INTRODUCTION
On Sunday July 10, the Toronto Star’s front-page headline read:
WSIB review defends use of ‘paper doctors’.
The reference to the Ontario WSIB’s “paper doctors” first appeared in a November 2015 report by the Ontario Federation of Labour and the Ontario Network of Injured Workers’ Groups entitled “Prescription Overruled”. That report alleged that the WSIB was systematically disregarding and disrespecting the opinions of injured workers’ own health professionals in favour of the opinions of the Board’s medical consultants – opinions given without the consultants having examined the injured worker, hence “paper doctors”.
The OFL/ONIWG’s Presciption Overruled report was written after the two organizations had been approached by “over a dozen” health care providers who were deeply concerned about the persistent experiences they were all having of the Board ignoring their views and advice to the detriment of their patients. Following the release of that report, the OFL and ONIWG were overwhelmed with confirmatory messages from more doctors, workers, and advocates and this led to the publication of a second report entitled “Submissions to the Ontario Ombudsman’s Office”, which included the original report and provided a cross-section of the responses to that report.
WHAT THE OFL/ONIWG REPORT SAID
The OFL/ONIWG’s main message was that the WSIB was systematically ignoring the advice of workers’ medical professionals “for the purpose of rejecting and limiting otherwise legitimate injury claims”.
WHAT THE BOARD SAID IN RESPONSE
The Star’s article was written by Sara Mojtehedzadeh and was based on an interview with Mr. Tom Teahen, the WSIB’s new President. The article may be found at https://www.thestar.com/news/gta/2016/07/10/wsib-stands-by-use-of-paper-doctors-after-calls-for-ombudsman-probe.html
The gist of the Board’s response as reported by the Star was that following the OFL/ONIWG report the Board conducted an internal review of its decision-makers’ use of the medical consultants’ evidence and that review had confirmed to its satisfaction that that usage was “appropriate” and did not present a “systemic problem”.
Here are the highlights of Mr. Teahen’s report to the Star as they appear in the Mojtehedzadeh article:
- Because of the OFL/ONIWG report, an internal Review of the Board’s use of its medical consultants was conducted by “top executives at the Board including its chief statistician”.
- The Review was based on an examination of a random sample of 376 cases from the approximately 12,000 cases in which the Board’s decision-makers were engaged with the Board’s medical consultants in 2014.
- The Board confirmed that its decision-makers are “supposed to take the consultants advice into account along with all other evidence provided by the the injured workers own health care providers “. The Review found, apparently to the Board’s satisfaction, that “in only 8%” of the sample cases did the decision-makers fail to take the evidence of the worker’s own health care providers “into account”.
- The Review also found that the Board’s medical consultants disagreed with the opinion of the workers’ health care providers in “just 15%” of the cases examined. And the Board’s conclusion that there was no systemic problem in its use of medical consultants appears, from the Stars report, to be based largely on the latter finding.
- The cases reviewed did not include any of the 40 cases cited in the OFL/ONIWG’s Report. HowIever, Mr. Teahen told the Star that he had “requested the details of those files and was open to reviewing those files”.
WHAT THE BOARD DID NOT SAY
The Board’s adjectives “only”, as in “only 8%”, and “just”, as in “just 15%”, are question-begging glosses on the Review’s findings. Behind that gloss, are two truly startling facts.
One is that, in one twelve-month period, 960 injured workers had their medical issues decided on the basis of the medical consultants’ opinions without having the evidence of their own health care providers taken into account.
The other is that, in the same 12-month period, another 1,800 injured workers had their medical issues decided in the circumstances where the Board’s medical consultants disagreed with the evidence of the workers’ own health care providers.
Missing from the Review Report is any indication of the outcomes in those nearly three thousand cases (23%). In what proportion of these cases were the medical issues resolved in line with the medical consultants’ opinions rather than with the opinions of the worker’s health care providers? In what proportion of those cases did the decision go wholly or in significant measure in favour of the worker? The Board does not say.
The issue is not only the percentage of cases where the medical consultant’s evidence does not align with the workers’ medical evidence, but also the objectivity of the decision-makers where that misalignment occurs.
That the occasion for bias on the medical issues could only have arisen in 1,800 cases (or in 2,760 if one includes the 8% in which the decision-makers were found not to have taken the workers’ medical evidence into account) tells us nothing about the incidence of bias.
Do the decision-makers weigh all the evidence objectively and fairly or does the data demonstrate a bias in favour of the paper doctors’ opinions? One cannot help but think that if the examination of the 376 sample cases had given the Board’s investigators reason to find that the decision makers had weighed conflicting evidence objectively and fairly, the report would have included that finding – indeed, would have trumpeted that finding.
If the Board and the OFL/ONIWG organizations were engaged in an arbitration of this issue, the arbitrator would be entitled to draw a negative inference from the Board’s failure to present that evidence, and any fair-minded arbitrator would do so.
THE WRONG COHORT
Common sense tells us that if the Board’s decision-makers were in fact motivated by cost considerations to prefer medical evidence that supports a rejection or limitation of a worker’s claim for compensation or for treatment, over evidence that supports the acceptance of a claim or treatment recommendation, then that motivation would be inherently most influential in cases where the Board’s potential cost exposure was highest.
But in this Review the cohort from which the 376 reviewed cases were randomly selected was the total of 12,000 cases in which the Board’s paper doctors were consulted by the decision-makers in 2014.
It is well known that approximately 95% of all workers’ comp claims are not contentious. In that vast majority of cases the facts are clear, the injury straightforward, there is no suggestion of a permanent impairment, no chronic pain, and no psychological complications, and therefore, no reason for the worker not to return to work at the expected time, and no reason for there to be competing medical opinions.
Historically, only 5% of cases present medical or factual issues which would cause the Board to concern itself with the possible denial or limiting of claims. (See the Weiler Report references in my November 20, 2015, post in these pages: “Mass Adjudication and its Short-comings”.)
If one accepts that the traditional proportion of contentious cases would be found in the the cohort the Board chose to study – all 12,000 cases in which the Board decision-makers had occasion to consult the Board’s medical consultants in 2014 – then only 5% of the 376 cases would be expected to be cases in which the Board would have had any serious cost-averse motivation to prefer the advice of consultants when a worker’s own health professionals supported the workers’ claim -i.e. 18 cases.
However, given that by definition all of these 12,000 cases were cases that required consideration of medical evidence, perhaps the 5% historical figure for the proportion of “serious” cases within the whole collection of claims is too low for this particular cohort; perhaps 10 or 15% would be closer to the mark. But even if the percentage of contentious cases in this collection were 15%, that would still leave only 56 of the reviewed cases (15% of 376) being cases in which any Board motivation to skew the adjudication for cost reasons would be significant.
And, of course, that is exactly the number of cases in which the Board reports that the consultants disagreed with the worker’s physicians.
For the Board’s review to be a meaningful study of the issue of a possible pro medical consultant bias in the Board’s decision-making, the cohort from which the cases to be reviewed were selected should have been limited to cases in which the injured worker had suffered or was claiming to have suffered something out of the ordinary.
An appropriate review would have examined cases randomly selected from among the cases in which the Board’s medical consultants were engaged in 2014 in which the Board would have particular reason to be concerned about the cost implications of the worker’s claim – perhaps from cases involving a claim for benefits and treatment in respect of an injury in which a permanent impairment was involved or was a potential outcome.
In short, the Board’s reviewers chose to look at the wrong cohort.
CONCLUSION
The Board’s review of its use of its medical consultants does not come close to refuting the OFL/ONIWG’s claims. Instead, it can in fact be seen as confirming that there is a systemic problem.