https://www5.fsco.gov.on.ca/AD/4290

AXA’s medical evidence

AXA relies on two Insurer Examination (IE) reports: one by Dr. Urovitz dated August 25, 2010[16] and the other by Dr. Waisman dated August 23, 2010[17], which state that Mrs. Shokat does not suffer a substantial inability to engage in her pre-accident housekeeping duties.

Dr. E. Urovitz

Dr. Urovitz, an orthopaedic surgeon, who assessed Mrs. Shokat on behalf of AXA, stated in his report dated August 25, 2010[18] that Mrs. Shokat’s complains at the time of her visit were constant daily pain in her right wrist, right ankle, right fifth finger, central neck and central lower back. He diagnosed her with a “soft tissue injury to the right wrist and right ankle, contusional injury to the right lower extremity, neck strain … and lower back strain” … as a result of the motor vehicle accident.

He opined that Mrs. Shokat had suffered a soft tissue injury to her right wrist and that, from an orthopaedic perspective, Mrs. Shokat did not suffer a substantial inability to engage in her pre-accident housekeeping duties.

He however recommended an MRI of the right wrist because of the ongoing complaints to her wrist to rule out the possibility of an internal derangement particularly meniscal damage.

Dr. Waisman

Dr. Waisman, a psychiatrist, assessed Mrs. Shokat on behalf of AXA on July 30, 2010. In his report dated August 23, 2010[19], Dr. Waisman stated that Mrs. Shokat reported having mood fluctuations based on the degree of pain felt. She further reported having poor concentration and memory since the accident. He opined that Mrs. Shokat was not substantially unable to perform her pre-accident housekeeping tasks from a psychiatric perspective.

Findings on Disability

There is no evidence that Dr. Urovitz or any of AXA’s assessors reviewed the results of the MRI of December 2010 which revealed a triangular fibrocartilage tear to Mrs. Shokat’s right wrist.[20] I find it pertinent that the only assessors who had the benefit of reviewing the MRI of her wrist before forming an opinion on Mrs. Shokat’s physical injuries were her assessors.

Albeit, Dr. Schofield, who assessed Mrs. Shokat in October of 2011, seemed to have a different opinion from Dr. Tuli in that he did not think that surgery would be beneficial to Mrs. Shokat’s hand and instead recommended ongoing exercise to gradually improve her grip strength, I note that his report is indicative of the fact that her symptoms continued to persist at the time of her visit. Therefore, I find it reasonable to infer that resuming her pre-accident housekeeping tasks at that time would result in an exacerbation of her symptoms.

I find on a balance that the objective medical evidence does not support AXA’s evidence on Mrs. Shokat’s inability to perform her pre-accident housekeeping tasks, particularly Dr. Urovitz’s opinion. I find that the objective medical evidence supports the disability certificate − therefore, I prefer this evidence.

https://www5.fsco.gov.on.ca/AD/4291

Mrs. Nguyen submits that Dr. Monte Bail, the psychiatrist at Lorak, wrote a report that “purposely contained errors, changed and edited information from Ms. Nguyen’s previous insurer’s examination reports to ultimately fit his opinion that Ms. Nguyen’s caregiver benefits should be terminated.” However, as noted above, the Arbitrator did not assign great weight to Dr. Bail’s report. He found that Dr. Bail “did not fairly assess Mrs. Nguyen. His report was profoundly impacted by his belief that Mrs. Nguyen was not truthful about taking medications prior to the motor vehicle accident. In fact, Mrs. Nguyen’s family doctor had made an error which led Dr. Bail to reach the conclusion that he did.”

http://canlii.ca/t/g8gcq

1.                  It is the decision of the Health Professions Appeal and Review Board to confirm the decision of the Inquiries, Complaints and Reports Committee of the College of Occupational Therapists of Ontario to:

(i)                 issue a caution to D.H., OT, to attend before a panel of the Inquiries, Complaints and Reports Committee for a verbal caution regarding his obligations as a regulated health care professional to accurately report on a client’s functional presentation, to adequately inquire about, review and consider the impact of a client’s cognitive deficits in his assessment, and to use appropriate language and tone in his reports;

(ii)               to provide guidance to D.H., OT by:

(a)    recommending that he try to strike a better balance, and to ensure that he thoroughly reviews and analyzes the reports of his client’s practitioners which relate to psychological and cognitive health, and not merely physical health and;

(b)    encouraging him to carefully review, and where appropriate, to cite healthcare practitioners reports that raise salient points which do not support his point of view.

