Insurance overhaul

Experienced Ontario jurist reviewing dispute resolution system

It’s obvious Ontario’s auto insurance dispute resolution system is in need of an overhaul.

According to personal injury lawyer Darcy Merkur, “the cumbersome arbitration process makes it impossible to quickly and economically arbitrate any day-to-day treatment denials. There’s simply no way to arbitrate a treatment denial and get a timely result and, even if that was possible, the cost of arbitrating would greatly exceed the amount in dispute.”

With approximately 60,000 injuries attributed to motor vehicle accidents each year, how is it possible we generated an average of 30,606 mediation applications per year in the last three fiscal years?

On top of that there were 23,521 auto insurance related lawsuits filed in Ontario courts in 2012.

So it’s good to see the provincial government is trying to tackle the problem.

It has appointed an experienced jurist, the Hon. J. Douglas Cunningham, former Associate Chief Justice of the Ontario Superior Court of Justice, to conduct the review of Ontario’s auto insurance dispute resolution system.

Cunningham delivered his interim report last month. His final report is due in February.

The interim report states the obvious in that “it takes too long to resolve disputes.” Cunningham understands obtaining funding to pay for treatment has become a “challenge” while “(c)laimants’ lives can be put on hold for years waiting resolution of their claims.” He is clearly sympathetic to the plight of accident victims when he warns insurance companies that “(d)isputes and settlements need to be focused on getting claimants timely access to necessary treatment and assessments.” Cunningham blames both insurance companies and claimants’ lawyers for some of the delays.

Lawyers are often unable to commit to pre-arbitration sessions or hearing dates until “many months in the future” due to their busy schedules.

Some adjusters are inexperienced, have high caseloads and should do more to resolve disputes earlier.

Insurers act in a counter-productive manner when they attempt to close files with lump sum payments, rather than focus on timely access to treatment and assessments.

Cunningham has proposed a possible solution, establishing a process which would conclude within six months from start to finish.

As he describes it: “Cases would follow a different stream based on the benefits in dispute and the complexity of the issues involved. Ensuring access to timely and necessary treatment would be a first principle.” This would go a long way to improve the status quo but Cunningham must first examine why there are so many treatment/benefit denials.

Are claimants attempting to abuse the system by seeking unnecessary treatments or accessing benefits to which they are not entitled, or are insurers systemically denying treatment and benefits?

Andrew Murray, former president of the Ontario Trial Lawyers Association, believes the dispute resolution system “suffers from systemic abuse by insurers, which invoke a decidedly adversarial approach to the adjudication of accident benefits, best described as ‘deny, delay, deceive’.” Many insurer-appointed experts undertake so-called independent medical examinations and provide opinions used to deny claims. To what extent do these opinions serve to delay the just resolution of claims?

Wouldn’t fair, impartial assessments result in speedier resolution?

I have written many columns chronicling the unfair opinions of many of the insurers’ so-called experts.

Some are clearly unqualified or under qualified to provide the opinions they generate.

Some specialize in providing opinions to insurers rather than practicing medicine. That is, they earn a significant portion of their income peddling opinions to insurers.

“Experts” of this ilk cannot be expected to provide fair assessments.

Whether consciously or subconsciously, they provide the opinions desired by their paymasters.

FAIR (Fair Association of Victims for Accident Insurance Reform), a not-for-profit organization of motor vehicle accident victims who have struggled with Ontario’s existing auto insurance system, has a website that chronicles the activities of many of these insurance industry “experts”, who have made life miserable for accident claimants.

Fixing Ontario’s auto insurance dispute resolution system will require more than mere tinkering.

Cunningham’s interim report bodes well for some real solutions.

_{Source: http://www.torontosun.com/2013/11/15/insurance-overhaul} 

FSCO backlog- Class Action Lawsuit

Open letter to FSCO:

Honourable J. Douglas Cunningham, former Associate Chief Justice of the Ontario Superior Court of Justice.

Senior Manager, Insurance Policy Unit
Industrial and Financial Policy Branch
Ministry of Finance
95 Grosvenor Street, 4th Floor
Toronto, Ontario M7A 1Z1

Dear FSCO:

According to the Ontario Automobile Insurance Dispute Resolution System Review Interim report,  beginning in 2007 FSCO began to experience a dramatic increase in Applications for Mediation.

 In 2006 – 07, FSCO received 13,053 new applications and in 2011– 12, received 35,727 applications — a 174 per cent increase.

As a result, FSCO was not able to meet the legislated 60- day time line for mediation and a backlog of files awaiting assignment to a mediator developed.

At the end of December 2011, there was a backlog of approximately 30,700 files,

FSCO was receiving an average of 2,949 new Applications for Mediation every month and claimants were waiting in excess of 11 months for mediation.

The FSCO backlog created forced settlements.

Victims of insurance had no choice but to sign forced settlements because Insurance Companies cut benefits off just before settlement.

When victims were told that mediation could take up to or more than a year to get heard. We had no choice. With no income, no justice, disabled, what can you do, we got screwed.

By purposely creating this backlog, these forced settlements were illegal, immoral, and insurance companies profited greatly by them.

I suggest that all the victims of these forced settlements be compensated.

Why not a class action lawsuit in this regard?

No names have been posted on this blog in accordance to the forced settlement agreement. That’s why you don’t hear from the victims of insurance.

Sincerely,

Administrator,

http://survivingacollision.blogspot.ca/

What happens after the FSCO backlog?

