http://www.canlii.org/en/on/onsc/doc/2014/2014onsc356/2014onsc356.html

[1]     State Farm seeks leave to appeal the decision of Lococo J. 2013 ONSC 2941 (CanLII), (2013 ONSC 2941)  dismissing the motion of the Applicant seeking to have the claims of the Plaintiffs, for punitive and aggravated damages only, declared a nullity. For the reasons that  follow I would dismiss this motion.                       

Backgound:

[2]        Future Health Inc. was in the business of providing treatment plans and health care services to patients injured in motor vehicle accidents.  The patients were covered by automobile insurance policies issued by general insurance companies, including State Farm Mutual Automobile Insurance Company of Canada.

[5]           In this action, the Plaintiff has claimed damages for intentional interference with economic relations, inducing breach of contract, bad faith and conspiracy.  The Plaintiff also seeks aggravated damages as well as punitive and exemplary damages against State Farm.

[24]         The motion before Lococo J. was certainly important to the parties as it was an attempt to eliminate a major part of the claims advanced by the Plaintiff. That however, is not the test under the rule. The onus is on the Applicant to persuade me that the issue decided by Lococo J. is of such public importance to the development of the law and the administration of justice that leave to appeal should be granted. The Applicant has not so persuaded me. The law under Rule 21 has been established for decades. There is no reason to revisit it. The decision of the motions judge was a simple case of him properly exercising his discretion under a rule which has a long, well established history, and is used only to dismiss cases where it is plain and obvious they cannot succeed. That is not this case.

http://canlii.ca/t/g2dfc

[4]  ….The only witness offered by the defendant was one overused expert who submitted a report in which he offered his opinion on matters outside the expertise of a physician together with an inaccurate curriculum vitae. The witness lost his temper during reasonable cross-examination and made a bad impression.

[6]….Mediation took place on November 14, but the defendant’s insurer stood firm. I infer that it took a six-day trial with all its attendant risk for the sake of $50,000. This is a litigation strategy that the defendant could well afford, but the plaintiff could not. I infer that the insurance company conducted itself this way in the hopes of intimidating the plaintiff and deterring other plaintiffs who have meritorious cases. It did not attempt to settle the action expeditiously as required by s.258.5 of the Insurance Act.

https://www5.fsco.gov.on.ca/AD/4048

I prefer the testimony and ratings of D.B. provided by Dr. L. Becker to those of Dr. Paitich. Dr. L. Becker’s findings were consistent with other reports and were the result of detailed observations. Dr. Paitich made no actual measurements and found that D.B. could stand independently although she had one hand on the examining table for support and was vertical for a very short time. The foundation of Dr. Paitich’s WPI rating was flawed in that he refused to assess D.B. as she appeared in his office but instead, persisted in treating her as an amputee, which is not in keeping with the Guides. He compounded his error by not rating D.B.’s chronic neck, shoulders and low back pain, her scarring and skin condition, her hernia and daily use of opioid medications…

…Dr. Paitich calculated SOMA’s overall WPI rating for D.B. In Dr. Paitich’s opinion, D.B. does not qualify for the catastrophic impairment designation. He assigned her a WPI rating of 35%. Dr. Reznek found no impairment in his mental/behavioural evaluation while Ms. Freedman, the occupational therapist, rated it a mild impairment. Dr. Paitich determined 10% based on the report of Ms. Freedman, the occupational therapist. By choosing 10%, he appeared to have rejected his own psychiatrist’s opinion about D.B.’s impairments. Dr. Paitich disagreed and testified that 10% was a compromise between the two findings.

