Second letter to the Ontario Dispute Resolution System Review

To: AutoInsurance@ontario.ca
Sent: Tuesday, October 01, 2013 11:21 PM
Subject: a second letter to the Ontario Dispute Resolution System Review

"If we review the convoluted history of Ontario over the past 20 years, we may better understand the myriad pressures on a complex system with so many stakeholders with opposing vested interests. Increasingly difficult to understand, and more difficult to explain, Ontario auto insurance is without peer in its complexity" (Canadian Underwriter, The Evolution of Auto Reforms , 2011-05-01).

Dear Sirs,

The Liberal government is currently poised to make things a whole lot tougher for Ontario auto accident victims who suffer catastrophic injuries. Both Premier Wynne and her Minister of Finance have said that the Liberal promise of  premium reductions is contingent on adopting additional fraud-fighting measures.  One of these measures is a re-defining of what counts as a "catastrophic" injury. Minister Sousa believes that Ontario's enhanced treatment benefits, available only to the most seriously injured (brain injury, quadriplegia, etc.), are too easily available and that they are acting as a magnet for symptom-exaggerating, opportunistic fraudsters looking for a free ride on our "overly-generous" accident benefits "gravy-train". The IBC puts it this way:

“We’re hoping that they (government) quickly introduce a new definition of catastrophic impairment. If you want to see some rate reductions, that’s the place to start to make sure that unnecessary costs related to catastrophic injuries are taken out so that money goes to people who really need it,”  (Toronto Star, (Cheaper car insurance? Ontario drivers will wait two more years ... , Aug. 24, 2013).

Premier Wynne's point of departure for auto insurance reform (and McGuinty's before her) is an easy, unexamined acceptance of the prevailing notion that most seriously injured auto accident victims aren't injured at all. They are, as the McGuinty/Wynne story goes, fraudsters colluding with treatment providers to exaggerate injuries and/or to "manufacture" impairment where none exists. All this, we are told, is done in order to obtain "useless" treatment. Why Ontario motorists would want to feign catastrophic injury to obtain unnecessary treatment is never explained. Why so many more Ontario motorists than in other provinces are "opportunistic fraudsters" is also  left unexplained. None-the-less, once one accepts this belief the necessary reform measures become self-evident. More tools (ie. legislative/regulatory reforms) to add to the insurers' "fraud-fighting tool box"" will always be required. Once one accepts this belief the only sensible approach to Ontario auto insurance dispute resolution system reform becomes drop-dead simple - declare war on the omnipresent malingering opportunist masquarading as catastrophically injured claimants - and declare war on the legion of corrupt treatment providers with whom they collude. These are the culptits said to be destroying the financial health of Ontario's private auto insurers and standing in the way of reduced premiums. Were it so simple.

In order to "understand" and "explain" former Premier McGuinty's 2010 gutting of auto accident treatment benefits - and Premier Wynne's desire to cut them even further - we need to look at the evolution of Ontario's auto insurance reform and the way in which it has been intimately entwined with the evolution of the Ontario auto insurance industry's "medical experts" on casualty fraud - and with the rise of "insurance medicine". How did it come to pass that the prevailing ideology shaping the McGuinty/Wyne auto insurance reform initiative proceeeds from the belief most Ontario auto accident victims (far more than in any other province) aren't patients in need of treatment but rather fraudsters in need of punishment.
From 1995 until 2000 Dr. James N. Sears was Ontario's top "medical authority" on casualty fraud in the auto insurance context. Dr. Sears wrote a series of articles aimed toward adjusters in Canada's premier insurance trade journal - Canadian Underwriter. Dr. Sears was the architect of the fraud-talk discourse that to this day drives auto insurance reform. Here is his self-description:
Medical Investigation was unheard of in Canada when DR. JAMES N. SEARS came on the scene back in 1994. Since then he has changed the way in which insurers approach medical fraud... He has developed unique and highly effective medical investigative techniques which to date have not been duplicated by any other consulting company in the world! These facts combined with his greater than 95% success rate within 3 months of being retained on a fraud file make DR. JAMES N. SEARS the top Medical Investigator in North America. (The Second Opinion: Exposing Insurance Fraud And Medical ...)
In fairness to the Premier, she is not prescribing any "fixes" that haven't been prescribed before. And the Liberal belief that attacking the injured is the quickest path to a healthy auto insurance system is one shared by most politicians - including Tim Hudak, Jeff Yurkek and Andrea Horwath.

Flash back 17 years; the Harris government, accepting the promise of auto insurers that the path to affordable premiums was through injured claimants quickly introduced its new auto insurance scheme, Bill 59, effective Nov. 1, 1996. Income replacement benefits were slashed from $1,000 to $400 per week. Bill 59 was called the Ontario Auto Insurance Rate Stability Act. Premier Harris resigned in 2001, but the Conservatives introduced further changes contained in Bill 198 on Oct. 1, 2003. The "medical authority" presiding over these changes and the  Ontario auto insurance accident benefits scheme at the time was Dr. Sears. It is telling that only three months after the premium stabilizing reforms were passed - Dr. Sears was deployed to paint Bill 59 - the exact legislation insuurers had sought in return for stable premiums - as being "fertile ground for fraud" (“BILL 59: FERTILE FIELD FOR FRAUD”, A critical analysis of Ontario's new automobile insurance legislation with special emphasis placed on how it has opened the door for fraudulent claims submissions. - Canadian Underwriter Magazine, February 1997). And so began the next episode in the long saga of Ontario auto insurance reform.

