Auto insurance mess hasn’t happened by accident

Government, doctors, lawyers, the industry all played part

By Alan Shanoff, Toronto Sun

First posted: Wednesday, December 03, 2014 06:59 PM EST | Updated: Thursday, December 04, 2014 09:33 AM EST

 

It’s not easy achieving a perfect state of ineptitude where so many auto accident victims are maltreated by so many people and institutions. Doing so takes real effort.

Let’s start at the top with the lawmakers, the people who govern Ontario.
With the insurance industry’s lobbying efforts paying off, our lawmakers gutted no-fault benefits in 2010.

Medical and rehabilitation benefits for most victims injured in accidents saw the maximum reduced to $3,500.

That’s the lowest in the country.

For serious injuries the maximum was reduced from $100,000 to $50,000.
That’s not money going into accident victims’ pockets; it’s money used to pay for medical and rehabilitation treatments.

Never resting, our lawmakers are in the process of lowering the interest rate to 1.4% on money owed by insurance companies to accident victims.

That this might encourage insurance companies to hold onto victims’ money longer, earning higher investment returns on it, seems to have escaped the attention of our lawmakers.

But enough about them.

Lawyers have a role to play in our mess of a system.

Many lawyers take on cases they are ill-equipped to handle.


Perhaps they don’t have the time or the required skills.

Too many lawyers take on car accident cases and let them languish, not aggressively moving them along.

Some miss limitation periods resulting in lawsuits being dismissed for tardiness or delay.

Some don’t prepare their clients adequately for examinations for discovery or prepare themselves adequately for mediations.

Too many don’t take basic steps to examine or question the qualifications or expertise of expert witnesses hired by insurance companies or defence lawyers.
Speaking of defence/insurer expert witnesses, too many health care professionals sell their souls to insurance companies, providing them with biased opinions used by insurance companies to deny or delay legitimate accident claims.

What ever happened to the Hippocratic Oath?

But we have regulators to ensure the system works, don’t we?

Heath care regulators such as the College of Physicians and Surgeons of Ontario (CPSO) don’t adequately control members who commit misconduct while churning out “expert” reports for insurance companies.

And when the CPSO decides to warn physicians about their inadequacies in assessing accident victims, they do so privately.

Then there is the Financial Services Commission of Ontario (FSCO) which regulates Ontario’s insurance industry.

Their arbitrators do an excellent job providing justice in individual cases where accident victims force their insurers to arbitration.

But what has FSCO ever done in an attempt to curtail industry abuses?

Of course, I couldn’t leave this topic without mentioning the insurance industry itself.

Through its lobby arm, the Insurance Bureau of Canada, the industry never misses an opportunity to remind the public and lawmakers about the massive fraud being engineered by accident victims.

Never mind that estimates for fraud never seem to budge or that the job of clamping down on fraud should be that of the industry.

Never mind that the fraud engineered by organized crime or crime rings with staged accidents has nothing to do with legitimate accident victims.

The industry continues marching to its own beat, continuously pushing lawmakers to reform the law to benefit insurance companies, to the detriment of accident victims.

Source: http://www.torontosun.com/2014/12/03/auto-insurance-mess-hasnt-happened-by-accident
 
 

CPP Disability Benefits Denied To 60% Of Applicants, Among Highest Rejection Rates In World

CP  |  By Lee-Anne Goodman, The Canadian Press

Posted: 12/02/2014 5:52 pm EST Updated: 12/03/2014 4:59 pm EST

OTTAWA - One terminally ill Canadian denied Canada Pension Plan disability benefits has been "diagnosed with brain cancer and is currently undergoing chemo and radiation treatments," according to the government's woefully backlogged social security tribunal.

Another of the tribunal's so-called crisis files, obtained under the Access to Information Act, describes an applicant as having been "diagnosed with liver cancer and received a liver transplant."

Yet another has been "diagnosed with Pick's Disease, which is terminal."

They are among the ailing or injured Canadians who have applied to have their cases expedited as they endure long waits for appeals in a new system that is grappling with an ever-growing, 11,000-case backlog, mostly involving CPP disability claims.

About 60 per cent of CPP disability claimants are initially turned down — one of the highest rejection rates for a disability insurance program among the nations of the Organisation for Economic Co-operation and Development.

Claims are denied due to everything from insufficient paperwork to a lack of proper medical and employability information.

Michael Prince, a public policy professor at the University of Victoria and vocal critic of efforts to streamline the social security appeal process, said it makes no sense why so many Canadians are being turned down.

"If so few people who make an application are approved in the first instance, why aren't we dealing with it at the front end of the problem?" Prince asked in an interview.

"If you're turning so many people down, you're going to have more appeals, so why not try to figure out what you're failing to communicate to Canadians about how to properly and successfully apply for CPP disability benefits?

"Could it be because there is no desire to make it a more successful process?"

Prince notes that "deny, delay, wait for them to die" is the cynical philosophy thousands of military veterans in both Canada and the United States have ascribed to their respective veterans affairs departments as they wait months — sometimes years — for disability benefits.

But the plight facing those seeking pension disability benefits is just as dire as that confronting Canada's military veterans, many of whom have to wait months to find out if they're eligible for help, the federal auditor general has concluded.
"It's as bad, if not worse, than what's going on with the veterans," Prince said.
"Some people have been waiting for as long as five years for CPP disability benefits. They may not wear a uniform and medals, but they have no less traumatic experiences and struggles with surviving as veterans do.".

The tribunal insists there's a 68 per cent success rate for appeals launched by ailing and injured Canadians who are denied disability benefits.

But data provided by the tribunal earlier this year shows that in its first year of existence, the new body held just 461 hearings on appeals from people denied CPP disability and old-age security benefits. Of those, 303 were dismissed.

That's compared to thousands of hearings held the previous year under the old regime.

The tribunal had no answer as to why so many ailing and injured Canadians are denied benefits when they first apply for them. But it pointed out that medical conditions often worsen.

"It should be noted that in CPP disability cases, which represent more than 90 per cent of the income security cases, appellants often have evolving medical conditions," Laura Revilien, a tribunal official, said in an email.

"Although appellants may not have qualified for the benefit at the time of the department’s reconsideration decision, they may file new medical evidence while their appeal is at the tribunal. This information is then shared with the department and could result in a settlement agreement between the department and the appellant."

Employment and Social Development Minister Jason Kenney was on the hot seat in the House of Commons on Tuesday over the fact that terminally ill and financially strapped Canadians have had to apply to have their cases expedited as they await their appeals.

"This is completely outrageous," said NDP MP Jinny Sims during question period. "Canadians paid for these benefits with their premiums. They shouldn't have to go begging when they need them."

Kenney said the government has appointed 22 additional part-timers to help deal with the backlog. It has also shifted 12 members from the employment insurance section of the tribunal to the overtaxed CPP and old age security portion.

