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Posts Tagged ‘medical’

First MIG Decision Released by FSCO

The Financial Services Commission of Ontario (FSCO) has released the very first decision with respect to injuries that fall within the Minor Injury Guidelines (MIG).

In Lenworth Scarlett and Belair Insurance Company Inc. [FSCO A12-001079], Arbitrator John Wilson has provided clarification regarding what injuries subject an insured person to a maximum of $3,500.00 in medical and rehabilitation benefits.

While Mr. Scarlett suffered soft-tissue (whiplash) injuries in his motor vehicle accident, he was also diagnosed with Temporal Mandibular Joint Syndrome, as well as psychological issues.  Despite the provision of documentation that supported injuries beyond those subject to the MIG, Belair maintained its position that he was subject to the MIG limits for accident benefits.  As Arbitrator Wilson pointed out, “In essence, Mr. Scarlett’s attempts to claim certain benefits from Belair were being rebuffed because Belair took the position that he was within the MIG and either the benefits were not payable or they were in excess of what was required to be paid under that approach.  This appeared to be a major stumbling block since, even when Mr. Scarlett provided further evidence of complicating features of his claim that in his mind took it outside of the MIG framework, he was met with the same response.”

Arbitrator Wilson outlined the critical elements of the MIG as follows:

  • Persons who suffer minor injuries (as defined) should be treated appropriately, with early, quick and limited intervention to assist in recovery.
  • The decision or not to treat an insured either within the Minor Injury Guideline or not should be made on the basis of credible medical evidence and not on speculation.
  • Even those persons who otherwise might be within the MIG can be treated outside of theGuideline if there is credible medical evidence that a pre-existing condition will prevent the insured person from achieving maximal recovery from the minor injury.

Arbitrator Wilson then goes on to determine that the onus is on the insurer, not the insured, with respect to determination of a person’s injuries falling within the MIG.  He states, “I accept that in the absence of clear legislative direction that would override the existing jurisprudence as to burden of proof, it remains the Insurer’s burden to prove any exception to or limitation of coverage on the civil balance of probabilities.”

The Arbitrator concludes his decision as follows:

The insurer is in effect mandated to make an early determination of an insured’s entitlement to treatment beyond the MIG.  In essence, because of the necessarily early stage of the claim when the MIG is applied, the determination must be an interim one, one that is open to review as more information becomes available.

What is not is the “cookie cutter” application of an expense limit in every case where there is a soft tissue injury present.  Such does not respond either to the spirit of the accident benefits system or the policy enunciated in the Guideline of getting treatment to those in need early in the claims process.

While it is quite possible that the majority of claimants can be accommodated within the MIG, averages are misleading when applied to individual cases.  Each case merits an open-minded assessment, and an acceptance that some injuries can be complex even when there are soft tissue injuries present amongst the constellation of injuries arising from an accident.

 

Ontario Government Announces Specifics of Regulatory Changes to Combat Auto Insurance Fraud

The Ontario Government has made public the regulatory changes that will be made to help combat automobile insurance fraud in the province.  All changes are scheduled to come into effect on June 1, 2013.

The following changes will be in effect for the Statutory Accident Benefits Schedule (SABS):

  • The insurer is bound to pay only to the maximum rates established under the Guidelines for all medical and rehabilitation benefits, except for transportation.
  • The insurer is allowed to have an additional Examination Under Oath of an claimant for the purpose of determining the priority of accident benefits insurers.
  • An insurer will be required to give all reasons, not just a medical reason, for denying a medical or rehabilitation benefit.
  • The insurer can demand:
    • Confirmation in writing that the goods or services were provided to the insured person, and/or
    • A statutory declaration as to the circumstances that gave rise to the invoice.
    • This information must be provided within 10 business days after receiving the request; and
    • An invoice is not overdue and no interest accrues on it during any period during with the insured person has not provided the information within the above timeframe.
  • While the insurer is still obligated to provide regular statements to the insured as to what has been paid out on a claim, they may be required to provide additional information if the Superintendent approves a benefit statement form.

