http://canlii.ca/t/fvkrt

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 theCollege of Physicians and Surgeons of Ontario to issue a caution to Dr. K.I. regarding her inadequate and inaccurate report and to further recommend that the Applicant review the College policy, “Third Party Reports”.

5.                  The Respondent complained that the Applicant failed to provide an accurate opinion of her claim for psychological services to the Respondent’s insurer; for example, the Applicant provided an opinion that may be outside of her expertise, since she opined regarding psychological services but is an occupational medicine specialist.

8.                  The Committee, however, noted that the Applicant’s report contained inaccuracies with respect to the details of what happened at the time of the collision. The report indicates that the Respondent was backing out of her driveway and was hit by an oncoming car, while the information before the Committee indicated that the Respondent was hit by a car backing out of a driveway. The report omitted the fact that the police were called, the car was damaged to the extent that it had to be towed away and was written off, which the Committee wrote, “speaks to the extent of the motor vehicle accident”.

9.                  Further, the Committee found that the Applicant failed to address important information that supported a claim for psychological services. It wrote that the Applicant “commented that the physiotherapist did not mention psychological issues, but she failed to mention that [the Respondent’s] family physician felt that a referral for psychological services was indicated” and that it appeared she had “completely disregarded this referral from the family physician.” The Committee stated that the Applicant “completely disregarded the results of the Beck Depression Inventory and Beck Anxiety Inventory, which showed severe depression and anxiety, respectively. Without performing a psychological assessment of [the Respondent], it would be difficult to assess whether or not these conditions pre-existed the accident.”

10.              The Committee determined the appropriate disposition was to caution the Applicant regarding “her inadequate and inaccurate report” and to recommend that the Applicant review the College policy, Third Party Reports.

24.              Counsel submitted that the Respondent should have raised her concerns with the report under the mediation and arbitration processes provided under theInsurance Act and that the College is the wrong forum for the determination of her concerns. He submitted that having determined the Applicant was properly qualified, the Committee should defer to her expertise:  if the College engages in the review of third party assessment undertaken by qualified health professionals, it will deter physicians from conducting assessments.

34.              The Board has reviewed the Policy and finds the Committee’s assessment that the Applicant failed to comply with it is reasonable. The Committee concluded its analysis as follows:

Accordingly, it appears to the Committee that [the Respondent’s] report was both inaccurate and inadequate. It seems that she failed to comply with the College policy, “Third Party Reports,” which notes that when providing a third party report physicians must “take reasonable steps to ensure that they have obtained and reviewed all available clinical notes, records and opinions relating to the patient or examinee that could impact the findings of the report …” Moreover, the policy also states that physicians “should ensure to the best of their abilities that the information contained in the third party report is accurate.”

 35.              In her May 5, 2011 report, the Applicant referred only to a physiotherapy report written shortly after the accident and did not discuss any of the other 37 documents in the file, including the opinions of the Respondent’s physician and other health professionals that an assessment was required. She then wrote:  “based on the documentation available for review, there was no evidence that [the Respondent] requires a psychological assessment …” (Board’s emphasis). The Board concludes that in light of this, the Committee’s conclusion that the Applicant failed to comply with the obligation “to take reasonable steps to ensure that they have obtained and reviewed all available clinical notes records and opinions” was reasonable.

 36.              Likewise, the Board finds that the Committee’s view regarding accuracy is reasonable as the Applicant made no effort to clarify the inconsistency regarding how the accident occurred. The Board does not find that the Committee’s reference to missing details regarding the apparent severity of the accident is misplaced as it is indicative of the absence of almost any factual content in the report.

37.              The Board finds that that the Committee’s decision to issue a caution is reasonable. The Board notes that a caution is not a sanction. It is remedial in nature.

 VI.       DECISION

38.      Pursuant to section 35(1) of the Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act, 1991, the Board confirms the Committee’s decision to issue a caution to the Applicant regarding her inadequate and inaccurate report and to further recommend that the Applicant review the College policy, Third Party Reports.

