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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M.L. v G.D., 2015 CanLII 46 (ON HPARB), 2015-01-06

by Admin4

http://www.canlii.org/en/on/onhparb/doc/2015/2015canlii46/2015canlii46.html

51. The Committee considered the information in the Record and concluded that it remained extremely troubled by the Applicant’s apparent lack of understanding of his role as independent medical examiner or third party assessor.

52. The Committee noted that the Applicant conducted the appointments with the Respondent without obtaining the express consent and clarifying the purposes of the assessments; he communicated certain aspects of the Respondent’s health information directly to the Respondent’s employer also without the express consent of the Respondent; he provided medical treatment over several appointments to an individual whom he had been hired to assess by that individual’s employer, creating a conflict of interest between his role as third party assessor and treating physician to the individual; and he did not document the treatment provided to the Respondent nor the rationale for such treatment.

53. The Committee determined to issue a caution in person to the Applicant as he acted far beyond the scope of what is appropriate for an examiner or assessor, and appeared not to have an adequate understanding of the role of such a physician.

54. The Committee required the Applicant to attend the College to be cautioned regarding his obligations as an independent medical examiner or third party assessor and particularly with respect to:

• assessing a patient without adequate, informed consent;

• treating an individual who was not a patient;

• failing to obtain written consent to discuss his findings with the employer of the individual being assessed; and

• failing to document the treatment provided.

55. The Applicant and his Counsel made strong objections to the Committee’s analysis of the Applicant’s actions and submitted that he should not be judged by the Third Party Policy as he is a “company doctor” and practices in the Occupational Health and Safety Field and does not view himself as being subject to that policy.

56. The Board notes that this issue was addressed previously in this decision under ‘Adequacy of the Investigation,’ wherein the Board found that the Committee had retained an IOP practising in the occupational health field in order to have sufficient expertise to address the issues involved in this complaint.

57. As stated, the Committee, after considering the independent opinion, found that the Applicant is subject to the standards as set out in the Third Party Policy.

58. The Committee has considered the Applicant’s conduct and actions with the lens of the Third Party Policy and the assistance of an IOP practising in the Occupational Health and Safety field.

59. The Committee has based its findings on information in the Record.

60. Notwithstanding the Applicant’s strong objections, the Committee’s decision is a decision that falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and the law and is thus reasonable.

Comments are closed.

Tomec v. Magnat, 2015 ONSC 1928 (CanLII)

by Admin4

https://www.canlii.org/en/on/onsc/doc/2015/2015onsc1928/2015onsc1928.html

[34] Further, the plaintiff asserts that the defendant’s witness, Dr. Clark, repeatedly and in the face of my clear instructions gave improper evidence, which resulted in considerable delay and expense. Further, defence counsel was aware, at least partly, of the change in Dr. Clark’s evidence before he testified; however, the Court was not made aware of it prior to Dr. Clark testifying. As a result, the plaintiff submits that Dr. Clark’s disbursements, totaling $11,450.04, should be eliminated or reduced.

[35] I qualified Dr. Clark to give expert evidence. He testified that previously he has been qualified to give expert evidence in Superior Court. He either knows, or should know, the rules governing the nature of his testimony. His breaches of those rules resulted in a motion to strike the jury. His breaches caused considerable cost and delay to the trial.

Comments are closed.

Jazey and State Farm Arbitration, 2014-12-09, Reg 403/96. FSCO 4330

by Admin4

https://www5.fsco.gov.on.ca/AD/4330

1. Mr. Jazey is entitled to attendant care benefits in the amount of $4,027.21 for attendant care services provided by Lauralee Bushan-Jazey and Dianne Jazey from October 20, 2009 to December 31, 2009.

2. Mr. Jazey is entitled to receive the following medical and rehabilitation benefits pursuant to the Schedule:

a. $15,931.90 for purchase and installation of a hot tub, pursuant to an OCF-18 prepared by Elizabeth Fox, dated January 24, 2011;

b. $1,500.64 and ongoing incurred sums for massage therapy pursuant to an OCF-18 dated February 14, 2012, prepared by Amy Buffone, subject to a deduction for Mr. Jazey’s wife’s workplace extended heath benefit plan;

c. $1,008.70 representing the outstanding balance for psychological counseling, pursuant to an OCF-18 dated November 30, 2011, prepared by Dr. Jeffery McKillop; and

d. $38,176.10 for occupational therapy treatment and the current cost of ergonomic equipment pursuant to an OCF-18 dated May 26, 2011, and prepared by Nancy Gowan, OT.

