Some insurers want Feb. 1 changes to auto insurance benefits applied retroactively

BY ALAN SHANOFF ,TORONTO SUN

SATURDAY, FEBRUARY 22, 2014

I recently wrote about a change to provincial law governing car insurance concerning no fault attendant benefits.

The Ontario government quietly changed the law in December, effective Feb. 1, reversing an earlier decision of the Ontario Court of Appeal.

The change restricted the amount of attendant benefits that can be claimed by family members who care for automobile accident victims.

With the law having been changed Feb. 1, one would reasonably think it wouldn’t apply to any accidents that occurred prior to that date.

After all, substantive changes to the law — as opposed to procedural changes — are generally considered to operate prospectively, not retroactively, unless the law is expressly stated to operate retroactively.

The law changing the attendant benefits wasn’t expressly stated to operate retroactively. However, at least two large insurers have notified plaintiffs’ lawyers they are taking the position the change in law operates retroactively and will apply it to accidents that occurred prior to Feb. 1.

This is incredibly mean-spirited.

Taking such an approach is sure to lead to many disputed claims and delayed payments for attendant care accident benefits.

Claims will face lengthy delays as they proceed through mediation and arbitration or court challenges.

Since attendant care benefits are not available for victims who suffer only minor injuries in car crashes and are significant only for those who have suffered catastrophic injuries, this will harm the most vulnerable victims.

Worse, families of accident victims had no reason to contemplate such a change in the law and may have arranged their affairs to be able to access attendant care benefits as the law allowed them to prior to Feb. 1.

Parents or spouses may have left their jobs to provide attendant care — including such things as feeding, dressing, toileting, bathing and administering medication to accident victims — and may now find they will not receive the compensation they had planned on and were entitled to receive.

The Liberal government has the power to fix this.

Just as it passed a regulation changing the law in December, without any advance notice or public consultation, there’s no reason it can’t pass a new regulation specifically stating the change in the law applies only to accidents that occur on or after Feb. 1.

Neglecting to take this step would show bad faith by the provincial government towards accident victims and a lack of regard for procedural fairness.

The timing of the recent clawback, done without any prior consultation with stakeholders, is particularly puzzling, given that the Superintendent of the Financial Services Commission of Ontario is conducting one of its periodic reviews of auto insurance and inviting feedback from the public until Mar. 31.

It’s been suggested the reduction in accident benefits effective Feb. 1 is directly related to the government’s promise to reduce auto insurance premiums by 15%.

I don’t remember NDP Leader Andrea Horwath’s demand for a 15% premium reduction in auto insurance rates being tied to reductions in auto insurance coverage.

I don’t recall Premier Kathleen Wynne announcing the 15% reduction as part of a package which included less insurance coverage.

After all, anybody can promise and deliver an insurance rate reduction if coverage is reduced.

Yet, I haven’t heard any protests from Horwath following the Liberal government’s recent clawback of accident benefits.

Perhaps she believes voters will only remember her demands for the premium reduction and will ignore the fact the reduction is being used as an excuse to reduce coverage and thus harm accident victims and their families.

Both Horwath and Wynne had better hope auto insurance doesn’t rear its head as an issue in the next election. 

MINOR INJURY GUIDELINE IS NOT JUST HOLDING UP—IT APPEARS TO BE GAINING STRENGTH

Willie Handler is a familiar name to anyone working with auto insurance regulations. He has left the public sector, joined the private sector as a consultant and he now maintains a blog called Ontario Auto Insurance Topics.  He recently posted an article titled HCAI Data Confirms Ontario’s Minor Injury Guideline is Holding Up in response to the Insurance Bureau of Canada (IBC) Health Claims Database Standard Report published in December 2013.

The IBC report outlines data collected by HCAI (Health Claims for Auto Insurance) since 2011. Of note, the data collection starts five months after the September 2010 changes to the Schedule, which brought us the lowered med/rehab limits and the Minor Injury Guideline (MIG).

Mr. Handler’s blog post contains a chart that catalogues the findings from the IBC report. While the statistics for serious injuries (fractures, spinal cord injury, brain injury, major multiple injury) do not see much fluctuation over the years, there is a significant fluctuation when you consider injuries classified as sprains/strains and peripheral nerve injuries.

According to Mr. Handler’s chart, in the first half of 2011, 67.5% of injuries were classified as “sprains/strains”; in the first half of 2013, 75.4% of injuries were classified as “sprains/strains”.  At the same time injuries classified as peripheral nerve injuries, including WAD III, seemed to go down from 10.2 % in the first half of 2011 to only 4.5 % in the first half of 2013.

