Fair Association of
Victims for Accident Insurance Reform
579A Lakeshore Rd. E, P.O.
Box 39522
Mississauga, ON, L5G 4S6
http://www.fairassociation.ca/
Ontario Auto Insurance
Three-Year Review:
Putting the Quality and Integrity Back
Into Our Insurance System in Ontario
March 31, 2014
Fair Association of Victims For
Accident Insurance Reform
Introduction
FAIR Association of Victims for
Accident Insurance Reform is a volunteer, not-for-profit consumer organization whose membership is
comprised of motor vehicle accident victims and their supporters.
We advocate for fair treatment for all
of Ontario’s accident victims.
FAIR operates an information based
website that has over 1400 visitors each month and we post accident survivor stories and relevant
media on our website. We post information about the claims process, IME assessors and the various
issues that our members bring forward on an open access website. FAIR and many of our members
have made appearances at Queen’s Park to the Standing
Committees and Budget Committees and at
various stakeholder meetings and consultations with respect to auto insurance policy.
We welcome the opportunity to provide
input on the mandatory 3 Year Review of Ontario Auto Insurance by the Financial Services
Commission of Ontario.
We are the end users of the insurance
product and we hope that our concerns, which potentially affect the nine million drivers in Ontario,
will finally be addressed with this review process.
Accident victims’ central concerns
are about the way they are treated through the claims handling practices of Ontario’s insurers when
making a claim for benefits following an MVA and their access to medical rehabilitation and benefits.
Many of these concerns can be addressed
by following the FSCO stated mandate: “To provide regulatory services that protect the
public interest and enhance public confidence in the regulated sectors.”
The FSCO failure to follow this simple
mandate to provide adequate regulation and ensure adequate oversight, despite both the obligation
and the obvious need to do so, has eroded public confidence in Ontario’s insurance scheme.
Accident victims know far too well that
the present system works for some but not fairly for all MVA survivors. The arbitration backlog of
claimants who have not been able to access the benefits promised in their policies and the uncertain
environment created by constant changes to legislation is evidence that our insurance system is broken and
no longer works for Ontarians.
Access to Treatment and Benefits
When the legislation is changed to
accommodate the insurance industry demands to decrease benefits, there is an increase in claims filed
down the road. The changes to coverage, new thresholds, the Minor Injury Guideline (MIG), the Anti-Fraud
Task Committee recommendations and the constant narrowing of
eligibility since 2010 has created a
war on Ontario’s legitimate accident victims.
Fair Association of Victims For
Accident Insurance Reform
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According to the DRS Interim Report,
45% of the claims working their way through the FSCO mediation system are for medical treatments. This
is truly disturbing when one considers the personal cost to those thousands of individuals who are
not getting the treatment or care they need for recovery.
Ontario’s insurers have been calling
their customers opportunists and fraudsters for years and using their preferred vendors of medical
opinions to deflate claims and delay payouts, while the truth is
that the majority of benefits in dispute are
those that will promote wellness and recovery. Rehabilitation has no opportunistic dollar value to a
claimant. The value is in the recovery to an injured accident victim
and yet accident victims are often accused
by Ontario’s insurers of trying to ‘enrich’ themselves.
The volume of denied benefits in 2013
alone is astounding. We see the 25,329 injured accident victims who had applied for mediation based on
benefits denied by their insurer as a major crisis. Many of the treatments for trauma are not available
in our public health system and the MVA victim is simply abandoned and ultimately loses the
window of opportunity for timely treatment. This is
counterproductive to society and the
cuts to benefits, the delay and the denials, are standing in the way of an accident victims ability to
return to as normal a life as possible. Coverage and security is the
very intent of having insurance coverage.
The fact that 45% of those cases have
been brought into dispute because an injured person has been denied medical benefits means that in
this past year alone (2013), 11,399 people waiting for mediation are without timely or appropriate
medical treatment to aid in their recovery. Somehow these innocent
accident victims have become victims of
poor policies and to the war on fraud and had their claims denied.
The DRS internal database figures
suggest that at least another 5,000 people of the current 10,752
cases pending at the Arbitration level are
more MVA victims that are also without adequate treatment. This tells us that since December 2012,
there are potentially over 16,000 people in Ontario who are unable to get the treatments and medical
supports they need to recover from a car accident. An additional 25,521 injured accident victims have
accessed the Superior Court of Justice because they too remain without adequate coverage of their
expenses and treatments. This is unacceptable. This is not adequate coverage or an example of a system that
is working.