Earlier this month, the government also used its latest budget bill to remove a requirement in previous legislation to cap the size of the tribunal at 74 full-time staff. It also scrubbed limits on the number of hours part-time tribunal members are allowed to work.

When it was established, the new tribunal was supposed to provide a more efficient appeal process for those denied employment insurance, CPP and old-age security benefits.

It was also supposed to save Canadian taxpayers $25 million a year by streamlining the appeals process, even as stakeholders warned that the plan to replace nearly 1,000 part-time referees with 74 full-timers could result in a 16-month backlog.

Follow Lee-Anne Goodman on Twitter @leeanne25

Source: http://www.huffingtonpost.ca/2014/12/03/cpp-disability-benefits-denied_n_6257988.html?utm_hp_ref=canada#

How the WSIB is failing the injured workers of Ontario

December 3, 2014 Part one of a two-part seriesby Samantha Ponting

 

Injured workers advocates gather June 1, 2013 at Queen’s Park to celebrate the 30th annual Injured Workers Day.

On Jan. 1, 1915, a worker in Kearney, Ontario, employed by a lumber company, suffered a hand injury on the job. He was the first worker to receive benefits under the Workman’s Compensation Act, which came into effect the same day. The Workman’s Compensation Board–now named the Workplace Safety and Insurance Board of Ontario (WSIB) – was established in 1914 to administer benefits to injured workers in Ontario through a system modelled on William Ralph Meredith’s “historic compromise,” whereby workers are denied the right to sue employers in exchange for compensation, benefits, and the facilitation of a timely return to work.

Because workers cannot sue their employers, they depend on the WSIB to administer justice. Is the WSIB living up to this task?

In 2013, 243 workers died of workplace injuries and occupational diseases in Ontario. Tens of thousands more are injured yearly on the job.

Today, the WSIB is funded 100 per cent by employers and is overseen by the Ontario Ministry of Labour. This year, the WSIB is celebrating what it’s calling “a century of serving Ontario.” Yet now more than ever, the WSIB has been the target of widespread criticism for its failure to adequately compensate workers, process claims fairly, accurately assess medical opinion, and facilitate employees’ safe return to work.

The WSIB is theoretically an independent organization. Yet critics argue the WSIB is heavily biased towards employers. The past few decades have seen inadequate premium rates imposed on employers. Workers have seen cuts to compensation and benefits while the board’s management receives bonuses. Perhaps most concerning is the WSIB’s relentless drive to push workers back into the workforce despite the medical assessment of a worker’s injury. The WSIB appears to be more concerned with meeting the labour needs of employers than providing healthcare to workers.

Denying medical expertise
According to the Workplace Safety and Insurance Act, injured workers have a legal right to “necessary, appropriate, and sufficient” healthcare for their work-related injuries.

Many Ontario injured workers receive health coverage under the Ontario Health Insurance Plan (OHIP). However, OHIP does not usually provide coverage for medications, assistive medical devices, physiotherapy, medically-related travel expenses, and mental health.

The WSIB is required to cover these expenses when they are related to a worker’s injury on the job, but the Injured Workers Action for Justice (IWAJ), which advocates for fair compensation from the WSIB, say that the WSIB is steadily reducing benefits related to healthcare. It reports that the WSIB has cut $77 million in healthcare-related spending since 2009.

Jessica Ponting, a community legal worker with the Industrial Accident Victims Group of Ontario, says that almost 20 per cent of the WSIB’s healthcare budget is allocated towards “specialized clinical services,” or WSIB-run assessment centres.

As funds for doctor-recommended treatments are being cut, the WSIB is increasing funding for assessment centres.

The IWAJ claim that these assessment centres are known for predicting early recoveries and can facilitate the denial of claims, as well as a premature return to work.

“They [the WSIB] say benefits are being cut because they are providing healthcare and getting people back to work, which is not true,” says Ponting.
Instead, she says, workers are being sent back to work before they’ve recovered because of predicted recovery dates that often don’t correspond with reality. 
She says, “The WSIB ignores reports from family doctors that state that a worker is still injured.”

“These centres can provide useful information, that’s fair, but the WSIB requires them to say when they will predict the worker will recover. In most cases, they meet the worker once and make a prediction. Then the WSIB says they have a relatively comprehensive medical report and they end benefits based on that expected recovery date,” says Ponting.

The painful side of WSIB assessment centres

Daniela, who requested that her last name not be disclosed, is an injured worker and member of IWAJ.

Daniela says, “Many workers come to me and complain. They are afraid to ask for their rights. They do not know they have rights.”

She says workers are afraid of losing their jobs if they report workplace injuries. They come to her to share their stories and ask for advice.
Daniela’s workplace injury was caused by repetitive movements combined with lifting weight. She was sent to a rehabilitation centre for WSIB claimants, following five months of physical therapy.

The WSIB approved her repetitive movement injury, but did not approve another injury she reported. She says it is not easy to have injuries approved.
She explains that following the workplace injury, the WSIB assigned a recovery time to her, and pressured her to push herself physically beyond her limits. She says the WSIB pushes workers to return to work before they are fit to do so.
She says the centre told her, “In four weeks, you will be good to work again.”

“They try to push you. They increased the amount of weights that I was using. They claimed it was the right thing to do, but I was constantly in pain. They see it but they ignore it.”

She says that during her time in the program, she met many injured workers and heard their stories. “They were in pain. They were forced to work by their case managers.”

The WSIB can cut off benefits from workers by deeming them “uncooperative.” For this reason, workers are sometimes fearful to resist directives from the assessment centres.

“One woman was clearly in pain. She really could not perform her job, but she needed to cooperate. She had to go to work. She had a fixed treatment and then she was sent back to work. And then she received more treatment, and was sent back to work.

“It was like that for a year.”

The Marshall Plan

Since 2009, the number of denied claims have increased by 50 per cent, and benefits to injured workers – which can include, for example, loss of earning benefits – have been reduced by 631 million. These cuts have come alongside the appointment of international banker David Marshall as the WSIB’s president. Marshall, well known to both Wall Street and Bay Street, has presided as vice-chairman of CIBC and as a managing director of New York leading investment bank, Bankers Trust.

Under Marshall, whose five-year contract exceeds 2.4 million, the WSIB has laid off hundreds of staff and slashed benefits for injured workers. What’s worse, Marshall has been promised a $400,000 bonus if he is able to achieve particular financial goals, including increasing “administrative efficiencies” and reducing “unfunded liability.”

