Why aren’t we holding experts’ feet to the fire?
So, I see a twitter link to a new court case where an insurance defence expert is criticized for failing to understand his role as an objective expert. The court says that the doctor mischaracterized his current practice and experience in order to downplay the amount of insurance defence work he had done and play up the inaccurate idea that he was still a practising specialist at a major health institute. The Court found that the doctor was not credible or reliable. It stated that “Dr. Hershberg was cavalier in his approach to the requirement to be accurate with respect to his curriculum vitae, when obtaining information from the plaintiff during the examination, and in reporting as to the information he obtained from the plaintiff.”
I suspected that this expert was no stranger to injured workers and the WSIB. Indeed, a quick search revealed that this expert was a WSIB psychiatrist for many years (a “Board doctor”). Often, his opinion was preferred over the worker’s own treating doctors to deny or limit psychological entitlement.
Why do the courts have to call these experts out?
Why doesn’t the WSIB see this bias? The WSIAT? Representatives?
Injured workers have to seek compensation through a statutory body. They can’t go to court. The whole workers’ compensation system is based on the promise that injured workers will get fair and timely access to compensation in exchange for surrendering their right to sue. That surrender isn’t nothing. It significantly abrogates the legal rights of an entire group of disabled persons. It’s a sound policy decision, it’s a compromise, but it isn’t an invitation to less serious and thoughtful policing of the validity of evidence. This evidence is often the linchpin to workers’ livelihoods and their medical care.
Why shouldn’t injured workers get at least the same protections they would expect in a court?
And yet, and yet. This seems to be happening more. At least three times in recent months. Experts who have been relied upon by WSIB for years are being discredited because the courts smelled a rat. Two of these three were psychiatrists. Their one-sided opinions hurt the most vulnerable: workers suffering from the psychological fall out of an injury that throws their whole lives into disarray.
What is the answer? We may need to reconsider the widespread practice of not really testing experts’ credentials and evidence. In the name of efficiency and volume of cases, we rarely have the opportunity or resources to examine or cross-examine experts. At least, we can demand curriculum vitae from every WSIB-commissioned doctor who provides an opinion, and assess whether their experience justifies the opinions they reach. We usually don’t get this. In fact, with the medical consultants now used by WSIB at the claims level for medical advice, we get no more than their name.
Certainly, the WSIB Appeals Services Division and WSIAT need to take their gate-keeping role more seriously at times. Check out some recent submissions from an effort to get Dr. Bail’s biased report entirely removed from the WSIAT record (a similar effort at the WSIB Appeals Services Division failed; in fact, the decision maker didn’t even address it).
This has to stop. Injured workers have a right to objective and credible experts.