It isn’t enough to get rid of the
Mediation backlog merely to have Arbitration hearings increase - it
isn’t a solution for what ails the insurance
system which is the bottleneck of unsatisfied and injured consumers waiting for justice and who have been
denied what they paid for. These are people who, through no fault of their own, are impoverished by
the system the government has endorsed. People whose treatments are delayed, the road to
recovery full of obstacles and thresholds, in a system so complicated and adversarial that it
requires legal representation to navigate through.
Independent or Insurer Medical
Examinations IME/IE
The backlog in the courts has these
biased and shoddy medico-legal reports at its root - insurers are caught in their own policy of accepting
these biased reports that later don't pass muster in the arbitration hearings and thus have to
pay interest to the poor accident victim whose life has been
Fair Association of Victims For
Accident Insurance Reform
3
trashed while waiting years to get to a
hearing. Insurers who properly and competently handle claims don’t have to pay the high amounts of
pre-judgement interest payments - just those same old insurance companies whose names are so often on
the arbitration hearings docket and who regularly call their legitimate claimants malingerers have
to pay. Reducing the interest rate would be like an incentive to abuse victims and deny and delay claims
for some of Ontario’s insurers who stand to make higher profits with the lower interest rates.
Why can we not fix the system?
To fix the problems that Ontario faces
with poor coverage and the high volume of litigation, the FSCO must stand behind their mandate and do
what needs to be done, enforce regulations so that the independence and quality is put back
into the process of medico-legal examinations and reports. Higher standards must be in place at hearings
in respect to the expert testimony that the system relies on to decide entitlement to benefits.
FAIR has suggested that oversight with
a Colorado – style or roster of qualified assessors be put in
place to protect vulnerable accident victims
and that the qualification and supervision of those assessors be under the government’s oversight.
FSCO already has the means to recover the costs of such a roster of
qualified assessors from Ontario’s
insurers. There is no real or valid reason to not protect some of
the most vulnerable citizens in the
province by providing such oversight when clearly the insurance
industry and the regulatory colleges have failed
in their duty to protect the public.
The medical evidence, used to decide
whether a claimant is entitled to coverage, should be of the highest standards and those who provide
these reports should be held to account for the work they do. Sadly, injured MVA victims are forced
to deal a Wild West version of medical diagnoses churned out by often partisan, biased, and unqualified
assessors whose colleges and regulatory oversight is so poor as to be non-existent. This failure, on
the part of FSCO to ensure that the public is protected, has undermined the auto insurance
industry’s reputation and is causing serious harm to legitimate
victims.
It stands to reason that if our
government is going to legislate that we purchase a product then the government must also play a role in
ensuring that that product serves the captive consumer. When half of all accident victims end up in the
court system it is a loud and clear message that consumers are not satisfied and that the insurance
product is not performing.
Accident victims would like to know why
nothing is being done to correct this injustice and callous treatment when clearly the number of
unpaid claims appears to exceed the number of claims properly handled by Ontario’s insurers. We see
in the 2009 Five Year Review Report, some 6 years ago, on pages
30, 36, 36 and 38 that the issue of
IME/IE quality was raised. Yet there is still no improvement and
these medico-legal reports are now much worse
than in 2008-9. In fact, the quality of these medico-legal reports is now so bad that FSCO’s own
Arbitrators describe some of these reports as “‘inaccurate,
failed, misleading, defective,
incomplete, deficient, not correct and flawed”.
http://www.ontla.on.ca/web/committee-
proceedings/committee_transcripts_details.do?locale=en&BillID=&detailPage=/committee-
Fair Association of Victims For
Accident Insurance Reform
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proceedings/transcripts/files_html/17-APR2013_G007.htm&ParlCommID=8958&Business=Examen%20de%20l%27assurance-automobile&Date=2013-04-1#P197_47762
We recognise that there are some very
good assessors out there who do their best for Ontario’s vulnerable and often cognitively
impaired accident victims. Some of these assessor associations have done extensive work to upgrade their
knowledge and set criteria so that reports will be accurate reflections of injuries and treatments.
But that is not enough. These are not obligatory qualifications and the many ‘rogue’ and partisan
for-hire assessors that some insurers prefer are not going to comply unless there regulations in place that
require that they meet qualification.
