“This is not a level playing field, it is not fair, and it offends the basic principles of natural justice.”
-Justice LD MacLean/Alberta Court of Queen’s bench
When is an Independent Medical Exam (IME) Not Independent?
Recently an AWCC’s client had a WCB sponsored psychiatric IME.
Upon receiving and reviewing said opinion it was noted that the opinion provider was frequently used by the WCB. His name and work was readily identifiable to AWCC.
Simply stated, AWCC sees the same “independent” medical opinion providers furnishing both exam based and document based opinions to the Board on a frequent basis.
AWCC was and is not alone in relation to concerns pertaining to the frequent use of the same medical opinion providers by the WCB and insurance companies.
Let’s travel back in time and tap into AWCC’s “Way Back File”.
Here we find numerous articles published in various Alberta newspapers in 1999/2000 challenging the independence of so-called “independent medical opinion” providers.
In the articles numerous individuals, organizations, and interested parties expressed a multitude of concerns and allegations.
The allegations included:
-A lack of fairness and bias against injured workers on the behalf of some independent medical examiners,
-The application of psychological/psychiatric testing that is improperly interpreted or improperly applied,
-The inappropriate use of psychiatric exams in the adjudication of physical/organic medical conditions.
The articles referenced herein can be found at the top of the blog post page as archived articles in PDF form.
The Alberta Courts also found this problematic.
As per the article published by the Calgary Herald on May 1, 1999, reference was made to a decision by Justice LD MacLean, a Medicine Hat Court of Queens Bench Judge.
Judge MacLean took the following position:
“In relation to the worker, the (compensation) Board has an overwhelming wealth of knowledge and experience. It has the financial ability to fund sophisticated investigations involving highly qualified experts and have the material presented to them, guided and orchestrated and propounded by its in-house counsel responsible to the Board and paid for by the Board….
“The application of any standard under the rules of natural justice would identify such circumstances as being unequal in negotiating ability and unfair.
This is not a level playing field, it is not fair, and it offends the basic principles of natural justice.”
Unfortunately not a great deal has changed since 1999 in the opinion of AWCC.
In a perfect world we would like to believe that there is a fully fair and completely unbiased process of evaluation in relation to documentary based and independent medical examination opinion.
However, it is reasonable to have concerns in relation to the monetary incentives involved for physicians that make a great deal of their living providing “independent” medical opinion.
The same concerns also arise in relation to the Board’s own in-house medical opinion providers and their ability to ensure fair and unbiased medical opinion provision.
It is important to note that claimant’s have the right to request that the WCB seek medical opinion from their primary healthcare providers, particularly in relation to questions of causality and scope. However the Board should not need prompting in this regard and has a fiduciary responsibility to seek medical opinion from primary treatment providers.
In the late 90s the Alberta Ombudsman weighed in on the issue of how decision-makers and appeals bodies place weight on medical opinion. The Alberta Ombudsman unequivocally advised these parties that they were to place greater weight on medical opinion from primary healthcare providers when adjudicating entitlement.
AWCC all too often must request the Board performed their due diligence and ensure that they are requesting medical opinion and input from primary healthcare providers, as opposed to simply relying on their in-house medical advisors and contracted independent medical examiners.
If you have any questions or concerns about your WCB entitlement contact us for a free consult 780-440-6047.