New report a good first step towards a better insurance dispute resolution system
Former
Superior Court associate chief justice Douglas Cunningham’s interim
report on Ontario’s automobile insurance dispute resolution system this
month is a good first step towards a new and better approach.
The
interim report does a comprehensive job of identifying the problems
with the current dispute resolution system through the Financial
Services Commission of Ontario and foreshadows recommendations to
overhaul and simplify the process.
The interim report does a
comprehensive job of identifying the problems with the current dispute
resolution system through the Financial Services Commission of Ontario
and foreshadows recommendations to overhaul and simplify the process.
In
the report, Cunningham reviews how the number of disputes has
drastically increased over the years with the most common matters
relating to medical and rehabilitation benefits.
The interim
report does an excellent job of identifying the main problem of
timeliness. But one issue not well recognized in the report is that of
mistrust.
Lawyers for accident victims have developed a deep
distrust of many insurers. The mistrust is a learned attitude resulting
from seeing how previously unrepresented accident victims, despite clear
needs and entitlement, received a fraction of the benefits they should
have.
Cunningham’s concern about legal representatives who shield
claimants from insurers fails to recognize this underlying issue of
mistrust, as does the suggestion of an internal insurer review process.
The
interim report doesn’t aim to concretely address or recommend any
solutions. Rather, the final report due in February will set out the
recommendations. However, it does outline many anticipated areas for
recommendations such as a process with fixed deadlines and a tiered
approach based on the amounts in dispute.
But instead of a tiered
process based on the amounts in dispute, perhaps the government should
design it to address the category of benefits in dispute. Day-to-day
treatment disputes, which are statistically the most common, should
involve a simplified and timely telephone or paper-based process. On the
other hand, when it comes to the crucial issue of whether a person has
suffered a catastrophic impairment, there should be an entirely separate
court-like process, one without unnecessary mandatory mediation and
with dedicated and experienced arbitrators.
Moreover, given that
many of the problems with the current system result from system
overload, changes to the dispute resolution process should go hand in
hand with sensible legislative changes designed to reduce conflict. For
example, the introduction of the new controversial definition of
incurred in the post-Sept. 1, 2010, legislation was a blatant and
obvious invitation by the government for a significant increase in the
number of disputes. It should now remove the new definition of incurred,
a change that by itself would significantly reduce unnecessary conflict
in the accident benefit context.
Cunningham’s interim report is a
step in the right direction. We badly need a new accident benefit
dispute system. The new system must be simple and timely and help
balance the playing field between David and Goliath by penalizing
insurers for inappropriate denials. Hopefully, with further insight
gathered during the public consultation process, Cunningham’s final
report will revamp a broken dispute resolution process.
Comments:
+1 # brian 2013-11-18 13:41
What
about the represented accident victims who received only " a fraction
of the benefits they should have" due to unchallenged, unqualified
"expert" reports? Aren't plaintiff lawyers concerned about unqualified
insurer assessments? Why is that issue never mentioned? Don't
unqualified insurer assessments spark OTLA's mistrust? Why isn't the
problem of unqualified "expert" medico-legal reports being given any
attention in the context of this Review?
Reply | Reply with quote | Quote
+1 # TammyK 2013-11-18 17:39
The initial report was only the beginning to must needed changes in the accident dispute system.
I
do hope the Hon. Cunningham's final report holds the insurers
accountable for the abuse victims and their families are made to endure
when they are made to prove over and over how legitimate their injuries
are. As a serious injured survivor myself of a MVA, I am truly very
happy that my recovery started with the all the benefits accessible in
the SABS pre 2010. I have had an exceptional recovery. The trauma a
person suffers living with their present deficits and continuing to live
on with those deficits, from an accident, change us as a whole person.
+1 # Rhona 2013-11-24 10:28
Who
has heard of a consumer product that one must hire a lawyer to be able
to use it as promised? That's the reality for half of Ontario's accident
victims and a testimony on how far afield the promise of coverage has
gone and how poorly our system is designed. Justice Cunningham must
surely see that the more changes and tweaking that our legislators do,
the worse the situation is for MVA survivors. It is the dishonesty of
the system, both the promise of coverage and the use of unregulated and
bogus independent medical examinations in our court systems that needs
addressing, not more cuts and penalties for injured drivers. The
Anti-Fraud task force failed to address the insurers role in their use
of hired gun medical opinions to thwart claims and unfairly deny
benefits that has led to all of these unresolved claims in the first
place. Fail to fix that and the system will continue to punish those for
whom it was designed to assist.
Source: Monday, 18 November 2013 12:13 | Written By Darcy Merkur lawtimesnews.com
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