…Dr. Paitich applied no objective tests to rate D.B.’s mobility. He accepted that she used a walker indoors but he never asked her how far she used it. Ms. Freedman, the occupational therapist, was far more specific in her examination and noted D.B.’s inability to adopt a single leg stance, tandem gait, and her inability to stand independently. D.B. was not asked by Dr. Paitich about the walker and there was no demonstration by D.B. of her mobility using a single point cane. Instead, Dr. Paitich chose to treat D.B. as analogous to an amputee with a 28% WPI rating. There also was no acknowledgement of D.B.’s functional limitations in her knees, neck, shoulders and back which should have been rated. However, the Guides speak to evaluating impairment of different body systems by rating the scores for each system independently.[25]…

…Dr. Harold Becker has also answered the unspoken question as to why Omega devoted so much care to assessing and calculating D.B.’s discrete impairments if the ultimate conclusion is that she is wheelchair dependent. The answer is that the constellation of D.B.’s impairments, both physical and mental/behavioural, created a perfect storm of impairment which resulted in her wheelchair dependency. For that reason, each of her discrete impairments must be evaluated and appreciated. I do not agree with Economical’s position that D.B. must be either paraplegic or quadriplegic to qualify as wheelchair dependent. No such requirement can be found in the Guides…

…It is understandable that D.B. is reluctant to consent to a lower limb amputation when she is uncertain about the result. I attach no weight to the WPI rating assigned by SOMA, which was based on an amputation D.B. has not had. Dr. Paitich also insisted that D.B. could walk with a single point cane and an air cast but I was presented with no evidence to support that assertion.

https://www5.fsco.gov.on.ca/AD/4047

Ms. J. has particularly taken exception to Dr. Hines’ role in the assessment process, claiming that his psychiatric assessment was flawed and that he overlooked key elements of potential evidence. Dr. Hines is also said to have made assumptions about Ms. J.’s recovery that stood in stark contrast to the opinions of her treating health professionals.

In other words, Dr. Hines essentially missed the boat on a woman who had severely disabling depressive symptoms to the degree that she became a suicide risk. She could not on any reasonable examination of her treatment records be said to be in remission, either with regard to her substance abuse or her depression.

I accept Ms. J.’s submissions that Dr. Ahmed, her treating psychiatrist, was better placed to evaluate Ms. J.’s progress or lack of progress over a lengthy period of time, and I would accept that his view of Ms. J.’s psychological state will carry more weight than any brief snapshot by a non-treating assessor, even without the alleged misapprehension by Dr. Hines of the underlying conditions.

Rebuttal reports became important with the paring back of the DACs and other consumer protection inventions that had been intended to provide some degree of objectivity to the assessment and determination process.

With the demise of DACs, the final determination as to entitlement was made by the Insurer, presumably on the advice and with the assistance of its own assessors. Most of these assessors were drawn from an informal roster of professionals who gave their professional opinions to litigants. Not a few of these were characterized as “hired guns” by those disagreeing with an assessor’s opinion.

Thus, when an insurer’s expert conducted an insurer’s examination on a claimant, it made sense that the claimant could commission his or her own report to address the shortcomings, if any, of the insurer’s experts’ analysis…

…In the context of this interim benefit hearing, barring unforeseen new evidence to support Dr. Hines’ opinion of remission, I believe that an arbitrator hearing all the evidence would be inclined to ascribe any evidence of remission to misinformation, wishful reporting or a minor short-term variation of a chronic condition. Indeed, Dr. Ahmed, Ms. J.’s treating psychiatrist, is unequivocal: Ms. J. is not suited to any work.

While many issues which were the subject of I.E’s and rebuttal reports verged on the trivial, others were not. In Ms. J.’s case, she applied for and was denied recognition of catastrophic impairment arising from the accident. Catastrophic impairment would allow her to access further attendant care, housekeeping and medical expenses so that her long-term care needs could be properly addressed.

Ms. J.’s accident happened in 2007. In the absence of a catastrophic designation, access to attendant care and housekeeping benefits would have ended in 2009. Likewise her access to medical benefits would be cut off in 2017. Consequently, access to the catastrophic designation is critical to the availability of what she sees as critical care.

Given Dr. Hines’ apparent misinformation about remission of symptoms, GAF score and psychosocial issues, the importance of a credible rebuttal is critical to Ms. J..

