Law Times

Page 12 May 5, 2014 • Law TiMes www.lawtimesnews.com and the constant narrowing of eligibility since 2010 has created a war on Ontario's legitimate accident victims. According to the [dispute resolu- tion system] interim report, 45 per cent of the claims working their way through the FSCO mediation system are for medical treatments. is is truly disturbing when one considers the personal cost to those thousands of in- dividuals who are not getting the treatment or care they need for recovery." e Ontario Trial Lawyers Association points to a recent and trou- bling trend of making changes without consultation: "It is certain that in making these decisions without all the available information or facts, the government has created a new problem that will need to be addressed at a future date. . . . Certain reductions in benefi ts appear to have been conceived in a vacuum, without due regard to the reality that limiting or eliminating essential benefi ts on the fi rst-party side will only force claim- ants to shi their pursuit of the benefi t to the third-party side." Given this dynamic, the OTLA advocates for the restoration of tort rights. "In Ontario, innocent accident victims have seen their tort rights steadily eroded in response to perceived threats to insurer profi tability." It refers to the defi nition of serious impairment and in- creases to deductibles and thresholds. "Both are designed to take less serious claims out of the system. Having both is redundant." e insurance industry is placing its hopes in the reforms proposed by former Superior Court associate chief justice Douglas Cunningham's fi nal report on the dispute resolution system and the government's quick response to put it under the auspices of the Ministry of the Attorney General. "Overall, justice Cunningham's recommendations will help re- store cost stability by making the [system] accessible, effi cient, and pre- dictable," says the submission by the Insurance Bureau of Canada. "An important part of justice Cunningham's report pertains to introducing fees for using the [system] as well as a fi nancial con- sequence for parties who abuse the system or prolong disputes by rejecting reasonable settlement off ers. ese changes are critical to discouraging stakeholders from pursuing frivolous cases in hope of pushing an insurance company into a large cash settlement." In their submissions, members of the medical community lament the offl oading of rehabilitation services to taxpayers and unpaid care- givers. It also expressed concern about the amount of money spent by the insurance industry on insurer examinations. e Ontario Society of Occupational erapists refers to data showing insurers spent $171 million on "insurer initiated assessments" from Jan. 1, 2011, to June 30, 2013. "For every dollar that insurers spent treating someone to help them get better, they spent almost 50 cents assessing them," it said. e OTLA contends the signifi cant cuts in September 2010 ought to have made assessments totally unnecessary. "Insurers have simply refused to reduce their reliance upon these assessments by choice . . . . In an era where benefi ts have been slashed in the name of saving money and reducing premiums, it is unacceptable to permit insurers to spend such a markedly disproportionate amount of every premi- um dollar on these assessments." e Ontario Society of Occupational erapists is calling for the im- mediate development of standards for insurer assessments. Other stake- holders suggest the focus on fraud in recent years has le a lack of over- sight of insurer behaviour in general. e Alliance of Medical and Reha- bilitation Providers says: " e volume of denied benefi ts in 2013 alone is astounding. We see the 25,329 injured accident victims who had applied for mediation based on benefi ts denied by their insurer as a major crisis." e minor injury guideline comes in for frequent criticism. e Fair Association of Victims for Accident Insurance Reform says it was never intended to capture up to 85 per cent of all claims. "It was intended to facilitate treatment for lesser injuries without the neces- sity 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." e Insurance Bureau of Canada's focus is on the need to clarify the provisions of the statutory accident benefi ts schedule, particu- larly the minor injury guideline, given the many challenges that arise. "To avoid uncertainty and meet the time frame for premium reduc- tions, legislative and regulatory provisions will need to be absolutely clear as to their meaning and become eff ective for any benefi t claims made from the date the provisions become law." e organization also questions the government's focus on premi- um reductions. While the 2010 reforms produced initial — but tenta- tive — savings, it says "several factors continue to thwart the premium relief that consumers and, no doubt, the government had expected." It goes on to suggest premium reduction targets prevent companies from recouping the costs associated with redesigning their claims management processes and fraud detection practices in order to re- duce costs and meet the goals of the 2010 reforms. LT Insurance review submissions decry continual changes Organizations call for moratorium on additional legislative amendments he year 2010 marked the greatest upheaval in personal injury law in recent times and the three years following have been full of controversy. e auto in- surance three-year review has fi - nalized its consultation stage and the submissions available so far suggest the last three years have been a bit too eventful. A resounding theme throug h- out the submissions is the need for a more stable and predictable future. e Insurance Bureau of Canada says: " e ongoing cost and price increases in the Ontario product have po- liticized auto insurance on a recurring basis. ey have spurred patchwork changes, al- most always executed in a time of perceived crisis, while the fundamental reform needed to secure cost and premium sta- bility for the long term is repeat- edly put aside for another day." T h e Alliance of Medical and Reha- bilitation Providers is one group that wants the pace of change to slow down. "We urge government to stop the cycle of continuous change and to take time between the mandated auto insurance sys- tem reviews conducted by [the Financial Services Commission of Ontario] to consult on, assess, and develop policy and regulatory changes that can be le in place long enough to bring some degree of stabilization to the sector. A moratorium on changes between reviews should be imposed." Several groups, including the Fair Association of Victims for Accident Insurance Reform, expressed concern about the in- ability of the fi rst-party system to cope with constant changes: "When the legislation is changed to accommodate the insurance industry demands to decrease benefi ts, there is an increase in claims fi led down the road. e changes to coverage, new thresh- olds, the minor injury guide- line (MIG), the anti-fraud task committee recommendations, FOCUS 82 Scollard Street, Toronto, Canada, M5R 1G2 Excellence in Employment & Labour Law • Counsel in Leading Cases • • Author of Leading Treatise • Wrongful Dismissal Employment Law Human Rights Post Employment Competition Civil Litigation Appellate Advocacy Disability Ball Professional Corporation Referrals on behalf of employees and employers respected Contact Stacey Ball at web: www.staceyball.com (416) 921-7997 ext. 225 or srball@82scollard.com all_LT_Nov7_11.indd 1 11-11-08 11:44 AM BY JUDY VAN RHIJN For Law Times T Some lawyers worry auto insurance changes have put up too many roadblocks for car accident victims. on Ontario's legitimate accident victims. According to the [dispute resolu- dividuals who are not getting the treatment or for a more stable and predictable future. e Insurance Bureau of Canada says: " e ongoing cost and price increases in the spurred patchwork changes, al- most always executed in a time have put up too many roadblocks for car accident victims. Photo: Pakhnyushcha/Shutterstock Girones_LT_Mar24_14.indd 1 14-03-19 1:32 PM

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