https://www5.fsco.gov.on.ca/AD/4142

(2)  Consequently, State Farm had Ms. Morelli seen at an insurer’s medical examination (“IME”) by three medical examiners, Dr. D. Young, psychologist, Dr. B. Clark, physiatrist and Dr. J. Richman, an occupational medicine specialist.

(5)  State Farm’s examination consisted of all three separate IME reports. The Arbitrator found that State Farm was obliged to ensure that both Ms. Morelli and Dr. Persi received all three IME reports, as well as receiving State Farm’s determination whether Ms. Morelli had sustained a catastrophic impairment. Where only some of the reports are provided, or a summary of several reports and a finding, the insured’s health practitioner is unable to fully examine and dissect the IMEs and determine what to rebut. (2)  Consequently, State Farm had Ms. Morelli seen at an insurer’s medical examination (“IME”) by three medical examiners, Dr. D. Young, psychologist, Dr. B. Clark, physiatrist and Dr. J. Richman, an occupational medicine specialist.

The Arbitrator found that State Farm did not comply with subsection 40(4) because it did not send all of its CAT IME reports to Dr. Persi, having provided only Dr. Clark’s assessment and Dr. Richman’s executive summary.

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http://canlii.ca/t/g0c3b

4.                  As part of her practice as a registered physiotherapist, the Respondent is regularly retained by medical assessment companies and insurers as an independent third party assessor to perform examinations to assist in determining the reasonableness and necessity of continued coverage for physiotherapy treatment.

5.                  In performing her assessments, the Respondent reviews the medical records provided to her by the insurer and may conduct an examination, which includes taking a history, and performing a physical examination and testing of the subject. In other cases, the Respondent bases her assessment solely on a paper review of the subject’s medical file. The nature of the assessment and the content of the medical record reviewed by the Respondent are determined by the insurer.

6.                  The Applicant was referred to the Respondent for six independent assessments. The Respondent provided in-person, physical examinations of the Applicant on four occasions and conducted two assessments based on a paper review of the Applicant’s medical records.

7.                  The Respondent’s assessments of the Applicant done on December 7, 2010 and May 17, 2012 each concluded that the proposed treatment plans were entirely reasonable and necessary. The assessments done on March 24, 2011 and July 14, 2011 concluded that the proposed treatment plans were partially reasonable and necessary. The paper review assessments done on August 29, 2011 and March 12, 2012 concluded that the proposed treatment plans were not reasonably necessary.

The Complaint and the Response

8.                  The Applicant complained:

•           The Respondent repeatedly made negative comments about the Applicant’s treating physiotherapist. The Respondent stated that his physiotherapist’s “lack of information provided in reports is hurting [the Applicant] and [resulting in him] having to go through IME after IME”;

•           The Respondent submitted reports that were “riddled with mistakes” and she quoted him making statements that are “completely ludicrous”;

•           He believes that the Respondent’s “opinion seems to be favouring [his] insurance company’s bottom line”;

•           The Respondent failed to amend her report dated March 13, 2012 after additional documentation was provided to her; and

•           At his assessment on July 14, 2011, the Respondent “suggested to [him] that it might be in the best interest for [her] to call [his treating physiotherapist] directly” for clarification of an OCF-18 form; however, the Respondent failed to follow up with the treating physiotherapist.

9.                  The Respondent responded to the areas of concern raised by the Applicant as follows:

•           She advised the Applicant that some of the treatment plans submitted by his treating physiotherapist lacked an explanation as to why the proposed treatment was reasonable and necessary, and that this resulted in the Applicant having to undergo repeated assessments. She meant no disrespect to the Applicant’s treating physiotherapist and, in fact, complimented the progress the Applicant was making under his treating physiotherapist.

•           The Respondent acknowledged that there were some minor inaccuracies in her reports but stated that she relied on information the insurer and the Applicant provided to her and noted that none of the inaccuracies was material to the conclusions in her assessment reports.

•           The Respondent acknowledged that she does copy basic information from one report to another, citing that this is common practice, and thus avoids having to cover this prior ground each time.

•           The Respondent stated that her reports were not biased in favour of the insurer and noted that her opinions were, for the most part, favourable to the Applicant.

•           The Respondent stated that she was not aware of any further information being provided to her after the paper review of March 13, 2012 and noted that she was never asked by the insurer to complete an addendum report based on new information.

•           The Respondent denied that she offered to contact the Applicant’s treating physiotherapist and stated that it was not her usual practice to do so during the assessment process. She suggested that the Applicant may have confused this point with her willingness to speak with treating medical professionals after her assessment and report were completed.

The Committee’s Investigation and Decision

10.              The Committee investigated the complaint and decided to provide the Respondent advice about ensuring the accuracy of her reports and the need to ensure that her practice in this regard is appropriate and to take no further action.

http://canlii.ca/t/g0n2f

The Complaint and the Response

5.                  The Applicant complained about the Respondent’s examination and conclusion. She took issue with many aspects of the assessment. For example, the Respondent concluded that the Applicant suffered from significant lower back pain several times a month while the Applicant asserted she experiences such pain every day. The Respondent noted a curvature of the spine in the IME report, which the Applicant complained was false. The Respondent concluded that the Applicant was not impaired by any accident related injury from continuing her schooling and the Applicant complained that this assessment was false.