According to the 2009 Report on the
Five Year Review of Automobile Insurance, FSCO was aware of the “unqualified providers carrying out
assessments” and the “numerous “assessment mills” operating
in the auto insurance system and providing
claimants with inappropriate or unnecessary assessments given either the diagnosis and/or stage
of recovery. “ Despite the acknowledgement that a “significant number of stakeholders expressed
concern regarding the quality of insurer examination reports and the qualifications of providers
conducting insurer examinations. Regulation 7/00 states that it is
an unfair or deceptive act or practice to
require a claimant to be examined by a person who is unqualified
to conduct the examination. However,
there are no standards or qualifications for assessors in the auto insurance system” nothing was
done.
http://www.fsco.gov.on.ca/en/auto/5yrreview/Documents/FiveYearReviewReport.pdf
It is an empty and dangerous suggestion
in the 2009 Review that Ontario’s vulnerable accident victims are to rely on the various regulatory
colleges for oversight and regulation when FSCO acknowledged in the past that Ontario’s regulatory
college oversight wasn’t working and it was one of the reasons why
the FSCO brought in the Designated
Assessment Center (DAC) system in the first place. Once the DACs were abolished the IME/IE landscape was
a free-for-all for unscrupulous insurers to use their preferred vendors of medical opinions to deflate
and deny claims.
Ontario’s colleges, in particular the
College of Physicians and Surgeons of Ontario (CPSO) suffer from a perennial lack of will to hold their
members, the IME/IE assessors, accountable when Ontario’s accident victims complain about their insurer
assessments. Their complaints are sloughed off or no substantial
action is taken by the college to
protect these very vulnerable and disabled MVA victims. Instead of being held accountable by their college
there are remedial cautions, kept secret from the public, about the behaviour and harm of these
assessors. This is compounded by the Health Professions Appeal and
Review Board decisions when they review
the college’s decisions through the appeal process. The doctor’s name is anonymous, reduced
to initials, thereby ensuring that the public will be kept in the
dark and the third party vendor of medical
opinions will be protected from any accountability.
http://www.fairassociation.ca/wp-content/uploads/2013/08/FAIR-letter-to-CPSO-regarding-transparency-August-26-2013.pdf
http://www.fairassociation.ca/wp-content/uploads/2013/11/FAIR-response-to-CPSO-Draft-Transparency-Principles-November-
11-13-.pdf
Recognising this serious problem with
these for-hire medical assessors isn’t good enough. The Anti-
Fraud Task Force took the same road at
their hearings in 2012 – suggesting reliance on the regulatory
college system of oversight that they
too were aware wasn’t working. How did they know? Because FAIR
Fair Association of Victims For
Accident Insurance Reform
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told the Task Force, our members told
them, the statistics regarding the backlog in the system and the wording in the Arbitration decisions to
describe the quality of these medical opinions and evidence told them. And still this fundamental issue
of the quality of medical reports and testimony and how that is
affecting accident victims and the
quality and reputation of our civil justice system is ignored.
We saw no interest from the Anti-Fraud
Task Force in respect to real regulation when it comes to reigning in and shutting down Ontario’s
insurer assessment mills and their shoddy and biased medical reports with accusations of symptom
exaggeration. In fact we saw the opposite. We saw recommendations by the Anti-Fraud Task
Force Panel to fine injured claimants $500 if they fail to submit
to often useless or biased insurer
assessments. Assessments that everyone in the industry and at FSCO knows are questionable, assessments
without real oversight that everyone, except the general public and vulnerable accident victims, knows
about.
Accident victims knew that little would
be done when the Anti-Fraud Task Force commented that “There are rulings by judges and arbitrators
on the public record. But the number of times that medical experts have been castigated for the
quality, or independence, of their work has been minimal relative
to the tens of thousands of claims paid
and injuries reported after vehicle collisions each year. It is not known how many disputes over medical
assessments are among the near 25,000 benefit claims that are up for mediation before the
Financial Services Commission of Ontario.”
http://www.fin.gov.on.ca/en/autoinsurance/final-report.html
This totally ignores that many
claimants never get to court before settling and it doesn’t negate
that these bogus reports exist in far too
many ‘medical’ files.
Stresses on Our Court Systems and the
DRS Report
In the DRS Final report Justice
Cunningham has said “I believe some companies need to take a hard look at the level and quality of
service being provided. A number of stakeholders suggested that insurers who do not adequately explain
the reasons for denials seem to invite disputes.“ And in reference to the Anti-Fraud Task Force
report recommendations: “the Superintendent recommended that health care professional
associations and the insurance industry jointly develop standards for
the delivery of third-party medical
examinations, as well as qualifications for assessors. I understand
that
this recommendation has not been
implemented to date.”
