‘FAIR – supporting auto accident victims through advocacy and education’
The Health Care Professionals
Understanding your Rights for Assessment and Treatmentby Julie Entwistle, Occupational Therapist
In the world of auto insurance, access to health professionals takes two forms. There are the ones that you hire to provide you with rehabilitation and treatment services, and the ones that your insurer will hire to complete medical assessments. While both are integral to the way the insurance system needs to operate, neither is perfect.
On the treatment side, you may encounter rehabilitation professionals in the hospital, your doctor may recommend a clinic or you might attend a clinic that is down the street, or that you found on the internet or attended previously. If you have a lawyer they will often try to direct your rehabilitation referring you to people they know and trust, sometimes paying for the assessments and treatments themselves. If you are not represented, and your insurer recognizes your need for services, they may arrange for a clinician from their roster to assist you with your benefit application and / or equipment needs. In some cases, we even hear of tow-truck drivers recommending clinics or even dropping people off at a facility directly from the accident scene!
The key thing to remember with treatment is that as a client you always have choice. You can decline rehabilitation at any time, or can refuse to be involved with certain people or places, and it is absolutely within your right to do so. This is true regardless of how you came to meet the treating providers. In the hospital you can decline to work with any professional that you don’t feel is meeting your needs as a client. You don’t need to attend the clinic your doctor recommends as sometimes the doctor co-owns the clinic (common with orthopedic surgeons) and there might be another spot more convenient for you or that provides better service. While the place you went before was decent then, if your situation has changed, they may no longer be able to meet your needs. The professionals hired by the insurer are not always going to see the big picture as the insurer often tries to dictate their role. Sometimes lawyers hire professionals that will help them with the lawsuit, but the treatment, services and costs could be better elsewhere. And as for tow-truck drivers, they often receive a substantial kick-back for their referrals so you are best to just not trust them.
There are many ways to deal with a bad treatment situation. First of all, do not sign forms that have not been explained to you, where costs seem excessive, or that are blank. If you don’t understand the forms or process, and the treating provider is not being patient in explaining these, or is pressuring you, this is not a place that will put your needs first. Secondly, consider that all treating providers need consent to provide services, including your permission about where your records are sent. You can withdraw this consent at any time either verbally or in writing. If your lawyer has connected you to people that you do not feel are meeting your needs, speak with him or her, outline your concerns, and if your lawyer is not supportive then consider replacing them too. Lastly, understand that most health care professionals in Ontario, and all professionals that can sign and submit forms in auto insurance, are regulated by a governing body. If you feel you have been mistreated, or fear the provider has violated codes of ethics or practice standards, you can file a complaint to their regulatory College to have their conduct reviewed and reprimanded if appropriate. The key here is that rehabilitation is about you and what you need. If you have concerns, you have options and need to be proactive in directing your own care.
The assessment side of auto insurance is another ballgame. These are the professionals that are brought in by an insurer that wants to challenge your benefits or treatment needs. As the claimant you have little choice in when or how this happens, and if you don’t participate then your benefits and treatment are suspended until you do. Now, it is recognized that insurers are not to abuse their fiduciary power here by assessing you for everything you request or need, but with all the talk of fraud, insurers seem to have a hard time believing that some people are actually injured. If you are subject to an “insurance examination” you can expect the professional to be looking at your situation from an insurance lens, often trying to find ways to negate your needs. These assessments are often short, sterile, and the assessor often leaves you in the dark about their thoughts or opinions. Sometimes they are not qualified to assess you for the problems you have, but it would be difficult for you to know this at the time.
The best way to handle the insurance assessment process is to be proactive. Make sure you are working with treating professionals that are not being excessive or unreasonable. If your need for a benefit drops, be honest about this and ask your treating providers to reflect this in their notes. If you are motivated to return to work and / or your other regular activities then your insurer will not necessarily challenge your requests.
But, even with these strategies, some insurance companies have a culture of over-assessment, over-deny, and can over-abuse their power. So, if the assessment is going to happen anyway, there are some other things you can do to try and make the most of this. First, ask the insurer to forward you a copy of the assessor’s CV or resume. Read this over and see if this person appears qualified to assess you given your situation. If you have concerns, voice these to your insurer and ask for someone with more experience in your areas of difficulty (be it brain injury, chronic pain, mental health etc.). Your insurer may not honor your request, but at least you have outlined your concerns. After the assessment, read the report thoroughly and highlight any errors or mistakes. Send your insurer (or lawyer) a document outlining the discrepancies and ask for these to be corrected or clarified. Provide copies of the reports to your treating team if applicable and ask them also to review these and render a response. And, as a final option, if the assessment and report is wrong, harmful, or just plain negligent, consider again that these professionals have a regulatory body that is responsible for monitoring their practice. File a complaint to their College, highlighting your concerns with their assessment, the errors in their findings or report, and perhaps even their lack of experience in your area of difficulty if appropriate.