It is highly doubtful that people are suddenly getting “less injured” over the past few years. What is likely the case is that more and more people are getting pushed thoughtlessly into the MIG. This trend does not come as a surprise to anyone practising in this area.

This trend is problematic on many levels. First and foremost, it suggests that people with injuries that are more serious than a simple strain are being treated inappropriately in the MIG. These people are not getting the treatment that they need and they will need to jump through hoops to attempt to get out of the MIG. This is going to cost accident victims time and money that would better be spent focusing on getting the treatment they need. Delays in treatment generally result in poorer outcomes over time.

The challenge of getting out of the MIG is only going to get worse when one considers the likely impact of the  February 1, 2014, changes to the SABS.

OTLA remains committed to highlighting these inequities and fighting for the benefit of the accident victims that we represent.

Contributed by Angela Comella, a lawyer practising with Gluckstein Personal Injury Lawyers in Toronto, Ont.

Final review of Ontario auto dispute resolution system released with 28 recommendations

2014-02-19

The final report including recommendations for improving Ontario’s dispute resolution system from auto insurance has been issued, following multiple consultations with stakeholders.

The review of the DRS was delivered to the Ministry of Finance on Tuesday by J. Douglas Cunningham, a former associate chief justice at the Ontario Superior Court. Last November, Cunningham issued his interim report, and then received input from 35 stakeholders.

Among the 28 recommendations included in the report, Cunningham suggested a “public sector administrative tribunal” for dealing with disputes arising from the Statutory Accident Benefits Schedule in the Insurance Act.

That tribunal wouldn’t necessarily have to new new, but could be incorporated into an existing tribunal, according to the report. The new model would fall under a minister, rather than the superintendent of financial services, the recommendation also notes.

Several adjudicative tribunals in various sectors, including environment and social justice, have also recently been moved under the Ministry of the Attorney General, Cunningham noted.

“Under my proposed model, the new tribunal and the adjudicative staff would be better positioned to maintain their independence and neutrality while maintaining much of the existing expertise and experience,” he wrote.

“I see the tribunal primarily being funded by application fees, with the possibility of a portion of funding coming from insurance industry assessments.”

Cunningham also recommended establishing tendered contracts with one or more private-sector dispute resolution service providers to account for changes in demand for services.

The report also recommends that mediation services remain mandatory, but be part of a “settlement meeting conducted by an arbitrator,” to take place within 45 days of an application being accepted by the tribunal’s registrar.

The final report also recommends that insurers set up internal review processes and be required to inform claimants how to access it after benefits have been denied.

Insurers would be able to establish how their company’s review process works, but would be required to provide a written response including the outcome of their review and reasons for denial within 30 days of a claimant’s request, according to the report.

“Our government will carefully review the final report and, where appropriate, introduce legislation based on the recommendations,” Charles Sousa, Minister of Finance in Ontario said in a statement.

The DRS review was part of the government’s overall plan to reduce auto insurance rates in the province.

Accident victims group takes issue with report on Ontario auto dispute resolution system

DAILY NEWS Feb 21, 2014

A recent report on Ontario auto insurance dispute resolution includes six paragraphs discussing insurers' medical examinations, but the recommendations ignore the effect of “flawed” medical opinions, an accident victims' group suggested Friday.

The Ministry of Finance released Tuesday the final report of the Ontario Automobile Dispute Resolution System (DRS) Review, written by J. Douglas Cunningham, former associate chief justice of the Ontario Superior Court.

Cunningham was appointed in August 2013, by Finance Minister Charles Sousa to review auto claims dispute resolution in Ontario and to provide recommendations on “systemic causes of and solutions to the mediation backlog, potential changes to the current structure, a delivery model and process, the addition of a dispute prevention process for the system and other issues related to the viability of the DRS.”

Cunningham noted in the report he was not mandated to make recommendations on insurers' medical examinations.

“Nevertheless, many stakeholders felt it was important to provide comments on insurers' use of independent medical assessments,” Cunningham wrote.

“These medical assessments are not unique to Ontario's auto insurance system. They are used by almost every other insurance program, as well as by workers' compensation systems and employers.”

However, he stated there needs to be a “culture shift” adding that “medical experts appearing before adjudicators should have a duty to the DRS and not to the party that has retained them.”

He recommended that medical experts “should be required to certify their duty to the tribunal and to provide fair, objective and non-partisan evidence.” He added arbitrators with the Financial Services Commission of Ontario (FSCO), when hearing auto claims disputes, “should ignore evidence that is not fair, objective or non-partisan and, in such instances, the expert should not receive compensation for appearing as a witness.”