Despite that acknowledgement in the DRS
report, MVA victims are told again to rely on Ontario’s colleges for oversight and regulation.
The best this panel could come up with was that an IME/IE assessor, whose report or testimony was
found to be lacking either quality or qualifications, should not be paid for their appearance at a
hearing. Too little, too late. Accident victims are waiting years
without benefits based on these bogus medical
reports and the majority of these cases never reach a hearing.
Instead victims are financially
punished by the very insurer they paid to help them in a time of need
and forced to settle for far less than
their case may be worth, and far less than they’ll need for
recovery based on these sub-standard medical
reports .
http://www.fairassociation.ca/wp-content/uploads/2013/09/FAIR-
submission-to-the-Ontario-Dispute-Resolution-System-Review-September-20-2013.pdf
Fair Association of Victims For
Accident Insurance Reform
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FAIR believes that Bill 171 is being
rushed through legislation by our government and that 171 has nothing to do with fighting fraud or
improving our insurance system except to enrich already wealthy insurance companies in Ontario. This is
not a fraud fighting measure but a template for reducing
benefits paid to injured MVA victims by
way of marginalizing the rights of Ontario's disabled and injured citizens.
It is a serious matter to introduce
legislation that is so murky and undefined and this causes
uncertainty for accident victims when recent
changes are not defined as retroactive or not – this leads to more uncertainty in the marketplace and some
unscrupulous insurers have already taken advantage of this by
increasing claim denials.
What kind of government creates laws
that discriminate against injured and disabled citizens by denying them the same access to justice that
every other citizen enjoys in a democratic society? Why remove the disincentives for insurers who delay
and deny legitimate claims by decreasing prejudgment interest
rates and throwing away ‘special
awards’ for claimants who have been unfairly abused at the hands
of their insurer? It’s like declaring
war on vulnerable MVA victims and it has nothing to do with fighting fraud and everything to do with putting
obstacles and delays in the way of access to benefits.
The poor quality of these medical
opinions is the ‘tool in the toolbox’ preferred by some insurers
whose delay and deny tactics are the core
reason for the backlog in our courts systems in the first place.
Bill 171 will leave us with a dishonest
system based on too often flawed and biased medico-legal opinion reports that are used to deflate and
deny legitimate claims – but it will be faster. Not better, not
honest, not helpful and certainly not fair or
just.
The DRS Panel has made recommendations
to strip injured claimants of the right to take their cases to court. Instead of punishing rogue
insurer assessors with fines or fraud charges – we see ‘special
awards’ being eliminated and the power of FSCO
Arbitrators to refer insurer misconduct to the Market Conduct
Branch removed. No more remedies for
wrongful claims handling practices and all of these measures hurt MVA victims and reward insurers
for abusive conduct and delays.
The DRS report recommends all hearings
under the cap of $10,000.00 be paper hearings without any personal appearance from the accident
victim to expedite cases through the system. There should always be an option for in-person
attendance at hearings so that an accident victim can present their
side. We think that it is very
important that claimants not be shut out of the process. We think
that accident victims should have the same
rights as all other Ontarians. http://www.fairassociation.ca/wp-content/uploads/2014/03/FAIR-letter-to-ADR-Reform-Oct-11-2013.pdf
FAIR does not support the end of the
use of trained Arbitrators for hearings on SABs benefits. While this is not explicit in the DRS
recommendations the use of the term Tribunal to describe these
hearings has caused some concern about the quality
of the hearings in a new system. http://www.fairassociation.ca/wp-
content/uploads/2013/12/FAIR-response-to-the-Ontario-Dispute-Resolution-System-Review-Interim-Report-December-2-
2013.pdf
Fair Association of Victims For
Accident Insurance Reform
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There’s a concern regarding proposed
limits on the length of the medical evidence reports. For those with a serious or catastrophic injury a
report consisting of only a couple of pages would act as a systemic
way of minimizing the injuries and
reducing insurer payouts. That’s not justice. Failing to act
ensuresthat justice for accident victims will
be just as unfair, and just as dishonest, but it will be faster.
Who Foots the Bill?