2.                  This decision arises from a request made to the Health Professions Appeal and Review Board (the Board) by D.H., OT (the Applicant and Respondent by cross-review) to review a decision of the Inquiries, Complaints and Reports Committee (the Committee) of the College of Occupational Therapists of Ontario (the College). The decision concerned a complaint made by S.H., (the Respondent and Applicant by cross-review) regarding the conduct and actions of the Applicant.

8.                  The Respondent complained that the Applicant:

•                     made false claims and inaccurate statements in his assessment report

about the patient;

•                     misused the reports of other healthcare professionals;

•                     is incompetent because he failed to ask appropriate questions during

the assessment and has poor observational skills; and

•                     is biased in his report in favour of the insurance company that hired him

The Committee’s Decision

13.              The Committee investigated the complaint and decided to:

(i)                 issue a caution to the Applicant to attend before a panel of the Committee for a verbal caution regarding his obligations as a regulated health care professional to accurately report on a client’s functional presentation, to adequately inquire about, review and consider the impact of a client’s cognitive deficits in his assessment, and to use appropriate language and tone in his reports;

(ii)        to provide guidance to the Applicant by:

(a)    recommending that he try to strike a better balance, and to ensure that he thoroughly reviews and analyzes the reports of his client’s practitioners which relate to psychological and cognitive health, and not merely physical health and;

(b)    encouraging the Applicant to carefully review, and where appropriate, to cite healthcare practitioner’s reports that raise salient points which do not support his point of view.

38.              The Committee noted the Applicant’s conduct history before this Committee and that it has previously offered him guidance with respect to the fact that tone and overall presentation of findings can affect interpretation of such findings and to be mindful of verbal and non-verbal communication. It stated that the similarity between the current complaint and prior matters before the Committee was of concern and it decided to issue a verbal caution to the Applicant about the use of appropriate language and tone in his reports.

45.              In addition, the Board finds reasonable the Committee’s decision to caution the Applicant due to its concerns. Among the array of educative or remedial dispositions available to the Committee, the decision to caution is one of the available dispositions. A caution is advisory and intended to be remedial; it is not a sanction. The Code requires the Committee to consider the Applicant’s conduct history and, as noted by the Committee, it had previously offered him guidance with respect to the fact that tone and overall presentation of findings can affect interpretation of such findings and to be mindful of verbal and nonverbal communication. The Committee reasonably took this fact into consideration in determining to issue a verbal caution.

Declining to partake in tests and Cognitive Assessment

46.              The Committee considered that the Respondent asserted that the patient did not decline to partake in tests but simply sought rests, whereas the Applicant disagreed.

47.              The Committee considered the information contained in the report of the patient’s treating occupational therapist, who was present for the Applicant’s assessment and who disagrees with the Applicant’s position in this regard.

48.              The Committee concluded that the patient did not decline to participate in all range of motion testing as reported by the Applicant, based on the information before it from the patient, the Respondent and the patient’s treating occupational therapist.

49.              The Committee thus found that there was evidence before it that the Applicant’s report contained inaccuracies with regard to the issue of declining to partake in tests.

50.              The Committee then considered the issue of cognitive assessment and concluded that the patient demonstrated significant cognitive deficits on the Montréal Cognitive Assessment test (MOCA) related to visual spatial and executive function, naming, memory, attention, language, orientation and delayed recall. The Committee concluded these are serious concerns which appear to have been heavily discounted by the Applicant.