6.                  In addition, the Applicant complained about the way in which the Respondent conducted the IME, alleging that the Respondent rushed through the assessment, failed to conduct a physical examination, and failed to consider x-ray and radiographic reports.

7.                  The Respondent provided a detailed rebuttal of the allegations, explaining the basis for each conclusion in his observations during the IME or the available medical records. He noted that all available records were reviewed, and that a physical examination was not necessary for the IME. Further, he denied that the IME was rushed, or conducted in an improper fashion.

http://canlii.ca/t/g0c3g

7.           […]The Respondent notified the Committee that, through the complaints process, she had discovered that Riverfront Medical Services (Riverfront), the company through which the Applicant’s assessment was contracted, had changed the Respondent’s report without her prior knowledge or consent.

9.                  As a result of its investigation, the Committee decided to take no further action, noting that the Respondent reported information that she considered to be accurate and that there did not appear to be any indication that the Respondent intentionally falsified factual information in the report or that she misrepresented information about the Applicant’s abilities during the assessment.

10.              However, the Committee did express concern about the information uncovered during the course of the investigation related to Riverfront having altered the Respondent’s report. The Committee noted the “egregious” impact that these changes could have had on the Applicant’s entitlement to benefits. In the result, the Committee decided to offer advice to the Respondent about the importance of ensuring that she personally reviews and approves any assessment report she completes prior to the report being issued.

http://canlii.ca/t/1q596

[1]            In the course of this jury trial I ruled that Dr. Frank Lipson, who had conducted a defence medical of the plaintiff, not be permitted to testify as an expert witness on behalf of the defence. Dr. Lipson had testified that a medical report purportedly signed by him had not been signed by him.  He stated that his signature stamp had been affixed to the report without his authority by an individual at Riverfront Medical Evaluations Limited (Riverfront) the company who had retained him to conduct the defence medical. […]

[2]            I have deliberated for a very long time before delivering these reasons. Although the action out of which the problem arose has long been concluded, this case raises vexing issues as to what role may be properly played by organizations such as Riverfront in the formulation of an expert witness’ opinion.

[43]        Twenty percent of their physicians conduct their assessments off site in which case the physicians will prepare their reports and send it to Riverfront by fax or other electronic means.  Riverfront performs its quality control function and sends the report to the physician for comments if required.  After consultation with the physician, the report will be prepared on Riverfront’s letterhead and signed by the physician or as in the case at bar a signature stamp is affixed to the report, which is sent to the referring client.

[44]        In many cases Riverfront has a signature stamp of the doctor, which the doctor authorizes them in writing to use. Dr. Levy produced a letter dated January 5, 2004 in which Dr. Lipson authorized Riverfront to utilize a signature stamp/electronic signature when issuing assessment reports – “when I am unable to directly provide my signature”.  The authorization provides that signature stamp would only be used “once I have approved the final copy of my report”.

[88]        It is stating the obvious that an expert’s report delivered for the purpose of compliance with the Rules of Civil Procedure and the Evidence Act is an extremely important document. Anyone involved in the preparation of such reports must know that courts place a very strong reliance on the contents of these reports and that the proper administration of justice demands that these reports accurately reflect the opinion of the expert who has written them. The requirement in the Rules of Civil Procedure and the Evidence Act that the expert sign the report is intended to provide assurance that the statements in the report are those of the expert.

[100]   Expert witnesses play a vital role in proceedings before the courts both in civil and in criminal matters. In personal injury actions in particular, the evidence of the expert witness may be the determining factor in the resolution of the plaintiff’s claim In the case of health practitioners, section 52 of the Evidence Act provides under certain conditions, the report may be filed in place of the viva voce evidence of the health practitioners. The court is entitled to assume that the report represents the impartial opinion of the expert.

[101]    In my view Riverfront in this case, went far beyond what can be considered a proper “quality control” function. While I am not prepared to find that they were motivated by a desire to assist the defendant, nonetheless I find their actions constituted an unwarranted and undesirable interference with the proper function of an expert witness.

[102]   The function of an expert witness is to provide an independent and unbiased opinion for the assistance of the court. An expert witness’ evidence should be and should be seen to be the independent product of the expert uninfluenced as to form and content by the exigencies of litigation.[2]  This principle has often been cited with approval in our courts, and has been considered a factor to be considered in asessing the weight to be given to the expert’s testimony.  It has occasionally been treated as the basis for the disqualification of the witness entirely.[3]

[103]   In my view any activity that may tend to detract from this all-important objective diminishes the integrity of the litigation and trial process and should be met with appropriate sanctions designed to send a clear message that such conduct will not be tolerated.