The following changes will be in effect for the Unfair or Deceptive Acts or Practices statute:

  • It will be a deceptive act or practice for anyone other than a lawyer or paralegal to require, request or permit a person to sign a blank OCF form.

The legal reference for these changes are O.Reg 14/13, O.Reg 15/13, O.Reg 16/13.

Anti-Fraud Task Force Issues its Final Report

The Ontario Automobile Insurance Anti-Fraud Task Force Steering Committee has released its Final Report to the Minister of Finance.

The Committee makes several recommendations, including:

  • The formation of an Anti-Fraud Awareness Implementation Group;
  • Require insurers to disclose publicly how they choose and assess the performance of businesses and professionals they recommend to consumers or refer them to see, such as independent medical examiners;
  • Require insurers to ensure their public information on how consumers may register a complaint is simple to understand and easy to locate;
  • The government should reduce uncertainty and delay for those who have legitimate auto insurance claims;
  • Implement a province-wide licensing scheme for the towing industry;
  • Collect information about towing expenses to facilitate analysis of relationships between tow operators, collision repair facilities and health care clinics;
  • Take steps to reduce unreasonable storage costs for vehicles damaged in a collision;
  • Permit insurers to collect a cancellation fee from claimants who fail to attend a medical examination at the agreed time, without reasonable notice or explanation;
  • Insurers should move aggressively to establish an organization that would pool and analyse claims data to identify potential cases of organized or premeditated fraud;
  • Require the licensing of health clinics that treat and assess auto insurance claimants and empower FSCO to regulate their business practices, as well as oversee and audit the business and billing practices;
  • Additional powers for FSCO to conduct fraud investigation and enforcement;
  • Require claimants to confirm attendance at treatment facilities and receipt of goods and services billed to insurers;
  • Require insurers to itemize the list of invoices they have received when they provide a benefit statement to a claimant every two months;
  • Allow insurers to suspend income replacement benefits when there is compelling evidence the claimant has submitted a fraudulent claim in conjunction with an effective, timely and robust dispute resolution system; and
  • Health regulatory colleges should enhance their understanding of the consequences associated with fraud and ensure that complaints are investigated and lead to disciplinary action where appropriate, as well as develop professional standards, guidelines and best practices to improve the quality of independent medical assessments of auto insurance claimants conducted by their members.

The entire report can be read by clicking here.

Health Care Professionals: Be sure to use new HCAI Forms starting on November 1, 2012

The Financial Services Commission of Ontario (FSCO) has released a new Assessment and Treatment Plan (OCF-18) form, a new Treatment Confirmation Form (OCF-23) and a new Auto Insurance Standard Invoice (OCF-21) for use effective November 1, 2012.  Older versions of these forms will not be allowed as of that date.

You can download these new forms directly from our website by clicking on the links below:

OCF18-2012

OCF21 – 2012

OCF23 – 2012

Ontario Court of Appeal Rules on Pastore Decision in Favour of Claimants

A major decision with respect to the definition of “catastrophic” under the Statutory Accident Benefits Schedule was released by the Ontario Court of Appeal today.

It its decision, Pastore v. Aviva Canada [2012 ONCA 642], the Court has supported the findings of the Director’s Delegate at the Financial Services of Ontario, who decided that only one functional impairment due to a mental or behavioural disorder at the marked level is necessary to declare a person’s injuries as catastrophic.  Furthermore, the decision supports that a marked psychological impairment caused by physical pain is valid for the purpose of determining a catastrophic impairment.

The decision can be read in its entirety by clicking here. Pastore Appeal

 

Anti-Fraud Task Force Steering Committee is Seeking Public Comment

The Ontario Auto Insurance Anti-Fraud Task Force Steering committee is seeking public input on a number of potential recommendations prior to their final report in the fall of 2012.