51.              The Committee further found that the Applicant appeared to have ignored the emotional social sequelae that the patient seems to have experienced as a consequence of her motor vehicle accident. In particular, the Committee noted that the Applicant made little reference to the patient’s diagnosis of post-traumatic stress disorder as well as the grief she experienced as a consequence of the loss of her husband in the accident.

52.              The Committee concluded that it had significant concerns about the Applicant’s assessment of the patient as it related to her cognitive presentation and the consequence to her function.

53.              In the Committee’s opinion, there was sufficient information before the Committee demonstrating the presence of inaccurate statements in the Applicant’s report.

54.              For these reasons, the Committee decided to issue a verbal caution to the Applicant about the importance of accurately and completely reporting on the patient’s functional presentation, as well as his obligation to adequately inquire about, review and consider the impact of the patient’s cognitive deficits in his assessment.

Concern two

The Applicant misused the reports of other healthcare providers

61.              The Committee concluded that it does not believe the Applicant is in a position to make an assessment as to the honesty of the other healthcare provider reports. It noted that, as required by standard 2B of the Standards for Occupational Therapy Assessments, he can review the reports, compare them to the information he obtained during the assessment, and make a reasonable effort to ensure currency and accuracy of information collected from other sources. It further noted that he is not obliged to determine if the report of another health practitioner has false information. Accordingly, the Committee determined it would take no further action in response to this concern.

62.              However, the Committee was concerned that the Applicant quoted largely from the practitioners whose opinions coincided with his own. The Committee noted that it appears that the Applicant sought evidentiary support from a select few practitioners to reinforce his decision and disregarded evidence from practitioners whose opinions he did not share. The Committee decided to recommend to the Applicant that he try to strike a better balance, and to ensure that he thoroughly reviews and analyzes the reports of his client’s practitioners which relate to psychological and cognitive health, not merely physical health. Moreover, the Committee encouraged the Applicant to carefully review, and where appropriate, to cite other health care practitioners’ reports that raise salient points which do not support his point of view. Other than offering this guidance to the Applicant, the Committee determined it would take no further action in response to this concern.

63.              The Board finds these determinations by the Committee to be reasonable. They were within the realm of the Committee’s expertise. There is no persuasive information in the Record or advanced at the Review to demonstrate that the Committee’s opinions on these points are inappropriately applied or that the rationale was unsupported.

Concern Three

The Applicant is incompetent because he failed to ask appropriate questions during the assessment and has poor observational skills.

64.              The Committee agreed with the Applicant’s statement that the patient’s shower bars are not assistive devices and that there is no information before it that the Applicant’s observations and reporting of the patient sitting tolerances were due to a lack of observational skills.

65.              Accordingly, the Committee made no finding that the Applicant lacks observational skills.

66.              Regarding the Respondent’s submission that the Applicant failed to make adequate inquiries about the patient’s ability to take public transit, the Committee was of the opinion that the Applicant did not sufficiently probe into the patient’s transportation and travel concerns. The Committee found that he did not inquire about her ability or inability to take public transit but relied instead on the information in the physician’s report to draw the conclusion that public transit was an option for the patient.

67.              The Committee determined that this fact, combined with the Applicant’s failure to make further inquiries about the patient’s cognitive impairments (as discussed previously), led the Committee to agree that the Applicant failed to ask appropriate questions of the patient during the assessment.

68.              The Committee noted that occupational therapists are required to use safe tools and assessment methods together with adequate information for the analysis of the patient’s occupational performance issues in relation to the request for service.

69.              The Committee stressed the importance of gathering adequate subjective and objective information from the client as accurately as possible. For the reasons as stated, the Committee determined to issue a verbal caution to the Applicant in response to this concern.

70.              In addition, the Board finds these determinations by the Committee to be reasonable. They were within the realm of the Committee’s expertise. There is no persuasive information in the Record or advanced at the Review to demonstrate that the Committee’s opinions on these points are inappropriately applied or that the rationale was unsupported.

71.              The Board finds the Committee’s decision to issue a verbal caution as a result of its concerns to be reasonable as the decision to issue a verbal caution is one of the dispositions available to the Committee amongst its array of dispositions. It is advisory and intended to be remedial; it is not a sanction.

