Dispute Resolution System Review Submitted by: Ontario Rehab Alliance

Ontario Rehab Alliance Submission to the Dispute Resolution System Review

September 19, 2013
Maria Cece
Senior Manager
Automobile Insurance Policy Unit
Industrial and Financial Policy Branch
Ministry of Finance
95 Grosvenor Street, 4th Floor
Toronto, Ontario M7A 1Z1
Sent via email.
RE: ONTARIO AUTO INSURANCE DISPUTE RESOLUTION SYSTEM REVIEW
Dear Ms. Cece,
The Ontario Rehab Alliance (the “Alliance”) welcomes this opportunity to provide input to the
Honourable J. Douglas Cunningham’s review of Ontario’s dispute resolution system.
Our association represents approximately 90 companies representing about 3,500 health care providers
including physiotherapists, occupational therapists, speech language pathologists, chiropractors,
psychologists, rehabilitation therapists, social workers, nurses, personal support workers and case
managers. It is these individuals who are the primary providers of healthcare and rehabilitative services
to Ontarians who are injured in automobile accidents. Ontario Rehab Alliance members help those
injured in motor vehicle accidents regain function and dignity in the aftermath of the 65, 000 crashes
which affect Ontarians every year.
Our observations are focussed on two aspects of the current dispute resolution (DR) system and reflect
our perspective as providers of healthcare services to victims.
1. Timeliness of the DR process
2. Increased and Unnecessary Pressures on DR
1. Timeliness of the DR Process
We commend the improvements in the current dispute resolution process which have resulted in a
substantive reduction of the longstanding backlog of cases awaiting mediation. Treatment plans (OCF-
18s) and the Application for Attendant Care (Form 1), submitted by healthcare providers are time
sensitive applications. Delays in approval result in assessment and treatment delays that can have dire
consequences for injured parties. Prompt assessment and timely, appropriate treatment has been
clinically demonstrated to expedite rehabilitation and recovery. Past delays of many months in duration
while awaiting mediation resulted in undue harm to those injured and eroded confidence in the system
and the Accident Benefit scheme.
The current average of 60 days wait for mediation is acceptable, though shorter wait times will always
be more advantageous. If this pacing can be maintained or improved upon we feel that the current DR
system can regain the faith of stakeholders.
1Triaging Cases Awaiting Mediation
We are not aware of how the current mediation wait list is administered.
Recommendation: We suggest that there may be opportunities to “triage” the cases awaiting mediation
to mitigate the negative impact on those who situations are particularly dire and time sensitive.
‘Leapfrogging’ Mediation to Arbitration
We understand that the Review is particularly interested in comments regarding maintaining Mediation
as a mandatory step in the DR process. We presume that this inquiry results from impact of high
numbers of failed mediations that must then proceed to arbitration for resolution. In the interest of
streamlining and expediting the DR process we would support exploration of this system renovation.
Recommendation: We suggest that key and informed stakeholders, such as the Ontario Trial Lawyers
Association (OTLA) and the Insurance Bureau of Canada (IBC) may be able to arrive at a protocol to guide
selection of such exceptions to the rule of mandatory mediation. Ideally, other stakeholder would be
provided with an opportunity to provide input to whatever proposal might emerge.
2. Increased and Unnecessary Pressure on DR
The Ontario Rehab Alliance members have observed and reported what they view as increased and
unnecessary pressure on DR, arising chiefly from two aspects of the current system.
Significantly Increased Denial Rates
We have seen a dramatic increase in denial rates since the 2010 cuts to Accident Benefits. This
observation has been substantiated by the findings from a survey conducted by the Alliance and the
Coalition of Health Care Provider Associations in September 2011. The denial rate of applications for the
assessment and treatment of motor vehicle accident victims, (i.e. Section 25 Assessment OCF 18s and
Treatment Plan OCF 18s), in the period after September 1, 2010 had increased by 158% and 141%
respectively as compared to the period prior to September 1, 2010. Specifically, the average reported
rate of denial (comparing pre‐Sept 2010 period to post‐Sept 2010 period) for Assessments had
increased from 12% to 31% and for Treatment from 12% to 29%.
Insurers, usually without medical training, frequently choose to deny assessment and treatment
requests without seeking out an Independent Exam (IE). With the absence of IE time lines, (which were
removed from the process in 2010) insurers are in effect incented to delay IE’s for as long as possible.