Unfunded liability is understood as the discrepancy between the funds required to pay the benefits of injured workers and the amount of money collected into the WSIB’s insurance fund. The provincial government passed legislation requiring the WSIB to eliminate its billions of dollars of “unfunded liability” by 2027. Under Marshall’s austerity model, workers are being forc
ed to bear the brunt of cuts to benefits, rather than requiring employers to increase premium contributions. In fact, premium contributions were frozen at current rates for the year 2014.
Even more shocking, the WSIB is providing millions of dollars in rebates on premiums to employers convicted under the Occupational Health and Safety Act (OHSA), as revealed in an excellent report released by the Ontario Federation of Labour on Nov. 24. According to the report, between the years 2011 and 2013, 78 (58 per cent) of 135 employers convicted of offences under the OHSA received almost $15 million in rebates during the same year that offences were committed, and oftentimes, these rebates were greater than the fines designated for violations of the act.

The WSIB is determined to get the worker back into the Canadian job market as soon as the predicted recovery date is over, says Ponting. “‘The WSIB will say, you may or may not be permanently disabled. But we think you could do a job as a customer service rep, or a parking lot attendant.”
“It’s a dehumanizing, intensive process,” she says.

Do labour unions make workplaces safer?

While the WSIB deals with claimants that work in unionized environments, Ponting says collective agreements can improve healthcare access for workers, particularly where agreements provide long-term or short-term disability insurance through a private provider.

The reality is injured workers are confronting two powerful forces against them: the government and the employer.

“They both want to protect the bottom line,” says Ponting. “These are two very powerful institutions. You have the economic incentive of, effectively, an insurance company, coupled with the power imbalance between you and your employer.”

“Unions help to offset that power imbalance between worker and employer, and an insurance company that wants to deny them benefits,” says Ponting.
Daniela has worked in a unionized workplace before, and says she saw a difference in the level of workplace safety between it and the workplace where she obtained her injury.

“The [unionized] workplace was super safe, we were aware. We were aware of how to report this. I wonder why it can’t be like that elsewhere. Because if you are aware, you prevent yourself from getting injured.”
“My experience is unionized workplaces are safer.”

In Part two, R&F.ca examines how the WSIB affects Ontario’s migrant workers, and we will discuss needed reforms to the WSIB system.

Source: http://rankandfile.ca/2014/12/03/how-the-wsib-is-failing-the-injured-workers-of-ontario/
 

Ontario ombudsman accuses auditor general of ‘perilous’ power play

Andre Marin alleges Bonnie Lysyk is trying to limit his office, which has tackled systemic issues in the past, to investigating nothing but individual complaints.

Richard J. Brennan / Toronto Star File photo 

“This (the auditor general's proposal) would constitute a perilous and massive step backward in terms of accountability and transparency … it would lead to neutering and gutting our office of its most valuable tool to help people,” Ontario Ombudsman Andre Marin said in a five-page letter. 

By: Rob Ferguson Queen's Park Bureau, Published on Mon Dec 01 2014

 

Ontario Ombudsman André Marin is firing back at what he calls a “perilous” power play by Auditor General Bonnie Lysyk to restrict his investigative authority.

The Star has obtained a five-page letter that Marin wrote to Lysyk after she urged MPPs on a legislative committee last week to limit the ombudsman’s office to investigating individual beefs from citizens instead of looking as well into larger systemic concerns.

That would leave Marin — whose 30 broad-based investigations have exposed such issues as illegal child-care operations and have pushed for better screening of diseases in newborns — limited to probing one-off complaints.

“What you propose is essentially the abolition of the ombudsman’s ‘own motion’ investigative authority, which has existed in the (Ombudsman) Act for 39 years and served Ontarians well,” wrote Marin, who is nearing the end of his second five-year term in the post.

“This would constitute a perilous and massive step backward in terms of accountability and transparency … it would lead to neutering and gutting our office of its most valuable tool to help people,” he said.

Lysyk, who became Ontario’s auditor general last year after holding a similar job in Saskatchewan, was testifying before a committee studying the Liberal government’s Bill 8 on improved accountability measures.

Among other things, the Public Sector and MPP Accountability and Transparency Act would extend the ombudsman’s powers to include oversight of municipalities, school boards and universities.

Lysyk argued her auditor general’s office, not the ombudsman, should be responsible for investigating systemic problems within the government and its agencies.

On Sunday night, she defended her remarks to the MPPs, saying she wanted to present a “different perspective.”

“Everybody has the right to talk to a committee of the legislature. Everybody should be able to share their views,” she told the Star. “‎Whatever they decide, I respect.”

The auditor general said she was taken aback by the ombudsman’s letter.

“‎Mr. Marin obviously has different views and doesn’t take kindly when you don’t have the same views. At least he didn’t call me a slippery pig,” she added, alluding to his report into overbilling at Hydro One.

Lysyk said she made her remarks to the committee in a bid to get “clarity” in areas in which both her office and Marin’s share oversight, such as their separate investigations into Hydro One.

Marin’s letter said he was “shocked” and “blindsided” by Lysyk’s testimony, which went largely unnoticed last Wednesday.

“The ombudsman’s focus has always been and will remain on issues of administrative fairness … while the auditor general’s role is primarily to ensure financial integrity. Our two offices have coexisted for decades,” he wrote. “Bill 8 does not propose any change that would fundamentally alter the current state of affairs.”

The dispute comes as both their offices have been investigating Hydro One overbilling of customers. Marin has already issued a report. The auditor is expected to address Hydro One in her annual report, due later this month.

Marin’s letter, dated Friday, follows a tweet from his account at @Ont_ombudsman calling Lysyk’s remarks to the committee an “astoundingly inept attack on Bill 8.”

Aside from Lysyk, Marin sent copies of his letter to Premier Kathleen Wynne and MPPs on the legislative committee studying Bill 8, among others.



Source: http://www.thestar.com/news/canada/2014/12/01/ontario_ombudsman_accuses_auditor_general_of_perilous_power_play.html?app=noRedirect
 

Ontario government proposes limits on defamation lawsuits for 'public interest' communications

2014-12-02

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The Ontario government tabled Monday a bill that, if passed into law, would make it easier for a defendant to get a defamation lawsuit dismissed if the defence could convince the judge that they were communicating on a matter of "public interest."


When the previous version of Bill 52 - which died on the order paper earlier this year - was introduced, one politician noted that the directors of an advocacy organization were forced to buy liability insurance out of concern they could be sued as a result of participation in a decision-making process.
Another politician contended that activities that have been subject to lawsuits include reporting environmental violations, contacting the media, speaking at public meetings and complaining to government agencies.

Attorney General Madeline Meilleur introduced Monday Bill 52, the Protection of Public Participation Act, 2014 at Queen's Park in Toronto. If passed into law, Bill 52 would change the Courts of Justice Act to "create a process for getting a proceeding against a person dismissed if it is shown that the proceeding arises from an expression made by the person that relates to a matter of public interest."

Meilleur said in the legislature that Bill 52 "seeks to balance the protection of public participation and freedom of expression and the protection of reputation and economic interests."