Skip forward from 1996 to 2010; the McGuinty government, acting on promises from auto insurers that the path to affordable premiums was through claimants, quickly introduced its scheme to gut policy benefit - most especially treatment benefits - by introducing a $3500 cap on treatment (minus the cost of insurer assessments) which was intended to capture between  70% and 80% of all injured claimants. As with Bill 59, within weeks the insurers began lobbying for more cuts to treatment. This time the target was the catastrophically injured. Which brings us to today. Dr. Sears has moved on and is no longer the Ontario auto insurers' top medical authority on opportunistic fraud. But the Sears' ideoloogy spawned a new area of medicine in Ontario - "insurance medicine". Ontario's current top experts in insurance medicine all parrot Dr. Sears' widely disseminated description of Ontario's captive auto insurance consumers.

For example, Dr. Robert Notkin, an insurer preferred vendor expert medico-legal testimony, has candidly proclaimed that he approaches injured auto accident victims with a great deal of suspicion. In a paper he authored in September 2007 entitled “The Gold Standard IME” Dr. Notkin writes: “Two-thirds of personal injury people are malingering”. Similarly, Dr. Jack Richman, one of the Ontario auto insurance dispute resolution system's most prolific vendors of expert opinion evidence, has this to say in  "Manufacturing Disability" (Canadian Insurance Magazine) had this to say about the doctors who treat the seriously injured, including the catastrophically injured: "These manufacturers of disabilty need to be held accountable. They create illness in gullible populations (ie.injured auto accident victims) and end up doing more harm than any accident ever could."

And here is how Dr. Arthur Ameis, another of the industry's current top experts in insurance medicine perceives the catastrophically injured:  "People come to us now and say, I was in a car accident, I was brain damaged, people have told me my brain is like Swiss cheese. The proof? I've mislaid my keys. I've mislaid my gloves. That may be evidence of a head injury, but it may also be evidence of just normal cognitive inefficiency."

These are the views of the industry's current top medical experts. They are described by the auto insurers as Ontario's "best and brightest" doctors. Their views are surprisingly congruent with those of Dr. Sears  - the insurers' former best and brightest medical expert and architect of the industry's twenty year war on injured claimants. These are the medical experts who stand behind the proposed defininition of catastrophic injury which Minister Sousa and Premier Wynne have promised to enact by January of 2014. For practical purposes the notion that the catastrophically injured are fraudulently exaggerating their impairments in order obtain unnecessary treatment stands uncontested. When the Liberals and FSCO's senior bureaucats went looking for the top experts on catastrophic injury to draw up legislative recommendations - they chose specialists in insurance medicine such as Dr. Arthur Ameis and Dr. Michael Lacerte to sit on FSCO's Expert Panel on Catastrophic Injury. In doing so, they side-stepped all manner of FSCO arbitrator adverse commentary critiquing Dr. Lacerte's and Ameis' prior opinion evidence in catastrophic injury cases. Doesn't FSCO trust the opinions and findings of its own triers of fact? Their findings are binding on FSCO Applicants but not on the expert witnesses who have become tenants in  witness boxes.

And so now the Liberals are about to get tough on the catastrophically injured based on recommendations put forward by the insurers' current foremost experts in casualty fraud. Health professionals who don't subscribe to their recommendations (and there are many) have been frozen out of the Liberal/IBC consultation process. But then, given Pemier Wynne like Premier Harris before her, is constructing Ontario's auto insurance system on the views of the industry's top medical experts (views which paint their dissenters as overly-sympathetic incompetents) - spending time listening to these "manufacturers of disability" would be a waste of the Premiers time. And so their voices (eg. Dr. Harold Becker and Dr. Donna Ouchterlony - see below) have been drowned out in the Premier's mad scamble to enact yet another round of anti-claimant legislation/regulation in industry's evolutionary quest for elusive "premium stability".

One is left to wonder why the Liberals don't simply cut to the chase of follow the "insurance medicine" argument to its logical conclusion. If it is true that somewhere between two-thirds and nine-tenths of all injured Ontario auto accident victims are in fact "fraudsters" - then why not eliminate all accident benfits and shut down FSCO's mediation and arbitration units? Taxpayers and auto insurance premium payers would save a whole lot of money? Of course this would also mean the auto insurers top experts in casualty fraud would have to find a new line of work. But that too would translate into huge savings for Ontario consumers.
As it turns out, the evolution of Ontario auto insurance reform is not nearly as "difficult" to understand as the insiders would have it. Not if we are willing to track the evolution and influence of the industry's preferred medico-legal experts in "insurance medicine".

It is too late to hope Premier Wynne will change her mind on the catastrophic injury front. The political downside of punishing the catastrophically injured is minimal. After all - not many vote are to be had there. But it isn't too late to, in the context of the ongoing Review of the Ontario Dispute Resolution system, look at the role of the preferred vendors of insurance medicine and recommend holding them to the same level of accountability - using the same enforcement measures the industry and FSCO clamour for when speaking of dishonest treatment providers. Why not prosecute the rogue insurer assessors in the same way Phillip Howell says he intends to prosecute rogue treatment providers/assessors? FSCO's uneven enforcement policy in this regard calls into question its claim to provide a "neutral" avenue of dispute resolution and an alternative to the courts for injured auto accident victims. Saying this is so doesn't make it so.

Thanks,

Brian Francis

_{Source: www.fairassociation.ca}