3. Mr. Jazey is entitled to interest for the overdue payment of benefits pursuant to s. 46(2) of the Schedule.

4. State Farm is liable to pay a special award in the amount of $32,852.07, pursuant to s. 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Jazey.

5. State Farm is liable to pay Mr. Jazey’s expenses in respect of this arbitration.

State Farm denied Ms. Gowan’s treatment plan for the occupational therapy and ergonomic equipment on July 1, 2011. In its documentation, State Farm provided a report by Ms. Leslie Hisey, an occupational therapist who had conducted an Insurer’s examination to determine the reasonableness of Ms. Gowan’s occupational therapy and ergonomic treatment plan. The evidence indicated that that Ms. Hisey reviewed an incomplete list of medical records and apparently spent slightly over an hour undertaking her assessment.[7] In her conclusion, she stated that there is little medical evidence to confirm the etiology (the cause) of any motor vehicle accident-related neurological impairments. She opined that she needed greater confirmation of any link between the accident and the alleged impairments. However, State Farm did not bring Ms. Hisey as a witness to elucidate about what information she felt was lacking.

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Mr. Jazey requests that State Farm be liable to pay a special award pursuant to section 282(10) of the Insurance Act because State Farm unreasonably withheld or delayed payments to Mr. Jazey.

Section 282(10) of the Insurance Act states:

Special Award

If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50% of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

Pursuant to section 282(10) of the Insurance Act, I find that State Farm has unreasonably withheld or delayed payments to Mr. Jazey in denying treatments and withholding payments; State Farm accepted the opinions of its medical advisors to support its routine denials of benefits; and it should have been aware that these denials would cause Mr. Jazey undue stress and financial hardship and reduce the opportunity for him to recover from his injuries.

In paragraphs 203 to 221 and Schedules C and D of Mr. Jazey’s closing submissions, Mr. Jazey has detailed the particulars of his claim for a special award in the amount of $131,408.27, representing 50% of the benefits and interest to which he claims entitlement.

State Farm vigorously opposes Mr. Jazey’s entitlement to a special award. State Farm submits that Mr. Jazey “has failed to provide any records or evidence outlining the professional attendant care services provided by the CCAC for the period that the Applicant (Mr. Jazey) required attendant care. This information would provide a professional perspective in detail what attendant care was required, the specified period for which attendant care was required, and what ongoing attendant care may be required.”

State Farm also “submits that the evidence led by the Applicant provides no definitive insight into what services, if any, were required in addition to those professional services provided by the CCAC.”

Considering all the relevant factors in this matter, I agree with Mr. Jazey’s contention that State Farm has acted unreasonably and Mr. Jazey is entitled to a special award.

The Insurance Act states that an Arbitrator shall award a lump sum of up to 50% of the amount to which the person was entitled, etc. It does not set a quantum but leaves it to the Arbitrator to determine whether that amount should be one dollar or the maximum of 50%. In this matter, because State Farm has provided some benefits to Mr. Jazey and Mr. Jazey has been able to return to his self-employment, albeit to a limited degree compared to his pre-accident ability, and Mr. Jazey has failed to provide some specific documentation to State Farm, I am fixing the special award at 25% of the amount to which he claims entitlement.

I hereby order that State Farm shall pay a lump sum to Mr. Jazey of 25% of the amount to which he is entitled, which amount shall be $32,852.07.

Comments are closed.

Maxwell v. Luck, 2014 ONSC 7179 (CanLII)

by Admin4

http://canlii.ca/t/gfnxd

3. Is the impairment serious?

[18] The court heard from the defence expert medical witness, Dr. Michael Ford, a spine and trauma surgeon at Sunnybrook dealing with serious fracture cases. He is still active as a surgeon and does a significant amount of medico-legal assessments. He does not practice in the area of chronic pain but he is experienced in assessing it as an orthopedic surgeon. He categorically dismisses chronic pain complaints unless, as he said, he can see or understand the mechanism causing the complaint. He dismissed Dr. Alpert’s opinion as supposition.

