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.
**********************************************************************
https://www5.fsco.gov.on.ca/AD/5374
Unica was not only wrong about the analysis of the injuries in relation to the MIG, but its persistent “no” to requests for funding for assessments resulted (as it was warned) in exacerbating the Applicant’s injuries to the point where he now suffers from chronic pain. The Form 1 for attendant care was submitted after Dr. Galati’s report. That assessment clearly identified ongoing musculoskeletal impairments, as evidenced in the Applicant’s adjustments to daily living such as having to go onto his knees to make his bed. A reasonable insurer would have considered the additional information and sent it on to Dr. Galati for an addendum report. A reasonable insurer would have noted the ongoing problems with hearing, even four months after the accident, and would have reconsidered its refusal of the neurologist’s assessment.
Unica failed to respond promptly to reasonable requests for approval of examinations, and waited an unreasonable period to arrange its own assessment with respect to the psychological assessment. It failed to arrange an assessment (or even an addendum) based on new information provided in the Form 1 and in the 2017 reports concerning chronic pain.
Unica has the institutional knowledge developed in the senior levels of its adjusters to flag the potential that untreated or poorly treated injuries can lead to chronic pain. There is little evidence that Unica’s adjusters grappled in any way with their Insured’s complaints and injuries and the potential long term effects which are now clearly outlined. I do not accept that the laissez-faire approach Unica followed constitutes adjusting the file in good faith or constitutes acting reasonably. The result was an unreasonable delay in assessing and treating the Applicant’s injuries because the benefits claimed were denied.
I find that Unica has unreasonably delayed payment of benefits, and that a special award is appropriate. The Applicant calculated the total monetary amount of the claim at $20,760.56, including the attendant care claim and interest. Unica calculated the claim based solely on attendant care at $6,022.85—$397 per month for one year plus interest. The special award is to be no more than 50% of the amount to which the person was entitled at the time of the award, together with interest on all amounts then owing including unpaid interest.[34] Since the attendant care claim was not approved but the remaining claims have been, I calculate the special award on the net amount of $20,760.56 less $6,022.85. Unica’s failings are not the most egregious, but an award is appropriate to inspire more careful attention on its part to claims like this one. The special award is fixed at $5,000.00.
The 2017 civil action, Shaw v. Mkheyan, arose when the injured plaintiff brought a claim for damages against the Defendants, as a result of a 2009 motor vehicle collision between the parties. At the conclusion of the trial, the jury awarded the Plaintiff general (non-pecuniary) damages, as well as damages for future health care costs and future housekeeping expenses.
https://www.personalinjurylawyerservice.ca/blog/court-rules-that-car-accident-caused-plaintiffs-osteoarthritis-to-become-symptomatic
[40.] The applicant submitted that the respondent unreasonably withheld or delayed payment regarding the medical benefits for physiotherapy services and the cost of psychiatric and orthopaedic assessments. I agree that the payment for physiotherapy services and the psychiatric and orthopaedic assessments were unreasonably withheld for the reasons that follow.
[41.] Regarding the physiotherapy services, the respondent does not dispute that the applicant has chronic pain syndrome, but whether the treatment will lead to the applicant’s recovery. Drs. West and Gerber indicated that the applicant will not likely recover from the pain despite appropriate treatment. I am of the view that the goal for treatment for this applicant should be pain relief and reduction given his chronic pain diagnosis. As such, I do not agree with the respondent’s rationale that given the applicant is not able to recover from his injuries that further physiotherapy treatment is not reasonable and necessary.
[42.] Regarding the assessments, given that Drs. West and Gerber’s assessments were dated and the persistent nature of the applicant’s chronic pain, I find that it was reasonable for the applicant to request to undergo new assessments in order to determine if the assessors could recommend other treatments at this stage of his chronic pain. I am not persuaded by the respondent’s position regarding the denial of the assessments given the nature of the applicant’s chronic pain and the timing of his prior assessments.
[43.] Regarding the length of the respondent’s delay, the respondent delayed payment for 1-3 years depending on the treatment plan. The delay in payment of the treatment plans delayed the applicant’s ability to effectively manage his chronic condition. According to the applicant, he had to incur the cost of the physiotherapy services, which has impacted him financially.
A claimant and their insurer recently sought to have their insurance dispute over payment of income replacement benefits decided by an adjudicator for the Licence Appeal Tribunal. The dispute arose when the insurance company, Co-operators General Insurance Company, stopped paying a claimant’s income replacement benefits because the claimant refused to attend a medical examination requested by the insurer.
https://www.ilolaw.ca/blogpost/arbitrator-rules-that-applicant-must-submit-to-insurers-request-for-medical-examination
They say you reap what you sow but in the case of Ontario’s vulnerable and injured car accident survivors – they are reaping the sorrow for poorly conceived auto insurance legislation and a harmful lack of oversight for medical ‘experts’ examinations/reports and that means there’s a long line-up to have their cases heard in court.
The Insurer Medical Examinations (IMEs) are out of control and the recent media coverage in the Toronto Star and the National Post has exposed this seamy underbelly of medicine. Insurer ‘experts’ are making hundreds of thousands of dollars a year, some at $77,000 a month, and the medical evidence is so poorly crafted, so partisan and unacceptable that Ontario judges are at a loss on how to stem the dishonest testimony. It’s widespread, it’s shameful and it isn’t going to stop until the government steps up and speaks out for the ill and injured and forces Colleges to do their duty.
http://www.fairassociation.ca/wp-content/uploads/2017/09/OPEN-LETTER-sent-to-MPPs-and-media-Sept-8-2017.pdf
