McCague Borlack LLPLitigation Boutique, GLOBAL Litigation Law Firm




Articles and Publications

HPARB Rules on Kinesiologists and FAE Reports

Featured Case: C.M. & P.M.

Howard Borlack
Howard Borlack,

Michelle Legault
Michelle Legault,

Anthony Gatensby
Anthony Gatensby,
Associate Lawyer

Karen Bernofsky
Karen Bernofsky,

December 2017

by Howard Borlack and Michelle Legault


The recent decision, C.M. v P.M.,1 the Health Professionals Appeal and Review Board (“HPARB”) confirmed a decision of the Inquiries, Complaints and Reports Committee of the College of Kinesiologists of Ontario (“The College Committee”). The College Committee found that a Functional Abilities Evaluation (“FAE”) Report by P.M., a kinesiologist, was within the scope of her professional expertise and had sufficient detail about C.M.'s functional abilities and limitations.

This decision was appealed to the HPARB on a standard of reasonableness. The HPARB ultimately ruled that the above findings were within the range of possible, acceptable outcomes at law. Anthony Gatensby and Karen Bernofsky of McCague Borlack LLP successfully advocated this position on behalf of P.M. and these advocacy efforts led the HPARB to reach its final decision.

C.M. was assessed by P.M. regarding her work-related functional abilities after a motor vehicle accident. This assessment was pursuant to section 44 of the Insurance Act2 and addressed C.M.'s entitlement to accident benefits. C.M. took issue with the contents of the FAE Report prepared by P.M. and filed a complaint with the College Committee.

C.M. specifically argued that P.M.:

  1. was not qualified to opine on C.M.'s functional abilities;
  2. did not properly identify C.M.'s work-related position and duties (light versus heavy);
  3. failed to reference C.M.'s wrist pain in her Report;
  4. did not explain and was not qualified to comment on why C.M. demonstrated sub-maximal effort during psychological assessment;
  5. failed to mention that C.M.'s test scores corresponded with back pain affecting on all aspects of her life; and
  6. incorrectly concluded that C.M.'s neck pain and disability index score resulted in a perceived level of “bed-bound or exaggerated disability”.

P.M.'s position was that:

  1. kinesiologists were qualified to conduct FAEs because their specialty includes the assessment of human movement and performance as related to rehabilitation;
  2. the title of C.M.'s work-related position was not as important as the functional description, which P.M. provided;
  3. C.M.'s wrist pain was not identified because she did not report having any;
  4. C.M. did not show typical signs of maximum voluntary efforts such as changes in posture or use of ancillary muscles;
  5. other measures of C.M.'s pain and the impact on her daily activities were reported; and
  6. C.M.'s neck pain and disability score should have been described as a “complete disability”.

Of note, P.M.'s position was also that the College Committee's mandate did not extend to challenging or correcting the reports generated by kinesiologists. These reports can instead be challenged through the accident benefits dispute resolution process.

The College Committee determined that as a kinesiologist, P.M. was qualified and competent to conduct an FAE. Furthermore, there was sufficient detail and information in P.M.'s FAE Report to support her final conclusions. Although additional information about C.M.'s sub-maximal efforts would have been useful, the conclusion about C.M.'s effort was supported in the Report. The HPARB agreed that the above findings were reasonable, and also concluded that using the phrase “complete disability” versus “bed-bound exaggerated disability” did not create an unreliable report.

This decision highlights important factors for insurers to consider when engaging kinesiologists to conduct FAEs. Furthermore, the decision outlines what an assessor's FAE and associated report should include.

Lessons Learned for Future Reports

Assessment of physical effort is within the expertise of a kinesiologist...

First, kinesiologists are qualified and competent to conduct FAEs and can comment on the level of effort shown by an individual. Assessment of physical effort is within the expertise of a kinesiologist, although there is an open question about whether kinesiologists can draw any other conclusions from a psychological assessment.

Second, the form of an FAE Report may not be as important as the substance. Provided there is objective and subjective data to support the final conclusions, the use of specific terms and phrases is not central to the quality of an FAE Report. Moreover, a report cannot be faulted for excluding symptoms or pain complaints that an individual never disclosed to their assessor.

Last, additional details about final conclusions can be helpful. Assessors should attempt to provide details such as their formal and informal observations, as well as any test results, to support any conclusions about an individual's functional abilities. These details may help to address any inaccuracies or questions about an FAE Report.

Attacks on Accident Benefits Assessments

Insurers should also be aware that individuals may bring these kinds of complaints as attacks on potential evidence in their accident benefits cases. A College Committee or HPARB decision regarding the quality of an assessment report could be used to attack the weight given to that report at a FSCO or LAT hearing. Insurers should be prepared to raise this point at a hearing, but also to take the first step of properly addressing any complaints about assessors to a College Committee or the HPARB.

To read the full report, go to the CAN LII Site.

1 2017 CanLII 78825 (ON HPARB).
2 RSO 1990, c I.8.


Copyright McCague Borlack LLP - Legal Notice | | Follow us on Twitter twitter

McCague Borlack LLP is a member of the Canadian Litigation Counsel, a nationwide affiliation of independent law firms. Through CLC's association with The Harmonie Group, our clients have access to legal excellence throughout North America, the U.K. and Europe. |