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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With respect to the orthopaedic assessment, the support for this is in the OCF-18 by Dr. Ogilvie-Harris and his supporting assessment. Aviva submits that this report should not be relied on because of:
1. Factual errors related to the Applicant’s absence from work both before and after the accident, indicating that the Applicant had a history of work absenteeism unrelated to injuries of any kind;
2. The poorly-founded opinion of Dr. Ogilvie-Harris, an orthopaedic surgeon, on the Applicant’s mental health status when there is other convincing evidence from a qualified person as to her mental health; and
3. The misquoting of the psychology report of Dr. Lawson by Dr. Ogilvie-Harris, which misunderstanding may have led him to an unsupported conclusion.
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.
In Nova Scotia v. Martin, a decision of the Supreme Court of Canada, Gonthier J., writing for the Court, stated:[11]
Chronic pain syndrome and related medical conditions have emerged in recent years as one of the most difficult problems facing workers’ compensation schemes in Canada and around the world. There is no authoritative definition of chronic pain. It is, however, generally considered to be pain that persists beyond the normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques. Despite this lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real. While there is at this time no clear explanation for chronic pain, recent work on the nervous system suggests that it may result from pathological changes in the nervous mechanisms that result in pain continuing and non-painful stimuli being perceived as painful. These changes, it is believed, may be precipitated by peripheral events, such as an accident, but may persist well beyond the normal recovery time for the precipitating event. Despite this reality, since chronic pain sufferers are impaired by a condition that cannot be supported by objective findings, they have been subjected to persistent suspicions of malingering on the part of employers, compensation officials and even physicians.
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.
This leaves me with very little more to decide. It is clear from the foregoing that the two OCF-18’s provided by Natalie Zaraska, O.T., dated February 23, 2015 and September 24, 2015 respectively, were reasonable and necessary.
Special Award:
Based upon the evidence received concerning the failure by State Farm to provide its O.T. Assessor with even the basic and obvious information required for her to determine that the Applicant had not, in fact, received any of the type of care set out in these treatment plans, it is clear that the two treatment plans subject to this arbitration were not properly denied or assessed. Therefore, I find that these two denials were unreasonable and the withholding of payment for these services was improper under the Schedule. Accordingly, I order a special award in the amount of $5,500.00, inclusive of interest, payable to the date of this order. This award is based upon the simple mathematics suggested by the Applicant’s counsel (and not specifically challenged by State Farm) which in my opinion results in an entirely appropriate calculation and avoids the delay inherent in the more usual approach of leaving the interest calculation to be determined after the fact by the Insurer’s accounting system. The calculation is as follows (for the rate of interest applied see below):
The parties each made allegations about the other’s conduct, but did not support them with sufficient evidence for me to make a determination.
For example, Mrs. Colandrea argued that Wawanesa’s failure to revisit its Minor Injury Guideline (“MIG”) determination prolonged the proceedings. However, she did not support this argument with sufficient evidence for me to assess its validity.
Similarly, Wawanesa argued that Mrs. Colandrea’s refusal to talk settlement for five months prolonged the proceedings. While Wawanesa acknowledged that Mrs. Colandrea was undergoing medical assessments during those five months to support her removal from the MIG, it argued that Mrs. Colandrea could have asked Wawanesa if it had changed its MIG position during that time. Yet, Wawanesa did not disclose what its MIG position actually was during those five months. Furthermore, neither party provided detail about the medical evidence. For these reasons, I have insufficient evidence to assess the reasonableness of Mrs. Colandrea’s decision to postpone settlement discussions and, hence, whether it prolonged the proceedings.
In addition, Wawanesa argued that Mrs. Colandrea’s “accumulation of expert reports” was “entirely unnecessary” to the proceedings. It argued that the cost of those reports was “grossly disproportionate” to the value of the issues in dispute, but did not include in its valuation of the issues the removal of Mrs. Colandrea from the MIG. Taking her removal from the MIG into consideration, I do not find the cost of the reports to be “grossly disproportionate.”
Lastly, Wawanesa alleged that the Applicant used her medical reports in the tort claim. However, it did not support this allegation with evidence. Furthermore, Wawanesa did not say whether the Applicant was reimbursed for those reports in the other proceeding. In any event, this argument is irrelevant to the question of whether the reports were necessary for these arbitration proceedings. Absent evidence about the relevance of the Applicant’s expert reports to these proceedings, the insurance company’s argument that they were “entirely unnecessary” is unsubstantiated.
After initially denying the claim – a decision based partly on Platnick’s report – TD then changed its mind following the neurologist’s account, and offered an “obscene amount of money to settle”, which her client accepted, Bent wrote.
“(TD’s lawyer) must have received instructions from the insurance company to shut (the case) down at all costs,” she said.
