Changes to Ontario Auto Insurance on the Horizon
Ontario government is looking to implement changes to Automobile Insurance which will affect everyone injured in a motor vehicle accident
This week the Government will be making an announcement with respect to the Marshall Report and which of the recommendations it is proposing be implemented into law. This will be a very significant announcement for many of our clients and as well as existing and future accident benefit claimants.
Note: currently if you are injured in an accident (regardless of fault) you have access through your own insurer to accident benefits. These benefits include medical rehabilitation benefits to pay for costs associated with treatment reasonably required as the result of the injuries suffered in the accident and income replacement benefits if the claimant is unable to work for a period of 7 days following the accident.
The government commissioned a report to examine the current automobile insurance regime and to make recommendations with respect to reform. The current system is extremely expensive and cumbersome. Typically the process is after the accident, claimants are required to complete multiple forms which comprise the “Application for Accident Benefits” in order to establish or initialize their entitlement to these benefits.
Although the consensus would be that it is preferable for claimants injured in accidents to access treatment as soon as possible after the accident to maximize their recovery. Under the current regime there can be numerous systemic delays in claimants being able to access treatment.
It is standard procedure for the Application for Accident Benefits to be mailed to the claimant by their own insurer. This obviously creates an absolutely unnecessary delay. Further completion of the application for accident benefits requires at least two third parties - General Practitioner and Employer to complete forms. The Application is not user friendly with forms being difficult for clients to interpret.
While initially the claimant will have access to treatment up to $3,500.00 (Minor Injury Guideline allotment) at an HCAI licensed facility, after this block is used up it is quite probable that there will be a delay as additional medical information is provided at the expense of the claimant or insurer exams are arranged to assess whether it continues to be appropriate for the claimant‘s injuries to be treated within the framework of the Minor Injury Guideline.
Note the definition of Minor Injury is extremely broad with basically anything falling within the category of “sprain and strain” being treated as falling within the framework of the Minor Injury Guideline. While the regulation contains provisions intended to remove claimants from the Minor Injury Guideline if they have pre-existing medical conditions which could create a barrier to recovery or if they have used up the $3,500 and are in the chronic phase of recovery and have not made an optimal recovery this provision appears to be largely ignored by the insurers. The insurers have also not surprisingly expanded the definition of the Minor Injury Guideline by keeping claimants in the Minor Injury Guideline even when they have impairments that are clearly outside of sprain and strain such as headache complaints or psychological impairments by unilaterally characterizing them as sequalae incidental to a Minor Injury Guideline.
To further complicate matters even if the claimant is being treated outside of the framework of the Minor Injury Guideline every time a treatment plan is submitted it is subject to insurer approval. If the insurer does not agree to fund the treatment plan on the basis that is not reasonable and necessary they must refer the treatment plan to a medical doctor to do an assessment to determine whether the treatment plan is reasonable and necessary. Ordinarily this involves an in person attendance by the claimant. Frequently these assessments are scheduled during work hours and may be in another City. While claimants will be compensated for mileage or provided with transportation to and from the assessment by the insurer they are not compensated for their time or any wage loss associated with missing work.
If the insurer exam does not recommend treatment be approved the claimant‘s only recourse is to submit an application to the Licencing Appeal Tribunal (LAT) for a ruling. This is a process which involves the completion of many forms which will be challenging not to mention time consuming for the average claimant. Although the new LAT was touted as a mechanism that would provide a speedy resolution to disputes this has not in my experience proven to be the case. When the LAT receives an application they are required to adhere to strict timelines in terms of time-frame for insurer response, scheduling a case conference and a hearing it does not appear that following a hearing that there are any time frames. (The two LAT hearings our office did one in writing and one in person are now approaching 4 and 6 months with no decision!)
Under the current regime the insurer has the option of offering a full and final settlement of the claim at any time after the one year mark at which time claimants are usually tired of going to insurer exams and not getting any treatment. A settlement allows them to use treatment providers of their choice even if these treatment providers are not HCAI licensed.
Most significantly the Marshall Report recommends abolishing cash settlements for accident benefit claims. On a first blush this may sound like a good thing - if one is inclined to believe that people are abusing treatment to get settlements. Unfortunately, removing option of a cash settlement will have the consequences of removing lawyers from the picture. This effectively means that claimants, unless they have the resources to fund legal representation privately will have no legal representation to assist them in navigating what is already a complicated accident benefit regime.
Although the Marshall report recommends simplifying some aspects of the accident benefit regime he also recommends limiting access to the dispute resolution process. I firmly believe that without access to lawyers, accident benefit victims will be left very vulnerable if the recommendations in the Marshall report are substantially implemented by the government. While it very well may be that implementing the recommendations from the Marshall report will cut costs so that the government can finally deliver on election promises made to consumers to lower premiums, clearly these costs will ultimately be borne by the relatively few individuals injured in motor vehicle collisions. So if you hear talk in the news about the government making changes to fix a broken automobile insurance system you should be very wary as to what benefits you will be able to access without legal assistance should you have the misfortune to be injured in a motor vehicle collision.
Lisa Morell Kelly - Lisa@morellkelly.com
Morell Kelly Professional Corporation