In the end, remember YOU are the client and YOU are entitled to health care services that are competent, respectful, and thorough. You have choices and options and need to take a proactive role in directing your own care, being firm about who treats you, and managing the aftermath of a poor assessment.
Regulated Health Professions Act, 1991 S.O. 1991, CHAPTER 18 https://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_91r18_e.htm
How to Resolve a Complaint about Billing Practices in the Service Providers Sector Service providers providing goods and services under the Statutory Accident Benefits Schedule (SABS) are typically health and rehabilitation clinics, and providers of examinations and assessments. http://www.fsco.gov.on.ca/en/service-providers/Pages/how-to-resolve-a-complaint.aspx
Insurance Act ONTARIO REGULATION 34/10 STATUTORY ACCIDENT BENEFITS SCHEDULE — EFFECTIVE SEPTEMBER 1, 2010 – section 44 https://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_100034_e.htm#BK61
REGULATED HEALTH PROFESSIONS – list of 21 Colleges and links http://www.regulatedhealthprofessions.on.ca/CONTACTUS/default.asp
FAIR does not accept responsibility for comments, opinions, statistical information etc. associated with the links listed below. Any opinions, points of view, etc. are not necessarily shared by FAIR.
Every year 50,000 Canadians sustain brain injuries. The World Health Organization estimates that 90% of Traumatic Brain Injuries are mild, 5% are moderate and 3% are severe therefore a small percentage of the brain injuries that occur every day in this country fall into the moderate to severe category. Following the acute hospitalization and in-patient care phase, most of the individuals who sustain these injuries will require further intensive rehabilitation to regain the skills essential to living with independence, returning to productivity, meaningful activities and maintaining healthy relationships with family, friends and the community. By Colleen Boyce, Executive Director, Neurologic Rehabilitation Institute of Ontario (NRIO) and Christina Versteeg, Clinical Coordinator, Paradigm Rehabilitation and Nursing Services.
Allevio Healthcare Inc. v Kirsh et al., 2015 ONSC 4539 (CanLII)
Kisel v. Intact Insurance Company, 2014 ONSC 4787 (CanLII)
 Intact’s explanation for its default has more impudence than excuse. As long as it took Intact’s lawyer to send letters explaining that Intact would ignore the Plaintiffs’ warnings and dismissing the Plaintiffs’ interpretation of the Hold Harmless Agreement, it would have been far quicker to deliver a Statement of Defence with the attendant enormous saving of the wasted time and expense to the parties and to the administration of justice that has produced the procedural train wreck of the actions at bar.
 In my opinion, Intact should stop using the Plaintiffs as pawns in its dispute with the service providers, honour the Hold Harmless Agreement, pay the judgments, and find another way to take its litigate with Osler Rehabilitation Centre and Assessment Direct.
 Intact alleges that Osler Rehabilitation and Assessment Direct began to submit excessive claims for payments for treatments. In this regard, it may be noted that in May 2012, the Financial Services Commission of Ontario (“FSCO”) charged Assessment Direct with knowingly making false or misleading statements to an auto insurer to obtain payment for services provided to an insured and for engaging in an unfair or deceptive trade practice.
 On January 31, 2013, Intact and Mr. Bijelic and Ms. Kisel entered into a partial settlement of all accident benefits with the sole exception of the outstanding accounts of Osler Rehabilitation Centre and Assessment Direct Inc., the liability for which was to be arbitrated.
 The disputed amounts for Osler Rehabilitation were $39,590.33 for Mr. Bijelic and $41,858.12 for Ms. Kisel, and the disputed amounts for Assessment Direct were $20,847.01 for Mr. Bijelic and $25,763.50 for Ms. Kisel.
 Intact would have suffered no prejudice by delivering the Defence that it knew it had from the outset. Intact’s real foe is not the Plaintiffs, whom it had agreed to hold harmless, but the foe is Assessment Direct and Osler Rehabilitation. By the court refusing to set aside the default judgment and the noting in default, Intact still has its action against the service providers and wants only for having the assistance of the 75-year old Ms. Kisel and the 87-year old Mr. Bijelic, who are just pawns in a dispute not of their making.