The new section of the Courts of Justice Act proposed in the bill are intended to "discourage the use of litigation as a means of unduly limiting expression on matters of public interest" and to "reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action."
In 2013, then-Attorney General John Gerretsen had tabled Bill 83, which was intended to curb "strategic lawsuits" against public participation, or SLAPPs.
"Activities that attract SLAPPs include citizens reporting environmental violations, filing complaints with government agencies, contacting the media, speaking at public meetings, participating at hearings before administrative tribunals or engaging in public campaigns," NDP MPP Paul Miller told the legislature last April during a debate on Bill 83.

Bill 83 was referred in April to the Standing Committee on Social Policy, but died on the order paper with last June's election.

During a debate in 2013 on Bill 83, Progressive Conservative MPP Sylvia Jones noted that in 2010, a water conservation organization in British Columbia had published material opposing a landowner's application for a permit, alleging there could be potential damage to the local watershed. The landowner sued two individuals plus the conservation organization itself. Directors at that organization, Jones said in 2013, were "forced" to buy liability insurance.
Bill 52 also proposes to add a section, to the province's Libel and Slander Act, stipulating that that "any qualified privilege that applies in respect of an oral or written communication on a matter of public interest between two or more persons who have a direct interest in the matter applies regardless of whether the communication is witnessed or reported on by media representatives or other persons."

In 2013, Gerretsen told the legislature that under current legislation, a group of citizens who meet to discuss a problem are protected from libel suits if they make statements without malice.

"If, however, a reporter from a local newspaper, radio station or television station shows up, that privilege is lost," Gerretsen said at the time. "It may come as a surprise to some that, under our current laws, that same group of citizens is no longer protected as soon as their conversations are reported by a third party, such as the press, or are circulated on social media, which of course is very common nowadays."

Qualified privilege is one defence against libel. In Ontario, that defence applies to "fair and accurate reports" on proceedings of legislative bodies, commissions of inquiry, public authorities, rulings of courts, tribunals and official inquiries, as well as documents produced or discussed in open court or before a tribunal or inquiry, according to The Canadian Justice System and the Media, a document published by the Canadian Judicial Council.

Quoting from media lawyer Michael Crawford, CJC notes the "classical definition" of libel is "any statement which tends to discredit or lower an individual 'in the estimation of right-thinking members of society generally.'"


Source: http://www.canadianunderwriter.ca/news/ontario-government-proposes-limits-on-defamation-lawsuits-for-public-interest-communications/1003375899/?&er=NA
 

Hunger Report: Use of food banks soaring across Ontario

17,000 new households began using food banks this year, according to the Ontario Association of Food Banks report.

Andrew Francis Wallace / Toronto Star Order this photo

 

Jessica Manuel visits the Mississauga Food Bank recently. She told the Star how one food bank helped her get her life back into focus at a bleak time in her teens, pregnant and struggling to finish high school. 

By: Sara Mojtehedzadeh Work and Wealth reporter, Published on Mon Dec 01 2014

 

At 14, Jessica Manuel found that stealing candy from a convenience store was easier than getting a meal a day at home.

“My sister and I, we’d take frozen bread out of the freezer and toast it with a clothing iron to eat — just because we didn’t want to ask for anything,” she says.

Her family fell apart while she was still young. Her father left, and life with her mother and her mother’s new husband was dysfunctional. As her mom struggled to raise two new babies, Manuel and her sister were so sidelined they weren’t even taught to brush their teeth.

Manuel eventually found herself bouncing between youth homes, struggling to stay off the streets.

At age 16, Manuel found a lifeline: a food bank that she says became her family, helping her find housing, clothes and furniture and supporting her when she got pregnant at 17.

MORE AT THESTAR.COM:

● 25 years after Ottawa’s pledge to end child poverty, it’s time to hit ‘reset’

● 6 per cent solution for better health care: Opinion

● Minimum wage in 2013 just a penny more than 1975 after inflation

Manuel’s story is common. According to figures released Monday, the number of Ontario households using food banks for the first time has skyrocketed by 20 per cent.

Last year, roughly 14,200 new households used the service. This year, that rose to more than 17,000.

Over a third of food bank users are children, says the Ontario Association of Food Banks’ 2014 report. Its research found that while the overall number of clients has remained stable over the past year — about 375,000 per month — a growing number of families rely on food banks due to precarious employment and rising living costs.

Almost two million jobs in Ontario are considered insecure. According to recent statistics, provided by Armine Yalnizyan, an economist for the Canadian Centre for Policy Alternatives, more than half of new employees across Canada over the past year are holding down temporary positions. The share of employees who are temporary workers has increased by 41 per cent since the recession.

It’s becoming more and more common to see people with full-time jobs still not being able to make ends meet, said Amanda Finley King, membership manager for the food bank association.

“People are OK while they have that six- or eight-month contract. But come the termination of the contract, suddenly you very quickly go through any savings you might have made. And, as you’re looking for that next piece of work, you’re having to turn to food banks for assistance.”

Although the number of food bank users is down from an all-time high of 413,000 in 2012, the report says food bank use in Ontario increased by 45 per cent over the past two decades. Over a roughly similar period, the number of the working poor in the province reporting bad health more than doubled.

“We’re starting to find that in addition to poverty or income insecurity, insecure jobs are a major risk for multiple health issues,” said Yogendra Shakya of Access Alliance, which provides multicultural health and community services.

Shakya, who has compiled detailed research on the impact of precarious work, particularly on immigrants, found that “almost everybody had really, really serious physical and mental health issues they were facing and they directly, clearly linked it to their job insecurity.”

“There’s absolutely no doubt that your health affects your day-to-day to life, and that the building block to health is proper nutrition. So the OAFB is really trying to focus on healthy food for Ontario food banks,” said Finley King.

In September, the Ontario government officially launched its tax credit for farmers donating produce to food banks. This year, for the first time ever, over half of the food distributed across the province by members of the food bank association was fresh or frozen.

Basic necessities are becoming increasingly costly for Ontarians. In the past year, prices for fresh meat and vegetables in grocery stores have shot up by more than 9 per cent. Average rents have gone by 15 per cent in the past seven years.

But anti-poverty campaigners say that social assistance for those on low incomes — in particular, those with disabilities — has failed to keep up with the cost of living.

“People on ODSP (Ontario Disability Support Program) are increasingly under pressure because their base benefits are not keeping up with inflation, but also because additional benefits are increasingly being targeted to be removed from the system,” said Jennefer Laidley of the Income Security Advocacy Centre, a legal clinic that helps those on social assistance.

“Government has not done nearly enough to bring people’s incomes back to a place where they can actually exist, pay their bills and live in dignity and health. What I’m saying is the entire system needs a cash infusion.”

Jessica Manuel, now 26, went on to graduate from Niagara College and is a manager at a large commercial flooring company. She gave her daughter up for adoption to a second cousin, who has become the heart of a close-knit, functional family life: Jessica now calls her Mom too.

