Team used for insurer’s testing draws criticism

Arbitrator finds methodology ‘very disturbing’

As it built a case that Gary Sopher had not suffered catastrophic injuries in his 2012 motorcycle accident, Primmum Insurance dispatched an unusual expert team.

It included neuropsychologist Kerry Lawson and an assistant who would conduct “psychometric” testing of the Oakville, Ont., man.

The aide also happened to be Lawson’s universityaged daughter, studying in an unrelated field and apparently easily distracted. Throughout the hours of tests she was “actively engaged” in conversation about “entirely irrelevant matters” with Sopher’s own daughter, said an Ontario tribunal this month in a scathing critique of Lawson’s evidence.

Citing some of the test results, the Ottawa-based psychologist went on to testify that Sopher, 57, had been exaggerating his symptoms, an opinion that could have deprived the patient of hundreds of thousands of dollars in medical and other help.

Arbitrator David Snider of Ontario’s Financial Services Commission was not impressed.

“I found all of the above to be very disturbing,” Snider said as he ruled in the victim’s favour. “Dr. Lawson was not conducting himself properly as an expert assessor of Mr. Sopher but was, instead, actively promoting the insurer’s case.”

The decision is one of the most striking among a string of cases in recent years where adjudicators have questioned the objectivity of medical and other health professionals in their testimony about accident victims.

Although some of the criticized experts testify for victims, most have been hired by insurance companies, at least one earning $450,000 a year for the work.

Such expert opinions can shape how much insurancefunded help victims receive, significantly affecting their quality of life, Josh Nisker, Sopher’s lawyer, said Thursday.

The circumstances of Sopher’s assessment were “outrageous,” added Rhona Desroches of the FAIR advocacy group.

“These are very seriously injured people and the quality of their lives hangs in the balance when these reports are written, and the testing has to be of a certain standard.”

But Lawson dismissed the arbitrator’s comments as misguided, saying his bias is, if anything, in favour of more insurance-paid treatment of accident victims, not less.

And his daughter was simply performing a “clerical” function for which he had trained her well, the psychologist said.

Lawson said Sopher was a challenging patient — very “pain focused” — and the assessment required unconventional measures, such as allowing the man’s daughter to be present.

It was she who “interjected,” triggering the conversation, he said.

“This was a very difficult gentleman and I bent over backward to accommodate him,” Lawson said. “To be criticized for that is so unfair … and it’s a misunderstanding of the clinical reality that I face, and what other clinicians face, as well.”

Meanwhile, he said condemning his daughter’s involvement was “incredibly hypocritical,” as two of the plaintiff’s experts are part of a firm that routinely provides favourable testimony for victims, and is itself staffed by a father and two daughters.

Two of those three family members, however, are medical doctors — one a University of Toronto professor — and the other a psychologist with a PhD.

Sopher was injured in August 2012 while riding his Harley Davidson motorcycle north of Toronto, another vehicle causing him to lose control and roll over several times, leaving him on his back with the bike on top of him.

The former mobile-technology specialist at Rogers spent much time in hospital and a rehabilitation facility and still has a “greatly reduced” level of mobility, the decision said.

The insurance company would provide only the basic level of accident benefits — a maximum at the time of under $90,000 — but Sopher claimed he had suffered catastrophic injuries, a classification that would make him eligible for up to $2 million in treatment and “attendantcare” benefits.

As one of three experts called by Primmum, Lawson cited tests on cognitive function and related issues conducted by his daughter, “a second- or third-year university student in an unrelated field,” said Snider.

Evidence suggesting she and Sopher’s daughter were engrossed in conversation calls into question “any and all” results, said the arbitrator.

But most damaging, Snider said, was the fact Lawson testified that Sopher was over-reporting his symptoms, even though the psychologist seemed to know little about the patient’s actual test results, and misused the one he did cite.

Lawson acknowledged that he’s viewed in the field as a “defence (insurance company) neuropsychologist” but said the criticism is highly unfair.

“It’s nonsense,” he said. “I’m paid to be impartial. I know that people don’t believe that, but essentially my record stands for itself.”