Action on insurance reform


But under our polarized, adversarial system, accident victims will continue to be maltreated



The Ontario government appears to be moving quickly to adopt some of the recommendations of the final report of the Ontario Automobile Insurance Dispute Resolution System (DRS) Review, released last month.

In 2013, Ontario Finance Minister Charles Sousa appointed the Hon. Douglas Cunningham, a former associate chief justice of the Ontario Superior Court of Justice, to the task.

His job was to provide “recommendations regarding 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.”

All of this relates to our dysfunctional, no-fault, auto accident benefit system, which seems to do a better job of creating disputes than providing promised benefits to accident victims.

Cunningham’s final report was released last month and last week Sousa announced new legislation adopting some of Cunningham’s recommendations to streamline the dispute resolution system.

Streamlining the system is a good thing, but there is no proposal or even a suggestion on addressing Cunningham’s observation about “how polarized the system has become” and how the accident benefits claims process had become “so adversarial”.

We can streamline all we like, but until the provincial government addresses the systemic problems created by our polarized, adversarial system, accident victims will continue to be maltreated, albeit for a shorter duration once the new legislation comes into force.

As Cunningham observed, “The insurance industry points to the plaintiff bar as the source of the system’s problems, while the legal community blames the practices of the insurance industry.” In other words, neither side is prepared to take ownership of the problem or admit to any shortcomings of its own.

Meanwhile, it’s those who suffer the misfortune of being injured in motor vehicle accidents who also suffer due to this polarization.

Cunningham also noted independent medical examinations, now called insurer examinations (IEs), “appear to have little credibility with claimants and only serve to trigger disputes”.

At the same time, Cunningham pointed out that stakeholders, “strongly supported the current system in which parties provide their own experts.” In other words, there’s a huge problem with the use of experts but neither side wants to do much to fix it.

While Cunningham wasn’t assigned the job of reviewing insurer examinations, it seems strange to try to fix the accident benefits dispute resolution system without reviewing and offering recommendations on dealing with insurer examinations, which Cunningham concedes, trigger disputes.

Cunningham repeated concerns by consumer advocates that health regulatory colleges “have not been responsive to complaints regarding members who conduct IEs.” He also remarked that it “must be a challenge to insulate themselves from outside influence.”

If that wasn’t clear enough, Cunningham added, “The problem is obvious. An expert retained by an insurer who supports claimants is unlikely to be retained again. For this culture shift to be successful, the government will need to be proactive.” That seems a polite way of saying it’s difficult for experts appointed by insurers not to provide reports that favour the insurers who pay them large sums of money in return.

So it’s no wonder the FAIR Association of Victims for Accident Insurance Reform takes issue with the Cunningham Report stating, “The recently released Dispute Resolution System Review final report does not address the abuse of Ontario’s accident victims and our courts by assessors who intentionally minimize or deflate an injury so Ontario’s insurers can deny claims. Despite the DRS review being the forum most suited to impose criteria regarding medico-legal expert witnesses, and the place to set standards, the issue will remain a core problem affecting every accident victim.”

The government’s proposed legislation is supposed to reduce costs, fight fraud and protect consumers.

Whether it will actually do any of that remains to be seen, but there’s nothing of substance in it to protect accident victims. 



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