LETTER OF THE LAW: Beware the “independent” medical examiner
Don’t be fooled by the language.
If you are asked by an insurer, the WSIB Board or defendant in a lawsuit to attend for a medical examination in most cases, the examiner will be far from “independent”. Too often these medical examiners are overruling treating professionals’ recommendations leading to benefits being terminated and legitimate legal claims being denied.
Finally, this insidious problem of insurance “guns for hire” that was well known among the legal profession is coming to the attention of the public.
On Nov. 5, 2015, the Ontario Federation of Labour and Ontario Network of Injured Workers’ Groups released the report, “Prescription Over-Ruled.".
The report highlighted the all-too-common occurrences of WSIB case workers routinely relying on one-off medical examinations to overrule treating doctors’ recommendations that benefits be paid to disabled workers.
There is also the recent case of Steinnagel v. Workplace Health, ONSC 2138. The plaintiff in that action, Dr. Brenda Steinnagel, alleges that Workplace Health & Cost Solutions unlawfully terminated her contract because she refused to change her opinions relating to the WSIB claim of a security guard suffering from head injuries.
She alleges that because she wouldn’t give the WSIB Board the opinion it wanted i.e. to deny the worker’s claim for benefits, she was fired as a medical examiner.
Our civil courts are not immune from one-sided and unfair medical examinations.
On Feb. 1, 2016, the Association of Victims for Accident Insurance Reform (AVAIR) called for a public inquiry into the quality of the medical evidence used in Ontario’s courts and tribunals. AVAIR highlighted the issue of insurers spending millions of dollars on medical reports to fight their own clients’ legitimate claims. What a waste of premium dollars.
The Ontario Trial Lawyers Association (OTLA) has called on the Ontario Government to establish a commission to examine the current state of so called “independent” medical assessments of auto accident victims.
At the same time, FAIR has requested that the College of Physicians and Surgeons of Ontario consider a bylaw amendment that will publicize warnings and disciplinary measures against doctors.
FAIR submitted that complaints from accident victims about so called “independent” medical doctors end up in remedial cautions that are never published and made available to the public.
Unfortunately, these problems are caused by a few bad apples. We see the same names over and over again on different files. The reason, insurers know that these doctors will give them a favourable opinion and so the insurers continue to send these few notorious doctors business.
This has to stop. These few bad apples must be driven out of the system. The doctors who know the claimants best – their treating doctors -- must be given the respect that they deserve and their opinions on disability given more weight.
As an injured person you can help. If you attend an independent or insurer medical examination and you are treated unfairly make a complaint to CPSO or if the assessor is not a doctor to the professional’s relevant governing body.
Together we can make a difference and help bring fairness back to the system in Ontario.
Kristian Bonn is a personal injury lawyer and partner at Bonn Law. He grew up in Trenton, works in Belleville and Trenton and lives just over the Bay Bridge in Prince Edward County.
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