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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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