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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http://canlii.ca/t/232nn
[59] Dr. Richard Marlin was qualified at trial as an expert psychologist with respect to the diagnosis and treatment of minor brain injuries.
[60] It must be born in mind that Dr. Marlin did not meet with and examine Mr. Nagle. He did not review the neuropsychological tests data upon which Dr. Mills formed her opinion nor did he attend at the trial to listen to the testimony of Mr. Nagle, the lay witnesses nor the other medical experts. He did not engage in any psychotherapeutic sessions with Mr. Nagle.
[61] Dr. Marlin agreed that a mild traumatic brain injury was suffered by Mr. Nagle at the time of the accident. He testified “the brain was not so traumatized that it was not unable to remember what happened ”. However, he is of the view that none of the complaints which Mr. Nagle and Dr. Leckey associate with the mild traumatic brain injury have anything to do with it but are rather due to psychological factors which are treatable and stem from the other injuries sustained by Mr. Nagle. Dr. Marlin’s report is focused mainly upon refuting the diagnosis that Mr. Nagle had suffered a mild traumatic brain injury as a consequence of the accident. In his report and on direct examination, Dr. Marlin did not retract his criticisms of the medical evidence. However, on cross-examination he agreed with the diagnosis of a mild traumatic brain injury. In my opinion this diminished Dr. Marlin’s credibility as does the following testimony which is laced with sarcasm.
[69] However as noted at trial, Dr. Marlin contradicted his report and conceded that it is possible that Mr. Nagle’s current symptoms are caused by the mild traumatic brain injury suffered by Mr. Nagle as the result of the accident. For these reasons it is without hesitation that I elect to accept the evidence of Dr. Leckey and Dr. Mills over that of Dr. Marlin.
http://canlii.ca/t/5gkd
[18] …On 29 May 2002, two psychologists, Dr. Marlin and Dr. Mok both of Odyssey Health Services, examined Hedstrom. They concluded that Hedstrom was not totally disabled with respect to gainful employment. In a report to Manulife made on the same date, Odyssey opined that no objectively demonstrable or definable underlying disease or pathology had been identified to account for Hedstrom’s symptoms; that Hedstrom showed no evidence of any underlying psychopathology or psychological disorder to account for his symptoms; and that, the “presence of significant variations in the available history and reported events”, coupled with the other factors, led to their conclusion that Hedstrom was not totally disabled.
[19] Counsel for Hedstrom objected strenuously that the Odyssey report was inadmissible on the application. I would have little difficulty acceding to the objection if Manulife was attempting to tender the report as opinion evidence at trial. While the authors are qualified to express opinions about whether the testing disclosed any evidence of psychological disorder capable of explaining full disability, they went well beyond that function. In expressing opinions on medical matters far outside their expertise, as well as on the truthfulness and reliability of Hedstrom, the authors travelled well outside the permissible bounds of expert evidence.
[20] But the report was not prepared for admission into evidence as an expert opinion and Manulife seeks to rely on it for a different more limited purpose. Odyssey prepared the report to assist the claims-handler who had requested it. Manulife then relied on the report in deciding to terminate benefits. It became part of the claims file and is properly before the court to be considered in assessing the relative strengths and weaknesses of the legal positions of the parties.
http://www.fsco.gov.on.ca/en/drs/counselforum/Pages/2011-03-25.aspx
Senior Arbitrator Nastasi reported that a recent unit meeting arbitrators reported two separate hearings in which in the middle of testimony by a doctor or assessor, it became clear that the report issued / produced by the Clinic or assessor was not the same report created by the doctor / assessor on the witness stand. Liz put the issue out to the group to assess whether this has been a recent issue or new trend that counsel have also experienced.
Counsel Response:
In the past IR adjusters would contract out to individual assessors and defence counsel could potentially request certain doctors that they liked to work with BUT today – to save money almost 100% of the assessment work is farmed out to Brokers leaving very little choice about who will do the assessment.
Stan P. – 100% of ALL assessments are “doctored” – in that the actual doctors and assessors are not able to do MOST of the report for $2000. The result is that the clinic administrators are the ones setting up most of the report and then doctors actually write a small portion of the actual report.
Eric G – the $2000 cap is “unworkable” – most of the work is done by the broker because of the limited amount of money available to pay for the report.
Suggestion – FSCO needs to look at this in a more systemic way
Query – what is FSCO’s or an arbitrators’ responsibility when this issue comes up during a hearing ? – When an arbitrator does encounter this during a hearing then they need to report on it and this will have an effect in the future on whether that company or assessor receives any further business
http://canlii.ca/t/g06vv
[11] In my view, the doctrine of merger should apply in this case such that the claim for conspiracy cannot stand together with the claim in tort for fraudulent misrepresentation. Applying the unassailable logic of Lord Denning in the English case of Ward v Lewis, [1955] 1 All E.R. 55 (C.A.), at 56, an allegation of a prior conspiracy to commit a tort adds nothing to the pleading. This is not a case where conspiracy is pleaded in the alternative because it is uncertain to the plaintiff whether the benefit claims were submitted or the charges incurred. If it were, then a claim for unjust enrichment could hardly be supported. There is nothing that needs to be left to the trial judge here; the claim in conspiracy adds nothing to the pleading as constituted. It is redundant. Applying the doctrine of merger, therefore, the claim in conspiracy cannot be maintained and must be struck.
[12] I am unable to agree with the defendants that the pleading does not disclose a cause of action in unjust enrichment. The alleged enrichment is plain to see, if not plainly worded: the defendants received a benefit to which they were not entitled, namely fees for approved services. The corresponding deprivation to the plaintiffs was the payment of those fees. The absence of a juristic reason is not specifically pleaded, but a generous reading of the claim makes it clear that the entire scheme alleged to have been operated by the defendants was unlawful. I find that paragraphs 17, 18 and 19 of the claim, read in context, are sufficient to constitute the third element of a cause of action in unjust enrichment.
[13] I agree with the defendants that the allegations as against the personal defendants must be struck. There are simply insufficient facts pleaded of alleged wrongdoings by the personal defendants against the plaintiffs directly to support any cause of action against them personally. I acknowledge that directors and officers of corporations may be held personally liable for certain tortious acts; however, standing alone, the allegations in paragraphs 17 and 19 do not support a cause of action against these defendants individually. Greater care must be taken to set out with some specificity the acts which would expose the personal defendants to liability to the plaintiffs. The conduct identified in paragraph 17 may indeed be the kind which the law may frown upon and which may attract scrutiny by licensing authorities, but setting up a corporation for an improper purpose is not a cause of action known at law. The claims against the personal defendants are therefore struck.
[14] I find that the statement of claim does set out sufficient facts to found a cause of action in fraudulent and negligent misrepresentation. It is not plain and obvious that the claims would fail. The law recognizes both torts being advanced. A generous and liberal reading of the pleading allows one to identify the essential elements of both torts. In respect of fraudulent misrepresentation, the representations are the information contained on the submitted OCF-22 forms; they are alleged to be false or to contain false information (paragraph 10); paragraph 10 speaks to the defendants intentions and their knowledge; paragraphs 13 and 14 set out what the submitted forms induced the plaintiffs to do, with the attached schedule to the claim providing specific references to claim numbers. In respect of the fifth element from the Corfax case, it was not, practically speaking, open to the plaintiff to void any contract with the defendants. As an insurer with responsibilities to its insured under the regulations of the Insurance Act, R.S.O. 1990, c.I.8, the course open to it on any particular submitted claim was merely to deny the benefit or service.
[15] I also find that the allegations of fraud are sufficiently pleaded. The description of the acts taken by the defendants provides sufficient detail of the nature of the alleged fraud: that of submitting insurance claim forms containing incorrect information, falsifications or bogus claims.
[16] I find that the pleading discloses a reasonable cause of action in negligent misrepresentation and negligence. The essential elements of those torts pleaded are found at paragraphs 20 and 21. The duty of care owed by the defendants to the plaintiffs, although not specifically set out, may be gleaned from a reading of the claim in its entirety. The defendants, as assessment centres for individuals with injuries arising out of motor vehicle accidents, would be submitting authorized forms to the plaintiffs as insurer for those individuals. The duty to provide honest and reliable information to the insurer can be viewed as inherent to that relationship. A degree of reliance on the assessment centre to submit legitimate claims on behalf of injured persons was to be expected; indeed, the nature and extent of the reliance by insurer is set out clearly at paragraphs 8 and 9 of the claim.
http://www.canlii.org/en/on/onhparb/doc/2013/2013canlii46994/2013canlii46994.html?searchUrlHash=AAAAAQAFSFBBUkIAAAAAAQ
11. The Committee investigated the complaint.
12. The Committee determined that, on a technical level, it was satisfied that the Applicant`s assessment of the Respondent, his clinical findings and opinion, and his ensuing report (which fully set out the information he based his opinion on) were reasonable and in keeping with the expectations set out in the College’s policy on Third Party Reports. The Committee accepted that the Applicant’s reference to the Respondent’s weight as 225 pounds was an inadvertent error, which he has acknowledged.
13. The Committee noted, however, that it had previously received other complaints from patients regarding the Applicant’s unprofessional communication, many in the IME context. In addition, it noted two concurrent complaints about communications concerns before it at the same time as this complaint. It stated that this information had served to heighten the Committee’s concern in this case.
14. It concluded that it was very troubled by the Applicant’s communication and what appeared to be a sustained pattern of issues related to unprofessional behaviour. Therefore, the Committee decided to caution the Applicant and to require the Applicant to complete a specified continuing education or remediation program, as set out in paragraph two above.
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The requirement to consider prior decisions is couched in mandatory terms under section 26(2) of the Code.
Prior decisions
(2) A panel of the Inquiries, Complaints and Reports Committee shall, when investigating a complaint or considering a report currently before it, consider all of its available prior decisions involving the member, including decisions made when that committee was known as the Complaints Committee, and all available prior decisions involving the member of the Discipline Committee, the Fitness to Practise Committee and the Executive Committee, unless the decision was to take no further action under subsection (5). [Emphasis added]
23. The Committee has not complied with this legislative provision as it has considered only summaries of the matters detailed in the “CPSO Physician Profile” rather than the entire decisions.
24. Further, the Committee has not complied with the section 25 (6) (c) which provides as follows:
Notice to member
(6) The Registrar shall give the member, within 14 days of receipt of the complaint or the report,
(a) notice of the complaint, together with a copy of the provisions of sections 28 to 29, or notice of the receipt of the report;
(b) a copy of the provisions of section 25.2; and
(c) a copy of all available prior decisions involving the member unless the decision was to take no further action under subsection 26 (5).
25. The Committee did not comply with section 25 (6) (c) because it provided the Applicant with the summary of the matters contained in the “CPSO Physician Profile” but did not provide the Applicant with the actual available prior decisions.
26. The Board finds the Committee’s investigation to be inadequate as a result of its failure to comply with section 25(6) (c) and 26(2) of the Code.
27. The Board, therefore, returns this matter to the Committee and requires it comply with sections 25(6) (c) and 26 (2).
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20.
PFR v BU, 2013 CanLII 46994 (ON HPARB) — 2013-07-25
Health Professions Appeal and Review Board — Ontario
complaint — pounds — prior decisions involving the member — assessments — require
21.
PFR v EH, 2013 CanLII 46912 (ON HPARB) — 2013-07-25
Health Professions Appeal and Review Board — Ontario
complaint — prior decisions involving the member — unprofessional — require — remediation
22.
PFR v GJR, 2013 CanLII 46913 (ON HPARB) — 2013-07-25
Health Professions Appeal and Review Board — Ontario
patient — fracture — nonunion — complaint — prior decisions involving the member
