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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When you are injured in a car accident, there are usually two parts to your claim – (1) an accident benefits claim; and (2) a claim against the other driver (which is secretly defended by the other driver’s insurer). Both of those companies have the right to not listen to treating doctors and to, instead, hand-pick medical doctors, pay them and send you to see those doctors for opinions. Many insurer’s have “rosters” of assessors and only include (and keep) the doctors that they wish on that roster.
http://law123.ca/insurance-assessors-serious-concerns-raised/
http://canlii.ca/t/gvsv7
[6] Mr. Babcock duly attended the physical examination by Dr. Watson on 8 September 2016 in Toronto.
[8] On 13 September 2016, a law clerk with the solicitors for Wawanesa received a telephone call from Dr. Watson’s assistant, who advised that Dr. Watson would not be providing a report due to not being able to meet the timeline and “unforeseen” circumstances.
[9] Despite immediate efforts to due so, Wawanesa’s lawyer was not able to speak to Dr. Watson until 16 September 2016. In that conversation, Dr. Watson advised that he was overwhelmed with work, that a number of issues had arisen which meant that he could not work at full capacity, that he had too much on his plate, that it was a very complex file and that he could not understand why the short deadline was imposed.
[10] Wawanesa’s lawyer asked Dr. Watson to propose a later date for delivery of the report. Dr. Watson responded that he was so overwhelmed that he could not even predict when he might be able to complete a report and that Wawanesa should have the plaintiff seen by another neurologist. Wawanesa’s lawyer requested that Dr. Watson send a letter to that effect. Dr. Watson duly did so. His letter of 16 September 2016 states:
I regret that due to the complexity of this matter, the extensive amount of medical documentation and the very short turnaround time required, I am unable to provide a report on Mr. Reggie Babcock.
[11] Further attempts to have Dr. Watson reconsider were unsuccessful. Accordingly, Wawanesa’s solicitor sought an appointment with another neurologist, Dr. Gordon Sawa. The first available date that Dr. Sawa was able to offer for a medical assessment is 11 January 2017. Dr. Sawa has committed to delivering a report by 31 January 2017 if the assessment on 11 January 2017 goes ahead.
[12] The motion before me, brought by Wawanesa, seeks an order requiring the plaintiff to attend a physical examination by Dr. Gordon Sawa in Mississauga on 11 January 2017 at 10:00 a.m., with transportation to be provided by Wawanesa (Mr. Babcock resides in Belleville).
[28] I have concluded that the plaintiff should be required to attend the examination by Dr. Sawa. Dr. Sawa’s report must be delivered on or before 31 January 2017. The sooner the better. If, for whatever reason, Dr. Sawa’s report is not delivered by 31 January 2017 then, the subject to the discretion of the trial judge, Dr. Sawa’s evidence will not be permitted to be introduced at trial (I realize that Ray J. made a similar order with respect to the evidence of Dr. Watson, but what transpired after Ray J. made his order is unlikely to be repeated).
The line between opinion evidence and fact evidence when given by a physician is sometimes blurred. Today reasons for judgement were released by the BC Supreme Court, Vancouver Registry, discussing this and outlining the parameters of factual vs opinion evidence from treating physicians.
http://bc-injury-law.com/blog/bc-supreme-court-outlines-parameters-lay-witness-evidence-doctors
http://canlii.ca/t/gtqhk
Overview
[1] The Applicant, A. P., was injured in a motor vehicle accident on March 19, 2015. She applied for and received benefits under theStatutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”) including medical and Income Replacement Benefits (IRB).
[2] Aviva terminated her IRB on February 16, 2016 taking the position that she did not meet the test for entitlement. She disputes that termination and argues that she should be paid IRB from February 17 to May 3, 2016 when she started part-time work.
[3] Aviva also denied A. P.’s claim for medical benefits for physiotherapy and chiropractic treatment. The dispute over the medical benefit centres on the nature and extent of her injuries. A. P. submits that her injuries are extensive and that she is entitled to access a maximum of $50,000 of medical and rehabilitation benefits pursuant to s. 18(3) of the Schedule. Aviva takes the position that her injuries are predominately minor and that s. 18(1) caps medical and rehabilitation benefits at $3,500 for predominantly minor injuries. The $3,500 having been exhausted, Aviva takes the position that it has no further liability to A. P.. The resolution of this matter depends on the sufficiency of the medical evidence put forward by A. P. in support of her position.
[22] A. P. submits that I should accept Dr. Honsl’s determination over the determination of Aviva’s assessors. Aviva submits that Dr. Honsl simply ticked a box and has provided no further support for her methodology or conclusions. Aviva’s assessors, on the other hand, have provided a detailed report on both their methodology and their conclusions that is unchallenged by anything submitted by A. P.. I prefer Aviva’s submissions. The evidence currently before me overwhelmingly supports the conclusion that A. P. was able to perform the essential tasks of her employment by February 16, 2016 when the IRB payment was stopped.
Conclusion:
[23] In light of the foregoing, I find that:
- A. P. suffered predominantly minor injuries and there is no compelling evidence of a pre-existing medical condition that would prevent recovery beyond the $3,500 cap for medical and rehabilitation benefits, and
- A. P. is not entitled to the payment of IRB for the period from February 17, 2016 to May 3, 2016.
n the recently reported case of Daggitt v. Campbell[i], the Court reviews the requirements for a Court ordered defence medical pursuant to Section 105 of the Courts of Justice Act and Rule 33 of the Rules of Civil Procedure. In this motion, heard in April of 2016, with the case scheduled for Trial in September, defence counsel sought to have a third defence medical conducted by a psychiatrist. The Plaintiff had already undergone defence medicals by a physiatrist and an orthopedic surgeon. The Plaintiff did not have a psychiatric expert report, but Plaintiff counsel did intend to rely, at Trial, upon the evidence of a psychologist who prepared a report for the accident benefit insurer and a neuropsychologist who treated the Plaintiff flowing from the accident benefits assessment.
http://www.millerthomson.com/en/blog/mt-insurance-law-blog/court-ordered-defence-medicals
