Insurance overhaul


Experienced Ontario jurist reviewing dispute resolution system




It’s obvious Ontario’s auto insurance dispute resolution system is in need of an overhaul.

According to personal injury lawyer Darcy Merkur, “the cumbersome arbitration process makes it impossible to quickly and economically arbitrate any day-to-day treatment denials. There’s simply no way to arbitrate a treatment denial and get a timely result and, even if that was possible, the cost of arbitrating would greatly exceed the amount in dispute.”

With approximately 60,000 injuries attributed to motor vehicle accidents each year, how is it possible we generated an average of 30,606 mediation applications per year in the last three fiscal years?

On top of that there were 23,521 auto insurance related lawsuits filed in Ontario courts in 2012.

So it’s good to see the provincial government is trying to tackle the problem.

It has appointed an experienced jurist, the Hon. J. Douglas Cunningham, former Associate Chief Justice of the Ontario Superior Court of Justice, to conduct the review of Ontario’s auto insurance dispute resolution system.

Cunningham delivered his interim report last month. His final report is due in February.

The interim report states the obvious in that “it takes too long to resolve disputes.” Cunningham understands obtaining funding to pay for treatment has become a “challenge” while “(c)laimants’ lives can be put on hold for years waiting resolution of their claims.” He is clearly sympathetic to the plight of accident victims when he warns insurance companies that “(d)isputes and settlements need to be focused on getting claimants timely access to necessary treatment and assessments.” Cunningham blames both insurance companies and claimants’ lawyers for some of the delays.

Lawyers are often unable to commit to pre-arbitration sessions or hearing dates until “many months in the future” due to their busy schedules.

Some adjusters are inexperienced, have high caseloads and should do more to resolve disputes earlier.

Insurers act in a counter-productive manner when they attempt to close files with lump sum payments, rather than focus on timely access to treatment and assessments.

Cunningham has proposed a possible solution, establishing a process which would conclude within six months from start to finish.

As he describes it: “Cases would follow a different stream based on the benefits in dispute and the complexity of the issues involved. Ensuring access to timely and necessary treatment would be a first principle.” This would go a long way to improve the status quo but Cunningham must first examine why there are so many treatment/benefit denials.

Are claimants attempting to abuse the system by seeking unnecessary treatments or accessing benefits to which they are not entitled, or are insurers systemically denying treatment and benefits?

Andrew Murray, former president of the Ontario Trial Lawyers Association, believes the dispute resolution system “suffers from systemic abuse by insurers, which invoke a decidedly adversarial approach to the adjudication of accident benefits, best described as ‘deny, delay, deceive’.” Many insurer-appointed experts undertake so-called independent medical examinations and provide opinions used to deny claims. To what extent do these opinions serve to delay the just resolution of claims?

Wouldn’t fair, impartial assessments result in speedier resolution?

I have written many columns chronicling the unfair opinions of many of the insurers’ so-called experts.

Some are clearly unqualified or under qualified to provide the opinions they generate.

Some specialize in providing opinions to insurers rather than practicing medicine. That is, they earn a significant portion of their income peddling opinions to insurers.

“Experts” of this ilk cannot be expected to provide fair assessments.

Whether consciously or subconsciously, they provide the opinions desired by their paymasters.

FAIR (Fair Association of Victims for Accident Insurance Reform), a not-for-profit organization of motor vehicle accident victims who have struggled with Ontario’s existing auto insurance system, has a website that chronicles the activities of many of these insurance industry “experts”, who have made life miserable for accident claimants.

Fixing Ontario’s auto insurance dispute resolution system will require more than mere tinkering.

Cunningham’s interim report bodes well for some real solutions. 

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