http://www.canlii.org/en/on/onhparb/doc/2015/2015canlii70170/2015canlii70170.html

The Complaint

 5.                The Applicant complained that the Respondent:

•       provided a third party report that was dishonest, inaccurate and biased;
•       made diagnoses for which there was no medical evidence, nor was he qualified to make;
•       discriminated against her because she was an “MVA [motor vehicle accident] patient”;
•       used his authority as a physician to aid and abet the insurance company;
•       was cruel and inconsiderate to her during the assessment; and
•       accused her of not being truthful.

6.                The Committee met on February 19, 2014  to consider the Applicant’s complaint and made the preliminary determination that it would take no action with respect to the Applicant’s complaint on the basis that the complaint was frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process.

9.                That letter set out that the Committee’s preliminary determination was based on the following:

•       This is just one of several similar complaints brought by the Applicant for which the Committee took no action; and
•       In the similar complaints investigated, the Committee found no evidence of bias, there was no credible evidence to support the claim that the physicians were engaged in a conspiracy with the insurance company to deny treatment, and there was nothing objective in the investigative records to support the concerns.

11.            The Applicant made a number of submissions including:

•       she maintains that other physicians are continuing to deny her treatment based on the Respondent’s report that she was “feigning and malingering.”;
•       information about the Respondent’s report  was used in a previous College investigation (file TB84359) without her consent, yet the notation in the Committee’s decision indicates that she provided the material;
•       she disputes that the Committee’s reasons for not investigating fall within the Act section 26(4) and (5);
•       she believes that the Respondent responded to the College and his response should have been disclosed to her;
•      she disagrees that her complaint about the Respondent is similar to others, in that:  (i)        the Respondent is a psychiatrist and the other physicians she complained  about were not;

(ii)               “the Respondent’s report is the only defence medical report I have filed a complaint about.”;

(iii)            “the Respondent was the only one who said her symptoms were “bizarre” and that she was “feigning and malingering.”;

•            she suggests that the fact that there were similar complaints concerning other physicians should be a reason to investigate, not a reason to not investigate, since multiple similar complaints would indicate a more “widespread and repetitive problem.”;
•         she disagrees with the Committee’s reason that there was no evidence to support her claim, and points to evidence gathered in the previous investigations, already disposed of by the Committee;
•         she believes that relying on the outcomes of previous investigations in order to make a decision in this case is prejudicial;
•         she claims that she “was told 3 times by the College itself that they have no intentions of finding a doctor guilty of anything, regardless of the evidence, or severety [sic] of harm to the patient.”;
•         by refusing to investigate, the College is denying her “right to complain without consequences.”;
•         she concludes that by not obtaining a written retraction from the Respondent, which would then permit her to receive continued health care, the College is, in effect, “resinding [sic] my right to OHIP and Insurance benefits.”

12.            The Committee met on May 21, 2014 and determined that it would take no action, pursuant to section 26(5) of the Code on the basis that the complaint was frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process.

40.            For the reasons as stated, the Board finds the Committee’s decision to be reasonable. It is based upon information in the Record, the Committee’s analysis and consideration of the Applicant’s complaint and the allegations contained therein, and the Committee’s review of previous dispositions concerning similar facts and allegations. The Committee’s decision is one of the possible, acceptable outcomes that are defensible in respect of the facts and the law.

http://www.fairassociation.ca/wp-content/uploads/2015/12/Waldock-and-State-Farm-Preliminary-issue-FSCO-4315.pdf

Dr. Cashman’s assessment was deficient in several areas.  As earlier stated, I find that these deficiencies fail to support the position of State Farm in refusing to accept the assessment that Mr. Waldock is catastrophically impaired.  During cross-examination of Dr. Waisman, counsel for State Farm, perhaps inadvertently, emphasized that Dr. Cashman’s assessments did not follow the requirements of the Schedule and the AMAGuides.  Thus, I find I must give a little weight to Dr. Cashman’s assessments (as expressed in his written report), for there is no evidence offered by the insurer to contradict Dr. Waisman’s evidence.

Waldock and State Farm  [+] Arbitration, 2015-11-16, Reg 403/96. Expenses FSCO 4689.