Having a rebuttal report available can assist an insurer in making a fair determination and, to an arbitrator hearing this matter, should streamline the process by drawing together and placing in a medical context the alleged shortcomings of the insurer’s medical legal reports.

In short, a rebuttal report in Ms. J.’s case would be not only reasonable but would facilitate the claims process. Consequently, if there is a basis to fund the report, it should be funded.

…In the context of this interim benefit hearing, barring unforeseen new evidence to support Dr. Hines’ opinion of remission, I believe that an arbitrator hearing all the evidence would be inclined to ascribe any evidence of remission to misinformation, wishful reporting or a minor short-term variation of a chronic condition. Indeed, Dr. Ahmed, Ms. J.’s treating psychiatrist, is unequivocal: Ms. J. is not suited to any work.

While many issues which were the subject of I.E’s and rebuttal reports verged on the trivial, others were not. In Ms. J.’s case, she applied for and was denied recognition of catastrophic impairment arising from the accident. Catastrophic impairment would allow her to access further attendant care, housekeeping and medical expenses so that her long-term care needs could be properly addressed.

Ms. J.’s accident happened in 2007. In the absence of a catastrophic designation, access to attendant care and housekeeping benefits would have ended in 2009. Likewise her access to medical benefits would be cut off in 2017. Consequently, access to the catastrophic designation is critical to the availability of what she sees as critical care

…In the context of this interim benefit hearing, barring unforeseen new evidence to support Dr. Hines’ opinion of remission, I believe that an arbitrator hearing all the evidence would be inclined to ascribe any evidence of remission to misinformation, wishful reporting or a minor short-term variation of a chronic condition. Indeed, Dr. Ahmed, Ms. J.’s treating psychiatrist, is unequivocal: Ms. J. is not suited to any work.

While many issues which were the subject of I.E’s and rebuttal reports verged on the trivial, others were not. In Ms. J.’s case, she applied for and was denied recognition of catastrophic impairment arising from the accident. Catastrophic impairment would allow her to access further attendant care, housekeeping and medical expenses so that her long-term care needs could be properly addressed.

Ms. J.’s accident happened in 2007. In the absence of a catastrophic designation, access to attendant care and housekeeping benefits would have ended in 2009. Likewise her access to medical benefits would be cut off in 2017. Consequently, access to the catastrophic designation is critical to the availability of what she sees as critical care..

https://members.cpo.on.ca/members_search/show/1012?section=discipline#ui-tabs-12

[The following was placed on the Public Register on March 6, 2013]

The Inquires Reports and Complaints Committee referred the following specified allegation to the Discipline Committee:

Dr. Richard Marlin committed an act of professional misconduct in that the
governing body of a health profession in a jurisdiction other than Ontario has
found that Dr. Marlin committed an act of professional misconduct that would be
an act of professional misconduct as defined in the regulations, as per s.51(1)(b)
of the Health Professional Procedural Code, being Schedule 2 to the Regulated
Health Professions Act, 1991, S.O. 1991, c. 18.

Specifically, the Hearing Tribunal of the College of Alberta Psychologists found that Dr. Marlin:
(i) Conducted a psychometric test with a client when the client was averse to doing so;
(ii) Wrote to the client’s other care providers without having clear consent from the client to do so;
(iii) Limited access to the client’s family physician and other specialists, contrary to the client’s choice;
(iv) Failed to create a relationship in which the respect and dignity of the client was maintained;
(v) Conducted a psychometric test when the client was under duress/emotional stress; and,
(vi) Failed to ensure that there were sufficient professional attendances directly with the client when the pre-existing history and conditions of the client mandated a higher level of interaction than once per month.

A hearing will take place at 10:00 a.m. on Wednesday, September 4, 2013 at Atchison & Denman Court Reporting Services, 155 University Avenue, Suite 302, Toronto, Ontario M5H 3B7.