Despite this recommendation, the FAIR Association of Victims for Accident Insurance Reform said in a press release Friday, that the final report “ignores that flawed medical opinions would affect a case all the way through the system and in fact, beyond hearings for those who find themselves having to apply for (Ontario Disability Support Program) and (Canada Pension Plan) when they are turned down by their insurer.”

FAIR, an advocacy organization representing auto accident victims, was one of 33 stakeholders who made submissions to the Cunningham report.

“The medical opinion evidence in respect to Ontario's vulnerable and often cognitively impaired accident victims should be of the utmost importance and of the highest quality to satisfy our courts who must decide whether or not an injured person is entitled to benefits,” FAIR stated Friday. “There is no more important evidence than that and it is central to the recent mediation backlog – too many legitimate claims indiscriminately turned down by insurers based on questionable medical reports.”

In the past, FAIR has criticized the College of Physicians and Surgeons of Ontario for not publishing the names of independent medical examiners (IMEs) who have multiple complaints made against them, unless those complaints were referred to the CPSO disciplinary committee. For its part, CPSO has stated it is only mandated to provide specific information on doctors, such as restrictions on their licences and the results of disciplinary and incapacity proceedings.

In his report, Cunningham noted that CPSO requires IMEs to have “objectivity and impartiality,” but he added those qualities are difficult to evaluate.

“I have been told by consumer advocates that the health regulatory colleges have not been responsive to complaints regarding members who conduct IEs,” he wrote, referring to insurer examinations. “IE assessors working in the auto insurance system have no standard assessment protocols, report formats or timelines, and I imagine it must be a challenge to insulate themselves from outside influence.”

The government needs “to reach out to health professional associations and the insurance industry in order to educate experts on their duty to provide fair, objective and non-partisan evidence,” Cunningham wrote. “In addition, I would like to see arbitrators ignore evidence that is not considered fair, objective and non-partisan and, in such instances, the expert should not receive compensation for appearing as a witness.”

That was one of 28 recommendations in the report, which also recommended that the government mandate “timelines and sanctions regarding settlement meetings, arbitration hearings and the release of arbitration decisions,” as well as an electronic filing system.

“Insurers are currently able to log into the Dispute Resolution Case Directory to determine how many mediation applications have been entered into the system by FSCO,” Cunningham wrote. “When an electronic filing system is developed, I would hope that the system have the ability to inform an insurer automatically when an application is filed.”

He also recommended that hearings be conducted as paper reviews “in cases where there are $10,000 or less of medical and rehabilitation benefits in dispute, or where the dispute involves a determination as to whether the claimant's injuries meet the minor injury definition.”

Life can change in the blink of an eye

After an accident, your insurer may not be in your corner

Hamilton Spectator

By Jeffrey Ennis

Ralph is a 49-year-old millwright. He was always healthy and never needed a family doctor. He paid his car insurance premiums just like everyone else in Ontario who drives. He has to; it is the law. One day, his life changed forever. It happened in the blink of an eye. He was at a red light when another car came barrelling into the back of his vehicle. Ralph hit his head on his side window and his knees smashed into the dashboard. He felt dazed and disoriented. Fire and police cut him from the car and took him to the nearest hospital. He was examined, X-rayed, told nothing was broken and discharged to the care of his family physician. From that point, Ralph's life would never be the same. He was now dependent on the car insurance industry for his and his family's welfare.

Ralph assumed that because he paid his insurance premiums for more than 20 years, he would receive service in return. He was in for a surprise. Ralph had a fairly quick assessment by an occupational therapist and an orthopedic surgeon. It was their opinion that Ralph could go back to work. Two weeks later, his income support of $400 per week was cut off. All treatment stopped. Now Ralph got a lawyer and an eight-year battle began.

During those eight years, Ralph went from earning a nice living to relative poverty. He lost his home and his car. He lost his ability to pay for his children's college education. Eventually, Ralph lost his wife. She could not tolerate the changes in her husband and the strain of living in poverty. She left by year six.

No matter what Ralph did, he could not access treatment. Any time a recommendation was made, the insurance company refused it. After each refusal, he was sent for an assessment by a doctor selected by the insurance company. Not one of these doctors overturned the decision of the insurance company. By the time his case settled, Ralph had gone to seven of these assessments. He was sure the assessments cost more than the treatment he was trying to get.

The insurance industry has become progressively more powerful, taking control of almost everything that happens after a car accident.

As time passed, Ralph started to gain weight because he was inactive. His friends abandoned him because he was not fun anymore. He ate poorly because fresh fruits and vegetables were expensive and he simply did not care. Ralph started to think his life was not worth living. One day, he tried to hang himself. He did a bad job of it and the rope he used broke. He knew he needed help and he was hospitalized in a psychiatric service for two weeks.