Dear Service Canada:


In 2007, I was  in a crash that took the life of a 19 year old boy
that was speeding,
 and passing on a solid double line,
 on a blind hill,
crashing into me head-on with his car.

The crash sent me rolling 8 times
 and hitting a tree.
With the air bag going off in the side of my head
I was trapped upside down in the twisted wreck
 that was not my fault.

You have had the evidence that you needed in 2008.

You are making it difficult to contact you because your fax number no
longer answers mine.
The fax log will show that yours times out now.

I called the Service Canada office that I was sending the fax to
several times, for days.
It just rings, and rings for days.

No-one answers the phone or fax now.

I called Service Canada several times by way of the number that
Service Canada gave me, and numbers I found online. According to
Service Canada they will not accept my fax. They will not give out a
fax number to me, and suggested that I go to the Service Canada
office.

How would a disabled person, shafted by the FSCO backlog, with no
income, be able to travel an hour and a half round trip? To find out
that their office may, or may not be open?

You have accepted my faxes at prior times.

I just want to verify receipt of a doctor’s report.
Why is this so hard to do?

Previously my application was lost in the mail you say. And have
denied my claim for disability benefits for bogus reasons.

Your previous acknowledgement of receipt for a fax in one of your
denial letters (“we know you can't work now”) established your receipt
of my faxes, and also by your own admission in a phone message that
you left on my answering machine.

Why are you not accepting my disability application, and properly, and
fairly, investigating my claim?

Are you on strike?

Shouldn't you notify people?

Your latest tactic of not accepting a doctor’s report from me, so I
may further produce evidence,
 will not be tolerated.

To hide and not communicate with me is babyish. So I will treat you like a baby.

 Please accept this fax until someone at your office can establish to
me how I may send you
1 doctors report.

Sending.......................

............................................................................................................................................................................................................................................................................................................................................1
of 48000.


Fax sent November 5, 2013


Sending 2 of 48000...........................................................................................................................................................................................……………………………………..

Amputate your leg’

‘Amputate your leg’

Insurer’s expert recommendation to accident victim

Catastrophically impaired car accident victims in Ontario are eligible for medical and rehabilitation benefits up to $1 million.

Victims suffering serious, but non-catastrophic impairment are eligible for medical and rehabilitation benefits up to only $50,000 (the Ontario no-fault limit of $100,000 was cut in half in 2010).

Insurance companies seem prepared to make any argument to limit the number of victims who qualify for catastrophic benefits.

At least that appears to be the case from the recently reported arbitration decision involving a 53-year-old woman, D.B., (the decision doesn’t reveal the victim’s name) and her insurance company, Economical Mutual.

D.B.’s vehicle was hit head on by a truck while driving on Highway 24 to Cambridge.

The collision was so severe paramedics had to use the jaws of life to remove her from her vehicle.

She was initially hospitalized for 10 days.

Along with injuries to her neck, back, shoulders, knee and abdomen, she suffered a fractured right leg below her knee.

After five surgeries, with extensive hospitalization, the fracture had not healed, she could not bear any weight on her right leg, could not move one leg in front of the other and could not stand independently.

Prior to the accident, D.B., led an active life including housekeeping, babysitting her grandchildren and attending exercise classes.

Following the accident, she was unable to walk, suffered pain requiring daily doses of opioids, and felt depressed, not wanting to leave her bed. She withdrew from social functions. Due to her inactivity and eating for comfort, her weight increased by 90 pounds. She gets around with a wheelchair, save when she is in a chairlift, although she can use a walker to take a few steps.

D.B.’s doctors believe she satisfies the criteria for catastrophic impairment benefits.

That her insurer and its doctors disagree isn’t troubling; what’s troubling is why they disagree.

The insurer’s expert concluded D.B. doesn’t suffer from any psychiatric impairment based, in part, on a trick.

He had an assistant knock on the door to his office to see if D.B. would be startled by the knocking.

Hyperarousal is said to be a feature of a stress disorder and D.B.’s failure to jump at the sound of the knocking was used against her.

But as D.B.’s expert, Dr. Dory Becker, stated, door-knocking is not an accepted test for diagnosing a stress disorder. In addition, being sedated on her daily medication, her reactions would be muted and being wheelchair bound, of course D.B. did not jump.

The insurer’s expert also relied on his observation that D.B. was able to smile and laugh. But, as Dr. Becker pointed out, even a depressed person is able to laugh and enjoy some things and laughing at a doctor’s — even an insurance company’s doctor’s — jokes, is the polite thing to do.

The insurer’s expert also took the bizarre view D.B. ought to have her right leg amputated below the knee and that she’d then no longer require a wheelchair.

So he assessed D.B.’s impairments based on the assumption she was an amputee!

D.B.’s doctor pointed out even with an amputation it was doubtful D.B. could get around with a prosthetic and that she’d more than likely remain wheelchair bound.

In the end the arbitrator decided in favour of D.B., ruling she was indeed catastrophically impaired.

In doing so he stated that, “(n)o doctor, insurer, arbitrator or judge can dictate to D.B. that she must have an amputation as a remedial procedure. I am mindful that D.B. has had five remedial surgeries as a result of the accident and has suffered from the non-union of a fracture. No one can assure D.B. that she will increase her mobility if she consents to an amputation.”

Those are wise words, along with these: Don’t laugh at a doctor’s jokes and remember to be startled if you hear someone knocking at your door.

_{Source: By Alan Shanoff   ,Toronto Sun First posted: Saturday, October 26, 2013 06:33 PM EDT http://www.torontosun.com/2013/10/25/amputate-your-leg}