Arbitrator Takes Expert Witnesses to Task for Not Being Impartial but Acting to Promote Insurer's Case - Sopher v. Primmum

November 27, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Sopher and Primmum

Decision Date: November 9, 2017
Heard Before: Adjudicator David Snider

Expert Evidence Rejected: Expert witness actively promoting Primmum’s case; expert not impartial; examination not thorough or complete; examination not document nor data organized; conflict of interest; inappropriately trained daughter as medical assistant; symptoms missed; defensive expert witness; incorrect diagnosis; missed diagnosis

Gary Sopher was injured in a car accident August 14, 2012.  He applied for and received SABs from Primmum, however, when Primmum denied Mr. Sopher’s entitlement to catastrophic impairment benefits Mr. Sopher applied for arbitration at the FSCO.

Issues:

1. Is Mr. Sopher catastrophically impaired?
2. Is Primmum liable to pay Mr. Sopher’s expenses in respect of the arbitration?
3. Is Mr. Sopher liable to pay Primmum’s expenses in respect of the arbitration?

Result:

1. Mr. Sopher is catastrophically impaired.
2. Mr. Sopher is entitled to his full expenses in respect of the arbitration.
3. Mr. Sopher is not liable to pay Primmum’s expenses in respect of the arbitration.

EVIDENCE AND ANALYSIS:

Primmum alleged that Mr. Sopher engaged in symptom magnification from early on in his treatment when he was assessed by a neuropsychologist while at West Park until right up into his testimony during the hearing.  During the hearing there were significant problems identified with the testimony of a number of the expert witnesses as well.  In the end, however, Primmum conceded that Mr. Sopher is significantly and seriously impaired at this point in his life – but maintained its theory that a pre-existing back injury contributed greatly to Mr. Sopher’s level of impairment.

Th accident occurred when Mr. Sopher was riding his motorcycle on August 14, 2012.  Mr. Sopher was a very experienced motorcycle rider and motorcycling was an important part of his enjoyment of life. That day he was interfered with by another motor vehicle in such a way that he lost control of the motorcycle, rolled it a number of times along the highway, and ended up lying on his back on the roadway with the motorcycle on top of him. He was initially rendered substantially immobile by the accident and spent significant time in hospitals and a rehabilitation facility. His mobility subsequently returned but at a greatly reduced level of capability and he suffers from a number of other ongoing symptoms and impairments.

Based upon the testimony given by Mr. Sopher, his family members and the broad selection of pre-accident medical information provided to me concerning Mr. Sopher, the Arbitrator concluded that he was a very high-functioning individual prior to the accident.  He did have pre-existing lower back pain with occasional pain shooting down one leg at various times over approximately 5 years prior to the date of this accident, however, there is no reason to conclude that he had a significant back or spinal injury prior to the accident. He was clearly active both at work and socially and he greatly enjoyed life with his family and riding his motorcycle.

Both parties completed CAT assessments and the results were markedly different.  Mr. Sopher’s results described a Whole Person Impairment (WPI) rating of 77% whereas Primmum’s results determined that Mr. Sopher suffered a 24% WPI. The Schedule defines a catastrophic impairment as “a physical impairment or combination of physical impairments that results in a 55% or more physical impairment of the whole person.

The Arbitrator found it significant that Primmum’s expert, Dr. AO who compiled the CAT executive summary testified that he agreed with the 77% rating described by Mr. Sopher’s author of their executive summary concerning the degree to which Mr. Sopher is now disabled.  However, Dr. AO relied heavily on one physical finding relating to upper body hyper-reflexivity to opine that Mr. Sopher had a pre-existing condition which accounted for 38% of the total 77% WPI rating that Dr. HB found and which therefore had to be deducted from the 77% rating.  Thus, by Dr. AO’s calculations, which were somewhat modified during his testimony, even utilizing the numbers from Dr. HB’s Executive Summary in Mr. Sopher’s Catastrophic Assessment Report, Mr. Sopher had no more than a 39% WPI as a direct result of the accident in question. 

The entire hearing came down to one point - did Mr. Sopher have a pre-existing back injury which accounted for a 38% portion of his post-accident disability?  Primmum conceded, during Dr. AO’s testimony and in its final submissions, that Mr. Sopher is now seriously disabled.  It remained strong in its position, though, that the accident did not result in a significant enough injury, in and of itself, to justify a finding of a greater than 55% WPI for Mr. Sopher for purposes of qualification for catastrophic level benefits pursuant to the Schedule.

The Arbitrator disagreed and found that, on balance of probabilities, Mr. Sopher suffered injuries in this motor vehicle accident which directly left him with impairments which exceed the 55% WPI level set out in the Guides. The Arbitrator concluded that the catastrophic impairment assessment carried out at his behest by Omega Medical Associates was accurate in its determination that his overall WPI rating exceeded the 55% threshold by a considerable margin. 

The Arbitrator found there were real problems with the testimony and expert opinions of two of Primmum’s experts which far outweighed any concerns with the exact accuracy of the impairment percentages set out in the opinion(s) of Mr. Sopher’s experts.  As a result, the Arbitrator preferred the evidence of Mr. Sopher’s catastrophic impairment team over those of Primmum.