These recommendations include:

  • Regulation of health clinics
  • Regulation of the towing industry
  • Enhanced authority for FSCO to regulate the business practices of health care treatment and assessment facilities
  • Tightened controls on the delivery of Accident Benefits, including requiring the patient’s signature on invoices before they are submitted, a second Examination under Oath, and billing claimants $500 if the claimant fails to attend an insurer’s examination.  Also being considered is requiring insurers to provide itemized statements to claimants every 60 days
  • Amending the consent provisions of the auto insurance applications to provide greater certainty about the ability to share information for the purpose of detecting and preventing fraud.
  • Provide insurers with broader civil immunity to protect them from lawsuits for reporting suspicious behaviour to regulators and the police
  • A website devoted to informing those injured in motor vehicle accidents about accident benefits and how to detect and report suspicious or inappropriate behaviour
  • Mandatory disclosure by insurance companies to the public about how they select and supervise their preferred providers of services – including independent medical examinations
  • For FSCO to hire appropriate staff and resources to carry-out these recommendations

The entire update can be read by clicking here.

Ontario Court of Appeal: It is possible to work and be entitled to a Non-Earner Benefit

A recent Ontario Court of Appeal ruling confirmed that it is possible for someone injured in a motor vehicle accident to work but still be entitled to a Non-Earner Benefit.

In the decision, Galdamez v. Allstate Insurance Company of Canada [2012 ONCA 508], Hayfa Galdamez returned to work shortly after her accident.  Because of this, Allstate took the position that she was not entitled to income replacement benefits.  However, even though she was able to work, her medical professionals were of the opinion that she met the test for a non-earner benefit; namely, that she suffered a complete inability to carry on a normal life.

It has been well established in case law that entitlement to a non-earner benefit goes beyond the ability to simply go through the motions of everyday life.

The Court stated the following:

[43] Although I consider it unlikely that persons who can work at their pre-accident jobs following an accident will often meet the disability standard for non-earner benefits, I do not rule out such a possibility.

[44] For example, in jobs where mobility is not a requirement (e.g. department store greeter, telemarketer, etc.) and the job was not of great importance in the claimant’s pre-accident life, it may be possible for a claimant who returns to his or her pre-accident employment following an accident to satisfy the test for non-earner benefits.

This decision can be read in its entirety by clicking here.

FSCO Awards MIG Protocol Contract

Dr. Pierre Côté has been awarded the consulting contract by the Financial Services Commission of Ontario (FSCO) to develop the Minor Injury Protocol.  Dr. Côté is Associate Professor, Dalla Lana School of Public Health, at the University of Toronto.

According to the FSCO website, “Scientists and other experts will contribute to the development of an evidence-based Minor Injury Treatment Protocol (MITP) that will form the basis of a new Minor Injury Guideline.  The protocol will be used by insurers and health care providers when treating minor injuries resulting from automobile accidents and ensure that there is an extensive continuum of care based on current and scientific and medical evidence.  The MITP will include clinical prediction rules to screen for patients who may be at higher risk for developing chronic pain and disability. In addition, it will focus on treatment outcomes and provide health care providers with numerous milestones that could be used to measure progress.”
No details with regard to timelines for the protocol were released.

Health Care Providers: Congratulations, You’re Getting A Raise!

The Finanacial Services Commission of Ontario (FSCO) has released the 2012 Professional Fee Guidelines.

According to the FSCO website, the revised guideline increases the maximum hourly rates by 2.9 per cent.  This increase is based on the 2011 Consumer Price Index (CPI) and applies to services rendered on or after July 14, 2012.

You can read a copy of these guidelines by clicking on the line below.

2012 FSCO Fee Guidelines

Michael Smitiuch Quoted Again in the Financial Post

Smitiuch Injury Law’s Principal, Michael Smitiuch, has been quoted again by the Financial Post in an article regarding misrepresentation on insurance policies.

You can read the Financial Post article by clicking here.

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