Canadian Insurance News

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.secondopinion.ca/sears.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 unqulaified, 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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College of Psychologists of Ontario -Marlin, Richard G (Richard)

https://members.cpo.on.ca/members_search/show/1012?section=discipline#ui-tabs-12

[The following was placed on the Public Register on March 6, 2013]

The Inquires Reports and Complaints Committee referred the following specified allegation to the Discipline Committee:

Dr. Richard Marlin committed an act of professional misconduct in that the
governing body of a health profession in a jurisdiction other than Ontario has
found that Dr. Marlin committed an act of professional misconduct that would be
an act of professional misconduct as defined in the regulations, as per s.51(1)(b)
of the Health Professional Procedural Code, being Schedule 2 to the Regulated
Health Professions Act, 1991, S.O. 1991, c. 18.

Specifically, the Hearing Tribunal of the College of Alberta Psychologists found that Dr. Marlin:
(i) Conducted a psychometric test with a client when the client was averse to doing so;
(ii) Wrote to the client’s other care providers without having clear consent from the client to do so;
(iii) Limited access to the client’s family physician and other specialists, contrary to the client’s choice;
(iv) Failed to create a relationship in which the respect and dignity of the client was maintained;
(v) Conducted a psychometric test when the client was under duress/emotional stress; and,
(vi) Failed to ensure that there were sufficient professional attendances directly with the client when the pre-existing history and conditions of the client mandated a higher level of interaction than once per month.

A hearing will take place at 10:00 a.m. on Wednesday, September 4, 2013 at Atchison & Denman Court Reporting Services, 155 University Avenue, Suite 302, Toronto, Ontario M5H 3B7.

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Nagle v. Thomas, 2009 NBQB 66 (CanLII) 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.

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Hedstrom v. Manufacturers Life Ins. Co., 2002 BCSC 1502(CanLII) 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.

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http://www.fsco.gov.on.ca/en/drs/counselforum/Pages/2011-03-25.aspx

5. “Doctored” Reports:
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

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Allstate Insurance Company v. Fairview Assessment Centre, 2013 ONSC 5446 (CanLII), http://canlii.ca/t/g06vv

Analysis

[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.

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PFR v BU, 2013 CanLII 46994 (ON HPARB) — 2013-07-25
Health Professions Appeal and Review Board — Ontario

The Committee’s Investigation and Decision

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
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SS v GC, 2013 CanLII 45566 (ON HPARB), 12-CRV-0656 2013-07-24 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.

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Fielden v. Health Professions Appeal and Review Board, 2013 ONSC 4261 (CanLII) — 2013-06-19
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.

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Silas v. Fielden, 2011 HRTO 1057 (CanLII) 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.

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Xavier and Old Republic Insurance Company

Arbitration, 2009-02-06, Reg 403/96.

…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.

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Turner and State Farm

Arbitration, 2004-04-28, Reg 403/96. Preliminary Issue

…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.

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KI v LK, 2013 CanLII 332 (ON HPARB) 2013-01-11 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/

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Ms. M.G. and Economical

Arbitration, 2012-11-23 FSCO A09-002443

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

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M.M. and Guarantee

Arbitration, 2012-09-19 FSCO A10-000338

Guarantee relied on expert opinions that there was no “ongoing” brain impairment, that the GCS score of 9 was “isolated” and that the GCS scored related “primarily” and “predominantly” to hemodynamic instability and/or hypoxemia. Guarantee also relied on the insertion of qualifying language into the relevant provision of the Schedule such as “ongoing”, “durable”, or “significant” before “brain impairment” or “solely” before “results in”. This is not in keeping with the rulings in both Liu and Young.

Many of M.M.’s assessors imported qualifying language into the Schedule, and based on that qualifying language, opined that she did not meet the subsection 2(1.1)(e)(i) criteria. Kaplan and Associates diagnosed a brain injury and agreed there was a GCS score of 9. They also were of the opinion that the brain injury contributed to the lower GCS. However, they discounted M.M.’s GCS score because they did not consider it to be directly and exclusively caused by the brain injury. They concluded that the brain impairment, the disrupted consciousness, was primarily caused by hemodynamic instability due to blood loss and not exclusively by M.M.’s brain injury.

Read Alan Shanoff column An Insurance Nightmare http://www.torontosun.com/2012/10/19/an-insurance-nightmare

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Mr. C. and Coachman – 2

Arbitration, 2011-10-21 FSCO A09-000167

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. _______________________________________ _________________________

Cowans and Motors Insurance

Arbitration, 2010-10-15 FSCO A09-003237

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

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Atkinson and Bertie and Clinton Decision Date: 2009-01-06 FSCO A08-000014

Once again the difficulty here really is evidentiary in nature. As an arbitrator I find Dr. Robert’s report to be unhelpful in making a decision as to whether Mr. Atkinson’s treatment plan was reasonable and necessary. The doctor may have reasonably believed that the conclusion he reached was warranted, but nothing in his report helps me to understand “why” he believed that. If Bertie and Clinton chose to rely on this “less is more” form of expert report, then I conclude that they did so at their peril. There is simply no helpful reasoning contained within it for anyone looking at the circumstances from the outside. One has to note that if medical assessments ultimately come down to nothing more than “he said/she said” types of arguments, then the burden of proof presumptions in the law will ultimately be the sole warrant for determining the outcome of disputes.

Useful expert reports are those which help the ultimate decision maker, whether circumstantially, that is an insurance adjuster or an adjudicator, to understand the evidence in support of, as well as challenging, the conclusion that a claimed benefit is reasonable and necessary. Reports that only record the evidence on one side of the case are generally unhelpful; they do very little to assist the ultimate decision maker in understanding the complexity of the situation. If a dispute reaches an adjudicator, it is reasonable to assume that there are rational arguments on both sides of the case. If expert reports do not rationally help the ultimate decision maker in making her or his decision they serve no useful purpose. Given the high cost associated with generating many of these reports they should address the situation in a helpful, rather than a partisan way.
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Saunders and Royal & SunAlliance