In my decision on the preliminary issue, issued on November 10, 2014, I referred to the oral evidence of Dr. Waisman wherein he was critical of the report prepared and submitted by Dr. Cashman to State Farm.  State Farm relied upon Dr. Cashman’s report to deny that Mr. Waldock had suffered a catastrophic impairment.  State Farm did not bring Dr. Cashman as a witness to that Hearing and thus, I found that his report was untested and less credible evidence than that of Dr. Waisman and his colleagues at Multidisciplinary Designated Assessment Centre (“MDAC”), including Dr. Ameis.

Arbitrator orders rare special award against insurer

Emily Casey of Tkatch & Associates says the lesson to be learned is that it is not enough for the insurer to have reports stating the claimant is not impaired catastrophically. She notes State Farm did not have its medical expert attend the hearing and that forced the arbitrator to give less weight to State Farm’s medical arguments.

“Standing by a flawed report in denying catastrophic benefits resulted in a significant punitive award,” she says.

http://www.fairassociation.ca/wp-content/uploads/2015/08/Kraja-and-Wawanesa-Mutual.pdf

The Insurer argues that there is “absolutely no evidence of a brain impairment in this case.” It points out that no obvious head trauma was noted by ambulance or hospital personnel immediately after the accident; a CT scan taken on the day of the accident was normal; Mr. Kraja was able to actively clench his eyes, implying consciousness; his condition seemed to improve when he was assessed by the emergency room physician in that he became verbally responsive and was able to move all his extremities on command; and, he was discharged from hospital within three hours, into the care of his family physician.

However, the Insurer’s bald assertion is unsupported by the evidence…….

Dr. Robert Yufe, neurologist, also testified at the hearing, but he gave conflicting evidence. At first, Dr. Yufe said that the emergency physician’s diagnosis of concussion could not be supported by the physician’s own notes. However, he did not explain that statement. Later, he agreed that the Applicant may have sustained a concussion. By the end of his cross‑examination, Dr. Yufe stated that the diagnosis of concussion was valid and that he had never challenged it.

https://www5.fsco.gov.on.ca/AD/4558

Dr. Platnick carried out a paper review and on the basis of Dr. Platnick’s assessment, the Insurer determined, on February 4, 2013, in a letter to the Claimant, the OCF-18 was not reasonable and necessary to treat the impairment arising out of the March 5, 2008 motor vehicle accident. For specific details of the denial, the Applicant was referred to “a report of examination under Section 44 dated January 15, 2013, and completed by Dr. Howard Platnick, Physician”.

Before I proceed to my analysis, I have to comment on the assignment of a general practitioner by Primmum to conduct this Section 44 Assessment. The Insurer’s denial, and the origin of this dispute, was based on Dr. Platnick’s conclusions that the cost of the private school funding was not reasonable and necessary.  Dr. Platnick’s reports are found in the Joint Brief at Tab 31(e) and 31(f). The reports in the Joint Brief are described, incorrectly, as “Physiatry” Paper File Review Report of Dr. Platnick, MD.

Dr. Platnick’s reported expertise, as set out in the preamble of his report, has no relation to the expertise required to assess the Applicant’s OCF-18. His expertise, as a family physician, as stated in his “Assessor Qualifications”, is described as having a special interest in neuromusculoskeletal disorders, disability management and rehabilitation. He treats adult, pediatric, and geriatric populations and is involved in the treatment of chronic pain (chronic non-malignant pain – musculoskeletal and neuropathic) and headache patients including narcotic and adjunct medication prescribing/monitoring.

By the time of Dr. Platnick’s report in January 2013, almost five years had elapsed since the motor vehicle accident in 2008. The medical reporting, the exchange of letters between the Applicant’s counsel and Primmum, and prior Section 44 assessments during this timeframe indicated that the impairment symptoms in this very young Applicant were related to anxiety and its interaction with her learning disability, socialization and mood related issues and sleep disturbances. The school records at the time of his assessment reported early learning and fine motor skills development delays as well as below grade level academic performance.

With the exception of a more recent report from a treating psychologist, the Joint Brief indicates that the Insurer had access to most of the medical and school records as I have before me at the time Dr. Platnick completed his assessment.

By contrast, all prior Section 44 assessments – six are listed in the Joint Brief – were conducted by Dr. Amena Syed, an assessor with more relevant expertise. Dr. Syed states her qualifications in the preamble, as a registered psychologist with areas of competence in clinical, rehabilitation and neuropsychology. Her resume states she is qualified to provide these services to children, adolescents and adults. She has experience working with genetic, neurological, developmental and psychiatric/psychological illnesses providing consulting, assessment and treatment services.