Read:

http://www.torontosun.com/2013/01/25/protecting-docs-reputations

http://www.canadianunderwriter.ca/news/ontario-appeal-board-upholds-caution-issued-to-ime-in-auto-claim/1001993394/

http://www.fairassociation.ca/wp-content/uploads/2013/02/Ms.-M.G.-and-Economical-+-Arbitration-2012-11-23-FSCO-A09-002443.pdf

I disagree with this assessment for a number of reasons. I find Dr. Gnam based his conclusion on limited and inaccurate information. Limited, because neither he nor Ms. Krushed interviewed any family members for insight into what she could, or would, actually do on her own on a daily basis, without cueing, unlike Dr. Levitt, who interviewed Ms. M.G.’s mother for collateral information. I also find it inaccurate because I find Ms. Krushed’s report failed to consider the effect of pain, diminished capacity and lack of motivation on the effectiveness and sustainability of Ms. M.G.’s ADLs.

In relying on Ms. Krushed’s inaccurate report, I find Dr. Gnam’s opinion was based on misleading information.

Secondly, Dr. Gnam failed to consider, compare and differentiate the criteria for moderate, marked and severe impairment before arriving at his conclusion. His statement, that mental impairment that appears to “preclude some but not all useful functioning” [emphasis added] is consistent with Moderate impairment, is not accurate.

I do not believe Dr. Gnam’s opinion to be either correct or reasonable for two reasons. The first is that Ms. M.G.  testified, and I find, that even simple volunteer efforts such as calling out bingo numbers or helping visiting family members at the hospital were overwhelming for her, and she quickly became fatigued, confused, irritable and unable to cope. I find the facts indicate Ms. M.G. has not been able to “maintain some restricted work-like stresses or activities” as Dr. Gnam claims.

The second reason I reject Dr. Gnam’s opinion is that, even if he were not wrong on the facts,  his application of the impairment rating system set out in theGuides is not correct in this case. His conclusion, that Ms. M.G.’s impairment is Moderate because she is “not completely unable to engage and maintain some restricted work-like stresses and activities,” applies the wrong test. The test for Moderate impairment, or even Marked impairment, is not, as he suggests, “complete inability.”

I find Dr. Gnam failed to consider and compare all of the relevant impairment levels and correctly apply them to the facts and his conclusion was flawed as a result.

As can be seen from the chart above, the only assessment of physical impairments that falls short in this case is that of the Custom Rehab team. I did not find their assessment and rating to be as reasonable or as persuasive as those of Dr. Garner or the Drs. Becker for a number of reasons. The first reason is that I do not find the Custom Rehab team had a realistic or accurate grasp of Ms. M.G.’s actual functional abilities for her activities of daily living. As discussed above, I did not find Ms. Krushed’s extrapolations from her observations of Ms. M.G.’s abilities to complete daily living tasks and engage in social activities to be realistic or reasonable.  Consequently, to the extent Dr. Mathoo and Dr. Dost relied on Ms. Krushed’s faulty statements and conclusions, their reports are similarly inadequate.

The second reason I prefer the evidence of Kaplan and Kaplan and Omega over that of Custom Rehab, is that I find the Custom Rehab team’s approach resulted in their under-rating of Ms. M.G.’s physical impairments.  There appear to be a number of reasons for this. One is that the team members did not consult with each other, or even exchange their reports; each simply conducted his or her own assessment and prepared a report, and the team leader, Dr. Mathoo, included their findings in his Executive Summary. I find this lack of communication impeded the exercise of clinical judgment or interpretive analysis by team members – essential components of assessing the impact of impairments on daily functioning.

The effect of this compartmentalized approach can be seen in how the Custom Rehab team members accounted, or rather, failed to account, for the effects of pain on daily functioning. …

Although Ms. M.G. complied with her obligations, and despite requests from her counsel, Economical did not reinstate Ms. M.G.’s IRBs until just before the start of this hearing, two and a half years after stopping them.  Economical did not provide any explanation for the delay. I find both the delay and the lack of any explanation to be completely unacceptable. As it is well-established that an insurer cannot avoid a special award simply by paying an overdue benefit just before the issue is to be adjudicated, I find Economical’s conduct merits a special award in this case.