For Manuel, it was the food bank system that stopped the gap between a childhood marked by neglect and a brighter future.

“It wasn’t just food,” she says. “It was everything I needed in one place.”


Source: http://www.thestar.com/news/gta/2014/12/01/hunger_report_use_of_food_banks_soaring_across_ontario.html?app=noRedirect
 

Patients urged to fight home-care cuts by filing appeals

Betty Terry, 89, and her daughter Hope Terry. Betty has Alzheimers and her home care hours have been reduced. (Courtesy of the Terry family
 

Derek Spalding Dec 01, 2014 - 6:39 PM EST Last Updated: Dec 02, 2014 - 8:54 AM EST 

 

Patients in the region who’ve had their home-care hours slashed in recent weeks may have found a way to at least temporarily have their service restored.
Residents in Windsor and the surrounding area are being urged by local MPPs to launch appeals with the agency that has for the past month been cutting the number of home visits in order to dig itself out of a massive financial hole.
The strategy worked for Hope Terry. Last week she complained to the Erie St. Clair Community Care Access Centre about its decision to reduce the amount of time personal support workers spend with her 89-year-old mother who lives in Chatham and suffers from severe dementia.

Terry spent days on the phone complaining. By Friday, she had the hours restored.

“I don’t know exactly what went down or why, but they agreed to reinstate all her hours,” she said.

The CCAC’s appeal process, which can allow a patient to maintain their level of care until a decision is made, prompted Windsor West MPP Lisa Gretzky to encourage other patients to do the same. The tactic was discussed in Windsor on the weekend when NDP party Leader Andrea Horwath met with residents and heard about the cuts first hand.

Ontario NDP leader, Andrea Horwath, centre-right, is joined by local MPP’s, Percy Hatfield, Lisa Gretzky, and Taras Natyshak as they hold a roundtable discussion regarding the Community Care Access Centre cuts to home care services, Saturday, Nov. 29, 2014. . (DAX MELMER/The Windsor Star)

“I’m encouraging people to appeal because it sounds like they may continue to get service as long as it’s part of the appeal process,” said Gretzky, who has regularly hounded the Ontario health minister about the reductions. “There’s no clarification on how long that appeal process is, but at least when a person appeals, they should continue to get service, which will give us more time to keep pressing the government on the issue.”

Filing an appeal, however, doesn’t necessarily mean patients will have care restored. The CCAC’s director of quality, Jacqui Stephens, said it’s up to the care co-ordinators who assess a patient’s needs to determine if that person should have their care maintained throughout the appeal process.

“The care co-ordinator … would use their best judgment, though, as to whether or not the patient should have the services re-initiated during the appeal process, but I couldn’t say specifically how often that happens,” Stephens said.

Appeals can be made for any change in service, including the recent push by the CCAC to have patients visit clinics in order to reduce its home-care nursing visits by 33 per cent. Cutting services so drastically was the result of the organization’s attempt to make up a $5.9-million shortfall in its budget this year.
“We are open to any kind of complaint or appeal,” Stephens said. “It’s really an opportunity for us, and the patient, to ensure we have all of the information.”
CCAC staff were relieved last week when they received an additional $4.1 million in funding from the Local Health Integration Network, which doles out the cash on behalf of the provincial government. In addition to bumping up the annual home-care budget to more than $136 million, LHIN board members allowed the agency to carry a deficit into next year giving staff more time to make up the remaining shortfall.

An influx of appeals could have an impact on that deficit recovery process, say CCAC officials. A statement issued Monday from CEO Lori Marshall confirmed that “there is potential for additional pressures on resources,” but she assured patients that “all of these conversations are necessary and are taken very seriously.”

Residents looking for a change might be disappointed, though. Unless there’s new information care co-ordinators are not aware of, the odds of overturning an assessment through an appeal are not very good, said Stephens.

“The appeal process will eventually just open up the assessment of that individual again,” she said. “If there isn’t anything else to be known, then it isn’t necessarily going to further their cause.”

She suggested patients connect with their care co-ordinators, if they have concerns or there’s other information the organization isn’t privy to. Many of these issues can be addressed at that level, Stephens added.

For Terry, she doesn’t know why her mother had her hours restored. It might have been the petition she circulated opposing the cuts, it could have been the disappointment she expressed in The Star or it could have been the appeal she threatened to file. Perhaps it was all of the above, she agreed.

“I’m just glad we got all the hours back,” Terry said. “But this wasn’t an easy process. A lot of times you just get (answering) machines and when you do talk to somebody, they talk about how dire the situation is and it gives you this fear that (a succesful appeal) isn’t going to happen.”

dspalding@windorstar.com or on Twitter @Derek_Spalding

Source: http://blogs.windsorstar.com/news/patients-urged-to-fight-home-care-cuts-by-filing-appeals
 

Computer glitch sent hundreds of thousands in welfare payments by mistake, Kathleen Wynne says

Keith Leslie, Canadian Press | December 1, 2014 | Last Updated: Dec 1 4:12 PM ET

TORONTO — A computer foul-up that had the Ontario government scrambling to recover hundreds of thousands of dollars in overpayments to people on welfare and disability supports was just a “glitch,” Premier Kathleen Wynne said Monday.

“There was a glitch and within 24 hours most of the problems were rectified,” said Wynne. “There’s a small number of cheques still being dealt with.”

The problem stemmed from the new $240-million Social Assistance Management System (SAMS), which last week erroneously queued up $20 million in welfare and disability support overpayments.

“As I understand it, 99% of those situations have been rectified where there was a problem,” said Wynne. “Just over 100 cheques are still being corrected.”

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There were overpayments to about 17,000 people that averaged $1,100 each, but most were direct deposits and easily fixed, said Social Services Minister Helena Jaczek. The government is still trying to contact 119 people who got overpayments, but the minister couldn’t say how much money was involved at this point.

“I’m afraid I don’t have that exact figure,” said Jaczek.

A spokeswoman for the minister said on the weekend that about $300,000 in mistaken payments had yet to be retrieved.

During question period, interim Progressive Conservative Leader Jim Wilson accused Wynne of downplaying problems with the overpayments and of ignoring warnings from government workers that the new system was too complicated and would not be ready to go online this fall.

“I don’t believe you, and I don’t think anyone believes, that 99 per cent of the problem is fixed at this point,” said Wilson. “Why did you buy an expensive program that doesn’t appear to work from the get-go, and why are you moving forward to defend this when it’s just going to turn out to be another Liberal scandal?”

The Ontario Public Service Employees Union warned the government last summer that staff were having difficulties with the new SAMS computer system and it would not be ready to launch this fall.

“The system itself is flawed,” said OPSEU president Smokey Thomas. “That’s the part that gets me because our workers were telling them all along that it doesn’t work.”

