Law Times

Page 10 January 11, 2016 • Law Times www.lawtimesnews.com FSCO report an 'Edsel' Advocacy groups object to new traffic injury regime BY JUDY VAN RHIJN Law Times I n the wake of the recent Finan- cial Services Commission of Ontario report "Enabling Re- covery from Common Traf- fic Injuries," advocate groups for accident victims and the legal and medical communities that serve them are expressing their concerns that new proposed government guidelines are impractical and ig - nore medical best practices. e focus on a six-month recovery period and an average number of treatments for patients leave 50 per cent of accident victims need - ing proof of a serious condition to finalize their recovery. "Common traffic injuries" will be the new collective term to cover injuries that historically have re - covery times ranging from days to a few months, under the FSCO report. Within that description will fall injuries that previously fell within the Minor Injury Guide - lines and — to the general distress of the medical and plaintiff 's bar — will include minor head injuries. Injuries are to be categorized as Type I, Type II, or Type III injuries, and then further divided by phase: Recent (zero to three months post- collision), or Persistent (four to six months post-collision). Angst over the report started right from the original appoint - ment of the panel. Adam Wagman of Howie Sacks and Henry LLP was involved in the Ontario Trial Lawyer Association's response when so many of the primary re - searchers declared conflicts of in- terest. "OTLA understands that if you choose researchers who have credentials in a particular area, they will inevitably be reviewing their own research," says Wag - man. "You would think that if that was happening, they would then consult with the broader com- munity, which might help to bring a broader perspective. We were called to a review with the research team called a 'technical meeting' in August. We found that they did consult — with two insurance companies and a judge. He was on the line, so we asked him to tell us about his involvement with acci - dent victims. He said that he had not practiced law for many years and had no experience represent- ing injured people for accident benefits. is is a process issue, but it has a huge effect and under- mines the legitimacy of the report." ere have been similar out- cries from the medical communi- ty, reflecting a lack of involvement in the process leading up to the report. e Ontario Rehabilitation Alliance has reaffirmed its concern at the disproportionate number of clinicians that specialize in insurer examinations sitting on the panel and the absence of speech lan - guage pathologists, social workers, psychologists, treating clinicians, and patient representatives. It stat- ed in its submission on the report: "In sum, we are concerned that the resulting blind spots compromise the acceptance and efficacy of the proposed care pathways." e Accident Benefit Coali - tion was even more blunt, saying that the "absence of the expertise of health-care providers" on the committee "has led to an Edsel of a conclusion." ere has also been substan - tial distress over the report's self- imposed limitations, such as a six-month cut-off on treatment guidelines. "We asked the ques - tion, 'Why the six-month limit?'" says Wagman, "when the very re- search they use says that a full 50 per cent of accident victims won't be better by then. eir reply was that they saw their role was to in - vestigate and reveal best practices to the point when…50 per cent will recover." In its submission on the report, Legate & Associates LLP, asks: "What good are guidelines that right off the bat are insufficient to help half of the people that get in - jured in a motor vehicle collision? ose individuals will require a physician or nurse practitioner to provide compelling evidence as to why their injuries should exclude them from the CTI. is is going to exclude a great deal of people from the medical rehabilitation treatment they require." Wagman is also alarmed by the endorsement of the "average" number of treatments. "In some studies studied, there were many more treatments. We asked, 'Why take the average as opposed to the outside limit so that most people get better?' ey had no good an - swers." ere are recommendations for a maximum benefit per month and per treatment phase, which the Legate submission says seems very controlling and restrictive. e recommendations also limit treatment for those who enter the system three to six months aer the injury occurred, even though health providers say delays are of - ten caused by insurer delays. e ABC calls this time frame unfair and prejudicial to the client while the ORA calls it "unacceptable." e requirement for "compel - ling evidence" for the continuation of treatment is another threshold causing concern. "We are not sim- ply talking about getting to the end of the CTI and needing more treat- ment," explains Wagman. "e practitioner can say, 'We tried our best, but this is one of the 50 per cent who have not got better.' at will not be enough." He explains that the evidence must show a finding of a neurological disorder, autoimmune disorder, psychosis, or severe PTSD or a severe pathol - ogy. "You have to have one of those severe conditions. Most people are not going to have one." Submissions from medical groups have called the constant requirements to prove need for treatment as a chronic low-grade abuse of process. e ABC states: "e standard of 'compelling' is a most inappropriate standard and extremely prejudicial to injured victims…. One is le wondering whether this is even a defensible position and certainly suggests a level of bias by the committee's own consideration of information and evidence…. It is most inap - propriate to be placing this level of authority to insurers, allowing them to become judges, juries, and prosecutors, needing injured vic - tims to advocate and plead their case for treatment." e Ontario Psychological As- sociation is concerned that the term "compelling evidence" im- plies a legal process, preferring the term "clinically relevant informa- tion" as more neutral and relevant in a clinical context. Many of the recommendations are being branded impractical, giv - en the realities of the Ontario health system. Of particular concern is the pinpointing of physicians and nurses as gatekeepers to any fur - ther treatment, which is seen as unwelcome and shortsighted. e ORA has repeatedly pointed out its inconsistency with government initiatives to reduce and distil the workload of physicians. "We feel that this recommendation attempts to turn physicians and nurse practi - tioners, being a key publicly funded resource, into the insurance indus- try's clerks. is strategy will not only result in huge bottlenecks for MVA victims but, more important- ly, less access to primary health care for all other Ontarians," according to the ORA's response. ere is also concern from stakeholders that the list of health professionals permitted to initi - ate and co-ordinate the goods and services under the CTI guidelines is very small, and excludes occupa- tional therapists, speech-language pathologists, and psychologists, who all routinely treat auto acci- dent victims. e proposed care pathways are also facing criticism for being overly directive and limited, and ignoring the best-practice stan - dards of the regulatory colleges and the expertise of the health professionals involved. e report does emphasize that only practices proven to be effective by quality research are worth implementing. However, this appears to fly in the face of the authors' own findings that research is scarce and that, in any event, research generally fol - lows best practices rather than precedes them. As a result of the proposed re- strictions, OTLA estimates that treatment costs under one of the CTI guidelines will be about $1,000. "Before 2010, most people had available to them $100,000," notes Wagman. "If this replaces the MIG, the majority of people will be caught up in this and will find that their benefits have been reduced by 99 per cent in five years." He estimates that the changes would affect roughly 60,000 Ontarians every single year. LT FOCUS Adam Wagman criticizes lack of broad con- sultation on new proposals. E. V. Litigation & Financial Services Inc. Elaine G. 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