I. The Issues
Many years ago, I represented a young gentleman who sustained a concussion due to an auto accident. His insurer sent him to a neurologist that they hand-selected and paid to assess his entitlement to income replacement benefits. Unbeknownst to anyone, my client’s treating clinic had referred him to the same neurologist for assessment. Both assessments happened in very close proximity.
You may wonder how the neurologist did not recognize the client? Well, like many assessments, my client met with one of the neurologist’s bevy of “assistants” for the majority of the time to fill out paperwork answering questions and only saw the doctor for an instance while the doctor scooted in and out of rooms seeing different people for assessments.
The result of the two assessments with the same doctor produced two very different reports: the report to the clinic indicated that my client had sustained a serious head injury and was disabled; while the other report (sent to the insurer) indicated that my client was not suffering those disabling injuries.
A cynical plaintiff lawyer would point the finger at the insurance industry and cry foul! An insurance lawyer might point the finger right back and wonder which of the two reports was the “true” opinion. My belief is that there was no “true” opinion ever formed – only a commoditized product created by the selling expert to meet the needs of the purchaser.
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I wish that I could say that my run-in with the neurologist was an isolated concern in our industry, but it isn’t. The Globe & Mail, for instance, published their own findings about some of the concerns that they identified with expert assessments in the system that we have for those injured in auto accidents: https://www.theglobeandmail.com/news/investigations/doctors-insurance-independent-medical-examinations/article37141790/
I have been blown away by the number of clients who come back after an insurer assessment and tell me that many of the things that the expert report quotes them as having said are completely untrue. You might wonder why these clients don’t record the assessments? Well, the assessment centers now often require people to sign a consent form that states that they are “not permitted” to record the assessment. Why would you want to stop people from recording an assessment that creates an objective record of what was said? - that is something for others to answer. It certainly doesn’t make sense to me – but it is not lost on me, that an injured person is at a distinct disadvantage in a swearing contest with a doctor about was said.
The government has taken away personal injury lawyer's ability to put these sorts of disputes in front of a jury (or even take them to court at all) and seek bad faith damages, so insurers/centers have many more protections than they used to. Let me be very clear in saying that I do not believe insurers or adjusters are “evil” in any way at all. Most of the adjuster that I meet are good people – although sometimes made overly jaded and skeptical by some of what they have seen in the past. But (even many adjusters will tell you that), by their very nature, insurance companies (as corporate entities) are devoid of heart and soul, they are routinized and follow command-chain procedure and so it is necessary to carefully regulate those entities and the systems that they are involved in.
The insurance assessment centers often have “quality assurance departments” and outsiders typically don’t know how much input they have into the reports that they review. We do know that the centers are for profit and are in a free market where the insurance companies choose who to give their work to. The concern that I have with these departments being involved is that they potentially can alter or shape opinions or information in ways that may not reflect what even the insurance hired doctor believed. The Insurance Act provides for assessments by experts where reasonable and necessary, but it does not contemplate opinions being written by third-party quality centers that never even saw the client and then sending those reports in the doctor’s name. Let me be clear, that there are some very legitimate centers out there, but there are certainly some that have caused me concern as well.
Many insurer assessments will produce reports that simply indicate that there is no “objective” reason for disability – ignoring the subjective issues of pain, fatigue, neurological, psychological and other symptoms that can cause very real disability.
II. A possible solution
There are problems on both sides of the ledger – neither the plaintiff nor the defence side can claim uniform purity in the experts that they use.
The root of the problem is, I believe, the motivation created by the source of the payment. The old saying that someone “knows where their bread is buttered” comes to mind. Not all experts are affected by this, but the impression that many in the industry have is that a number of people are affected.
Some jurisdictions have Court rules that more effectively deal with these issues. For instance, some jurisdictions have the Court appoint the experts in a tort matter (either by agreement or random selection) and the cost is split, giving both parties the chance to ask questions to be addressed at the assessment and to cross-examine afterwards. That is a system that, in my opinion, has a far better likelihood of producing fair reports. Further, it slices the cost of these expert battles in half, producing a cost savings for the clients and the system in general as well.
Going hand in hand with that system could be a list of non-partisan experts, that must be agreed to and updated annually (perhaps), on agreement between (for example) the Canadian Defence Lawyers and the Ontario Trial Lawyers Association (which is the association where many plaintiff lawyers belong). Those experts who are perceived to be partisan could be vetoed by one side or the other. This list could then be used for accident benefit assessments as well.
While this may or may not be the right approach, my very firm belief is that the people of Ontario deserve better than what they have and change is sorely needed.