Put simply the Arbitrator rejected Dr. AO’s conclusion that there was a 39% pre-existing impairment as valid.  His testimony on this point dissolved entirely under cross-examination. He could not explain why numerous medical opinions, treatments and advice given to Mr. Sopher concerning his pre-existing back pain did not at any time describe or diagnose him with having the level of injury to his spine (at any level) which Dr. AO was relying on for his pre-existing injury diagnosis.  The pre-accident medical evidence clearly proved that Mr. Sopher was given strong pain killers and other medications as a consequence of his pre-existing back pain, which serves to demonstrate that Mr. Sopher has, perhaps, a low pain threshold, but the most apparent diagnosis available from those pre-accident medical records clearly sets out that he was suffering from sciatica. Sciatica is not mentioned as a cause of any percentage of Mr. Sopher’s WPI in either of the catastrophic impairment assessments and therefore has not been diagnosed as a significant factor in, or component of, Mr. Sopher’s present impairments.

As well, Dr. AO could not explain why he failed to find Hoffman’s signs during his examination of Mr. Sopher when two prior doctors had found them prior to his examination of Mr. Sopher.  He had already testified in response to a clarifying question that a Hoffman’s sign cannot fail to be found in a subsequent exam after it has been identified in a medical examination on a prior date, because it is permanent and involuntary. When this was pointed out to him he had to concede that “he may have missed them”.  He became progressively more defensive under cross-examination and eventually his opinion on the pre-existing condition came to mean very little, in my view.

The Arbitrator believed it appropriate to comment briefly on the evidence given by Dr. L on behalf of Primmum as well.  Dr. L performed a dual role on Primmum’s catastrophic impairment assessment team and wrote reports as both a psychologist and a neuropsychologist.  The Arbitrator found that Dr. L demonstrated a problematic attitude toward his role as an expert witness in this matter with regard to his testing and report(s).  There were many areas of concern with his testimony.

Firstly, he stated that he had personally trained his daughter, a second or third year university student in an unrelated field, to act as his psychometrist, and that he was confident that she was properly conducting the full range of tests and obtaining valid results.  However, he could not disagree with testimony from Mr. Sopher’s daughter that when the psychometric testing was being conducted by Dr. L’s daughter she was actively engaged in conversation with Mr. Sopher’s daughter about entirely irrelevant matters and that Mr. Sopher had to continue with the testing while the two young women were in the room with him having a conversation.  This factor alone calls into question any and all results that this particular psychometrist may have obtained with regard to Mr. Sopher. 

Dr. L was clearly not aware that his psychometrist had engaged in this behaviour, and despite his testimony that he “must have approved” it, it was clear that he knew nothing about what had happened.  Further to this, Dr. L did not know, at the time of his testimony, any of the results from the psychometric testing which was carried out and provided completely disorganized raw data in an electronic format to Mr. Sopher’s counsel at the hearing.  It also became clear, through his testimony, that Dr. L had not given any significant consideration to the Occupational Therapy report that his own team member had provided and that he was unaware of, and devalued in any event, the collateral evidence which was available in that report through the O.T.’s interview with Mr. Sopher’s wife.

Most damaging to his testimony however, was the fact that he utilized a single, brief test result which he said was obtained as a consequence of utilizing the Structured Inventory of Malingering Symptomology (SIMS) test, to decide that Mr. Sopher was not giving valid answers in his testing and was over-reporting his symptoms.  Interestingly, though, this specific test, among others, was not even listed in his own list of “Tests Administered” in his report(s). He also had no actual knowledge of the results of Mr. Sopher’s testing using this, or any other, measure.

He testified, at first, that this test was basically a simple yes or no determinant in terms of whether there was “symptom magnification” occurring.  Then, when corrected by reference to the manual which its producers supply for the SIMS test, which clearly did indicate that a specific score was the initial cut-off point, he vaguely indicated that perhaps a score of 13 or 14 was the measure recommended by the SIMS test creators, but that “the literature” suggested a score of 22.  However, he had no idea what Mr. Sopher’s actual score was.  Dr. L stated that he used his clinical judgment to conclude that Mr. Sopher was engaging in symptom magnification based upon the SIMS test.  The overwhelming problem with this purported exercise of clinical judgment is that the creator/distributor of the SIMS test states in its descriptive literature that the test is designed to detect potential malingering, rather than symptom magnification, and, even more damaging, that it is designed to be no more than a simple suggestive device which should be followed up with other forms of testing.  Rather than assigning any validity to a number of larger, more sophisticated tests which were apparently administered, and which did not show any significant scoring invalidity, Dr. L chose instead to jump to the conclusion that he should completely invalidate many findings of significant impairment(s) to Mr. Sopher’s functioning.

As a consequence, he simply assigned zero values to certain impairment test results and came up, not surprisingly, with very low impairment ratings.

The Arbitrator found all of the above to be very disturbing and conclude that Dr. L was not conducting himself properly as an expert assessor of Mr. Sopher but was, instead, actively promoting Primmum’s case and chose to take the first shortcut he could see to conclude that Mr. Sopher was not catastrophically impaired.

Taken together, the expert witnesses provided by Primmum failed entirely to invalidate the catastrophic impairment report provided by Mr. Sopher’s assessors.  The only conclusion that could be reached is that, given the vagaries of the AMA Guidelines and the wide ranges of interpretation and number manipulation that are available to the expert medical witnesses, Mr. Sopher has demonstrated, on balance of probabilities, that the level of his impairment which can be directly attributed to this accident well exceeds the 55% WPI requirement set out in the Schedule.

Accordingly, the Arbitrator found that Gary Sopher is catastrophically impaired as a direct result of the accident which occurred on August 14, 2012.

EXPENSES:

I find that Gary Sopher is fully entitled to his expenses, disbursements and applicable taxes in this matter.  If the parties cannot agree on the level of expenses to be paid they may make submissions on the issue(s) in accordance with Rule 79 of the Dispute Resolution Practice Code, Fourth Edition — Updated January 2014.

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