The New Democrats said the Liberal government cannot manage computer system upgrades properly, pointing to problems at eHealth Ontario and at the Family Responsibility Office, which administers court-ordered support payments.

Why did you buy an expensive program that doesn’t appear to work from the get-go, and why are you moving forward to defend this when it’s just going to turn out to be another Liberal scandal?

“The Liberals’ new software program is causing chaos for clients and staff,” said NDP Leader Andrea Horwath. “How could the premier sign off on a quarter-billion-dollar lemon, frankly, having been warned in advance that it could turn into a nightmare for our province’s most vulnerable?”

The welfare and social disability offices’ needed a new computer to send out over 500,000 payments a month, and it will also free up staff so they can provide more direct services to support recipients, said Wynne.

“The fact is, there was an outdated system in place that needed to be upgraded,” she said. “We needed to have in place a system that was going to allow front-line workers, caseworkers, to have more time with their clients.”

The Conservatives asked the government to have a legislative committee call front line welfare and disability case workers to testify about the computer problems, claiming Jaczek was “inaccurate” in her previous assurances about the new system.

“They gave us the brush-off,” said PC critic Randy Hillier. “Let’s start getting some real answers from some real people who are using the system and also those who are dependent on the system.”

Source: http://news.nationalpost.com/2014/12/01/new-software-that-almost-sent-out-20m-in-welfare-overpayments-creating-chaos-in-ontario-union-says/
 

Disability benefits wait stretches years due to tribunal backlog

By Lee-Anne Goodman The Canadian Press

  Canadians with disabilities are waiting years for appeal decisions on whether they should receive benefits.

File / Global News

OTTAWA – Terminal cancer patients, organ-transplant recipients and suicidal, debt-addled Canadians are among the 11,000 people waiting to have their appeals heard by Ottawa’s badly backlogged social security tribunal.
Some of those awaiting a decision on their eligibility for benefits, including people with debilitating injuries, have had their cases expedited due to severely declining health.

Others, however, have waited years — some are still waiting — to hear whether the initial decision to deny them Canada Pension Plan disability benefits will be overturned.

Given the nature of their illnesses, a decision may come too late.

“I prayed for patience and every day it came to me and I believed I would finally get what was rightfully mine,” said Terry Petrow, 62, a former grocery executive suffering a severe back condition that has consistently worsened after an accident when he was in his 20s.

Petrow, who is undergoing back surgery soon, was finally granted benefits last month after waiting almost five years to have his appeal heard. He’s grateful his wife’s income kept the couple afloat during the ordeal.

“Thank God for that,” Petrow said Monday in an interview from his Manitoba home. “I can’t imagine how terrible it would be to endure the financial horror stories I’ve heard other people are experiencing in this system.”

Federal government data obtained under the Access to Information Act shows 58 per cent of Canadians who applied for disability benefits last year were denied. The tribunal says that 68 per cent of appeals are successful.

In the tribunal’s first 18 months of operation, the backlog of CPP disability and old-age security cases has increased by almost 50 per cent.

Jason Kenney, the employment and social development minister, has promised to shrink the backlog of cases, saying the new tribunal didn’t expect to inherit more than 6,000 cases left outstanding from the old system.

The tribunal has also hired an outside consulting firm to help it come up with a plan to deal with the pileup, and additional staff has been brought on to wrestle with the ever-growing number of cases.

Petrow credits his representative throughout the appeal process — Allison Schmidt, a Regina-based pension-disability case manager — for navigating a complex system.

“I only have one word to describe Allison, and that is ‘angel.'”
That “angel,” meantime, has been receiving letters from the tribunal suggesting that she is “unauthorized” to help CPP disability applicants make appeals to the new panel under law society rules and regulations that differ from province to province.

In Ontario, for example, a representative must be a lawyer or a paralegal. Other provincial law societies have no such requirements.

“Members of the tribunal may refuse to proceed with the hearing upon discovering that a representative is unauthorized,” reads one letter to Schmidt from a tribunal administrator, suggesting she could be reported to various law societies for her work.

“In such cases, the hearing may be adjourned and a final decision on the appeal file could be significantly delayed.”

Schmidt, a vocal critic of the government’s new tribunal, has been appearing at CPP disability hearings for almost two decades on behalf of disabled Canadians, but she is neither a lawyer nor a paralegal. Her company employs a paralegal, however, who represents clients in Ontario during various stages of the appeal process.

In a blog post published Monday, Schmidt suggested the tribunal is targeting her.
“In recent months, the work that I do, as well as other dedicated advocates in Canada, is coming under attack by the bureaucrats at the social security tribunal,” she wrote.

The tribunal, meantime, says it was simply making sure representatives were aware of the regulations in various provinces in advance of upcoming hearings in order to prevent potential delays.

In an interview Monday, Schmidt said requirements to hire lawyers or paralegals add even further hardship to Canadians waiting for their appeals to be heard — they’re already financially strapped, she pointed out, given they’ve been denied CPP disability benefits for years.

“Who can afford to hire a lawyer when you’re in dire financial straits as it is?” said Schmidt, who says her rates are substantially less than lawyers or paralegals.

She often doesn’t bill for travel if she knows her clients are in deep debt, she added.

“Many of these individuals lack the ability to meet the basic necessities of life and their medical needs. Their families’ security and stability is threatened at its core.”

Among the cases considered “crisis files” by the tribunal are numerous people who have asked for their cases to be expedited due to terminal illness or financial hardship. Most of the terminally ill have had their appeals expedited, the documents indicate, but not all of those claiming financial hardship did.
“Appellant is past due on bills, has a large debt load with various banks/credit cards, medical documents support possible suicide,” reads a description of one appellant in government documents obtained under the Access to Information Act.

That appeal was expedited and heard in June. It wasn’t clear if a decision has been made.

Another claimant is described as “having no income for the last two years and is getting calls from collection agencies.” The tribunal asked the woman to submit documents to substantiate her claim; her appeal was not expedited.

Another appellant in dire financial straits had to enlist his MP to write a letter on his behalf urging his case be expedited. It was, with a hearing held in October.
The MP’s party affiliation wasn’t specified in the documents.

Tribunal spokesman Richard Beaulne said the panel “acknowledges the difficult situation” for many appellants.

“Unfortunately, many other appellants are experiencing similar challenges, and it would not be fair to accelerate others’ appeals, as this would further delay the appeals of other appellants who have been waiting longer for their appeal to proceed,” he added in an email.

“However, if a situation becomes worse for an appellant, they are always welcome to submit a new request to expedite their cases.”

Stu Lang, another appellant with a debilitating knee injury who finally won his appeal in September after a five-year battle, says he’s “disgusted” by the process.

Lang, 62, said he resents having to pay tax on the five years of benefits that will soon be paid to him.