Read: http://www.torontosun.com/2013/01/18/catastrophic-impairment-cases-continue-to-vex-insurers

http://www.fairassociation.ca/wp-content/uploads/2013/02/M.M.-and-Guarantee-+-Arbitration-2012-09-19-FSCO-A10-000338.pdf

http://www.fairassociation.ca/wp-content/uploads/2013/02/Mr.-C.-and-Coachman-2-+-Arbitration-2011-10-21-FSCO-A09-000167.pdf

Although she did not provide a diagnosis in her report, Dr. Wilkins testified that she based her conclusion that Mr. C. was not catastrophically impaired because in her view Mr. C. was a malingerer. Dr. Wilkins, however, did not provide any objective, credible evidence to support this conclusion. Her conclusion that Mr. C. is a malingerer stands alone in the face of an abundance of consistent and objective evidence that Mr. C.’s behaviour and complaints are credible. I, therefore, give very little weight to her opinion that Mr. C. is a malingerer.

Accordingly, for all these reasons I give little weight to Dr. Wilkins’ report and testimony that Mr. C. is not catastrophically impaired.

Dr. Lawson, a psychologist, conducted a catastrophic impairment assessment on behalf of Coachman on August 4, 2009.

Like Dr. Wilkins, I find that Dr. Lawson was a poor example of an expert witness. I agree with Mr. C.’s submissions where he states: Dr. Lawson’s demeanour when testifying, was argumentative, evasive, confusing and demonstrated a lack of understanding of his role as an expert to assist the Tribunal in reaching its decision on the complex issue of whether Mr. C. is catastrophically impaired.

In a short report, Dr. Lawson, without providing much information, rationale or analysis, concluded that Mr. C. was not catastrophically impaired. I give little weight to his conclusion.

I find that in failing to follow the Guides to observe and record a description of Mr. C.’s “concentration, persistence and pacing” during the testing, I cannot give much weight to Dr. Lawson’s conclusions regarding Mr. C.’s functionality when they are solely based on the test results.

Like Dr. Wilkins’ report, I find Dr. Lawson’s report to be superficial and biased in favour of Coachman. For example, in his report, Dr. Lawson notes: “Mr. C. stated he was hospitalized within the past two weeks as a result of depression and suicidal ideation.”… “He reiterated he has experienced suicidal ideation at times and has threatened to hurt himself and family members.” (It should be noted at the time of his assessment with Dr. Lawson, Mr. C. had not yet been hospitalized for overdosing on his medication.) [Emphasis added]

In light of this information, Dr. Lawson ignored the significance of Mr. C.’s very recent suicidal/homicidal mental state in relation to Mr. C.’s ability to function in any of the four domains noted in theGuides. I find this to be an important omission, especially since in his conclusion Dr. Lawson states that “Mr. C.’s accident occurred two years prior to his evaluation. As such, his psychological status is considered stable at this time.”

Another significant omission in Dr. Lawson’s report is his failure to comment on or consider the occupational assessment by Ms. Perreras. Dr. Lawson was on the same team as Ms. Perreras, who were carrying out a catastrophic impairment assessment on behalf of Coachman. Nevertheless, Dr. Lawson, without any explanation, ignored this very relevant assessment regarding Mr. C.’s capacity to function.

Although Dr. Lawson found that Mr. C. was not catastrophically impaired, he completely failed to substantiate his conclusions regarding the four areas of function pursuant to the Guides. He did not provide any supporting evidence or rationale for his conclusions. He merely stated that in his view Mr. C.’s impairment in the domains of concentration, persistence and pace and activities of daily living was “mild.” In the domains of social functioning and adaptation, hefound Mr. C. to be “moderately” impaired.

Like Dr. Wilkins, I find that Dr. Lawson ignored consistent, credible medical evidence, which could lead to a finding that Mr. C. suffered a “marked” impairment in one or more domains and accordingly was catastrophically impaired. Accordingly, I give very little weight to Dr. Lawson’s conclusion that Mr. C. is not catastrophically impaired.

I give little weight to Coachman’s submissions. In its written submissions, I find that Coachman engaged in a self-serving summary, “cherry-picking” its way through the evidence, in minute detail, to present a completely distorted, out of context picture of the reality of the objective evidence.

