• FAIR – supporting auto accident victims through advocacy and education
  • FAIR – supporting auto accident victims through advocacy and education
  • FAIR – supporting auto accident victims through advocacy and education

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.
                                                                                                                              ________________________________________________________________________________

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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GABREMICHAEL and ZURICH INSURANCE October 12, 1999 FSCO A97-002061

by Admin4

http://www.fairassociation.ca/wp-content/uploads/2013/02/GABREMICHAEL-and-ZURICH-INSURANCE-October-12-1999-FSCO-A97-002061.pdf

Just under two years from the date of the accident, Zurich gave notice to Ms. Gabremichael that her benefits would cease on September 19, 1997. Zurich based its decision on a report of a psychiatrist, Dr. M. Bail, and of a chiropractor, Dr. J.A. Nathanson, both of whom had examined Ms. Gabremichael at the behest of the Insurer…

…The Insurer’s position that Ms. Gabremichael is not psychologically disabled is supported principally by Dr. Bail’s report. Since Dr. Bail’s reports and testimony are crucial to an understanding of the circumstances surrounding the stoppage of benefits by Zurich, and have ramifications for all aspects of Ms. Gabremichael’s claim, I will deal with them at this point.

Dr. Bail’s examination

Dr. Bail, a psychiatrist, saw Ms. Gabremichael for about one hour on August 14, 1997, for an insurer’s examination. Dr. Bail concluded in his reports and testified at the hearing that Ms. Gabremichael does not suffer from a psychiatric disorder caused by the motor vehicle accident. Rather, he opined that she has some sort of personality disorder. His conclusion is that Ms. Gabremichael’s reported symptoms really amount to malingering, motivated by gain.

Dr. Bail testified at the hearing that he discounted most of Ms. Gabremichael’s problems, because of perceived inconsistencies in the materials provided to him as well as her presentation during the interview. His reports consist of a listing of Ms. Gabremichael’s supposed inconsistencies and contradictions.

Dr. Bail testified that he gave Ms. Gabremichael no opportunity to explain or correct any of these supposed inconsistencies. He added that he did not confront people with inconsistencies because they would cause bodily harm or destroy his office.

The contradictions that Dr. Bail referred to included Ms. Gabremichael’s expressed interest in returning for a visit to Ethiopia. This was portrayed as being inconsistent with her story of her departure as a refugee. Dr. Bail made no allowance for any change in political climate in Ethiopia since Ms. Gabremichael’s precipitate departure that might have made such a visit possible.

Dr. Bail also assumed from a cursory examination of an OHIP claim summary that Ms. Gabremichael wrongly asserted that prior to the accident she enjoyed good health. A more detailed examination of the record would have shown claims for dental surgery, among others, that did not support Dr. Bail’s conclusion that Ms. Gabremichael’s health was poor prior to the accident, and that she was misleading the Insurer.
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Dr. Bail testified that in evaluating a patient he acts as judge and jury. Unfortunately, from my reading of his reports, and from listening to his testimony, it is obvious that he has appropriated to himself another role, and has become an advocate for the Insurer, rather than an impartial expert witness.

In Harrison and Wellington Insurance Company (FSCO A96-000785, July 23, 1998), Arbitrator Makepeace dealt with the testimony of a partisan medical examiner. She stated: “I reject Dr. Costa’s report in all other respects because he appears to have focussed mainly on identifying discrepancies in the Applicant’s claim.” Likewise, Dr. Bail’s partisan approach and his focus on inconsistencies are troubling and seriously weaken the credibility and weight of his testimony.

I find that Dr. Bail’s opinion on the nature of Ms. Gabremichael’s psychiatric disabilities is not convincing and should be disregarded. I accept Dr. Link’s characterization of Ms. Gabremichael’s condition as chronic depression complicated by Post-Traumatic Stress Disorder, Chronic Pain Syndrome, and relationship stress.

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Committee Transcripts: Standing Committee on Finance and Economic Affairs – February 22, 1996

by Admin4

GEOFFREY LLOYD: I think a number of things. First of all, one could ensure that the person making the statement, by virtue of his background, training and education, had received an education that would allow him to make that judgement. As a practising physician I see examples, and I will if it’s appropriate cite specific examples, where the person making statements is either not aware of the literature or, alternatively, by virtue of his background training and education, has not received the training. As a physician, for example, it is mandated by the college that I must know prognosis in my area of discipline.