“That is money I have already given the government, and that I am entitled to, and now I have to pay the government again in taxes.”

© The Canadian Press, 2014

 Source: http://globalnews.ca/news/1703378/disability-benefits-wait-stretches-years-due-to-tribunal-backlog/

Bill 15: Further Erosion Of Rights And Benefits For Auto Accident Victims

Last Updated: December 2 2014

 

Article by Andrew C. Murray

Lerners

 

Bill 15, Fighting Fraud and Reducing Automobile Insurance Rates, 2014  received Royal Assent on November 20, 2014.

The entire bill can be found by following this link: http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&Intranet=&BillID=3007

This Bill amends four pieces of provincial legislation:

1. The Consumer Protection Act, 2002
2. The Highway Traffic Act
3. The Insurance Act
4. The Repair and Storage Liens Act

Additionally, because of the changes to the Insurance Act, it also provides for amendments to the Financial Services Commission Act, 1997, the Licence Appeal Tribunal Act, 1999, and the Motor Vehicle Accident Claims Act.
The Insurance Act changes have not yet come into effect.  These amendments will only come into force on a date, yet to be named, by proclamation of the Lieutenant-Governor.
There are substantial changes afoot for injured motorists:

• Arbitrations, formerly conducted through the Financial Services Commission of Ontario ("FSCO"), will be conducted instead by the Licence Appeal Tribunal ("LAT"), a little known tribunal that has historically arbitrated matters far removed from the volume and complexity of statutory accident benefit claims.  It is unclear how FSCO can be disbanded and the LAT upgraded to handle the volume of disputes that need resolution.  As I have posted in an earlier blog, we currently have an arbitration backlog at FSCO.  It is unclear whether the FSCO arbitrators will be transferred to LAT, or whether a whole new slate of arbitrators will be added to LAT.  It is abundantly clear that LAT could never handle the number of disputes that would need adjudication, absent a significant expansion to its roster of arbitrators.   The existing FSCO arbitrators possess a great deal of specialized knowledge about statutory accident benefits.    It is hoped that their expertise will not be lost with this shuffle.
• Coupled with the diversion of arbitrations to the Licence Appeal Tribunal will be a prohibition on the right to sue in the Superior Court of Justice for any accident benefit dispute.  The appeal path from the LAT will be an appeal directly to the Divisional Court.  It is unfortunate that the government did not heed the unanimous call of such professional organizations as The Advocates' Society, The Ontario Trial Lawyers Association, and the Canadian Defence Lawyers, each of which pleaded with the government not to implement the prohibition on accident benefit lawsuits.
• Currently the prejudgment interest rate on claims for pain and suffering in personal injury actions is fixed at 5% pursuant to Rule 53.10 of the Rules of Civil Procedure.  Bill 15 now exempts motor vehicle claims from the 5% prejudgment rate that would otherwise apply to non-pecuniary claims.  Once Bill 15 comes into force, the rate of interest applicable to the pain and suffering portion of an award will be equal to the prescribed rate as outlined in the Courts of Justice Act, which, is currently 1.3%.  There will be a reduced incentive for insurers to settle claims.  The cost of delay will now be less than the likely yield on investments made by insurers.  No other personal injury claimants are singled out like this.  Injuries that arise from a slip and fall, or an assault, or by any means other than as a result of a car accident will still attract the 5% prejudgment interest rate set by Rule 53.10.
• There will be many details to follow, being outlined in regulations that have yet to be drafted or distributed to the public.  As with much of what the government does "the devil will be in the details".  It is expected that the uncertainty generated by Bill 15 will require litigation for years to come.  One thing that is not uncertain is the continual erosion of the rights of injured motorists and those who have been injured by a motorist

www.lernerspersonalinjury.ca
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Source: http://www.mondaq.com/canada/x/357478/Personal+Injury/Bill+15+Further+erosion+of+rights+and+benefits+for+auto+accident+victims
 

Bill 29, Medicine Amendment Act, 2014

Bill 29                                                          2014

An Act to amend the Medicine Act, 1991

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

   1.  The Medicine Act, 1991 is amended by adding the following section:

Register

   8.  (1)  The register maintained by the Registrar shall contain the following information about each member, in addition to the information that is required under the Health Professions Procedural Code:

    1.  A notation of every complaint filed with the Registrar regarding the conduct or actions of the member.

    2.  A notation of every caution of a member by a panel of the Inquiries, Complaints and Reports Committee.

    3.  With respect to every civil action or proceeding alleging the member’s professional negligence or malpractice, the prescribed information.

    4.  A notation of every death of a patient who was under the member’s care, as determined in accordance with the regulations.

    5.  If a member practised medicine in another jurisdiction, all available information from the other jurisdiction that is comparable, as determined in accordance with the regulations, to the information described in paragraphs 1 to 4.

Same

   (2)  The Registrar shall make best efforts to obtain the information described in paragraphs 1 to 5 of subsection (1).

Publication ban

   (3)  No action shall be taken under this section which violates a publication ban, and nothing in this section requires or authorizes the violation of a publication ban.

   2.  Section 12 of the Act is amended by adding the following clause:

  (d)  for the purposes of paragraphs 1 to 5 of subsection 8 (1), prescribing anything referred to as prescribed and governing any matter referred to as being determined in accordance with the regulations.

Commencement

   3.  This Act comes into force on a day to be named by proclamation of the Lieutenant Governor.

Short title

   4.  The short title of this Act is the Medicine Amendment Act, 2014.

EXPLANATORY NOTE

Currently, the Health Professions Procedural Code requires the College of Physicians and Surgeons of Ontario to maintain a public register of its members containing certain information. The Bill amends the Medicine Act, 1991, to provide that the register must also include information about complaints, cautions and civil actions or proceedings against a member, as well as information about deaths occurring in patients under the member’s care. The register would also include comparable information from other jurisdictions in which a member practised.

http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=3055&detailPage=bills_detail_the_bill

Source: http://www.fairassociation.ca/

Expert opinion evidence is no longer present

Burwash v. Williams, 2014 ONSC 6828

COURT FILE NO.: 09-43777

DATE: 2014/11/25

[6]               Cira is not a party to this litigation. It is a national company in the business of providing medical assessments and health services for several corporate, insurance and medical legal communities through a network of independent health professionals. Cira was created in June 2012 and is a combination of two companies, namely, Riverfront Medical Services (“Riverfront”) and Medisys IMA.

[7]               The Defendants retained Cira to co-ordinate defence medical examinations of Ms. Burwash conducted pursuant to s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[8]               The Defendants do not object to the production of the files.

[9]               The Defendants have requested disclosure of Cira’s complete files.  The Plaintiffs allege that only partial production of the files has been made to date.

