Symptom validity test of auto victim upheld by doctor’s professional review board

Ontario’s overseer of medical health professionals has rejected a car accident victim’s complaint about an independent medical examiner selected by the auto insurer over the psychologist’s use of symptom validity testing.

At the request of his insurer, the claimant saw Ontario psychologist Ian Smith after the claimant was involved in a motor vehicle accident on July 6, 2019. Smith evaluated whether the claimant was entitled to income replacement benefits based on any psychological impact from the collision.

In a Feb. 6, 2020 report, Smith concluded there was insufficient evidence to suggest the claimant had sustained a psychological condition as a direct result of his accident, or that his pre-existing condition, major depressive disorder, was worsened by the impact of the collision.

Smith’s assessment was based in part on validity test scores obtained using the Miller Forensic Assessment of Symptoms Test (M-FAST) and the Nonverbal Medical Symptom Validity Test (NV-MSVT).

These symptom validity tests can be used to detect poor effort, underperformance, and exaggeration, and they are structured, validated, and objectively scored. There is a debate in medical literature about whether they work for a polytraumatic symptom pattern typically seen in patients injured in serious auto accidents.

The claimant received a second opinion from Dr. Zack Cernovsky, a psychologist who has written in several medical journals about the inappropriate use of symptom validity testing for car collision victims.

Cernovsky concluded in reports dated Feb. 11 and May 7, 2020, the claimant suffered from post-concussion syndrome, nonorganic insomnia disorder, post-traumatic stress disorder, adjustment disorder with anxiety and depressed mood, and whiplash associated disorder.

The claimant lodged a complaint against Smith at the Complaints and Reports Committee of the College of Psychologists of Ontario, arguing:

• Smith rendered a professional opinion that was not based on reliable and accurate information;
• He inappropriately used symptom validity testing in an insurer-referred assessment of a collision patient; and
• Smith displayed a lack of professional objectivity or appeared to be biased against the claimant in favour of the insurance company.

The committee found no evidence of bias in favour of the insurer. It further found Smith had used symptom validity testing appropriately, because the test scores were contextualized with other sources of information about the injuries. However, after investigating the complaint further, the committee recommending providing the following advice to the psychologist:

“You are encouraged to use sensitive and clear language when discussing validity testing. You are reminded that invalid results may suggest an inconclusive assessment, but they do not necessarily mean the client has no impairment or distress. Greater appreciation of this may provide validation to the client.”

The claimant challenged the committee’s decision at the Health Professions Appeal and Review Board. But the board upheld the committee’s decision, finding it was not the role of the committee to decide the debate in the medical literature – only whether or not it was reasonable for Smith to use the test.

“The committee found that [Smith’s] report appeared balanced and comprehensive and that his reports appeared consistent with the findings rendered by other professionals involved in the [claimant’s] care,” the board ruled in a decision released Monday.

The board went on to cite how caselaw in the Ontario courts deals with disciplinary matters that involve professional methodological debates.

“In my view, when a professional disciplinary body is passing judgment on whether a member of the profession has failed while performing his professional work to maintain the standards of the profession, the member cannot be found guilty on the basis that the vast majority of the profession feel the conduct or judgment of the member was wrong, if there also exists a responsible and competent body of professional opinion that supports his conduct or judgment,” the Ontario Divisional Court has ruled.

The hospital review board noted in its decision that: “The committee’s decision and the OPA/CAPDA guidelines indicate that there is a responsible and competent body of professional opinion that supports the Respondent’s use of symptom validity testing.”

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