A car crash victim has lost her appeal to sanction an independent medical examiner selected by the car insurer for the psychologist’s use of symptom validity tests.
At the request of his insurer, the Plaintiff saw Ontario psychologist Ian Smith after the Plaintiff was involved in a car accident on July 6, 2019. Smith assessed whether the Plaintiff was entitled to income replacement benefits based on of any psychological impact of the collision.
In a February 6, 2020 report, Smith concluded that there was insufficient evidence to suggest that the plaintiff had suffered from a psychological condition as a direct result of his accident, or that his pre-existing condition, major depressive disorder , had been aggravated by the impact of the collision.
Smith’s assessment was based in part on validity test results obtained using the Miller Forensic Symptom Assessment Test (M-FAST) and Non-Verbal Medical Symptom Validity Test (NV -MSVT).
These symptom validity tests can be used to detect insufficient effort, underperformance, and exaggeration, and they are structured, validated, and scored objectively. There is some debate in the medical literature as to whether they work for a pattern of polytraumatic symptoms commonly seen in patients injured in serious car accidents.
The plaintiff received a second opinion from Dr. Zack Cernovsky, a psychologist who has written in several medical journals about the inappropriate use of symptom validity testing for motor vehicle crash victims.
Cernovsky concluded in reports dated February 11 and May 7, 2020 that the plaintiff suffered from post-concussive syndrome, non-organic insomnia disorder, post-traumatic stress disorder, adjustment disorder with anxiety and depressed mood and whiplash-associated disorder.
The plaintiff filed a complaint against Smith with the Complaints and Reports Committee of the College of Psychologists of Ontario, arguing:
- Smith rendered a professional opinion that was not based on reliable and accurate information;
- He improperly used a symptom validity test in an insurer-recommended assessment of a collision patient; and
- Smith displayed a lack of professional objectivity or appeared to be biased against the plaintiff in favor of the insurance company.
The committee found no evidence of bias in favor of the insurer. He further found that Smith used the symptom validity tests appropriately, as the test results were contextualized with other sources of injury information. However, after further investigating the complaint, the committee recommends providing the following advice to the psychologist:
“We encourage you to use sensitive and clear language when discussing validity testing. You are reminded that invalid results may suggest an inconclusive assessment, but they do not necessarily mean that the client has no impairment or distress. A greater appreciation of this can provide validation to the client.
The applicant appealed the committee’s decision to the Health Professions Appeal and Review Board. But the board upheld the committee’s decision, saying it was not the committee’s role to decide the debate in the medical literature – only whether or not it was reasonable for Smith to use the test.
“The committee found that [Smith’s] report seemed balanced and complete and that his reports seemed consistent with the conclusions reached by other professionals involved in the [claimant’s] care,” the board ruled in a decision released Monday.
Counsel went on to cite how Ontario court case law deals with disciplinary matters that involve professional methodological debates.
“In my opinion, when a professional disciplinary body makes a judgment on whether a member of the profession has failed, in the performance of his professional work, to maintain the standards of the profession, the member cannot be found guilty on the basis that the vast majority of the profession believes that the member’s conduct or judgment was in error, if there is also a responsible and competent professional body of opinion that supports his conduct or judgment,” the Court ruled. Ontario Divisional.
The hospital’s review board noted in its decision that: “The board’s decision and the OPA/CAPDA guidelines indicate that there is a responsible and competent body of professional opinion that supports the use by the respondent of the symptom validity tests.”
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