Law Times

Page 12 January 6, 2014 Law Times • FOCUS Cost consequences for claimants a controversial idea Continued from page 11 pool of judges available. Generally, the concepts of triaging, streamlining, and expedited procedures for simpler matters receive bipartisan support on the condition that money not be the only criteria determining the stream. The FSCO arbitrators, the Fair Association of Victims for Accident Insurance Reform, Aviva Canada Inc., and the Association of Independent Assessment Centres all raised the need for multiple filters such as complexity and urgency. There was concern over the proposal for paper reviews as part of an expedited system. The Co-operators said they can lead to conflicting expert opinions and noted its preference for the current process. The Fair Association of Victims for Accident Insurance Reform is skeptical paper reviews would work well without the personal participation of all of the parties and stressed it should always be the claimants' option to forgo their presence. The Ontario Trial Lawyers Association supports an allparty, consent-based procedure. The question of whether mediation should remain mandatory attracted a wide spectrum of opinions, but there was general agreement over the idea of a combined mediation and arbitration model. "We think that maintaining mediation as part of the process provides an opportunity to resolve a high volume of simple and straightforward cases expeditiously and at the lowest Girones_LT_Dec9_13.indd 1 possible cost," according to the OBA submission. It added that timely and proportionate disclosure would increase the opportunity for early settlements. Intact agreed, saying there would be a heavy onus on the parties to be compliant with clear, bright-line, prerequisite mandatory steps. The FSCO arbitrators' submission was generally supportive but flagged the problems with confidentiality and the without prejudice nature of the discussion if the same adjudicator was part of both functions. The FSCO arbitrators also answered complaints about "arbitrator activism" by advising they've recently received a directive that they must comply with policy and guidelines set by the superintendent and noting comprehensive minor injury guidelines expected in 2014 would increase predictability. Complainant advocates and some insurer groups criticized suggestions to no longer publish arbitration decisions as something that would remove an element of predictability. The Fair Association of Victims for Accident Insurance Reform added to the debate by suggesting it's "past time to consider anonymizing the injured accident victim names within these decisions. It's been made obvious to us that very few claimants are aware that their personal information about their claim is available on the Internet." There's general support for a proposal that insurers set up a process for internal review given many insurance companies already have one. The Co-operators credits its process as being integral to its low number of disputes. However, The Ontario Mutual Insurance Association worries the idea could take on a life of its own through bureaucratization, an opinion shared by the OTLA and the Canadian Centre of Excellence in Injury Law. The OBA and the Ontario Psychological Association support the process as long as it's optional for applicants. Along with that issue come calls for improved training for adjusters and insurer examiners to ensure better decisions in the first place and clarification of the obligation on insurers to provide reasons for denials. One organization is calling for a volunteer teaching faculty at FSCO for this purpose. The Insurance Bureau of Canada, the Fair Association of Victims for Accident Insurance Reform, and the Canadian Society of Chiropractic Evaluators support the use of a medical expert panel as long as the participants are truly neutral and the opinion remains an aid to adjudication and doesn't usurp the role. However, Desjardins General Insurance Group Inc. and the Medico-Legal Society of Toronto strongly oppose the idea. They say treatment would only add another layer of cost and complexity and threaten quality control. The OBA and the Medico-Legal Society suggest maintaining the use of experts put forward by the parties and requiring them to certify their duty to the court to provide fair, objective, and non-partisan evidence. The Medico-Legal Society also questions the idea of imposing restrictions on the size and content of expert reports. "This ties the hands of the expert and deprives the parties and arbitrator from the complete medical opinion evidence," it states in its submission. "If reports are generated that appear excessive in length or duplicative, this may be dealt with by the arbitrator by way of costs in the proceeding." A proposal many stakeholders found intriguing was the extension of the prohibition on cash settlements currently set at one year. This policy seeks to curb insurers' desire to close files on a full and final release basis and curtail the opportunistic approach by many clinics to make money from quick cash. No consensus appeared in the submissions. The Co-operators believes there's a balance with the current one-year prohibition on lump-sum settlements for claims under the statutory accident benefits schedule and that either eliminating it or extending it will only serve to increase the unpredictability of claims management and outcomes. There was a great deal of dissension on whether there should be more penalties and cost consequences for claimants who abuse the system with great offence over insurer submissions that said claimants should have "more skin in the game." The idea drew heated accusations about the significant jump in denial rates for basic treatment plans. The FSCO arbitrators consider the current costs arrangements to be adequate. They suggested increased fees for claimants would present a barrier to justice while a reduction of insurer costs would be a threat to FSCO funding, something a number of insurance organizations also saw as risky in light of the government's cost- and rate-cutting agenda. LT 13-12-02 7:22 PM Looking for legal expertise? Find exactly what you need at www.CanadianLawList.com yu and it's available to yo 24 hours a day. Untitled-4 1 Starting a business, making a will or buying a house? Declaring bankruptcy, dealing with a personal injury, insurance claim or job loss? If you're in the midst of one of life's big events, help is as close as your smartphone, tablet or computer. Simply go to www.CanadianLawList.com to find the right lawyer for your particular legal need. www.CanadianLawList.com is Canada's most comprehensive online directory of lawyers and law firms. And it's easy to use! You can search by city, legal specialty, or name for listings and contact information. Find the legal expertise you need at www.CanadianLawList.com. www.lawtimesnews.com 13-12-19 3:08 PM

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