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Why we shouldn’t welcome the government’s plan for a ‘Serious Fraud Office’ without questions

The Ontario government has no end to bad ideas to ‘tweak’ auto insurance and over the past 27 years there’s been no end to the hardship all of the these changes have caused for injured car accident victims.

That’s no reason not to consider the latest plan put forth on December 5th by Ontario’s Finance Minister. It’s all part of David Marshall’s Fair Benefits, Fairly Delivered report recommendations to root out the fraud that insurers say are driving up the cost of premiums for Ontario’s drivers.

And who wants fraud, right?

Not accident victims who are often the target of various fraudulent business practices by those who service accident victims. We don’t support fraud.

So when someone wrote in to FAIR to say I didn’t care about the proposed new fraud office I was surprised. In many senses there are just too many things happening all at once to Ontario’s car accident survivors and though FAIR often writes to MPPs and attends consultations, the concerns of MVA victims can get lost when there’s just so many things working against them.

Like most of Ontario’s denied claimants I too was called a fraudster and malingerer. Many times. It pays insurers to malign their customers when we make a claim because if they attack a victim’s credibility often enough it will create heightened scrutiny if we go to court to hold the insurer to account. Insurers can influence the way a trier-of-fact or a jury will see a victim – are they being honest or is the insurer’s denial position the right one.

So, I want to be clear. I care. I cared when I voiced my concerns about creating an unaccountable fraud office in 2012 for FAIR at the Anti-Fraud Task force consultations 5 years ago when the task force first proposed the fraud office that would have unlimited power to investigate and would not be answerable to any oversight.

Here’s what we said in 2012:The establishment of a dedicated fraud investigation unit has been attempted in the past with the IBC (Insurance Bureau of Canada) and the ICPB (Insurance Crime Prevention Bureau). Such a program led to widespread abuse and intimidation of legitimate claimants and was extensively covered by the media. FAIR believes that this is invasive and abusive and will create even greater discord between the policyholder and the insurer. The coupling of a greater ability to share claimant’s personal information with broader civil immunity in the realm of a revamped quasi-police investigatory body without oversight and beyond the reach of the law would create intolerable circumstances for claimants. Claimants who could be abused by their insurer with absolute impunity.” http://www.fairassociation.ca/wp-content/uploads/2013/02/FAIR-Submission-to-Anti-Fraud-Task-Force-Status-Update-August-27-2012.pdf  

I care because in the ’90s when I reported my insurer’s fraud to the ICPB fraud squad I was told they didn’t investigate insurers but my name was on their fraud list. And I was informed that I was also now on Interpol’s list should I consider travelling outside the country. I was floored. And very, very afraid.

A year or so later when the insurer’s medical doctor made use of my manipulated medical file I took the fraud to the OPP who confirmed that it appeared to be fraud when the med/rehab specialist who had defrauded my insurer by way of his fraudulent ‘medical’ reports written from Florida. Unfortunately the OPP could do nothing for me because it was my insurer who had paid for the errant and absent rehab specialist’s reports and so it was only the insurer who could take action. It wasn’t my money that had been spent, so I put it in front of the insurer, who was now the victim of fraud, and surely they’d care, right?

I was forwarded on to the insurer’s Ombudsman. All insurers in Ontario have a company ombudsman dedicated to the individual insurer. Surely they’d care about fraud, after all, it was their money that had been absconded with through the use of fraudulently written reports based on visits that simply did not take place. Not so, because the insurer then wrote an 11 page document that ended up with they intended to do nothing, they felt the rehab consultant had done a good job and they accepted the fraudulent medical reports that stayed in my file throughout the claim.

So I wrote to my MPP, Earnie Eves and the Ontario Attorney General. They’d care, right?

Mr. Eves alerted the Ontario Securities Commission (OIC now FSCO), meetings were had (I was not there), and the Superintendent got involved but eventually it was swept under the rug when it was found that the doctor, whose report was based almost entirely on the absentee rehab specialist’s fake visits, was on the Designated Assessment Center (DAC) subcommittee at the OIC.

So I wrote to CPSO and though it took many months to come up with a ‘confidential’ decision that the doctor had “poor report writing skills” – I was no further ahead, my recovery resources had been denied for some time and the rehab specialist and the insurer doctor were still in business, still harming victims and that just wasn’t right. It didn’t just affect me, I had another injured family member involved.

I thought the Ontario Ombudsman might help. After all, it wasn’t just me who had been defrauded, there were others who were openly complaining about this insurer and how their medical files were being handled. Surely the Ombudsman would take action on fraud and how it plays into the medical file manipulations of insurers.