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Williams v. Thomas Development Corporation et. al., 2006 NLTD 44 (CanLII) — 2006-03-09

by Admin4

Dr. Lloyd has retired from surgical practice since 1999.  Dr. Lloyd has done approximately 1,000 surgical procedures, about 10 percent of these procedures involving the thoracic spine.  He has also written and done research on spinal issues.  He was qualified to give opinion evidence in the field of orthopedic surgery with an emphasis on complex diagnostic issues as it relates to the spine, treatment of the spine and the treatment of disc injuries.  He interviewed the Plaintiff for about one and a half hours.

Dr. Lloyd took the position that without pain for the thoracic region, a fracture was unlikely.  He concluded emphatically that the accident did not fracture Dr. Williams’ thoracic spine.  His opinion was based on a one and a one half hour interview, a review of the contemporary medical history on September the 9th and September 15th.  Dr. Lloyd does 400 independent medical examinations per year.  This is more than one per day.  Dr. Lloyd had not operated since 1996.  He has never done the operation conducted by Dr. Fehlings.  He is not a neurosurgeon.  He could not offer a diagnosis.  He concluded that Dr. Fehlings’ operation on Dr. Williams was unnecessary.  He reaches this opinion on the basis that the Plaintiff’s symptoms were recurring four months post-surgery.  It was his opinion that the surgery did not help with her symptom complex.  He, therefore, disagrees with Dr. King on this point.  He was of the opinion that there was not a fracture.  Surprisingly, he claims there was not even a cord compression.  On this point, he disagrees with Dr. Fehlings who did the actual surgery on Dr. Williams.  He also disagrees with Dr. Brown, who says there was cord compression.  Dr. King was of the opinion that there was cord compression.  It also meant that if Dr. Lloyd was right, the radiologist reached an improper conclusion in his report.

Dr. Lloyd did not impress me with his conclusions.  Dr. Lloyd was asked to do an opinion for the Defendant, as he does for hundreds of other cases.  He interviewed Dr. Williams for one and a half hours and did a review of the medical reports provided and he gave his opinion.

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McQueen v. Echelon General Insurance Company, 2011 ONCA 649 (CanLII)

by Admin4

http://canlii.ca/t/fngnw

[10]         In July 2004, Echelon retained Dr. Kwok, an orthopaedic surgeon, to examine Ms. McQueen.  Echelon did not give Dr. Kwok a copy of Ms. Foster’s report.

[11]         Dr. Kwok wrote a report dated July 23, 2004, in which he stated that Ms. McQueen was capable of conducting her own housekeeping, was not disabled from driving a motor vehicle and was able to take public transportation.

[12]         After receiving Dr. Kwok’s report, Echelon immediately stopped paying Ms. McQueen housekeeping and transportation benefits.

[13]         Ms. McQueen requested, and Echelon sought, the advice of an independent medical occupational therapist.  That therapist advised that Ms. McQueen required assistance with her housekeeping but that an in-home assessment should be performed first.  Echelon told Ms. McQueen that the assessment would cost $620.11 but it refused to pay for the assessment because it was not “reasonable and necessary”.

[14]         Despite Ms. McQueen’s repeated entreaties for the SABS benefits, and the provision of additional medical documentation showing that she needed them, Echelon refused to reinstate the benefits.  The trial judge found that in a three-year period, Ms. McQueen received 21 denials for 16 separate benefits.

b)  More than a simple denial of benefits

[52]         Echelon also submits that this is merely a case about the denial of benefits and the simple denial of benefits does not amount to bad faith.

[53]         I accept that a lack of good faith is not to be inferred simply because an insurer does not pay a claim.  However, based on the findings of the trial judge, it cannot be said that this case was one in which Echelon simply denied benefits.

[54]         The reasons of the trial judge must be read as a whole.  The specific section of the judgment in which he deals with damages for bad faith and mental distress cannot be separated from the balance of the judgment in which he makes findings in relation to Echelon’s conduct.  It is evident that those findings lay the foundation for his reasoning on damages.

[55]         As early as para. 12 of the reasons, the trial judge refers to Fidler v. Sun Life Assurance Co. Ltd., 2006 SCC 30 (CanLII), 2006 SCC 30, [2006] 2 S.C.R. 3 (Fidler), noting that in Fidler, the Supreme Court of Canada held that an insurer owes a common law duty to act in good faith in all its dealings with an insured and has an additional duty not to inflict unnecessary mental distress.  He returns to Fidler in paras. 51 and 52 of the reasons, stating that in a case of alleged mental distress, the court must be satisfied that:

a)                  an object of the contract was to secure a psychological benefit that brings mental distress upon breach within the reasonable contemplation of the parties; and

b)                 the degree of mental suffering caused by the breach was of a degree sufficient to warrant compensation.