There is no upside here for the
taxpaying public either when the injured or disabled person is
without funds to look after themselves, they
will have no choice but to access public services. Unfortunately some of FAIR’s members have had their
disability claims denied through CPP and ODSP because of the
bogus medical file their insurer has
built up in order to deny their claim for benefits. So there is a
ripple effect from these bogus reports, one
that further harms the accident victim and long after the insurance claim ends.
There were plenty of consumer and
stakeholder submissions to the last 5 Year Review that brought this IME/IE issue forward, and the quality
of medical assessments have been a subject of discussions and concern at every hearing since,
including the Auto Insurance Review at the Standing Committee in
2012
and 2013.
For accident victims the losses AFTER a
serious car accident are often caused by their insurer refusing responsibility and their failure to
live up to the terms of their contract or because of some poorly
written or unqualified medical report used to
deflate their claim and minimize their injuries. People are unable
to recover, unable to return to work or
hold on to their jobs, they often lose their homes and their families are traumatized and torn apart
by the negative experience of making a claim. Many victims often develop PTSD from the claim
experience itself which many describe as ‘hell’.
Accident victims who are on the lucky
side of the crap-shoot that getting benefits has become, and who actually do get paid are impoverished
by the low base payment of $400/week. This amount needs to be changed to represent what it actually
costs to live in Ontario and should reflect the average wage. It is
a
minimum wage level of income
replacement and an amount that victims are unable to support themselves on. It’s an insult to
believe that those who are injured require less money to live on
when the opposite is closer to the truth.
Many of FAIR’s members complain that
their insurer spent more on assessments to deny treatment than the actual treatment itself. There
are cases in the system where individuals have attended dozens of expensive IME/IEs at a cost in
excess of $100,000 so an insurer could deny treatment plans that
were less than $20,000 in total. Of course
during all of these assessments, the victim isn’t in treatment but rather is getting worse with the abuses
of the assessment process and the stress caused by the denial of the benefits they need to survive.
http://www.fairassociation.ca/wp-content/uploads/2013/02/FAIR-Submission-to-
Anti-Fraud-Task-Force-Status-Update-August-27-2012.pdf
We now have an insurance industry that
appears to be spending more money to assess injuries than it does treating those injuries and this
practice drives the claims costs up dramatically. Some insurers will assess victims until they get the
report they want. Or pay exorbitant prices to assessors for
preparation
Fair Association of Victims For
Accident Insurance Reform
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for court hearings that equates to more
than they would pay in a year of income replacement. Those are the same claims costs that Ontario’s
insurers complain about and that are generated at their end of the business. Rather than control their
spending, it has become a game of slash the benefits at every
opportunity to preserve their profit
margins. It’s irresponsible to pass on the expenses of the often incompetent insurer or their deceptive
business practices onto the claimant or pass these costs on to all of Ontario’s drivers through
premiums.
Regulation Ontario Regulation 347/13
We see this slash and burn mentality
with the undemocratic passage of Regulation Ontario Regulation 347/13. It is behaviour we expect of
the insurance industry but not of our own government. We expect a transparent and open process that
includes the interests of accident victims and not just Ontario’s
insurers. These new restrictions and
thresholds seem designed to disrupt and financially punish families of auto accident survivors who care for
their often cognitively impaired or catastrophically injured family members. This legislation was clearly
was done without thought and certainly without any consultation
with stakeholders other than Ontario’s
insurers. It is a demonstration of the far too-close relationship between the insurance industry and the
government whose legislation reads like the insurance industry’s wish list.
http://www.fairassociation.ca/wp-content/uploads/2014/01/FAIR-submission-to-2014-Pre-Budget-Consultations-Jan-23-2014.pdf
At FAIR we wonder how much discussion
the proposals in the DRS Review have actually had. We have not yet seen the report on the hearings
of The Standing Committee on General Government
AUTOMOBILE INSURANCE REVIEW that
started in 2012 or the KPMG Automobile Insurance Transparency and Accountability Expert
Report. We would have hoped that our government would consider all of the information
available to them when making substantial changes to our insurance
regulations.
http://www.fairassociation.ca/wp-content/uploads/2014/03/FAIR-Open-Letter-to-Wynne-Sousa-Matthews-March-20-2014.pdf
CAT Catastrophic Impairment Panel
Report
We would like to see an end put to the
2013 Catastrophic Panel Report recommendations given that only the insurance industry
stakeholders agree with the findings of this panel. All other
stakeholders, including FAIR disagree strongly with
these recommendations . http://www.fairassociation.ca/wp-
content/uploads/2013/09/FAIR-response-to-Stakeholder-Roundtable-on-Catastrophic-Impairment-September-5-2013.pdf
Panel Selection
FSCO and the Minister of Finance
continue to put together panels and consultations and studies like
the MIG study, the CAT panel and now the
DRS Review using the same partisan and biased consultants and policymakers that have had influence on
this present system for many years. If the system is broken, why does the FSCO and the Ministry
continue consulting and listening to the same architects of the mess we have today? Is it any wonder
that things just keep getting worse?