According to the Ontario Ombudsman they couldn’t take on the complaint while there is an open file at FSCO. I was told I could come back later, when the case was over. So it sounded like they cared about fraud, right?

Wrong. I settled without going to arbitration over the SABs owing to me. I went back to the Ombudsman whose response was that I had settled my claim and my opportunity to voice my concerns had been at the FSCO hearing stage, I had failed to go to a hearing, had failed to make my concerns known and now that my case was settled, they couldn’t help me. Or my family member.

Later on at my family member’s Arbitration hearing the arbitrator refused to accept the report I had prepared about our insurer’s fraud.

Turns out no one cared about fraud. Least of all the insurer whose business model encouraged fraud as long as it benefited them. And that’s exactly why we shouldn’t trust the insurers now.

I never heard back from the Attorney General but I did keep a copy of the registered letter to him and the letter of response from the OPP who examined what I sent them. My family member still  has to counter these undressed fraudulent reports 23 years later at insurer medical exams. Most recently an IME provider suggested in his medical report that the 1999 letter to the Attorney General was used to intimidate him.

It’s extremely concerning that the insurers are in any way involved in setting up this new ‘serious’ fraud office. Especially given what went on in the ’90s when the media pointed out the aggressive and invasive tactics used by the ICPB when they ‘investigated’ Ontario’s accident victims. And the insurer’s fingerprints are all over this latest rendition with more of the same and it will be the accident victim who will be a casualty of the war on fraud once again.

Because through the insurer’s lens, fraud happens only one way, it comes from Ontario’s accident victims and those who care and support them.

The new fraud squad will be a nightmare for claimants – not for the insurers who will happily use it as a tool to intimidate innocent accident victims. In today’s ‘connected’ environment insurers already have access to way more personal information than they should and I have no doubt that the surveillance tools they will use will be all that much more sophisticated, invasive and dangerous.

Will this new fraud office investigate the insurer fraud? It’s unlikely unless this office is truly independent.

The IBC has lobbyists who work hard to influence our elected officials, even at the Federal level where they work on eroding the Charter rights and the privacy rights of accident victims across the country. We shouldn’t be lulled into complacency or believe that insurers have their customers best interests at the heart of what they do – they don’t. And our elected officials are more than willing to help them, and not consumers.

In the future private investigators merely following accident victims around in cars while snapping photos and writing reports that make unqualified medical judgments about victims will look like child’s play. There was a good reason that the Hamilton Spectator’s Steve Buist covered the stories about the ICPB intimidation and aggression toward car accident victims. Big Brother has boots and he’s more than will to use them.

Rhona DesRoches, December 11 2017

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FAIR looks at the road to David Marshall’s ‘Fair Benefits, Fairly Delivered’

April 24, 2017

They say the first step towards recovery is to acknowledge there’s a problem.

David Marshall’s report on auto insurance Fair Benefits, Fairly Delivered does exactly that and in recognizing that the insurance product in Ontario isn’t serving injured accident victims, he’s opened the door to improve the system and recovery outcomes for victims.

Its clear Mr. Marshall listened to what victims told him about the problems they face every day and it’s reflected in the 103 pages of suggestions on where and how to improve the system. Ontario drivers are paying $10 billion a year for coverage and we need to know what we are buying and that it is there when we need it.

It’s hard not to like a report that puts victim recovery as a priority and that recommends cleaning up the flawed medical evidence used in personal injury claims. You can’t have justice when flawed evidence is the driver behind the enormous volume of unpaid claims in Ontario’s court system. Last year we petitioned the government to hold a Public Inquiry into the quality of medical evidence used in Ontario courts and tribunals in respect to both accident victims and WSIB claimants. The Marshall report doesn’t give us the Inquiry we asked for but it does expose the flaws that harm.

What we do know is that Ontario auto insurance cannot continue to function as it is now when so many accident victims have to fight for resources. Mr. Marshall’s recommendations in respect to oversight, both at the FSRA and for the Independent Examination Centers (IEC) are a key to moving forward. Because access to benefits hinges on medical evidence it will be central to success to weed out the bias to improve quality of evidence. We need to ensure there is significant consumer participation in the proposed oversight to prevent insurers from hijacking the system with policies that only work for them.

There will be significant problems going forward with some of the recommendations that rely on the Common Traffic Injury (CTI) guideline; a 2.8 million dollar study that looked at as mere 11 MVA victims for less than 6 months and as a result didn’t provide any data on outcomes. CTI will restrict access to many treatments currently available to victims by slotting them into a box and then streaming them through prescribed treatments regardless of age or individual needs. As a consequence many treatment providers will see themselves in conflict with their college guidelines or with limits on their ability to treat victims.