[19] Dr. Ford gave this plaintiff a very cursory examination. It was his last appointment of the day. He took Ms. Maxwell’s history in ten to fifteen minutes and the physical examination consisted of Dr. Ford watching her walk, do a neck extension and neck rotation. He never palpated her so he could not have found what Dr. Alpert says he found as his own objective findings during his examination. He found that:

• she had a decreased range of motion doing different movements -he saw these as significant and in the 40% to 70% range;

• she had muscle tightness and tenderness to the touch in the cervical area from C2 to C6 – he could feel the tautness and ropiness in the muscles and ligaments there;

• she had tenderness to palpation over the occipital nerves.

[20] These findings were dismissed by Dr. Ford. He saw this case as simple and uncomplicated, where there were no objective mechanisms causing pain, therefore there could be no valid complaint. He understood that she had stopped working because of her pregnancy and that her complaints from the car accident in 2007 had long since resolved.

[21] If he had asked a few questions about these answers, he probably would have learned that she could not do the strenuous dances that success at her job demanded, being very dependent on tips; she could no longer do the one recreational activity she loved, horse-riding, though she did try and was hit in the head once and fell off a second time. Dr. Ford simply dismissed Ms. Maxwell and wrote a report concluding without even a full examination of the patient, that any complaints she had now must come from her prior or other medical history without any analysis as to what exactly in her past would have caused them but the 2007 collision; all other previous traumas were reported and the treating doctor or chiropractor could see no reason to follow up other than to suggest some rest. I do not accept Dr. Ford’s opinion nor do I sense that Dr. Ford has an understanding of the fundamental aspect of those chronic pain cases, which lack objective proof. Nevertheless they are very real to the patient. In finding as I do, I am not to be taken to take away from Dr. Ford as an excellent spinal surgeon who works with serious trauma patients often derived from serious fractures, and displacement and other severe physical trauma. But I question his expertise in the area of chronic pain due to his offhand examination, his failure to test by palpation or to observe a variety of movements, and his very brief approach to her medical history which is by no means a simple one to understand, both orally and through the many records from the treating practitioners.

Speaker’s Corner: An expert witness’ friendly advice on information he needs from lawyers

Monday, 11 March 2013 09:00 | Written By Dr. Michael Ford |

As an expert witness in the area of orthopedic trauma surgery, lawyers often ask me what they should provide in order to get an objective and informed opinion. That begs the obvious question: Don’t lawyers already know what to put in the box? In fact, they don’t always know.

What follows, then, is an expert witness checklist offered in the spirit of friendly medical advice.

First, provide the decoded OHIP summary and family physician’s notes. Claimants are not always reliable with respect to the description of their past medical history of neck or back pain and the family physician’s notes are extremely telling. The OHIP summary comes from the Ministry of Health and is a listing by date of all health services provided by all professionals. We need both to arrive at an accurate picture.

We also need the summary and notes to go back several years prior to the event whether it’s a slip and fall or a motor vehicle accident. It’s amazing how often I get notes that are from the time of the incident onward. I don’t care about that. I want to see the notes predating the event. Why? Because some people are dishonest.

In the notes, I will often find that there is a significant prior history of neck or back pain predating the event. They’re not misleading about having the pain; they’re being untruthful about their past medical history. I’ve had situations where I’ve asked for the notes and I’ve seen there have been 50 visits for neck and back pain and 100 treatments from a chiropractor even as the claimants maintain they’ve never had any problems before the event. Surprisingly, they don’t know I’m going to see the records or that I’m going to look at them, which is incredibly naive.

The difficulty is that I have to ask for those notes about 50 per cent of the time as they’re not in the box.

Second, we need imaging. The imaging, including X-rays and MRIs, are very rarely in the package and ideally it’s best if the lawyers could actually send those on a CD-ROM. I’ll see the reports arising from the imaging, but that’s a description by an individual of a picture and not the same thing as seeing it. If the report mentions something with respect to potential pathology, I want to see that imaging to ensure that it is in fact significant.

The issue is that radiologists will call things significant in a report that we don’t agree with. That’s because it’s not their backyard; they don’t get to see the imaging and then go do the surgery and see what’s clinically significant.

I get the imaging in less than 10 per cent of the files and in another 20 per cent I will have to ask for it. Why? I think lawyers for the most part assume the report is as good as seeing the picture. It’s important that lawyers not assume. It’s vital for me to deliver an opinion that is objective and accurate because I could potentially be up on the stand answering questions about whether I actually saw the pictures and I’ll have to respond that I did not. That’s not a situation any expert wants to be in.

