Law Times

Law Times • may 9, 2016 Page 5 www.lawtimesnews.com Multiple inquiries sought Momentum builds on misuse of medical reports BY JUDY VAN RHIJN For Law Times A er years of com- plaints about intrusive insurer examinations and medical reports that are commissioned for the purpose of limiting or denying personal injury claims, a storm of official protests is forcing the issue on to the agenda of a mul- titude of bodies. Backed up by the allegations of the medical profession, pa- tient advocates are demanding that official action be taken. "We are seeing an upswing," reports Aidan Macdonald of the Injured Workers Consultants Community Legal Clinic, "espe- cially with awareness and con- cern for the mental health issues caused by the system. It's an in- visible injury that is harder to see and evaluate, but it's starting to be taken seriously." The first salvo of the cam- paign was fired by the Ontario Federation of Labour and Ontar- io Network of Injured Workers' Groups last year when they com- missioned a report in the context of workplace injuries. Released on Nov. 5, 2015, "Prescription Over-Ruled" was authored by Macdonald and his colleague David Newberry. It documented cases where medical evidence from treating doctors was rou- tinely overruled by independent examiners and showcased the concern of doctors that WSIB decisions were worsening their patients' conditions. When the WSIB manage- ment failed to take action, the OFL expanded the report and forwarded it to the Ontario Om- budsman on Jan. 29, requesting a full investigation of claim de- nial at the WSIB. While the OFL/ONIWG report was being worked on, the courts became involved in the issue through Steinnagel v. Workplace Health, 2016 ONSC 2138, the claim of Dr. Brenda Steinnagel. It alleged the unlawful termination of her contract by Workplace Health & Cost Solutions because of pres- sure from the WSIB for physi- cians to alter their medical opin- ions in order to deny claimants' benefits. Steinnagel had refused to change her opinion relating to head injuries received by a secu- rity guard trying to restrain a pa- tient. Her pleadings also alleged economic torts, conspiracy, and fraudulent conduct amounting to a "fraud on the public." On Oct. 26, 2015, a motion to strike was heard on the grounds that the allegations were scan- dalous and incapable of proof or immaterial to the action. The decision was reserved, but the battle continued elsewhere. On Feb. 1, the Association of Victims for Accident Insur- ance Reform called for a public inquiry into the quality of the medical evidence used in On- tario's courts and tribunals. It raised the issue of "the improper and wasteful expenditure by in- surers of hundreds of millions of insurance premium dollars on medical reports to fight their own clients' legitimate claims." "The system is so polarized and partisan," says Rhona Des- Roches, board chairwoman of FAIR. "I've talked to assessors who are doing the Independent Medical Examinations. They feel significant pressure from insurers. They have to choose to act for either side — defence or plaintiff. There doesn't seem to be much space in the middle of the road." On the same day, the Ontario Trial Lawyers Association called on the Ontario government to establish a commission to ex- amine the current state of inde- pendent medical assessments of injured auto accident victims. These calls landed on the desk of the newly appointed adviser on auto insurance and pensions, David Marshall, on his first day on the job. He has been appoint- ed to look at ways to save money in the system. On Feb. 2, Maia Bent, presi- dent of the OTLA, used her time in front of the Standing Com- mittee on Finance and Eco- nomic Affairs pre-budget con- sultation to highlight the culture of claim denials. She spoke not only about the way treating doc- tors' reports are ignored but the explosion in the frequency of independent medical examina- tions that she calls a "systemic barrier to injured people who are trying to get insurance ben- efits for their legitimate injuries." She suggested that one simple solution would be to legislatively limit the number of medical ex- aminations and the frequency of those medical examinations. Meanwhile, on Feb. 10, FAIR opened up another front of