Independent Medical Examiners
and
WCB Medical Advisors:
The Canadian Injured Workers Society is concerned
about biased medical reports by WCB funded medical practitioners.
We feel that most medical professionals are ethical
and would never become involved in this type of manipulation of medical
evidence. However, injured workers are reporting that this type of
unethical, and possibly criminal, activity is occuring in relation to their WCB
claims. |
"Many
doctors are incensed by WCB’s apparent lack of respect for their
professional judgment, and some even refuse to accept patients who have an
active WCB claim. And the Board will never be seen as a fair tribunal as long
as it regularly rejects the evidence of the doctors who have actually examined
and treated injured workers in favour of the opinions of medical advisors who
rely on the Board for much or all of their income.." -
Workers’ Compensation Advocacy Group -
Presentation to the Service Delivery Core Review - BC -
2001
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The following court decision (2006) paves
the way for doctors and other medical professionals who do Independent Medical
Evaluations (IMEs) to be held accountable in court for damages caused by their
assessments.
This important decision involved DAC
(Designated Assessment Centre) assessors in Ontario who had similar
responsibilities under provincial law as the workers compensation assessors
have - so it is very applicable to WCB medical assessors across Canada.
"The decision means there will be greater responsibility and
accountability for IMEs. And that's a good thing." - Susan Chapman, representative
From
Law Times article by Julius
Melnitzer
The decision of the Divisional Court in Worthman v.
AssessMed Inc. basically asserted that independent medical examiners do not
have an automatic right to invoke the "witness immunity defence" and that their
legal duty owed to claimants under a no-fault injury scheme is broader than
previously thought. Here is the full court case,
Worthman v. Assessmed Inc., 2006 CanLII 7038 (ON S.C.D.C.)
Justice Ted Matlow of the Ontario Superior Court stated:
"Although many of the authorities cited seem to establish the principle
that a doctor retained by a third party to examine and report on a person to
the third party owes no legal duty to the person other than to avoid injuring
her, it may well be that, on the facts of this case, the
legal duty owed by the defendants to the plaintiff may have been broader in the
context of the mechanism established for the resolution of contested claim for
no-fault benefits by the Insurance Act."
"As well, it may be that the duty to avoid injuring
the plaintiff extended to the avoidance of both psychological and economic
injuries."Justice Janet MacFarland granted leave to appeal from Matlow's
decision, noting that his ruling appeared to conflict "with a number of Ontario
decisions which have held that plaintiffs examined in the no-fault context by
doctors appointed by their insurers are owed only a very narrow duty of care by
such examining doctors and their reports and evidence based on such reports are
both absolutely privileged."
However, the Divisional Court upheld
Matlow's decision allowing the case to proceed to trial.
Justice Denis
J. Power, who wrote the reasons for the majority, noted that the "privilege"
sought by the defendants was not a privilege "in the sense of control of
information as in solicitor/client or settlement discussions privileges."
"It is a dramatically different concept -- i.e.,
immunity from suit," he wrote.The issue was whether Grant's report was
"sought or prepared in the context of actual or contemplated litigation."
Only medical evidence acquired in the context of
arbitration qualifies for immunity, not medical evidence acquired in the
context of adjusting an applicant's claim in a no-fault context. "In my
opinion, based on the record as it now exists, it is not clear that, when the
insurer required the plaintiff to be examined, there was a lis or anticipated
lis between the parties," Power wrote. "This is an important and an evolving
area of law . . . " Power wrote.
AssessMed, has filed an application
for leave to appeal.
Notes on AssessMed and their other
lawsuits |
| Excerpts from the
discussion: (Simmons, J.A.)
V. Analysis
i) Is it plain and obvious that no cause of action lies
against a DAC and its employees for conducting a prescribed assessment
negligently and in bad faith? [40] Dealing first with
reasonable foreseeability of harm, since the DAC assessment operates
to actually determine the insured's entitlement to benefits on at least a
preliminary basis , the risk of harm to the insured arises from the prospect
that, in the event of a biased or careless assessment, benefits will be
wrongfully withheld pending further action by the insured. Depending on
the circumstances, the insured may incur economic losses by spending her own
money or borrowing funds to pay for necessary treatments; alternatively, the
insured's condition may deteriorate if treatment is delayed.
[47] In
this case, the special relationship relied on by the appellants is the DAC's
role in rendering an opinion, which, as a matter of statute, constitutes the
preliminary determination of the appellants' entitlement to benefits. Although
insured persons do not directly rely on the DAC "representation'"and this case
does not therefore fit precisely into the negligent misrepresentation category,
it is significant that the DAC opinion determines an
insured's entitlement to benefits at the assessment stage. As already
noted, this determination will be final unless one of the parties chooses to
dispute it. Moreover, it is reasonably foreseeable that,
in the event of a careless or biased assessment, an insured will suffer an
independent loss. Because of the consequences to both insurers and insureds
arising from their opinions, it is reasonable to require that DACs assume
responsibility for the accuracy of their reports.
[48] In my view, their legislatively created decision-making
function distinguishes DACs from expert witnesses, court appointed
assessors, and the types of investigators considered by the motion judge and
creates a close and direct relationship to the persons they assess. Viewed in
this light, I do not agree that it is plain and obvious that the potential role
of DAC assessors as expert witnesses should be viewed as the primary defining
element of that relationship.