More issues will arise on the use of hospital settings for the IEC and what that would look like. There’s an important gatekeeper to treatment role here that isn’t consistent with CTI and a significant danger of going down the WSIB style of assessments road. Medical experts for auto insurance are already very likely to be working the WSIB system and that is exactly what we don’t want for accident victims going forward, more of the same denial system that doesn’t serve recovery.

There’s talk about limiting contingency fees for plaintiff lawyers in the report tempered with recognition that “the need to have lawyers involved to negotiate settlements in what should be a straightforward, no-fault, accident benefits system signals a failure in the system.” Though the report doesn’t go as far as to mention Michael Colle’s private member Bill 103, which aims to cap plaintiff contingency fees at 15%, it does raise concern for victims who will encounter access to justice issues with a cap too low.  A 15% cap would mean that we will see lawyers unwilling to represent victims with less serious injuries because there isn’t enough money to manage a case or make a profit. Insurers have no limit on what they can spend defending against a claim while victims who otherwise might not be able to afford a lawyer without a contingency fee arrangement will be hobbled. Shrinking legal resources for accident victims is a win for insurers.

This is not to say we don’t expect tightened regulation and oversight in respect to the current issues surrounding plaintiff lawyers billing practices and referral fees, we do, but we also expect the same oversight for insurer defense lawyer practices and fees in order to prevent an even more slanted claims landscape.

The reality is the new Licensed Appeal Tribunal (LAT) AABS hearing system is awarding zero legal costs to victims who have to chase their insurer to get what they paid for. The LAT is a system where there are no transcripts, mostly in-writing (10 page limit) hearings, and little to no cross-examination of expert witnesses. There is little mention about LAT in the report but it will have to be part of the discussion.

The report suggests that Ontario must make significant structural changes to address the failures rather than tweaking the existing Insurance Act but it includes suggestions for exactly that – more tinkering. There’s a danger there when what we already have is a series of band-aid solutions that consistently favor insurers and we start off the consultations with an Insurance Act no one truly understands. A new Insurance Act may be more work than simplifying what we have but the effort would be worth it in the long run.

Victims see the system quite differently than insurers do. They’d like to get what they paid for. They’d prefer to have their claims adjusted with honest and non-partisan medical evidence and to not ever have to hire a lawyer. They’d prefer not to be made sicker by a complicated system and insurers that bully them. Coverage has been replaced by denying and downloading to the taxpayer. Insurers have created the present system and/or had a hand in all of the auto insurance legislation that leads us to today so insurers need to own it and make changes.

Mr. Marshall acknowledges this when he says “Insurers do carry a share of the blame for their reputation as being difficult to deal with. In a new system the role of insurance companies will also have to change. They must move from an approach of “closing a claim” to actually providing appropriate medical care and income support to injured parties. There is an urgent need to revise and simplify the legislation and current set of regulations and focus on desired outcomes and less on the details of process.”

As taxpayers we should all be concerned at what Ontario’s private for profit auto insurance sector is downloading to our public support system. We are paying private insurers to take care of victims but if they are increasingly ending up on OHIP, welfare or ODSP, why are we paying them? It’s possible that though Mr. Marshall isn’t recommending public auto insurance, some of these recommendations take us steps closer to that line. The June 1, 2016 cuts to coverage was also a step closer to publicly funded coverage because accident victims don’t just disappear when insurers don’t pay, they move to public supports that are often inadequate.

There’s a lot to digest in the report, it suggests a massive change for Ontario auto insurance and we expect that there will be considerable discussion and consultation going forward. We only know we cannot stand still if we expect to improve the system.

There will be further consultation in the months ahead so consumers need to be aware that they too need to put pressure on government and their MPP to create consumer protection for auto insurance. We need to be sure there is coverage we can count on that works for victims, not against them.

Rhona DesRoches

FAIR, Board Chair

How to contact your MPP by phone, email and fax http://www.ontla.on.ca/web/members/member_addresses.do?AddType=QP&locale=en

Fair Benefits Fairly Delivered Recommendations http://www.fin.gov.on.ca/en/autoinsurance/fair-benefits-recommendations.html

Fair Benefits Fairly Delivered Full Report http://www.fin.gov.on.ca/en/autoinsurance/fair-benefits.pdf

Job One for newly appointed auto insurance Czar David Marshall: Public Inquiry into auto insurance claims medical evidence  http://bit.ly/1UCMUn2

CTI report https://www.fsco.gov.on.ca/en/auto/Documents/2015-cti.pdf

Putting the pieces together  http://www.fairassociation.ca/2016/03/putting-the-pieces-together-what-ont-auto-insurers-dont-pay-and-how-it-is-creating-a-crisis/

 

 

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