Timing of the Motion

[10]           The Plaintiffs assert that they had no reason to suspect that Cira was involved in the review, revision and editing of draft expert reports until the examination for discovery of Dr. St. Pierre when answers and subsequent productions indicated that Cira may be using third parties to review and revise the Defendants’ expert reports.

[11]           I am satisfied that the Plaintiffs have brought this motion at the earliest opportunity and that they could not have reasonably discovered that the issue existed any earlier.

[28]             Rule 53.03 of the Rules of Civil Procedure is designed to ensure the independence and integrity of the expert witness. The duty of the expert witness is to be of assistance to the court. Each expert witness is required to sign an acknowledgement that they are providing an independent and unbiased opinion. If there is reason to believe that the expert’s report or opinion has been influenced by unknown third parties and is therefore not entirely the expert’s opinion, the fundamental rationale for accepting expert opinion evidence is no longer present and hence the report is not only not helpful to the court but may become misleading. This is an issue that is directly related to trial fairness.

https://www.canlii.org/en/on/onsc/doc/2014/2014onsc6828/2014onsc6828.html 

Source: http://www.fairassociation.ca/

College finds MD guilty of sexual impropriety with teen patient

Dr. Eleazar Noriega has faced three allegations of sexual misconduct and earlier this month was found guilty of misconduct with a second teen patient.

Dr. Eleazar Noriega in 2012. 

By: Sadiya Ansari Staff Reporter, Published on Fri Nov 28 2014

 

A Toronto pediatrician who has faced sexual misconduct allegations three times dating back to 1979 is still practising while awaiting his latest College of Physicians and Surgeons penalty hearing in January.

Dr. Eleazar Noriega, 70, has been found guilty of sexual impropriety and sexual abuse in two of the three cases.

He pleaded no-contest in 2003 to allegations of inappropriately touching a 17-year-old patient’s breasts and genitals. The College suspended him for nine months and put restrictions on his licence, allowing him to see female patients only with a chaperone present.

Noriega was acquitted by a jury in a criminal trial on the same matter.

In 2008, he faced a similar allegation relating to a 9-year-old patient, but a disciplinary committee ruled the allegation had not been proven. A criminal charge was laid in the matter and later withdrawn.

The media attention of the 2008 case prompted a third complainant to come forward with allegations dating back to 1979, when she was 15.

In that case, the college’s disciplinary committee this year found Noriega “inappropriately rubbed the clitoris of a teenage female patient during a medical appointment,” according to the Nov. 3 decision posted on the College’s website.

A criminal charge was also laid in the case, but later dropped.

It is the second time the college ruled against the doctor in the 1979 case. In 2011, a hearing into the same allegations found him guilty of sexual impropriety. His licence was revoked.

Noriega successfully appealed the ruling. The Court found the hearing didn’t have a “critical examination” of his denial and reversed the decision to revoke Noriega’s licence. It directed he practise with the gender restrictions previously imposed on him by the College.

In addition to these sexual abuse and impropriety findings, Noriega was also suspended for six months in 2013 because the College said he did not always have the required female chaperone from July 2009 to February 2010 and misled a college investigator.

He has been back on the job since February.

Critics say the long and complex case raises questions about the College’s ability to oversee doctors’ behaviour effectively, even after serious red flags have been raised.

That Noriega is still practising after violating the restriction on his licence is “unbelievable,” said medical malpractice lawyer Amani Oakley.

“There’s a very valid reason for the College to suspend his licence until the hearing.”

Noriega, who is also appealing the latest college decision, did not respond to multiple messages from the Star requesting comment.

His penalty hearing will still be held Jan. 7. After a disciplinary action is handed down, Noriega can file appeal documents with the Ontario Divisional Court, College spokesperson Kathryn Clarke wrote in an email.

“Dr. Noriega is appealing on the grounds that the Discipline Committee erred in its consideration of the evidence and erred in law,” Clarke said.

Noriega is one of 20 doctors in Ontario who currently have a gender-based restriction on their licence.

Ontario Health Minister Dr. Eric Hoskins recently ordered a review of the decades-old legislation, involving all 23 of the province’s regulatory colleges, as a result of the Star’s investigation of sexual abuse by doctors.

In the new hearing into the 1979 case held this spring, Noriega again denied allegations that he rubbed his 15-year-old patient’s clitoris until she orgasmed. His counsel argued that the allegation was “highly improbable” given the involvement of medical students and nurses in the practice, according to the disciplinary committee’s decision document.

The committee, however, decided that evidence presented supports that Noriega “would have had the opportunity to assault the (patient) in the manner in which she alleges.” On a balance of probabilities, the committee accepted the allegations of sexual impropriety against Noriega.

In the decision document published by the committee, it states the patient who brought the complaint testified that she started seeing Noriega in 1978 at a clinic in a hospital. She grew up in a neighbourhood she described as “pretty rough” with a single mother suffering from a mental illness, leaving her to care for her younger sibling often, according the disciplinary decision document. It also states she said she was sexually abused by her stepfather for five years and disclosed this abuse to Noriega.

The document states the patient testified that the abuse at the hands of Noriega happened after he said he needed to check if she was sexually active.

“She knew what was happening was wrong but did not say anything because he was the doctor,” the document reads.

After that incident, she did not return to the clinic but kept a package of birth control prescribed to her by Noriega in case she decided to pursue a complaint in the future, according to the document.

The patient didn’t tell anyone what happened because she “felt embarrassed and did not think she would be believed,” reads the summary of her testimony in the decision document.

Clarke explained that this hearing looked into a finding of “sexual impropriety” rather than “sexual abuse” because the incident occurred when doctors were regulated under the Health Disciplines Act. This act gave disciplinary committees the discretion to revoke a a medical licence, but had no mandatory revocation requirement like those that exist now.

“Zero tolerance” of sexual abuse by health professionals was introduced in 1994. The Regulated Health Professionals Act calls for mandatory revocation of a licence for certain sexual acts with patients. Those acts include sexual intercourse, oral to genital contact, genital to genital contact, genital to anal contact and masturbation.

Medical malpractice lawyer Wendy Mandel Moore says “general legal principles” are why the old legislation would be used to guide this disciplinary matter, since Noriega is entitled to be judged by the laws that governed behaviour at the time the behaviour occurred.

But she doesn’t like the fact Noriega could potentially escape revocation of his licence for behaviour she finds “unacceptable.”

“Of course, the doctor would have known that it’s inappropriate behaviour to do that to a 15-year-old child, and by today’s standards it sounds egregious that he wouldn’t be disciplined by the removal of his licence,” said Moore.

“I think physicians are provided far too much protection under the College system.”

With files from Theresa Boyle, Tim Alamenciak, Laura Armstrong

Sadiya Ansari can be reached at 416-869-4348 or at sansari@thestar.ca 
Source: http://www.thestar.com/life/health_wellness/2014/11/28/college_finds_md_guilty_of_sexual_impropriety_with_teen_patient.html