[56]         Throughout the reasons, the trial judge repeatedly notes that Echelon refused to provide benefits on the basis that they were not “reasonable and necessary” but Echelon gave no reasons for why they were not reasonable and necessary: see, for example, para. 33.

[57]         It is also clear that the trial judge was critical of Echelon for relying on Dr. Kwok’s report, which was based on a “superficial examination lasting only 30 minutes” (para. 39), especially as Echelon had not given Dr. Kwok a copy of the report its own occupational therapist, which was favourable to Ms. McQueen (paras. 34 and 36).

[74]         The court explained, at paras. 56-58, that it was an object of the contract:

The bargain was that in return for the payment of premiums, the insurer would pay the plaintiff benefits in the case of disability. This is not a mere commercial contract. It is rather a contract for benefits that are both tangible, such as payments, and intangible, such as knowledge of income security in the event of disability. If disability occurs and the insurer does not pay when it ought to have done so in accordance with the terms of the policy, the insurer has breached this reasonable expectation of security.

Mental distress is an effect which parties to a disability insurance contract may reasonably contemplate may flow from a failure to pay the required benefits. The intangible benefit provided by such a contract is the prospect of continued financial security when a person’s disability makes working, and therefore receiving an income, no longer possible. If benefits are unfairly denied, it may not be possible to meet ordinary living expenses. This financial pressure, on top of the loss of work and the existence of a disability, is likely to heighten an insured’s anxiety and stress. Moreover, once disabled, an insured faces the difficulty of finding an economic substitute for the loss of income caused by the denial of benefits.

People enter into disability insurance contracts to protect themselves from this very financial and emotional stress and insecurity. An unwarranted delay in receiving this protection can be extremely stressful. Ms. Fidler’s damages for mental distress flowed from Sun Life’s breach of contract.  To accept Sun Life’s argument that an independent actionable wrong is a precondition would be to sanction the “conceptual incongruity of asking a plaintiff to showmore than just that mental distress damages were a reasonably foreseeable consequence of breach”. [Citations omitted. Emphasis in original.]     

Read:

http://www.lawtimesnews.com/Focus-On/Claim-for-mental-distress-puts-pressure-on-insurance-companies 

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Bakalenikov v. Semkiw, 2010 ONSC 4928 (CanLII) — 2010-09-15

by Admin4

http://canlii.ca/t/2cl96

[53]         With respect to parties or witnesses, however, whether lay or expert, the dynamics of an adversarial system introduce pressures that leave the door open to conscious or even subconscious polarization. In situations where experts are regularly retained by either plaintiffs or defendants, financial considerations add to the potential for polarization. It is naive to assume, without more, that a medical expert who generates significant income from providing IME’ s for a particular “interest group” is completely immune to these pressures, whether they are acted on or not. It should also be recognized that the pressures may well increase in the presence of a large institution that regularly requires IME experts to provide opinions taking a particular view of the issues. While obvious instances of unreliable expert evidence may be infrequent, anytime an expert is less than honest, the potential for a just result is undermined.

The pressures facing medical experts which are inherent in an adversarial system are inevitably exacerbated in an IME setting where the party being examined (often the plaintiff) is cognitively or emotionally vulnerable, or where the person being examined has limited language skills or faces cultural inhibitions that impact on the assessment. Clearly one hopes that a medical expert will not only be qualified to conduct a competent assessment but will also be independent and unbiased in formulating his/her opinion. But what if he or she is not? Experiences in many settings involving interactions between persons in positions of authority and those in positions of vulnerability (e.g. residential schools, prisons and seniors homes) demonstrate that the greater the imbalance of power and the less accountability there is in the system, the more potential there is for abuse. How does a plaintiff with functional or memory impairments challenge the evidence of a highly trained,articulate and experienced expert? The optics of forcing a vulnerable party to be examined by an opposing expert who will be able to testify from a position of power and prestige and depriving the party of any independent record of the event, are not good. Justice must not only be done but be seen to be done. Experts can and should be given a mandate of independence. This cannot be confused with granting them a presumption of independence.

[76]              The Court expects and relies upon frank and unbiased opinions from its Experts. This is a major sea change which requires practical improvements to past opaque processes. How are long time plaintiffs’ and defendants’ experts to be “trusted” to change their stripes? At the initial stages skilled, licenced professionals clearly must be taken at their word that on principal they take their Form 53 Undertaking to Court seriously. They are clearly promising to bring a new, transparent and objective mind set to the drafting of their reports and to their subsequent testimony.

[77]              In this case I am obliged to consider a proposed expert who has on at least 3 occasions had his opinions disregarded by the Court for bias and advocacy for the Defence. He has been criticized by a judge of this Court for delivering his evidence  as “an advocate for the party calling him as a witness.”

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