Fair Association of Victims For
Accident Insurance Reform
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MIG
The Minor Injury Guideline study will
not be available for some years to come - and yet the legislation isalready in place and benefits are
reduced without proper consideration or discussion.
The MIG was never intended to capture
80-85% of all claims. It was intended to facilitate treatment for lesser injuries without the necessity
for exhaustive assessments. It has morphed into a tool for denial and has trapped seriously injured
accident victims to rehabilitation limits that do not reasonably
address
their injuries. What was designed to
facilitate treatment has become an obstacle for accident victims.
The MIG, like all other insurer
inspired thresholds and limitations have increased the litigation in
the system - it can hardly be surprising
given the uncertainty about who should and shouldn’t be in the
MIG.
Some insurers have taken advantage of
this uncertainty to stall and delay claims. These finer points should have been addressed before the
legislation was put into effect.
Information Available to the Public
Regarding Insurance
There is a real lack of information
regarding the coverage accident victims have following an MVA. FSCO appears to have left the responsibility
to inform consumers in the hands of the Insurance Bureau of Canada. The problem with asking a for
profit organization whose only members are Ontario’s insurance
companies to inform the public about
decreased benefits should be apparent. It is the job of the IBC to anticipate and lobby for “opportunities
to identify, shape and influence change in support of members' business needs”.
FSCO needs to do a far better job at
public awareness so that accident victims know what they arepaying for and what they are entitled
to.
Consumers should know what treatment
for traumatic injuries cost and be aware that $50,000 sounds like a lot of money to pay out on a
claim but if the injuries are serious, the costs to rehabilitate an
MVA victim can be substantial. Information
that is distorted by viewpoint or need to make greater profit isn’t
providing the information that
consumers need to make informed choices.
Conclusion
FAIR hopes that with this 3 Year Review
that the Superintendent will put the accident victims’ interests and well-being at the center of any
recommendations. After all, this system was built to serve that purpose, to make sure that we have
adequate coverage at a reasonable price and not to solely serve the
interests of insurance companies.
Thank you for the opportunity to have
our concerns heard.
FAIR Association of Victims for
Accident Insurance Reform
http://www.fairassociation.ca/
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Fair Association of Victims For
Accident Insurance Reform
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From
http://www.fairassociation.ca/the-independent-medical-examination-imeie/
Singh and State Farm [+] Arbitration,
2014-02-21, Reg 403/96.
Expenses FSCO 4128.
I also found that State Farm did
unreasonably delay the IRBs to which Mrs. Singh was
ultimately entitled. It had no
reasonable answer for not reconsidering her benefits after
May 2, 2008 and relied on defective or
incomplete reports to terminate those benefits,
hence the special award.
_________________________________________________________________________
DE v GC , 2013 CanLII 55436 (ON HPARB)
— 2013-09-05 http://canlii.ca/t/g0c3b
4.
As part of her practice as a registered
physiotherapist, the Respondent is regularly retained
by medical assessment companies and
insurers as an independent third party assessor to perform
examinations to assist in determining
the reasonableness and necessity of continued coverage for
physiotherapy treatment.
5.
In performing her assessments, the
Respondent reviews the medical records provided to her
by the insurer and may conduct an
examination, which includes taking a history, and performing a
physical examination and testing of the
subject. In other cases, the Respondent bases her assessment
solely on a paper review of the
subject’s medical file. The nature of the assessment and the
content of
the medical record reviewed by the
Respondent are determined by the insurer.
6.
The Applicant was referred to the
Respondent for six independent assessments. The
Respondent provided in-person, physical
examinations of the Applicant on four occasions and
conducted two assessments based on a
paper review of the Applicant’s medical records.
7.
The Respondent’s assessments of the
Applicant done on December 7, 2010 and May 17,
2012 each concluded that the proposed
treatment plans were entirely reasonable and necessary. The
assessments done on March 24, 2011 and
July 14, 2011 concluded that the proposed treatment plans
were partially reasonable and
necessary. The paper review assessments done on August 29, 2011 and
March 12, 2012 concluded that the
proposed treatment plans were not reasonably necessary.