In reviewing the submissions, one easily sees that there are numerous significant distorted assertions of the evidence. [See note 6 below] In his reply submissions, Mr. C. submitted a number of examples which he characterized as “gross mischaracterization of the evidence by Coachman.” [See note 7 below] I note below several additional relevant examples.

Note 6: While parties presenting their submissions will try to put the best spin they can on the evidence, I find that Coachman went beyond what is considered reasonable advocacy and engaged in a pattern of distortions that did not reflect the evidence in a credible manner.

For the reasons stated above, I gave little or no weight to the catastrophic impairment assessments by Drs. Wilkins and Lawson. Both assessors ignored relevant, credible information when coming to their conclusions. Not only did Dr. Wilkins not assess Mr. C. for a catastrophic impairment, nor did she provide any diagnosis in her short three-page report, [See note 15 below] but she completely failed to comment on obvious, relevant and material information in Dr. Rosenblat’s catastrophic impairment assessment report, although she purported to have reviewed his report.

Note 15: At the hearing, Dr. Wilkins stated that her diagnosis of Mr. C. was that he was a malingerer. As noted above, I gave very little weight if any to this diagnosis.

In the case of Dr. Lawson, he not only narrowly relied on his test results in a manner that was contrary to the Guides, but provided no rationale, whatsoever, as to how he arrived at his ratings. His ratings were completely arbitrary and provided no foundation for his conclusions.

http://www.fairassociation.ca/wp-content/uploads/2013/02/Cowans-and-Motors-Insurance-+-Arbitration-2010-10-15-FSCO-A09-003237.pdf

Dr. Finkel’s testimony provided some insight into the details of the assessment process in this matter. Dr. Finkel, of course, was part of the multidisciplinary assessment arranged by Health Impact. Dr. Finkel’s prime occupation is doing psychiatric assessments, principally for a variety of insurers mostly in the automotive sector.

He is not, however, usually directly retained by an insurer but rather by an assessment company such as Health Impact whose raison d’être is the provision of assessments services. Dr. Finkel also confirmed that Mr. Cowans’ assessment was a brief, one-time interview, one of up to 45 to 50 he might do in a month. [See note 19 below]

Note 19: Although it was possible to infer even higher numbers of examinations from Dr. Finkel’s cross-examination, for the purpose of this analysis I accept that the number was intended to be on a monthly basis, a presumption that would be consistent with Dr. Finkel’s projected income from assessments being in the range of some $600,000 per year.

He would receive the paperwork, including the documents indicated on his report, proceed to the assessment location, interview the insured, and then write a report. Given the volume of examinations, it could not be supposed that there was significant time for detailed reflection on each assessment.

Although Dr. Finkel was apparently provided with a copy of the Insurer’s FAE assessment for comment, his evidence was that, following the initial assessment, there was no contact from Motors nor any other further relevant documents sent to him for consideration. In fact, Dr. Finkel stated that there was never any direct communication between him as an assessor and Motors.

More importantly, with the exception of the provision of the FAE report, there is no evidence of a co-ordinated attempt to reach a consensus between assessors or to deal with disability other than in the narrow view of each discipline. Given that Mr. Cowans claimed that he was disabled due to a mixture of psychological problems, pain issues, and physical constraints, such an omission, is highly problematic.

Although much was made of Dr. Finkel’s preconceptions as to accident victims, and his obvious dependence on the insurer’s goodwill for his lucrative assessment business, I do not believe that this is a central problem in Mr. Cowans’ case. Rather, the problem would appear to be more systemic.

Assuming for example that the 40–50 assessments figure related to a month, that would mean that Dr. Finkel on some weeks may have performed at least 10 assessments per work week. The time permitted to review, assess and report on any individual would have been at most 4 hours from start to finish, including the reading of voluminous documentation. [See note 20)

Note 20: Assuming a 40-hour work week. Even doubling this figure to 80 hours per week would still leave little room for a considered, professional assessment, given that Dr. Finkel also still saw some OHIP patients in the same work week.

Whether Dr. Finkel was biased or prejudiced or not, I find that it tests credulity to believe that an assessment mill [See note 21 below] such as described by Dr. Finkel could ever generate meaningful results.

Read: http://www.torontosun.com/2011/08/18/put-auto-insurers-under-microscope