Inquiry needs to listen to victims of auto insurance industry?

By Alan Shanoff ,Toronto Sun

The Ontario Standing Committee on General Government has initiated a study into auto insurance industry practices and trends.

It has heard from the usual suspects: Insurance industry spokespeople; health professionals who treat accident victims; personal injury lawyers; Financial Services Commission Ontario and the Auto Insurance Anti-Fraud Task Force.

While these groups may have important information to place before the committee, they have obvious vested interests.

Shouldn’t the committee be hearing from accident victims? That would be ideal, but accident victims have little time or resources to appear before the committee or make submissions.

But there’s a way accident victims can have their voices heard.

They’ve been recorded in the many court and arbitration decisions that are readily available to the committee. All it takes is a researcher to navigate through various online databases.

A good place to start is the database of arbitration decisions maintained by FSCO, perhaps with the Everliston Cowans case.

Cowans had his income replacement benefits cancelled due to a “patently flawed assessment process.” Part of that process involved a report prepared by a psychiatrist whose prime occupation was conducting psychiatric assessments, mainly for insurers.

This psychiatrist performed up to 45 to 50 assessments per month with a projected income from assessments “in the range of some $600,000 per year.” It’s not uncommon for insurers to utilize partisan experts who rarely see patients, but earn lucrative amounts from insurance companies.

A recent arbitration decision involving accident victim Marcia Henry should be of interest to the committee.

State Farm terminated Henry’s $400-per-week income replacement benefits. In ordering State Farm to pay a penalty of $23,000 for its wrongful conduct the arbitrator stated, “State Farm stubbornly held to the opinion of its medical assessments of 2007 that Ms. Henry was not substantially disabled. Notwithstanding there was compelling evidence that Ms. Henry continued to require significant medical intervention including shoulder surgery in June 2009.” It’s not uncommon for insurers to stubbornly hold onto medical assessments from their experts in the face of compelling evidence to the contrary.

In addition to the FSCO database, the committee can examine the broad-based legal database at CANLII.ORG.

At that site the committee would find reference to the recent Janey McQueen decision where the Ontario Court of Appeal upheld a $25,000 award for damages for mental distress against an insurer for wrongfully denying 16 accident benefits, many in the face of medical documentation. The insurer never gave McQueen the benefit of the doubt and created an adversarial relationship.

That’s another recurring theme in these cases. Insurers are so quick to imagine fraud that they drop the mantle of being an insurer providing peace of mind and instead treat accident victims as fraudsters.

Then there’s the case of Robert Kusnierz, whose car accident resulted in amputation of his left leg below the knee. Due to cysts and deterioration of the stump, he often uses a walker or wheelchair rather than a prosthesis. He has had 10 different prostheses. Even with them, he can walk well only on flat surfaces. He suffers from headaches and pain in his shoulders, neck, back, hips, knees and right ankle. He lost his job and suffers from “severe” psychological symptoms, likely meeting the diagnostic criteria for a major chronic depressive disorder.

Yet his insurer stubbornly claimed Kusnierz hadn’t suffered a catastrophic injury until the court ruled otherwise.

I know how the insurance industry will respond to this column. They will say these are but four examples out of thousands of cases and most accident victims are delighted with their treatment.

But if accident victims are generally delighted with their treatment, how does the insurance industry explain the 3,000 or so new mediation requests by accident victims each month? How do they explain the backlog of about 36,000 mediations pending?  

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