[50] I conclude
that, as in Haskett, there is some basis for holding the relationship in
this case analogous to relationships that form the basis for negligent
misrepresentation claims.
ii) Is it plain and obvious that Richmond Hill and its
employees are protected from suit by the doctrine of witness
immunity? [59] Notwithstanding the broad
scope of the doctrine of witness immunity, I am not persuaded that it is plain
and obvious that it applies in this case. As already noted, the
foundation of the appellants' claim is not the potential testimony of the
respondents as witnesses nor their actions in collecting or considering
material on which they may be called upon to testify. Rather, the appellants
rely on the independent wrong occasioned by the respondents' conduct as
decision-makers i.e. the delay in receiving the benefits to which they
are otherwise entitled.
[60] In my view, to the
extent that the respondents have a duty of care to the appellants arising from
their statutory role as decision-makers, that may be viewed as constituting a
free-standing basis for liability, separate and apart from their role as
witnesses. In the circumstances, pending determination of the scope of their
duty, it is not plain and obvious that they should be relieved of liability by
virtue only of the fact that they may be called upon to testify in court.
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See our "Commissions &
REPORTS" page for:
GUIDELINES and
RATINGS
OCCUPATIONAL HEALTH &
SAFETY
SUICIDE and
WCB
MEDICAL ISSUES SUCH
AS:
Rehab
Chronic Pain
Chronic
Stress
and OTHER MEDICAL ISSUES,
RESOURCES and LINKS |
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What
are injured workers reporting?
- specialists' reports being
overrruled by WCB doctors, nurses, and even non-medical staff
- specialists'
diagnoses being ignored if they favour the worker's claim
- assessments
being made on workers by WCB-paid doctors without even seeing the worker or
consulting with the worker's GP.
- doctors who have lost their licenses due
to disciplinary reasons doing employee medical investigations.
- physical
harm caused by WCB medical examinations. |
Examining the examiners
". . . there is a dark
underbelly in the business . . . many patients are being profoundly
mistreated."
Independent Medical Examiners Criticize
Attending Physicians
The
60 Summits Project
(sponsored by Prudential Financial Inc.) is promoting adoption of the
American College of Occupational and Environmental Medicine's (ACOEM) guideline
"Preventing Needless Work Disability by Helping People Stay
Employed" throughout Canada and the US. This
guideline advocates paying SOME doctors - but not all doctors,
saying "Make billing for these services a privilege, not a right,
for providers and make that privilege contingent on completion of training and
an ongoing pattern of evidence-based care and good-faith effort to achieve
optimal functional outcomes." (The CIWS believes that
the insurance industry and workers compensation boards should not be involved
in interfering with the medical profession. Privileged payment schemes to SOME
doctors would constitute interference.) (Prudential Financial, Inc. has
teamed up with the 60 Summits Project to promote adoption of the above ACOEM
guideline.)
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What judges have said
about some doctors who have worked for WCBs:
- "I have great
difficulty accepting (Dr. X's) conclusions. Her method of conducting
assessments is iconoclastic to say the least. She refuses to read clinical
notes, records and reports sent to her before her examination of the patient.
She makes no notes, relying only on her memory and her report, which in this
case was dictated 10 months ago."
- "(Dr. X's) review of the medical
notes and records seems to have been sketchy. . . . As an example (Dr. X)
believed that the plaintiff had been cleared for work as fully recovered by his
physiotherapist in March ---- when this was clearly not the case."
-
"Perhaps most significantly (Dr. X) categorised the plaintiff as "a complainer"
with a low tolerance for pain, although nothing in (Dr. X's) evidence supported
this finding. With one exception, every other professional who has seen the
plaintiff has noted his stoicism and tendency to minimize his pain."
-
"The article manifested an intellectual tendency on the part of (Dr. X) to
treat claimants with suspicion and to question the validity of the opinions
expressed by their treating health care workers. It was an attractive approach
for those insurers who questioned the extent of their insured's disability, but
left doubt as to whether the approach resulting from this ideology was
objective or impartial."
- "(Dr. X's) research in this area was based on
discussions with assessors at (Dr. X's Company) but not on any empirical or
validated study. In my view, it reflected a tendentious approach to
assessments, which subjected (Dr. X's Company) to being viewed as partial to
insurers."
The article (Name of Dr. X's Article) authored by (Dr. X)
did manifest an approach to medical evaluations where claimants were treated
with suspicion. In the program, (Dr. X) said there was an honest belief in many
claimants they saw that they are disabled, and they are not. They are
self-deluding."
- "I am satisfied that it was reasonable to state (Dr.
X) was a doctor who took a critical approach to claimants' positions in
conducting assessments for insurance companies -- that he did "play hardball
for insurance companies." "
- "The general philosophy of (Dr. X's
Company), the manner in which (Dr. X) crafted his report, and the conclusions
he expressed can also lead to a reasonable conclusion that his report was
biased." |
There are some
courageous and ethical doctors in Canada who have seen the abuses within
WCBs and have come forward with their complaints. One brave doctor, Doctor
Maida Follini, testified before a 1998 committee on Nova Scotia's WCB
Act,
"I experienced some feeling of pressure
from the WCB in relation to one of my cases. After submitting my report, I
received a letter from Dr. Kevin A. Bourke, Medical Adviser, Central North
Shore, informing me that he would not process the invoice for my fee unless I
edited my report to conform to his desires. Fortunately, unbeknownst to him, I
had already received my fee. I, of course, did not edit my report. But I did
inform him of the rationale for the recommendations that I had made. I might
say that I was somewhat affronted that a WCB staff member would request that an
independent professional change her report in order to conform to the board's
wishes and in particular, threaten to withhold payment."
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