January 26, 2016

In the accommodation process controversy frequently arises over whether the opinion provided by the employee’s treating healthcare professional is sufficient for accommodation. Disputes can also arise when employers receive inconsistent opinions from a single healthcare provider or different opinions from multiple healthcare providers or when the recommendations of an independent medical examination (IME) conflict with those proffered by a treating professional. Similar situations arise in the context of workers’ compensation claims. In this session a panel of experts will explain how to assess medical information for adequacy and objectivity and will provide advice as to when a second opinion is required, what that second opinion should look like and how much weight opinions from different healthcare professionals should receive.

  • Accommodation: What is the scope of the opinions and advice treating practitioners are entitled to provide during the accommodation process? For example, should they be recommending specific accommodations? In the accommodation process are employers entitled to routinely challenge the opinion of an employee’s treating general practitioner (GP) or is there a presumption that information from a GP should generally be sufficient for the purposes of accommodation? If there is a presumption against requiring an employee to be assessed by someone who is not treating the employee, does it apply to information provided by other treating healthcare providers (for example, the opinion of a psychologist treating an employee for a mental health issue or the opinion of a chiropractor or physiotherapist treating an employee for back pain)? Should a GP’s opinions be more closely scrutinized in situations involving certain conditions or disorders? For example, in situations involving mental health issues is information from a family doctor sufficient, or should an employer seek information from a specialist (e.g. a psychologist or a psychiatrist)? If an employee provides information from a treating specialist, is the employer more constrained in its ability to challenge the treating professional’s opinion or advice?
  • Assessing medical information: What are hallmarks of a professional who is acting as an employee’s advocate? Should employers always challenge the opinion of a treating healthcare professional who is acting as an advocate or is a certain amount of advocacy to be expected or even desired? What are indications that a treating professional’s opinion should not be given much weight? If an employer demands that the employee see a professional other than the employee’s treating professional, must the employer explain why it does not accept the treating professional’s opinion? If the employer rejects the opinion of the treating professional, who pays for the second opinion? Is there a general consensus in the caselaw that IMEs should be a “rare” occurrence, and are only to be requested as a “last resort” after other sources of information have been exhausted? If so, what are those ‘other sources of information’ that must be exhausted?
  • Weighing conflicting evidence: Do adjudicators evaluate evidence according to a “hierarchy of healthcare professionals” whereby they automatically prefer the evidence of one type of professional over another? For example, does a specialist opinion always trump a GP’s opinion? Does the opinion of a psychiatrist who has seen an employee once carry more weight than the opinion of a counsellor who is treating the employee? Are arbitrators inclined to prefer the evidence from an IME over the evidence of a treating professional or vice versa? What factors will arbitrators rely on to choose the evidence of one expert over another? When, if ever, will an arbitrator order an IME to resolve a conflict in existing medical evidence? Will an arbitrator order a second IME if the employer’s evidence already contains the results of an IME conducted at the employer’s request before the hearing? If an arbitrator orders an IME, who pays?

CPD

  • Members of the Nova Scotia Barristers Society may count this program for 1.5 Continuing Professional Development hours.
  • Each audio conference has been approved by the Law Society of British Columbia for 1.5 Continuing Professional Development hours.
  • Each audio conference has been approved by the Law Society of New Brunswick for 1.5 Continuing Professional Development hours.
  • Each audio conference has been approved by the Law Society of Saskatchewan for 1.5 Continuing Professional Development hours.
  • CPD for Members of the Law Society of Upper Canada: 1.5 Substantive Hours; 0 Professionalism Hours.