A ‘startling turn of events’: Judge rules case points to improper influence in Ontario auto insurance disputes | National Post

Mary Shuttleworth was the front seat passenger in her friend’s Pontiac Sunfire on a winding Ontario country road early one rainy morning in 2012 when a pickup truck came around a corner, clipped it on the front headlight, and sent it spinning into a ditch, where it landed “with the nose pointed up, looking at the stars.”

The airbags deployed. Her head was pinned between the seat and the door frame, and rescuers had to use the Jaws of Life to get her out. It was her 49th birthday.

Today, nearly six years later, the physical toll of a traumatic brain injury, soft tissue injuries and post-concussive syndrome has left her unable to work, with frequent nausea and vertigo, and fearful of becoming a burden to her family.

But when a newly constituted Ontario government tribunal considered whether her injuries were “catastrophic” — in the first such case to come before it after major reform of the auto insurance industry — the controversial outcome has thrown Ontario’s no-fault car insurance regime into confusion.

Thanks to an anonymous letter mailed to Shuttleworth’s lawyer, Gary Mazin, alleging improper influence in the Licence Appeal Tribunal, a judge has found there is reasonable basis to believe the decision to deny Shuttleworth benefits “did not reflect the independent decision of the adjudicator.”

According to the letter, the adjudicator initially decided to approve Shuttleworth’s benefits, only to have the denial ordered from on high by the adjudicator’s boss.

“Justice must not only be done; it must be seen to be done,” wrote Justice Julie A. Thorburn.

Shuttleworth’s denial of coverage was therefore overturned and sent back for a new hearing. This decision is likely to prompt a flurry of new lawsuits alleging improper influence in the denial of benefits, according to Mazin.

One legal industry commentary called the decision a “startling turn of events.”

The tipster’s letter included information that could only be known to an insider, and it claimed the adjudicator of Shuttleworth’s case, Susan Sapin, originally decided that Shuttleworth’s injuries really were “catastrophic,” which under the law means a 55 per cent impairment of the “whole person,” as judged by a scorecard system.

The letter claimed Sapin’s boss, Linda Lamoureux, executive director of the tribunal’s parent organization, Safety, Licensing Appeals and Standards Ontario, “changed the decision,” and that as a result, Sapin “hesitated to sign this order.”

That led Mazin to file an access to information request for the tribunal’s internal communications about the case and policies on how decisions are made. That request turned up correspondence between Lamoureux and Sapin reflecting a lengthy back-and-forth process of consultation and revision, which was initiated by Lamoureux.

Justice must not only be done; it must be seen to be done

Thorburn found that the process of adjudicating cases like this can fairly involve consultation with colleagues, and that an adjudicator’s boss commenting on a decision does not necessarily prove that there was improper influence. But, in this case, the adjudicator appears to have learned of the executive director’s review of the case after it happened, and without asking for it.

“I make no finding of any actual impropriety having occurred on the facts of this case,” Thorburn wrote. There was no proof that Lamoureux “did anything to force” Sapin to change her decision. But the process by which it was decided “did not meet the minimum standards required to ensure both the existence and the appearance of adjudicative independence of the adjudicator’s decision.”

Unless the consultation process is voluntary and clearly limited to advice, as opposed to control, there will always be a “reasonable basis to believe that the decision did not reflect the independent decision of the adjudicator,” the judge found.

In an interview Monday, Shuttleworth said she has already begun the evaluation process again.

Since 1990, Ontario has had no-fault insurance, which took these disputes out of the civil courts and means that every car insurance policy in the province offers benefits regardless of who was at fault.

Until 2016, these kinds of disputes between insured people and insurance companies were heard by a different tribunal of the Financial Services Commission of Ontario.

As the first case about catastrophic injuries under the new LAT tribunal, Mazin said there was likely concern about the kind of message the decision might send about whether the tribunal is sympathetic to claimants or insurance companies.

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Relief Ahead for Claimants, Attendant Care Providers and Case Managers

Attendant Care

In April FSCO will release a bulletin clarifying insurer obligation to pay the total monthly benefit calculated on the Form 1 for Attendant Care, and that the Levels are merely an aid to calculation. Further, they are making a revision to the Attendant Care Rate Guideline, removing the language that says that insurers are not liable to pay for expenses related to attendant care costs rendered to an insured person that exceed the maximum hourly rates The Guideline change makes the Bulletin enforceable, so that claimants and provider will be better able get these disputes resolved or make complaints to Market Conduct.   In sum, we will have a FSCO-supported return to pre-LAT decision status quo.

 

Case Management

The April bulletin will also provide clarification to insurers intended reinforce the payment of Regulated Providers in accordance with the rate assigned to their discipline in the PSG for Case Management services. As above, this is an intended return to the pre-LAT decision.

With luck this Bulletin will see the light of day before mid-April.

