that they would not be relying upon them.
https://www5.fsco.gov.on.ca/AD/5034
Drs. Kavanaugh and Caterer provided reports following their assessments. They also gave evidence. A large part of their income is derived from insurance company assessments. Both do not treat for pain alone. They look for “objective” signs of impairment and try to improve function. Dr. Caterer says that chiropractors who treat pain alone without any “objective” signs of injury are not behaving properly. Treatment for pain alone is not reasonable and necessary. Dr. Kavanaugh says that you don’t get stronger by rubbing body parts, suggesting that massage and physiotherapy are not of much value. These reports do not yield much assistance to the diagnosis of chronic pain by Dr. Wong.[10] I believe the 3 rehabilitation plans are reasonable and necessary.
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Melanie Robbins derives her income from insurance assessments. She performed 2 in-home assessments on the Applicant. Her evidence was strongly influenced by the report of Dr. Kavanaugh. She believed based on the Kavanaugh Report that the Applicant had recovered.
Physicians who are medical experts in personal injury cases are neither “advocates” for patients nor insurance companies but rather, are there to provide objective reports about real physiological injuries, says Toronto orthopedic spine and trauma surgeon Dr. Michael Ford.
http://www.advocatedaily.com/michael-ford-medical-experts-arent-hired-guns-for-insurance-companies-ford.html?utm_content=buffer93cbc&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer
