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/fzsxg
4. The Respondent, an orthopaedic surgeon, conducted an independent medical assessment (IME) of the Applicant on June 29, 2011 as part of a multi-disciplinary assessment.
……• he did not recall telling the Applicant to “suck it up” or “toughen up” and noted that he does not use such language;
• he may have said something about insurance companies being taken advantage of as part of a general discussion with the Applicant but he did not suggest that the Applicant was making a false claim as evidenced by his report which confirmed that the Applicant suffered serious and extensive injuries; and
• he has given serious consideration to the Applicant’s complaint and acknowledged that he has had previous complaints about his demeanour and ability to communicate well with patients; he has taken a communications course with Dr. Dawn Martin.
14. The Committee noted that there had been previous complaints about the Respondent’s communications. The Committee accepted that the Respondent’s contrition in this case was sincere and stated that it was pleased that he had entered into a communications course with Dr. Martin. Nevertheless, the Committee felt that the Respondent would benefit from reflection and education in the area of communications and decided to issue a written caution to the Respondent to be aware that patients with post-traumatic chronic pain and disability who attend for an IME may not appreciate the Respondent’s efforts at small talk and that the Respondent should refrain from discussing systemic issues or details of his personal life.
24. The Applicant submitted that the Committee’s decision was unreasonable because the caution issued to the Respondent did not reflect the serious impact that the Respondent’s conduct during the IME had on the Applicant and would not ensure that other patients would not experience the same trauma. The Applicant submitted that the Committee should have imposed a requirement that the Respondent should not be permitted to conduct an IME without someone else being present.
VI. DECISION
37. Pursuant to section 35(1) of the Code, the Board confirms the Committee’s decision to caution the Respondent to be aware that patients with post-traumatic chronic pain and disability who attend for an IME, such as [the Applicant], may feel vulnerable, may not appreciate his efforts at “small talk,” and that he should refrain from discussing systemic issues or details of his personal life.
http://www.canlii.org/en/on/onscdc/doc/2013/2013onsc4261/2013onsc4261.html?searchUrlHash=AAAAAQAGSFBBUkIgAAAAAAE
Divisional Court — Ontario
[1] This is an application for judicial review to quash the May 3, 2012 decision of the Health Professions Appeal and Review Board, which upheld the decision of the Inquiries Complaints and Reports Committee of the College of Physicians and Surgeons of Ontario to verbally caution the applicant. The applicant was alleged to have acted unprofessionally and with bias in administering an independent medical examination to a patient.
[2] The applicant seeks to have the decision set aside and to have the matter remitted to a differently reconstituted panel.
[3] The applicant is an orthopaedic surgeon. On December 20, 2006, Ms. Nancoo sustained several injuries when she was struck by a motor vehicle while crossing the road. On May 4, 2010, Ms. Nancoo submitted an application to the insurer for catastrophic benefits in accordance with theInsurance Act.
[4] The applicant was retained by the insurer to conduct an orthopaedic Independent Medical Examination (IME) of Ms. Nancoo. The applicant met with Ms. Nancoo on August 11, 2010 and conducted the IME. On August 24, 2010, the College received a complaint for Mr. Warren, Ms. Nancoo’s lawyer regarding Dr. Fielden’s behaviour during the course of the IME.
[5] The Committee found that Dr. Fielden’s behaviour when conducting the IME was inconsiderate and inappropriate. The Committee decided not to refer the matter to the Discipline Committee but rather to verbally caution Dr. Fielden in person regarding being professional, objective and courteous in performing IME’s. HPARB dismissed Dr. Fielden’s appeal and determined that the Committee’s investigation was adequate and that its decision to caution Dr. Fielden was reasonable.
[6] The applicant seeks judicial review. Assuming that the decision is reviewable at all, it is accepted that the standard of review is reasonableness.[1]
[7] We do not agree that the Board erred in not finding that the Committee’s Decision was unreasonable by failing to make a credibility finding in the circumstances of this case and particularly the applicant’s submission that these facts required the Committee, in effect, to make a determination with respect to Ms. Nancoo’s credibility.
[8] First, it is clear that the Committee has no jurisdiction to make credibility findings per se. (See McKee v. Health Professions Appeal and Review Board, [2009] O.J. No. 4112). The Committee exercises a screening function. It conducts an investigation and renders a decision as to the existence of sufficient evidence to warrant referral to the Discipline Committee. It does not hold any hearing to determine with finality what the facts were. Here, the Committee decided not to refer the matter to the Discipline Committee. This decision was amply justified on the record and particularly on the basis of the admissions and statements made by Dr. Fielden.
[9] We also find no error of procedural fairness on the part of the Committee. The Committee was entitled to take into account all of the information it obtained in its investigation in determining the appropriate course of action. What the applicant refers to as “add on issues”, in fact came from Dr. Fielden’s responses to the complaint which raised additional concerns. These did not give rise to any further notice entitlements.
[10] The decision of the Committee to caution the applicant in person is not a “sanction”. Cautions are entirely remedial in nature and intended to assist the applicant to improve his practice. A caution administered by the Committee is not a penalty and must be contrasted with the range of penalties that can be imposed by the Discipline Committee of the College consequent to a finding of professional misconduct. The Discipline Committee of a College can impose a variety of sanctions, which may be recorded on the permanent and public record of a member. By contrast, a caution is remedial only, cannot involve any finding of professional misconduct (a finding which is outside the jurisdiction of the ICRC and the Board), and does not appear on the register or in any public document of the College.
[11] The Committee required that Dr. Fielden be cautioned on being objective, professional and courteous in performing independent medical exams. One of the basis upon which the Committee expressed concern was factual errors which it stated Dr. Fielden had made in his report. For example, stating that he had incorrectly asserted that Ms. Nancoo had been treated in a private rehab facility when the record indicates that she had been. Given the absence of support for the finding that Dr. Fielden made factual errors in this case, there is no reasonable basis for cautioning him on this point. With this one exception, we find the Committee’s decision to caution Dr. Fielden was reasonable as was the HPARB decision.
[12] The application is therefore dismissed. The Board does not seek costs.
http://canlii.ca/t/flplv
HUMAN RIGHTS TRIBUNAL OF ONTARIO
[2] The Application alleges discrimination in goods, services, and facilities because of disability, marital status and age regarding erroneous information the respondent relayed in the context of an independent medical evaluation for an insurance company. The applicant was involved in motor vehicle accident in December 2005 and his insurance company required him to undergo an independent medical evaluation, which was performed by the respondent. The respondent provided his initial evaluation on May 23, 2006. The insurance company provided further medical records for the respondent to review and he responded by letter to the insurance company on July 11, 2006. In this second letter, the respondent provided erroneous information regarding the applicant, based on a misreading of the notes provided by the applicant’s family physician. This erroneous information had negative consequences for the applicant regarding his insurance claim.
[8]…Neither the CPS or HPARB have expertise in the human rights law of Ontario; therefore, it was not reasonable for the applicant to rely on any advice he may have received from either body regarding his rights under the Code. As noted above, waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will also generally not constitute a valid explanation for delay in filing an Application.
[9] In the circumstances, I find that applicant has not provided a reasonable explanation for the delay and therefore has not established that the delay was incurred in good faith. Having found the delay was not incurred in good faith, I need not address the issue of prejudice.
[10] The Application is dismissed.
https://www5.fsco.gov.on.ca/AD/3759
…Dr. R.H.N. Fielden, an orthopaedic surgeon and Dr. Douglas Saunders, a psychologist, conducted the first assessments for Old Republic on October 4, 2005. They authored reports dated October 11, 2005 [See note 31 below] and October 19, 2005. [See note 32 below] Dr. Fielden concluded that Mr. Xavier was suffering from no residual impairment as a result of the accident and could return to all pre-accident activities, including work.
Mr. Xavier told Dr. Fielden that he continued to experience shoulder and back pain. Dr. Fielden was aware of the treatment Mr. Xavier was receiving from Dr. Raghunan. Dr. Fielden’s observations on physical examination include restricted range of shoulder and lumbar motion. His report does not contain an explanation of how he arrived at his opinion.
…I do not accept Dr. Fielden’s conclusion in his report of October 11, 2005 [See note 50 below] that Mr. Xavier suffered no ongoing physical impairment. The report contains no explanation of how he arrived at this conclusion and his opinion is at odds with the findings of his own examination which included restricted range of shoulder and lumbar motion.
https://www5.fsco.gov.on.ca/AD/3534
…This examination was done by Dr. Robert Fielden, an orthopaedist…..State Farm knew of the diagnosis and of Mr. Turner’s history of treatment in this regard, when it chose to have Dr. Fielden examine him in 2002.
He concluded that Mr. Turner “does not suffer a complete inability to engage in any employment.” A Functional Abilities Evaluation done by Jodi Levstein on the same day resulted in the same conclusion. Based on the conclusions of Dr. Fielden and Jodi Levstein, State Farm terminated weekly income replacement benefits on July 9, 2002 .
…as far back as 1999, long before Mr. Turner was examined by Dr. Fielden in April 2002. It made its adjusting decision on the basis of the opinion it obtained from Dr. Fielden’s report. Nothing has changed. There is no ongoing adjusting of a changing or evolving claim. State Farm has maintained its position.
Indeed, when I asked counsel for State Farm how the requested examination would contribute to an adjusting decision, she could offer no insight at all in this regard. Her reply was that the decision was up to the adjuster. She submitted that the Insurer had stated the purpose of the examination in the notice sent to Mr. Turner, and it was not open to an arbitrator to “second- guess” ; that decision. As I pointed out above, the cases do not support this approach.
In the circumstances of this case, where some six months after mediation failed and four months after Mr. Turner applied for arbitration, the Insurer seeks to clarify information it has been aware of for years, the Insurer must provide a better explanation lest the inference be drawn that what the Insurer really seeks is ammunition for the arbitration proceeding. I conclude that this is the likely reason for the request.
