DAILY NEWS Dec 10, 2012 3:46 PM - 10 comments

Ontario needs to crack down on independent medical examiners: Accident victims' group

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By: Greg Meckbach, Associate Editor
2012-12-10

An advocacy organization representing auto accident victims is taking issue with some of the recommendations of the recently released report from the auto fraud task force in Ontario. 

Medical

Although it describes the report as "largely a thoughtful and targeted approach to combating fraud in the insurance industry," the Fair Association of Victims for Accident Reform (FAIR) says claimants should not be fined $500 for failing to attend a medical exam and the Ontario government needs to take action against what FAIR calls "substandard" independent medical exams.

In its final report released Nov. 29, the Ontario Automobile Insurance Anti-Fraud Task Force Steering Committee recommended that the province require insurers to disclose publicly how they choose and assess the performance of businesses and professionals they recommend or refer consumers to see, such as independent medical examiners (IMEs). The task force also said the province should allow insurers to collect a cancellation fee of $500 for claimants who fail to attend a scheduled appointment after agreeing to do so, if they fail to provide "adequate notice" or a "reasonable explanation."

The report noted that independent medical examinations are "often regarded with suspicion" and it said the professional colleges should, among other things, prescribe "best practices for maintaining professional independence and a reputation for fairness" and establish a process for reviewing complaints and imposing sanctions, where they find that those conducting examinations "do not deserve the public's trust."

In its response to the report, FAIR said the proposal that insurers be required to publicly disclose how they choose IME examiners "will make some difference." In an interview, FAIR chair Rhona DesRoches suggests the province needs to go further in addressing situations where there are allegations a physician is biased in favour of an insurer, or where they complete what she calls "substandard" IME reports.

DesRoches added a physician with multiple complaints will not necessarily have his or her name published by the College of Physicians and Surgeons of Ontario (CPSO), unless the complaints are referred to its disciplinary committee.

"I think they should name physicians or IME providers or health care providers that have multiple complaints," she said of CPSO.

But CSPO is only mandated by Ontario's Regulated Health Professions Act to provide specific information on doctors, a college spokesperson stated in an e-mail to Canadian Underwriter. That information includes restrictions on doctors' licences, allegations referred to the discipline committee and the results of disciplinary and incapacity proceedings unless the CPSO panel "has made no finding with regard to the proceeding."

The CPSO spokesperson added: "The outcomes of complaints investigations that do not result in a referral to discipline are not, by law, public information and we have no discretion in this regard."

In addition to its recommendation to publish information on complaints against physicians, FAIR also opposes the $500 fine for missed appointments recommended by the task force.

DesRoches noted there are already consequences for missing appointments, with claimants already being charged fees for missing appointment

Other groups, including the Ontario Trial Lawyers Association (OLTA), are also opposed to the $500 fee, while insurers who made submissions to the task force last summer had mixed views on the proposed fee.

Allstate Canada supported it, but noted it is "inappropriate for the insurer to deduct this amount from benefits owed" and that an arbitrator or court should have the ability to deduct this in their decisions. 

For its part, State Farm recommended that the province allow insurers to reduce benefits by $500 for missing an appointment.

There was also mixed reaction from the industry on the issue of IMEs.

In its submission, the Insurance Bureau of Canada said it supports "a more rigorous process" for the ownership of clinics, that the province have "more of a role in accrediting clinics and assessment centres" and that regulations apply to "commercial enterprises that supply IMEs."

However, mandatory disclosure of "preferred providers and the selection process for choosing those vendors would be difficult to keep current and provide limited value to an average consumer when making the purchase decision," the Co-operators stated in its submission. If implemented, the Co-operators wrote, this policy could "lead to increased litigation with plaintiff's lawyers looking to use this information to limit the utility of independent medical examinations." 

Collision

But in its response to the task force report, FAIR stated its members believe that "substandard" IMEs are "far more widespread than suggested" by the task force. In an e-mail to Canadian Underwriter, DesRoches cited two cases in which FSCO arbitrators ruled against insurance carriers.

One case involved a claimant who reported pain 1.5 to 2 hours after being rear-ended, in an accident that resulted in a scratch on the vehicle. 

The claimant said the accident caused impairments and pain that "substantially impacted her physical, psychological, social and occupational functioning."

The FSCO arbitrator noted that the insurance carrier used a report from a psychiatrist to terminate income replacement benefits, but the arbitrator said that report lacked "a detailed or accurate description" of the claimant's job demands and that there were "deficiencies" with the report. The arbitrator found that the claimant was entitled to income replacement benefits over a period of more than a year, with interest, plus a special award.

The CPSO has a policy on reports prepared by doctors for third parties, which requires that they contain accurate information and be written in an objective manner. 

"Physicians have obligations to be truthful and accurate when detailing information in the report, and when forming a professional opinion about the patient's or the examinee's condition or functional abilities," according to the policy, which is posted to the CPSO website. The policy notes that claims of biased reports "typically arise" when a third party has paid for a report and the report is used to support a decision that affects the person being examined, such as the denial of insurance benefits.

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