Concern Four

The Applicant’s report is biased in favour of the insurance company that hired him.

72.              The Committee determined that there was no information before the Committee that indicated that the Applicant was biased in favor of the referral source, the insurer. It noted that inaccuracies in the report are not evidence of bias, nor are differences of opinion between occupational therapists.

73.              For this reason, the Committee took no further action with respect to this concern.

74.              The Board finds the Committee’s conclusion regarding this issue to be reasonable as it is based on information in the Record and the Committee’s expertise. There was no persuasive information in the Record or advanced at the Review to demonstrate that the Committee’s opinion on this point was inappropriately applied or that its rationale was unsupported.

Conclusion

75.              For the reasons as stated, the Board finds the Committee’s investigation to be adequate and its decision to be reasonable.

VI.      DECISION

76.              Pursuant to section 35(1) of the Code, the Board confirms the Committee’s decision to:

(i)                 issue a caution to the Applicant to attend before a panel of the Committee for a verbal caution regarding his obligations as a regulated health care professional to accurately report on a client’s functional presentation, to adequately inquire about, review and consider the impact of a client’s cognitive deficits in his assessment, and to use appropriate language and tone in his reports;

(ii)               to provide guidance to the Applicant by:

(a)    recommending that he try to strike a better balance, and to ensure that he thoroughly reviews and analyzes the reports of his client’s practitioners which relate to psychological and cognitive health, and not merely physical health and;

(b)    encouraging the Applicant to carefully review, and where appropriate, to cite healthcare practitioners reports that raise salient points which do not support his point of view.

https://www5.fsco.gov.on.ca/AD/4201

Although he found that she continued to have symptoms substantially similar to complains identified in his earlier assessment, Dr. Best concluded that Ms. Burgess had made progress, and her ongoing complaints were likely not related (or at least no longer mainly related) to the accident. As a result, Dr. Best found that Ms. Burgess no longer suffered from a substantial inability to return to her pre-accident employment. On the basis of this follow-up assessment, Pembridge terminated Ms. Burgess’ entitlement to IRBs on the basis of disability in an OCF-9 dated December 11, 2008. 

Dr. Best’s conclusion that Ms. Burgess could return to her pre-accident employment is problematic on a number of fronts. First, he did not comment on the work Ms. Burgess had been doing and, on cross-examination, stated that he arrived at his conclusion on the understanding that Ms. Burgess was working as an accountant. He does not appear to have considered her work as owner/operator of Docktails. Dr. Best also testified that, according to his understanding, “substantial inability” means being able to do less than 50% of a job.[19] It was his opinion therefore that Ms. Burgess was capable of doing 51% or more of the tasks of an accountant. However, he could not say how much more than 51%. Dr. Best also testified that Ms. Burgess’ ongoing cognitive symptoms, fatigue and sleep disorder could be attributed to a number of factors not related to the accident, such as the stress of her job as an accountant and weight gained after stopping the drug topiramate following her first rhizotomy.[20] However, Dr. Best’s evidence was not clear regarding how much weight Ms. Burgess may have gained after she stopped taking topiramate.

I find that Dr. Best’s opinion that Ms. Burgess’ ongoing symptoms were likely no longer mainly related to the accident was, in large part, a reflection of his expectation that Ms. Burgess’ post-concussive symptoms should have resolved by the time of his second assessment. As stated in his December report, “the contribution from the motor vehicle accident itself is fading into the distant past, or should be at least.” [my emphasis] Dr. Best did admit on cross-examination that, in a minority of cases, post-concussive symptoms linger, and he agreed that this was possibly the case with Ms. Burgess, although he resisted that conclusion.

In summary, Pembridge terminated IRBs on the basis of Dr. Best’s follow-up assessment in December 2008. The assessment is fraught with problems, including a misapprehension of Ms. Burgess’ pre-accident employment and the test of disability, as well as what seemed to be a bias toward the conclusion that Ms. Burgess’ recovery from post-concussive syndrome should have followed the rule, rather than the exception.