The Insurer had to be aware of the required Section 44 assessment expertise when the OCF-18 Treatment Plan of August 2012 was submitted to the Insurer by Dr. Bremermann. The doctor made it clear in the Form that her patient:

is having learning difficulties and anxiety arising from the motor vehicle collision on March 5, 2008 which is affecting her studies at school. She is requiring private school funding to support her learning needs.

From the statements made by Dr. Bremermann on the submitted OCF-18 and the prior reporting history, showing the nature of the impairment and the numerous assessments of Dr. Syed, (seven are listed as having been reviewed by Dr. Platnick) it had to be evident to Primmum what the required Section 44 assessment expertise was to be. But for some reason, the Insurer selected a family physician.

Dr. Platnick concluded from the paper review that the treatment plan was not reasonable and necessary. The medical documentation in his view did not support a “head-trauma-acquired brain injury as a result of the MVA”, consequently, there was no organic-based, cognitive, accident-related impairment that would require the proposed “goods and services”, i.e., the tuition fees for Tall Pines School. Included in this conclusion, Dr. Platnick reviewed a neuropsychological assessment report prepared by Dr. Janine Hay, C. Psych., Clinical Neuropsychologist.

Dr. Hay’s report was not an assessment of a neuromusculoskeletal disorder. Prior to Dr. Platnick’s assignment in January 2013, the Insurer agreed to fund a neuropsychological assessment on the Applicant and her report was not available to Dr. Platnick at the time so his conclusions were delayed until he completed his review of  Dr. Hay’s report.

Again, as with Dr. Syed, Dr. Hay’s expertise is more in keeping with the assessment requirements. Dr. Hay works at Holland Bloorview Kids Rehabilitation. Her expertise, as stated in her testimony at this Hearing, is carrying out neurological assessments to assess cognitive functioning with respect to brain behaviour relationships and to understand the cognitive profiles, learning profiles and make recommendations for academic planning and rehabilitation.

It has to be questioned then, why the Insurer assigned a family doctor, with an interest in neuromusculoskeletal disorders, to review, comment, and making findings on a neuropsychological assessment report. It also has to be noted that the history of the claim in this case did not centre on a neuromusculoskeletal disorder but rather the interaction of anxiety and behavioural concerns with developmental learning skills.

Other documents in the Joint Brief show that the Insurer was aware that the Applicant’s anxiety and related issues were interrelated with the Applicant’s learning and educational development.

On August 9, 2012, five months prior to Dr. Platnick’s assessment, Ms. Edmonds wrote that in her view, the force of the impact “were sufficient to cause brain injury whether or not Kristen exhibited any signs of it immediately after the collision”. She goes on to write: “Your Neuropsychologist has already commented that there is evidence of symptoms of post-traumatic stress disorder and anxiety as well as developmental and cogitative impairments”.  Again, in a letter to Primmum, dated October 9, 2012, Ms. Edmonds wrote: “The purpose of Dr. Hay’s Assessment is to determine the nature and etiology of Kristen’s cognitive impairment, learning difficulties and anxiety”. In explaining the hoped for outcome of Dr. Hay’s assessment Ms. Edmonds stated:

I must determine whether her assessment, which is directed to cognitive problems and learning disabilities, will focus sufficiently on emotional and anxiety issues, as it is my understanding that the purpose of the  Psychological assessment was not only to assess Kristen’s difficulties and determine their relationship of them to the collision, but to formulate a treatment plan.

On October 22, 2012, the prior Section 44 assessor, Dr. Syed, wrote Primmum a clarification letter to show the difference between Neuropsychological assessment and a Psychoeducational assessment. Writing about the investigation of Kristen’s symptom aetiology, she stated: “The aetiology of her symptoms need to be understood from a brain behaviour perspective and investigated as such”.

From the history of the Applicant’s symptoms in the intervening almost 5 years, as documented in the Joint Brief; the medical reporting; and the investigations and assessments by the Insured, it is reasonable to infer that the Insurer was in error by assigning Dr. Platnick and accordingly, his conclusions can not to be relied upon. Dr. Platnick has neither the qualifications to review the submitted OCF-18, dated August 27, 2012, nor the qualifications to review Dr. Hay’s Neuropsychological Assessment Report. The reasons Primmum relied on in denying the Applicant’s claim have to be removed from consideration.