Another tactic often employed by insurers is choosing to deny funding for progress reports prepared by
treating providers to limit the providers’ ability to document rehabilitation procedures and outcomes,
making it easier to deny further treatment.
Poorly Documented Denials
Since the 2010 elimination of the mandatory IE and rebuttal process, we note that increased numbers of
insurers are not supplying the “medical and other reasons” for denying assessment and treatment
requests, despite reminders from FSCO that they are expected to do so. This leads to a lack of
confidence in insurer adjudications, pushing plaintiff lawyers to initiate a dispute. Poorly documented
denials result in increased time and costs for insurer examinations and mediations when each side must
2perform more comprehensive investigations into broader issues, rather than being able to focus on the
insurer’s particular concern.
Sub-Par Independent Exams
Along with a number of other stakeholders we believe that sub-par Insurer Exams put increased and
unnecessary pressure on the DR system. Insurer exams, when properly done and well regarded, play a
vital role – providing insurers with insight and expertise to assist them in making difficult decisions from
a layperson’s perspective and, in so doing, helping insure that benefit dollars are well used.
However, it is vital that all parties can respect the findings of IEs. Numerous arbitrations have raised
concerns about the current state of affairs.
Recommendations:
 Insurers must be held to account and sanctioned for failure to provide proper justifications for
   denials and that qualified IEs (see below) be reintroduced into the process to minimize the
  number of cases proceeding to DR.
 Guidelines should be developed to assist insurers in identifying when an IE is necessary (e.g., an
   IE should be required anytime insurer challenges a request to move to a higher benefit category
  and at least when denying the first request for assessment or treatment on a file).
 Standards for IE assessor qualifications and procedures must be developed. This requirement
   was recommended as part of the last round of reforms, but has not been acted upon. As a
  starting point, prior DAC minimum assessor qualifications standards and competency form
 should be reviewed. The Ontario Association of Speech-Language Pathologists and Audiologists
voluntarily created such guidelines and submitted them to FSCO for review in the fall of 2010
which we support. For example, IE assessors should be required to have a minimum number of
years of experience in the area they are reviewing, and they should have a balanced practice
(e.g., they conduct IEs and also teach at a recognized College or University; or they have a
treating practice in addition to conducting IEs; etc.).
 Insurers should be held responsible for using IE assessors whom they know to be unqualified or
   biased. There are many examples of unqualified or openly biased IE/IME assessors who the
  insurance industry has used on numerous files resulting in real hardship and permanent damage
 to victims as well as putting pressure on the DR system.
 IE Assessors’ qualification summaries should be easily available for anyone in the system to
     review (e.g., in the OSLA program, anyone can contact OSLA and obtain a copy of the
    qualification information submitted by the IE Assessor)
 In parallel with recently enacted requirements for medical-legal assessments, IE assessors
   should sign a similar Acknowledgement to Form 53 requiring the assessor to pledge adherence
3to the principles of objectivity, neutrality, and evidence-based opinion. Such an
acknowledgement would be affixed to each and every IE assessment report.
 Return to like for like (peer) assessments. In performing IE assessments pertaining to OCF 18
   reviews, the IE regulated health assessor should be of the same discipline as the proposing
  clinician/OCF-18 plan supervisor (or clinically most aligned assessor if there is a better fit for the
 proposed plan). Our membership reports that like-to-like assessments are not conducted in
35% of all cases. This tends to spark disputes as victims’ representatives claim that an IE was
 performed outside of the scope of the assessor.
 Required certification/training/continuing education for IE assessors.
 Allow rebuttals in response to IE reports
 Re-establish and enforce timeframes for referral and completion of IEs
In sum, we continue to applaud ongoing improvements to the DR process to improve the
experience of accident victims and increase all stakeholders’ faith in the fairness of the system.
The Ontario Rehab Alliance would welcome an opportunity to be further involved in DR
enhancement efforts.
Sincerely,
Laurie Davis, Executive Director

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