at- tack by making a submission to the College of Physicians and Surgeons. It is considering a bylaw amendment, which will publicize warnings and disci- plinary measures against its members. The submission stated that "opinion-for-hire College mem- bers have managed to avoid accountability to the public through the anonymity of the secret college cautions." "FSCO relied on the CPSO to do their regulatory work," states DesRoches. "Complaints of ac- cident victims end up in reme- dial cautions, which were not published. This change will help tremendously." In fact, the ineffectiveness of the CPSO regulatory program received unfavourable judi- cial notice on Feb 26, in Boll- man v. Soenen, 2016 ONSC 1423, which related to a claim for expert expenses. Justice D.J. Gordon referred to "the absence of any meaningful standards for opinion evidence, particularly by the College of Physicians and Surgeons." On April 13, Justice Eliza- beth Stewart dismissed the mo- tion to strike in the Steinnagel case. The WSIB and the Ontario Ombudsman are in the process of investigating the issue, while David Marshall is busy meeting with stakeholders. "He is trying to make the rounds of all the interested par- ties. Coming from the WSIB to auto insurance, it's a steep learn- ing curve." LT NEWS REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! AVAILABLE ONLINE AND IN PRINT With more than 300,500 page views and 100,000 unique visitors monthly canadianlawlist.com captures your market. FOR MORE INFORMATION CONTACT Colleen Austin T: 416.649.9327 | E: colleen.austin@thomsonreuters.com www.canadianlawlist.com Get noticed by the lawyers, judges, corporate counsel, fi nance professionals and other blue chip cilents and prospects who fi nd the contacts they need for Canadian legal expertise at canadianlawlist.com with an annual Gold or Silver Enhanced listing package. ENCHANCE YOUR LISTING TODAY! Untitled-2 1 2016-04-27 3:30 PM The Air Canada Pilots Association (ACPA) is Canada's largest pilot bargaining HNLU[YLWYLZLU[PUNV]LYWPSV[Z^OVÅ`TPSSPVUZVMWHZZLUNLYZHJYVZZ Canada and around the world on Air Canada and Air Canada rouge. ACPA LTWSV`ZHNYV\WVMOPNOS`L_WLYPLUJLKWYVMLZZPVUHSHUKZ\WWVY[Z[HMM^OV ^VYRH[P[ZOLHKX\HY[LYZPU4PZZPZZH\NHHUKPU[OYLLYLNPVUHSVMÄJLZSVJH[LKPU Montreal, Winnipeg, and Vancouver. Visit www.acpa.caMVYTVYLPUMVYTH[PVU If you are interested in either of these opportunities, please submit your application, including a resume, on or before May 27 th , 2016 to: Brad Ridge, Senior Director of Labour Relations, Air Canada Pilots Association fax: 905-678-9016 or email: careers@acpa.ca LABOUR RELATIONS PROFESSIONALS ACPA is recruiting two (2) full-time permanent labour relations professionals. These individuals will join a collaborative Labour Relations Department that provides advice and support to the governing body, legal counsel, staff and members of ACPA. ;OLZ\JJLZZM\SJHUKPKH[LZ^PSS^VYRPUHKLTHUKPUNLU]PYVUTLU[^P[OVMÄJPHSZZ[HMMHUKJVTTP[[LLTLTILYZ in negotiations, collective agreement administration, litigation and other capacities supporting ACPA's goals. (U33)1+VY\UP]LYZP[`KLNYLLPU3HIV\Y0UK\Z[YPHS9LSH[PVUZVYV[OLYYLSH[LKÄLSKPZYLX\PYLK We are looking for one (1) junior and one (1) more senior labour relations professional to join our staff. The junior applicant should have a minimum of 4 years of experience, while the more senior applicant should have a minimum of seven years of progressive experience in labour relations, including some background in litigation, JVSSLJ[P]LIHYNHPUPUNNYPL]HUJLOHUKSPUNHUKWYV]PKPUNHK]PJLHZYLX\PYLKVUHIYVHKYHUNLVM[VWPJZPUJS\KPUN labour law, governance and legislative compliance (internal to the organization). Superior organizational, communications, research and advocacy skills are essential. Candidates with legal L_WLYPLUJLHYLLUJV\YHNLK[VHWWS`HUK[OLHIPSP[`[V^VYRPU-YLUJOHUKVYL_WLY[PZLPUPUZ\YHUJLHUKILULÄ[Z ^V\SKILHUHZZL[(*7(PZJVTTP[[LK[V[OLWYPUJPWSLZVMLTWSV`TLU[LX\P[`HUK^L^PSSJVUZPKLYHSSX\HSPÄLK applicants. ;OLZ\JJLZZM\SJHUKPKH[LZ^PSSILIHZLKH[(*7(»ZOLHKX\HY[LYZPU4PZZPZZH\NH6U[HYPV:HSHY`^PSSIL JVTTLUZ\YH[L^P[OL_WLYPLUJLHUKX\HSPÄJH[PVUZHUKPUJS\KLZHJVTWYLOLUZP]LILULÄ[WHJRHNL>L[OHURHSS applicants for their interest, however, only those selected for an interview will be contacted. Untitled-1 1 2016-05-05 11:50 AM

• Cover