Ensure the materials are up to date. It’s unbelievable how often I’ll see someone and all of the records stop two years prior. I’ll hear from claimants that they just had an MRI or surgery six months ago but I have no records. There’s a lag time between my seeing them and the incident.

The need for current records includes the family doctor’s notes, other expert reports, imaging studies, and other tests. Why? Claimants may not offer up the fact that they’ve had surgery or additional investigations and I need that to know what to look for. To be objective, you can’t take what the claimant says at face value.

This is not a situation where you’re seeing a patient who’s there merely to seek your help with a cure or for treatment. This is, for the most part, an adversarial situation and the individuals are seeing me as a defence expert because the lawyer for the other side wants them to see me. It’s a little different when I’m seeing them for plaintiff’s counsel but they’re still not necessarily being completely honest with their lawyer either. So I need to have as much factual material as possible to come to an objective decision.

In addition, the notes must be legible. When I get the family physician’s notes, they’re quite often totally and completely illegible. As a doctor, I can’t even read this other physician’s notes. We’re supposed to be able to, but sometimes they’re so bad you can’t even get a single word or the gist.

So instead of the expert having to ask to go back to the family physician and get them transcribed and typed, lawyers should look at the notes and if they can’t read them, they should save everyone time and get them deciphered.

When it comes to surveillance, it’s typically useless information. Unless it’s one of those rare circumstances where the surveillance shows the claimants doing something they allege they’re totally unable to do, it’s not pertinent. Lawyers should screen it first to see if it addresses their claim but should otherwise not include it in the package and waste time on the expert’s end going through it to come to the same conclusion.

There are a few things we don’t need. For instance, correspondence from insurance companies is a total waste. The forms sent to the insurance company for approval of care and benefits aren’t useful from a medical perspective, nor is any correspondence between them and counsel.

Psychological reports don’t help either except from the perspective of getting more insight into the individual.

Finally, I have a few tips on how to present the information. I’ll sometimes get a package that isn’t indexed and is just a pile of materials. It’s a waste of time and money because I spend more time than I should have to in order to generate a report. At the same time, if the individual is someone who has difficulties with English, an interpreter would help. By the same token, it’s surprising how many times an interpreter shows up for no reason. Don’t assume the need for one.

It can also be helpful to provide police reports and photos of vehicle damage. Often, there’s a discrepancy between the claimant’s description of the event and reality.

Comments are closed.

Burwash v. Williams, 2014 ONSC 6828 COURT FILE NO.: 09-43777 DATE: 2014/11/25

by Admin4

https://www.canlii.org/en/on/onsc/doc/2014/2014onsc6828/2014onsc6828.html

[6] Cira is not a party to this litigation. It is a national company in the business of providing medical assessments and health services for several corporate, insurance and medical legal communities through a network of independent health professionals. Cira was created in June 2012 and is a combination of two companies, namely, Riverfront Medical Services (“Riverfront”) and Medisys IMA.

[7] The Defendants retained Cira to co-ordinate defence medical examinations of Ms. Burwash conducted pursuant to s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[8] The Defendants do not object to the production of the files.

[9] The Defendants have requested disclosure of Cira’s complete files. The Plaintiffs allege that only partial production of the files has been made to date.

Timing of the Motion

[10] The Plaintiffs assert that they had no reason to suspect that Cira was involved in the review, revision and editing of draft expert reports until the examination for discovery of Dr. St. Pierre when answers and subsequent productions indicated that Cira may be using third parties to review and revise the Defendants’ expert reports.

[11] I am satisfied that the Plaintiffs have brought this motion at the earliest opportunity and that they could not have reasonably discovered that the issue existed any earlier.

[28] Rule 53.03 of the Rules of Civil Procedure is designed to ensure the independence and integrity of the expert witness. The duty of the expert witness is to be of assistance to the court. Each expert witness is required to sign an acknowledgement that they are providing an independent and unbiased opinion. If there is reason to believe that the expert’s report or opinion has been influenced by unknown third parties and is therefore not entirely the expert’s opinion, the fundamental rationale for accepting expert opinion evidence is no longer present and hence the report is not only not helpful to the court but may become misleading. This is an issue that is directly related to trial fairness.

Comments are closed.