ST v SB, 2014 CanLII 85 (ON HPARB) 2014-01-08 http://canlii.ca/t/g2hz1
5. On October 1, 2007, the Applicant signed an authorization form with the clinic for each of his three children. This authorization form was to cover services for treatment of injuries sustained in the motor vehicle accident. It authorized the Respondent’s clinic to deal with the insurer (State Farm Insurance), their legal representatives and the “Ontario Insurance Commission” with regard to the clinic services provided to the children. The authorization form also instructed the insurer and legal representative to deduct “the amount of the claim” from any eventual claim settlement of the motor vehicle accident with a cheque to be payable to the clinic. The last line of the authorization was as follows, “I understand that the above services provider [the Pain Rehabilitation Clinic] is providing this assistance without charge to me.”
6. During the course of treatment, there were issues with the insurance company’s approval of the treatment plans and the insurance company decided to deny insurance coverage for the chiropractic treatment.
8. In March 2010, the Respondent’s clinic sent the Applicant’s lawyer, who was representing him in the motor vehicle accident matter, statements of account for the Applicant and each of the children. The accounts were not broken down per visit. Lump sum amounts were provided per patient. For one child, the amount owing was set out as $9,200 plus interest of $2,054.61; the second was for $11,353 plus interest of $3,464.22; and the third was for $10,011 plus interest of $1,636.83. There was also an amount billed for the Applicant’s treatment.
The Complaint and the Response
15. The Applicant stated that his complaints regarding the Respondent’s services to his three children from October 2007 to August 2009 were as follows:
• They had not received any detailed invoices from the Respondent’s clinic showing the type of treatments, the days that the [children] received treatment, and the charge for the treatments. The Respondent’s clinic just sent them the totals outstanding;
• They never knew the fee for each service. There was no agreement that if State Farm Insurance denied payment for treatments, the Applicant was to pay for the services received;
• The only billing the Applicant and his children have from the Respondent’s clinic is the fax of February 7, 2012, asking him to pay the outstanding balances for the children.
• Despite the fact that State Farm Insurance did pay the Respondent for the children’s treatments, the Respondent still asked the Applicant to pay extra.
24. At the Review, the Applicant urged that further investigation of his complaint was needed. One of his concerns was that his name and that of his children appeared on a few of the “sign-in sheets” from the Respondent’s clinic for dates that they did not attend at the clinic – and sometimes on dates when he was out of the country. The Board has carefully considered this issue raised by the Applicant and looked at the investigation carried out by the Committee.
25. By letter dated August 14, 2012, the Committee investigator forwarded the Applicant a copy of Respondent’s response to the complaint, including a copy of the clinic records with the sign-in sheets. At the Review, the College representative confirmed that the letter to the Applicant with enclosed records had not been returned to the College, but no further comments were received by the College from the Applicant. The matter then proceeded to the Committee for deliberation.
26. It was only after receiving the Committee’s decision, that the Applicant raised concerns about the validity of the sign-in sheets. Given that the validity of the sign-in sheets had not been raised as an issue before the Committee, the Committee would not be expected to investigate this point.
32. In his submissions to the Board, the Applicant stated that when he first heard that the insurer would not pay for treatment, the clinic told him not to worry, and that the clinic would collect from the insurance company and not from him. The Applicant emphasized that the first billing he received from the clinic was in 2010 for lump sums of close to $10,000 per child with roughly a further 20% for interest, and with the total sum billed, inclusive of his own treatment, being about $60,000.The Applicant submitted that he was not advised as to the basis of this billing and that he did not receive regular account updates when treatments were being carried out.
36. At the Review, there was indication of discussion between the Respondent and the Applicant to the effect that if the Applicant did not pursue a complaint with the College, then the Respondent would not pursue payment for the amount that the clinic had billed the Applicant beyond the $17,500 paid to the clinic when the insurance claim was closed out. From information provided at the Review, it appeared that the Respondent had pursued some collection action for the balance of the account that had been billed by the clinic and that this was linked to the fact that the Applicant had asked the College to continue with the complaint.
37. It is concerning to the Board that a member of the College would use court action or other collection proceedings as a basis to dissuade a party from proceeding with a complaint. This issue was not before the Committee when it considered the complaint. The Board will leave it to the College to determine if any separate measures may be warranted in this regard.
42. The Board is satisfied that the Committee’s decision to caution the Respondent to ensure that the patient understands when he or she is responsible for payment in an insurance situation and to advise a patient on an ongoing basis of an accumulating balance, reasonably addresses the conduct that was the subject matter of the complaint.