The Complaint and the Response
8.
The Applicant complained:
•
The Respondent repeatedly made negative
comments about the Applicant’s treating
physiotherapist. The Respondent stated
that his physiotherapist’s “lack of information provided in
reports is hurting [the Applicant] and
[resulting in him] having to go through IME after IME”;
•
The Respondent submitted reports that
were “riddled with mistakes” and she quoted him
making statements that are “completely
ludicrous”;
•
He believes that the Respondent’s
“opinion seems to be favouring [his] insurance company’s
bottom line”;
•
The Respondent failed to amend her
report dated March 13, 2012 after additional
documentation was provided to her; and
Fair Association of Victims For
Accident Insurance Reform
11•
At his assessment on July 14, 2011, the
Respondent “suggested to [him] that it might be in the
best interest for [her] to call [his
treating physiotherapist] directly” for clarification of an OCF-18
form;
however, the Respondent failed to
follow up with the treating physiotherapist.
9.
The Respondent responded to the areas
of concern raised by the Applicant as follows:
•
She advised the Applicant that some of
the treatment plans submitted by his treating
physiotherapist lacked an explanation
as to why the proposed treatment was reasonable and necessary,
and that this resulted in the Applicant
having to undergo repeated assessments. She meant no
disrespect to the Applicant’s
treating physiotherapist and, in fact, complimented the progress the
Applicant was making under his treating
physiotherapist.
•
The Respondent acknowledged that there
were some minor inaccuracies in her reports but
stated that she relied on information
the insurer and the Applicant provided to her and noted that none
of the inaccuracies was material to the
conclusions in her assessment reports.
•
The Respondent acknowledged that she
does copy basic information from one report to another,
citing that this is common practice,
and thus avoids having to cover this prior ground each time.
•
The Respondent stated that her reports
were not biased in favour of the insurer and noted that
her opinions were, for the most part,
favourable to the Applicant.
•
The Respondent stated that she was not
aware of any further information being provided to her
after the paper review of March 13,
2012 and noted that she was never asked by the insurer to
complete an addendum report based on
new information.
•
The Respondent denied that she offered
to contact the Applicant’s treating physiotherapist and
stated that it was not her usual
practice to do so during the assessment process. She suggested that
the
Applicant may have confused this point
with her willingness to speak with treating medical
professionals after her assessment and
report were completed.
The Committee’s Investigation and
Decision
10.
The Committee investigated the
complaint and decided to provide the Respondent advice
about ensuring the accuracy of her
reports and the need to ensure that her practice in this regard is
appropriate and to take no further
action.
________________________________________________________________
JV v HAP, 2013 CanLII 59329 (ON HPARB)
— 2013-09-20 http://canlii.ca/t/g0n2f
The Complaint and the Response
5.
The Applicant complained about the
Respondent’s examination and
conclusion. She took issue with many
aspects of the assessment. For example, the
Respondent concluded that the Applicant
suffered from significant lower back pain several
times a month while the Applicant
asserted she experiences such pain every day. The
Respondent noted a curvature of the
spine in the IME report, which the Applicant
complained was false. The Respondent
concluded that the Applicant was not impaired by
any accident related injury from
continuing her schooling and the Applicant complained that
this assessment was false.
6.
In addition, the Applicant complained
about the way in which the Respondent
conducted the IME, alleging that the
Respondent rushed through the assessment, failed to
conduct a physical examination, and
failed to consider x-ray and radiographic reports.
7.
The Respondent provided a detailed
rebuttal of the allegations, explaining the
basis for each conclusion in his
observations during the IME or the available medical
records. He noted that all available
records were reviewed, and that a physical examination
Fair Association of Victims For
Accident Insurance Reform
12was not necessary for the IME.
Further, he denied that the IME was rushed, or conducted in
an improper fashion.
______________________________________________________________________
MC v KE, 2013 CanLII 55435 (ON HPARB),
2013-09-04 http://canlii.ca/t/g0c3g
7.
[...]The Respondent notified the
Committee that, through the complaints process,
she had discovered that Riverfront
Medical Services (Riverfront), the company through
which the Applicant’s assessment was
contracted, had changed the Respondent’s report
without her prior knowledge or
consent.
9.
