Law Times

Law Times • January 11, 2016 Page 13 www.lawtimesnews.com Penalties and punitive damages Medical assessors face greater scrutiny by the courts BY JUDY VAN RHIJN For Law Times R ecent personal injury de- cisions have attempted to ensure that parties meet their duty of good faith by imposing or removing "penal - ties," usually in the form of puni- tive damages. In particular, the decision in Waldock v. State Farm Automobile Insurance Company released on Nov. 16, 2015, involving an arbi - trator's decision in a Financial Ser- vices Commission of Ontario case, shows the effective use of penalties where a deficient medical report is relied on, but it also highlights the need for oversight of assessors, an area that the Ontario legislature has yet to tackle. In the Waldock case, punitive damages were imposed when State Farm relied on a medical examin - er's report that failed to follow the accepted guidelines and denied a claimant's catastrophic impair- ment application. While lawyers on both sides of the personal injury bar agree that costs are an effective way to govern conduct on a case-by-case basis, many believe there is a more sys - temic problem that needs to be ad- dressed, especially when it comes to medical assessors. Leonard Kunka, a partner at omson Rog- ers, who appeared for Waldock, says that part of the problem is that there are few controls over asses- sors. "It will be interesting to see if the government goes the same route as they have with treatment providers, requiring them to get registered and certified in order to be a treatment provider who can legitimately bill the insurer." Kunka believes that Waldock was a very good case to show the difference between an in-depth as - sessment and a cursory approach, which highlights the issue of edu- cation for assessors. "Mr. Waldock was desperate to get back to work. He loves teaching in the classroom. An assessor could say that he's back to work so there's no impact. If you dig into the situation, there's a huge impact. He lost his whole sabbati - cal year to rehabilitation and he's not the teacher he used to be. He was previously very animated and got high ratings from his students. Now his ratings are down and he can't do administrative tasks. Even though he's back to work, he's not the professor he was before." Kunka says he believes that in the absence of regulatory over - sight, a lawyer's choice of assessor and review of the injury report are especially important, particularly when assessing the mental and behavioural extent of the impair - ment. "It's a detailed and compli- cated assessment, not a cursory look. e AMA [American Medi- cal Association] guidelines don't set it out all that clearly. It's le up to the assessors to take all that in- formation and convert it into a whole person impairment rating." However, he sees that the lesson in Waldock is not just applicable to the most serious cases. "e case has broader implications than for catastrophic assessments. It ap - plies to any type of assessment un- der the SABS [Statutory Accident Benefits Schedule]. e assessor has to take some time and do it properly, and the person receiving the report can't just like the conclu - sion and not pay much attention to how they got there. You can't just blindly look at the conclusion." Once the dispute reaches the courts, there are various methods used to guard against the effect of a flawed report, but they are not frequently used. In the past, there have been requests that as - sessments be recorded based on a history of prior adverse com- ments. e issue was dealt with in the Ontario Superior Court case of Bakalenikov v. Semkiw in 2010. Defence lawyer Paul Kiddey of Gilbert, Kirby, Stringer LLP, who was involved in that case, says he feels that the high-water mark for the use of prior adverse comments has come and gone, as have argu - ments requesting recording of as- sessments. "I can recall a bunch of fights three to five years ago but nothing recently." In Waldock, Kunka did not get the chance to use the prior ad- verse comments he had uncov- ered. "at is fair game for cross- examination, but there was no op- portunity to cross-examine as they didn't call the doctor." He is cau- tiously positive about recording assessments in the right case, par- ticularly where functional capacity is in dispute. "e assessor may get them to do something once, and maybe they can do it once for 30 seconds, but can they do it for an eight-hour shi or as oen as they would have to do it in a regular work environment?" Kiddey says a tendency toward bias occurs on both sides. "Look at the statistics. I've never seen a plaintiff 's report that is negative to the plaintiff. ey don't have to show all the reports as the defence does, but is that statistically pos - sible? ere is an obvious financial motive, and obviously they're all human beings. It's probably hu- man nature to favour the side em- ploying you." He also points out that two doc- tors in good standing who respect each other can have totally differ- ent opinions. "Call it human na- ture or greed or wanting to please the person who commissioned the report. You can't avoid it." Recent changes to the Ontario Rules of Civil Procedure requiring experts to sign Form 53 certify - ing their independence has been one attempt to curtail this. Kid- dey thinks it is an unnecessary and "silly" exercise. "ey already know they are supposed to give an impartial decision." Another idea tried in the past was a body for joint referral. "It's never really a good answer," says Kiddey. "On balance, one might get a more objective opinion, but that could be naïve because it be - comes a politburo." LT Medical assessments require more than simply a cursory review, says Leonard Kunka. 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