Eventually, Ralph's case came to an end. The insurance company refused to make any reasonable offer to Ralph, but one week before the official court date, it gave in. Ralph received what seemed like a large payment, but it did not cover his losses. He now had enough money to live on, if he was careful. The only problem was that Ralph no longer had his family, his friends or his wife. He had no life.

Ralph is just one of thousands of people whose lives have been changed by a simple motor vehicle accident. The automobile insurance industry in Ontario is designed to make a profit. It is the job of the Ontario government to protect us from inappropriate behaviours on the part of these companies in their efforts to increase profits. The government is not doing its job. It has supported the insurance industry in its efforts to increase its profits at the cost of its own citizens. Over time, the insurance industry has become progressively more powerful, taking control of almost everything that happens after a car accident.

Until the citizens of this province recognize that the behaviour of the insurance industry is not acceptable, nothing will change. It is not reasonable for us to be legislated to pay profit to a company while that company withholds its services when required. Anyone involved in a car accident will tell you their lives changed in the “blink of an eye.” Rather than waiting until there are enough people injured in motor vehicle accidents in Ontario to force a change to the system, the healthy citizens of Ontario must demand a change to the Automobile Insurance Act before their lives are changed forever — before they become like Ralph.

Dr. Jeffrey H. Ennis is medical director of The Ennis Centre for Pain Management in Hamilton.

Liberals reduce medical benefits

More heartache for families of catastrophically-injured accident victims as attendant care costs are capped

Toronto Star

Late last year, Ontario’s Liberal government reversed a ruling of the Ontario Court of Appeal and made it harder for auto accident victims to obtain medical-rehabilitation benefits.

This attack on no-fault accident benefits was accomplished through a regulation, a cabinet decree, made Dec. 11 and printed in the Ontario Gazette Jan. 4. The changes came into force Feb. 1.

There was no public debate, consultation or advance warning.

One change impacts the ability of accident victims to access more than $3,500 in medical/rehabilitation benefits.

When the government reduced accident benefits in 2010, it created a category of minor injury claimants who were limited to a maximum of $3,500 in medical/rehabilitation benefits. The actual limit is much lower, however, since the $3,500 includes the cost of medical assessments.

But the minor injury rules were set up with a safety valve. Victims could access up to $50,000 in medical/rehabilitation benefits if their health practitioner established they had a pre-existing medical condition that would prevent them from achieving maximal recovery if they were subject to the $3,500 limit.

But as of Feb. 1, that safety valve has been limited so it applies only to pre-existing medical conditions that had been documented by a health practitioner prior to the accident.

This will reduce the number of people who qualify for more than $3,500 in medical/rehabilitation benefits.

The FAIR Association of Victims for Auto Insurance Reform estimates about 85% of accident victims are only covered for the $3,500 in benefits so it doesn’t appear there was a pressing need for this change.

Certainly there was no need for it to be done without public consultation.

The other change is more insidious as it overruled a July, 2013 decision of the Ontario Court of Appeal involving payments of attendant care benefits to family members of accident victims.

Attendant care covers all aspects of care including dressing, feeding, toileting, bathing, administering medication and so on. Unless optional coverage is purchased the maximum amount payable for attendant care benefits for catastrophically injured victims is $6,000 per month.

Attendant care benefits are only provided if certified as necessary by an occupational therapist or a nurse. Insurers have the right to challenge any attendant care needs that have been certified as necessary.

The Court of Appeal decision involved a young male rendered paraplegic following a car accident. His attendant care needs were assessed and certified at $9,500 per month. The insurer conceded the attendant care needs were reasonable and necessary.

Instead of hiring full-time caregivers, the mother gave up full-time paid employment, where she earned $2,100 per month, to provide care for her son on a 24-hour-per-day basis.

The insurance company took the position it was only responsible to compensate for attendant care benefits up to $2,100 per month, the amount the mother gave up by staying home to look after her son.

The Ontario Court of Appeal disagreed, ruling the law was clear; the insurance company was required to pay $6,000 per month for the attendant care benefits.

That decision has now been over-turned. As of Feb. 1, attendant care benefits are capped by the economic loss sustained by the care provider. Of course, the $6,000 cap won’t be increased if the care provider gives up a salary in excess of $6,000 per month.

This change will mean more heartache for families of catastrophically impaired accident victims.

Having family members provide attendant care is often beneficial for accident victims and it’s difficult to hire caregivers at the low rates allowed in the accident benefits schedule.

According to personal injury lawyer Darcy Merkur, this change “discriminates against persons not currently in the workforce, like retirees, stay-at-home parents, and the unemployed, who are restricted from being compensated for providing needed and valued care to their seriously injured loved one.”

Well, at least we know who has the ear of this government.