As a result of its investigation, the
Committee decided to take no further
action, noting that the Respondent
reported information that she considered to be accurate
and that there did not appear to be any
indication that the Respondent intentionally falsified
factual information in the report or
that she misrepresented information about the
Applicant’s abilities during the
assessment.
10.
However, the Committee did express
concern about the information uncovered
during the course of the investigation
related to Riverfront having altered the Respondent’s
report. The Committee noted the
―egregious‖ impact that these changes could have had on
the Applicant’s entitlement to
benefits. In the result, the Committee decided to offer advice
to the Respondent about the importance
of ensuring that she personally reviews and
approves any assessment report she
completes prior to the report being issued.
_______________________________________________________________
Macdonald v. Sun Life Assurance Company
of Canada, 2006 CanLII 41669 (ON
SC),http://canlii.ca/t/1q596
2006-12-13
[1]
In the course of this jury trial I
ruled that Dr. Frank Lipson, who had conducted a
defence medical of the plaintiff, not
be permitted to testify as an expert witness on behalf of
the defence. Dr. Lipson had testified
that a medical report purportedly signed by him had
not been signed by him. He stated that
his signature stamp had been affixed to the report
without his authority by an individual
at Riverfront Medical Evaluations Limited (Riverfront)
the company who had retained him to
conduct the defence medical. [...]
[2]
I have deliberated for a very long time
before delivering these reasons. Although
the action out of which the problem
arose has long been concluded, this case raises vexing
issues as to what role may be properly
played by organizations such as Riverfront in the
formulation of an expert witness’
opinion.
[43]
Twenty percent of their physicians
conduct their assessments off site in which
case the physicians will prepare their
reports and send it to Riverfront by fax or other
electronic means. Riverfront performs
its quality control function and sends the report to
the physician for comments if required.
After consultation with the physician, the report will
be prepared on Riverfront’s
letterhead and signed by the physician or as in the case at bar a
signature stamp is affixed to the
report, which is sent to the referring client.
Fair Association of Victims For
Accident Insurance Reform
13[44]
In many cases Riverfront has a
signature stamp of the doctor, which the doctor
authorizes them in writing to use. Dr.
Levy produced a letter dated January 5, 2004 in
which Dr. Lipson authorized Riverfront
to utilize a signature stamp/electronic signature
when issuing assessment reports –
―when I am unable to directly provide my signature‖.
The authorization provides that
signature stamp would only be used ―once I have approved
the final copy of my report‖.
[88]
It is stating the obvious that an
expert’s report delivered for the purpose of
compliance with the Rules of Civil
Procedure and the Evidence Act is an extremely important
document. Anyone involved in the
preparation of such reports must know that courts place
a very strong reliance on the contents
of these reports and that the proper administration of
justice demands that these reports
accurately reflect the opinion of the expert who has
written them. The requirement in the
Rules of Civil Procedure and the Evidence Act that the
expert sign the report is intended to
provide assurance that the statements in the report are
those of the expert.
[100] Expert witnesses play a vital
role in proceedings before the courts both in civil and in
criminal matters. In personal injury
actions in particular, the evidence of the expert witness
may be the determining factor in the
resolution of the plaintiff’s claim In the case of health
practitioners, section 52 of the
Evidence Act provides under certain conditions, the report
may be filed in place of the viva voce
evidence of the health practitioners. The court is
entitled to assume that the report
represents the impartial opinion of the expert.
[101] In my view Riverfront in this
case, went far beyond what can be considered a
proper ―quality control‖ function.
While I am not prepared to find that they were motivated
by a desire to assist the defendant,
nonetheless I find their actions constituted an
unwarranted and undesirable
interference with the proper function of an expert witness.
[102]
The function of an expert witness is to
provide an independent and unbiased opinion
for the assistance of the court. An
expert witness’ evidence should be and should be seen to
be the independent product of the
expert uninfluenced as to form and content by the
exigencies of litigation.[2] This
principle has often been cited with approval in our courts,
and has been considered a factor to be
considered in asessing the weight to be given to the
expert’s testimony. It has
occasionally been treated as the basis for the disqualification of
the witness entirely.[3]
[103] In my view any activity that may
tend to detract from this all-important objective
diminishes the integrity of the
litigation and trial process and should be met with
appropriate sanctions designed to send
a clear message that such conduct will not be
tolerated.
www.fairassociation.ca
Fair Association of Victims For
Accident Insurance Reform
14
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