Canadian Underwriter Article

What Ontario needs to do to reduce auto insurance costs

 

https://www.canadianunderwriter.ca/insurance/ontario-needs-reduce-auto-insurance-costs-1004128918/

Fraud in the collision repair industry and distracted driving are among the issues that “need to be addressed” if Ontario auto insurers want to reduce the amount of money paid out on claims, said Willie Handler, principal of Willie Handler and Associates, in an interview Monday.

An interesting read from the Canadian Underwriter

RSA Canada endorses “all of the recommendations” in Marshall report

Willie Handler Article in Canadian Underwriter- An Interesting Read

Play it Again, Sam

Key features of Ontario’s
latest auto reform package
have been attempted before
– and ended in heartbreak.

Article Linked below:

Willie Handler Article in Canadian Underwriter

Government Announces Changes

The government has announced its proposed changes to Ontario Auto Insurance. The link below, has as much detail as currently available. As always, the devil will be in the detail, and will emerge as the panel and consultations gets into gear, and through our discussions with Finance and FSCO.

Highlights from the release – some ORA comments/notes in italics:

  1. Implementing standard treatment plans for common collision injuries such as sprains, strains and whiplash, changing the emphasis from cash payouts to ensuring appropriate care for victims – No specific reference here to ‘minor injuries’ but this is likely some version of the CTI; we’re hopeful that this language of ‘sprains, strains, whiplash’ means that brain injuries are no longer included. The intention is to have the first of these plans in place by spring 2018.
  2. Reducing diagnosis and treatment by instituting independent examination centres to assess more serious auto collision injuries – During the live stream reference was made to a bidding process for the ‘select few’ assessors who are held to higher standards, credible, independent and neutral. It is noteworthy that there is no mention of these being hospital based. We will hope and lobby for these assessors to have relevant rehab-related skills and knowledge. We are seeking clarification as to when in the claims’ life cycle these IEs will take place.
  3. Cracking down on fraud by launching the province’s first Serious Fraud Office in spring 2018. The office will focus on auto insurance fraud, which has been identified as one of the factors contributing to higher premiums
  4. Directing the Financial Services Commission of Ontario (FSCO) to review risk factors used by insurers to calculate premiums with the goal of ensuring drivers in certain parts of the province are not subject to unfairly high rates
  5. Ensuring that lawyers’ contingency fees are fair, reasonable and more transparent

The province will establish a panel to guide the enactment of reforms contained in the Fair Auto Insurance Plan.

https://news.ontario.ca/mof/en/2017/12/ontarios-fair-auto-insurance-plan.html

We will continue to keep you posted as we learn more.

Insurance assessment firms altered, ghostwrote accident victim reports

Kathy Tomlinson Reports: Read the Globe and Mail Article Here

“For Terry Blais, the ordeal of fighting for insurance coverage was worse than being hurt in a car accident.”

 

The Globe and Mail: Licensed to bill

“Doctors are taking in millions of dollars a year by putting their names to accident injury reports for the insurance industry. Some of these reports unfairly discredit injury claims, leaving victims intimidated and exhausted. But because the majority settle out of court, the practice is hidden from public scrutiny. Kathy Tomlinson investigates.”

Click here to view the article

Government Moving on Marshall Report!

Somewhat buried in the November 14th Fall Economic statement from the Minister of Finance was the news that within the next few weeks the government will announce new measures aimed at “transforming important aspects of auto insurance to create a more efficient system focused on timely care for victims and sustained savings for consumers”.

This statement follows a reference  to the Marshall Report and cites key recommendations (below):

  • Improving how the common injuries are treated and managed, so that accident victims receive more timely care and further impairments do not develop due to delayed treatment;

  • Establishing a system of single neutral medical assessments to provide patients with the best care options;

  • Implementing lifetime management of care for catastrophically injured individuals;

  • Creating a strong, independent auto insurance regulator that is more proactive and empowered to address flaws in the system; and

  • Reviewing the auto insurance rate regulation framework to enable more innovation and competition that would give a greater number of options to consumers.

Translation? It’s all guesswork but… it is looks like we will see the CTI, or a reasonable facsimile put into place, that there’s a high likelihood of a WSIB-like hospital-

based IEC system with little dispute or wiggle room on findings, potentially a change in cash settlement practices for catastrophic injuries, more regulatory muscle for FSRA (the new regulator), and greater flexibility and responsiveness to insurer rate increase requests to enable increased options for consumer. (This last rationale is for those who think Santa is real).

I’m afraid that little to none of this is good news for our members – and I’m sorry. But we will do our utmost to stay engaged and keep you informed of developments. In addition to reading the between-the-lines-tea-leaves of the statement, we are meeting this week with the Finance Minister’s lead hand on this file to see what more we can learn and to look for opportunities to influence the shape of things to come. I will also be reaching out to other associations so that we might combine our efforts where our interests align.

As always, we’ll keep you posted.

“Ontario’s crowded hospitals don’t need even more exams” – WILLIE HANDLER

We are delighted to see Ontario auto insurance policy expert and consultant Willie Handler’s recent piece. His views on the Marshall Report line up beautifully with those we expressed in our submission. Fingers crossed that government will take heed.

Click Here to View the Article