MEDIA RELEASE
FAIR Association of Victims for Accident Insurance Reform
579A Lakeshore Rd. E
PO Box 39522
Mississauga, ON, L5G 4S6
February 21 2014
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.
Tighter scheduling and timelines, both
welcome changes, will not make the system fairer if the quality of the
evidence at hearings remains so low.
The medical
opinion evidence in respect to Ontario's vulnerable and often
cognitively impaired accident victims should be of the utmost importance
and of the highest quality to satisfy our courts who must decide
whether or not an injured person is entitled to benefits. There is no
more important evidence than that and it is central to the recent
mediation backlog - too many legitimate claims indiscriminately turned
down by insurers based on questionable medical reports.
There are
references in the DRS report regarding the quality and the lack of
regulatory oversight for medical assessors on pages 22 and 23 but no
remedy is offered by this Panel other than at #18 where “Arbitrators should ignore evidence that is not fair, objective or non-partisan and, in such instances, the expert should not receive compensation for appearing as a witness.”
The
report ignores that flawed medical opinions would affect a case all the
way through the system and in fact, beyond hearings for those who find
themselves having to apply for ODSP and CPP when they are turned down by
their insurer.
Justice Cunningham has said “I
believe unambiguous evidence-based guidelines will likely be more
helpful to arbitrators than a roster of medical consultants”. That
comment reveals that Justice Cunningham didn't recognize that some of
the very same ‘medical experts’ that sit on the MIG Minor Injury Treatment Protocol Project (MITPP) and the Catastrophic Impairment Expert Panel are the very same ‘medical experts’ who, under the DRS recommendation at #18 would “not receive compensation for appearing as a witness” on more than one occasion. One only has to search the FSCO public arbitration and appeals decisions web page or the FAIR website to find many examples of the two ‘experts’ whose evidence was questioned by the trier-of-fact.
Various
FSCO Arbitrators have commented in respect to these ‘experts’ stating
that one is a “dissident” whose views were “rejected” when, on more than
one occasion, he commented outside of his area of expertise.
Arbitrators have said that the physician was “not
acting as an impartial medical expert” and in another instance the
opinion evidence was viewed “with caution” and that the “report was of
little assistance”. The other assessor has been said to “not inspire any
confidence” and that the work product “assessment process itself was so
flawed in its conception as to amount to no assessment at all” and that
“his conclusions lend little credibility” or that the “opinion is
misinformed” and “I place no weight on this evidence”.
So
those who would not be acceptable as an expert witness at FSCO hearings
are good choices for setting policy through their work as consultants
on panels set up by FSCO and the Minister of Finance?
A
reminder that 2 of the 8 Catastrophic Impairment Expert Panel members
did not believe that quadriplegia and paraplegia were catastrophic
injuries and were willing to restrict access to benefits to seriously
injured accident victims so Ontario’s insurers could reduce payouts to
accident victims.
Real
and substantive change needs to take place regarding the quality of
medical opinion reports/witnesses. This report avoids addressing this
harm caused by poor quality medical assessments and evidence while at
the same time restricting the parameters on the length of the reports
used at hearings. It is a disservice to injured accident victims that
rely on this system to say we don't care if it's a qualified or partisan
report but keep it short and under a certain amount of pages. And don’t
worry, if the report is flawed, an Arbitrator will make sure the
assessor won’t get paid. How does that improve the system?
We
have pointed out that purging Ontario's rogue assessors who produce
sub-par reports for use in our courts is a win-win situation for
claimants, insurers and the courts. The priority should be that justice
is seen as fair and untainted and the continued use of these bogus IMEs
by our courts has created a structural bias that undermines justice in
the eyes of the public. It is not too much to ask that accident victims
be accorded the same rights to fair and timely justice with qualified
expert witnesses at hearings as is the right and expectation any other
citizen in Ontario.
We
expect our government and our legislators to do a far better job
protecting the interests of our most vulnerable citizens and we expect
to be treated fairly and with dignity in our courts.
FAIR Association of Victims for Accident Insurance Reform
Questions put to the CAT Panel on pages 27 and 28:
A.1.3 Question 3. The current definition of “catastrophic impairment” includes
paraplegia or quadriplegia. Do you agree that an individual who is injured in a traffic
collision and becomes paraplegic or quadriplegic is catastrophically impaired?
The Expert Panel reached consensus (75%) and agreed that paraplegia or quadriplegia are catastrophic impairments.
A.1.7 Question 4. The current
definition of “catastrophic impairment” includes the amputation of an
arm or leg or another impairment causing the total and permanent loss of
use of an arm or a leg. Do you agree that an individual who is injured
in a traffic collision and suffers arm or leg amputation or another
impairment causing the total and permanent loss of use of an arm or a
leg is catastrophically impaired?
The
Expert Panel reached consensus (75%) and agreed that the amputation of
an arm or leg or another impairment causing the total and permanent loss
of use of an arm or a leg is a catastrophic impairment.
Source: www.fairassociation.ca
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