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.
________________________________________________________________________________
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.
**********************************************************************
http://canlii.ca/t/gvx92
- 4. The Applicant was involved in an ongoing accident benefits claim with her own insurer and an ongoing civil action regarding the motor vehicle accidents. From 2006 to 2014, she attended more than 40 independent medical examinations (IMEs) in relation to her accident benefits claim and civil action.
- 6. By letter dated February 17, 2015, the Applicant complained to the College about the Respondent’s conduct at the IME. She expressed concern as follows:
- i) “at an IME with [the Respondent] I felt so uncomfortable that at one point I excused myself, went outside and felt suicidal. He came out to get me and I returned to complete the session…”
- ii) “I don’t recall exactly what we were talking about but all of a sudden I felt like my whole world was coming to an end. It was the way he was asking me questions… I felt as if he had led me on with his friendliness and then used some kind of interrogation technique, like they would use with a criminal or in a war zone …”
iii) “Upon leaving I felt as if I had been mentally raped.”
- iv) “I continue to suffer severe stress and anxiety attacks relating to this incident.”
In the years after being rear-ended in a car accident, Liese Bruff-McArthur saw a small army of medical professionals. Most agreed the crash had left her with chronic pain, depression, PTSD and other troubles, making a return to work untenable.
http://news.nationalpost.com/news/hired-gun-in-a-lab-coat-how-medical-experts-help-car-insurers-fight-accident-claims?__lsa=2a71-139d
A judge has dismissed a libel suit against London personal injury lawyer Maia Bent, who warned members of the Ontario Trial Lawyers Association (OTLA) of concerns over a doctor’s medical reports, the Toronto Star and National Post report.
http://www.advocatedaily.com/maia-bent-Judge-supports-Bents-concerns-over-changed-medical-reports.html
1. Platnick v Bent, 2016 ONSC 7340
[2] The email communication giving rise to this litigation was made by Ms. Bent – then president-elect of the Ontario Trial Lawyers Association – to a confidential “Listserve” accessible only by those OTLA members who subscribed to it. The email alerted subscribers to an incident that had occurred during the course of her representation of a client in a catastrophic injury claim and provided them with advice for the conduct of similar claims in future.
http://www.slaw.ca/2016/12/14/wednesday-whats-hot-on-canlii-195/
Aviva relies on the evidence of its assessors set out above as well as on the Applicant’s achievements despite her impairments in successfully completing high school, in being accepted at two universities, in having several friends and extracurricular activities, and in her maintaining a close relationship with her family. I am not persuaded by Dr. Valentin’s reports or the others prepared by Centric Health Medical Assessments that the Applicant does not suffer a complete inability to carry on a normal life. I note that, despite the frequent references in the body of Dr. Valentin’s Psychology Report to the Applicant’s tearfulness and anxiety, Dr. Valentin’s conclusions on the non-earner benefits make not a single reference to the Adjustment Disorder with Anxiety which she diagnosed, but instead she included references to physical conditions (not psychological) and the Applicant’s use of Advil for headaches. Her observations of the Applicant’s emotional stress are consistent with the observations of the treating therapists made during the same time period as this assessment, as well as the evidence of the family and the Applicant. I find that the Applicant was well aware at least by Grade 11 that she could not process the information in class or in her self-study as quickly as her peers, and that she could not meet the expectations of her teachers and her parents as to the workload and speed that she could work at. I find that this caused her considerable stress and confusion, and the Adjustment Disorder and Anxiety diagnosed by Dr. Rathbone. More weight should have been given and further analysis provided regarding the interrelationship between her impairments and her activities.
[]
The Applicant’s trajectory of life, both in its path over the past five years and in its direction in the future, has been significantly altered, and it is not yet clear that the Applicant will have a successful university experience or work career. The opinions of Dr. Rathbone and Dr. Gates have been confirmed in the Applicant’s work experience since graduating from high school, and I prefer their evidence to that of Dr. Valentin. The accomplishments relied on by Aviva are only a cover that hides the significant impact on the functioning of this person, who struggles with the symptoms of Adjustment Disorder and Anxiety and the cognitive deficiencies identified by Dr. Gates and Dr. Rathbone.
[]
I am satisfied on the evidence that the denial of the non-earner benefits in November 2013 was not properly supported by the assessments relied on by Aviva, and that the Applicant did suffer a complete inability to lead a normal life as defined in her life. Her impairments are a significant restriction on her participation in the significant activities and relationships in her life. Throughout high school, the manner in which she participated in school and the quality of the performance, not just the grades she achieved, but the way she achieved those results, is such that she was substantially unable to live a normal life as defined by her pre-accident life. She required significant increases in time to accomplish tasks post-accident. She required significant support from her family, MM, and her therapists. Time constraints and supports were required that her trajectory would never have contemplated but for the accident. She has been left behind by her school friends. She contends with an Adjustment Disorder and Anxiety and cognitive deficiencies which are well-documented in the evidence.
