Posts Tagged ‘MIG’
The Financial Services Commission of Ontario (FSCO) has released two bulletins with new forms to be used for accident benefits claims, effective November 1, 2014.
The new forms include the Application for Accident Benefits (OCF-1), Treatment and Assessment Plan (OCF-18), Auto Insurance Standard Invoice (OCF-21) and the Treatment Confirmation Form (OCF-23).
In a bulletin released by FSCO it was indicated that the reason for these changes is “to improve transparency and clarity regarding data analytics and pooling of information to detect fraud. The OCF-23 has also been revised to accommodate Service Provider Licensing.”
These new forms can be downloaded at the links below:
The Financial Services Commission of Ontario (FSCO) has released a revised Minor Injury Guideline (MIG) as well as a revised Treatment and Assessment Plan (OCF-18). Both of these become effective February 1, 2014.
These revisions reflect the changes to be made to the Statutory Accident Benefits Schedule (SABS) on February 1, 2014.
To access the FSCO Bulletin, as well as the documents, click here.
The Government of Ontario has announced upcoming changes to the Statutory Accident Benefits Schedule (SABS), effective February 1, 2014.
These changes include:
- A requirement that, in order for an insured with a minor injury to be considered outside of the Minor Injury Guidelines, documentation will need to be provided of, “…a pre-existing medical condition that was documented by a health practitioner before the accident…”
- If a “non-professional” is providing attendant care, the amount payable by the insurer will be limited to the actual amount of the economic loss sustained.
- Disallowing an insured to re-elect to a new benefit (income replacement, non-earner or caregiver) regardless of any change in circumstances.
The amendment can be reviewed in its entirety by clicking here.
The Government of Ontario has filed regulations governing health care clinics and assessment centres who provide services paid for by automobile insurers.
The following was reported on Willie Handler’s Blog this morning. Mr. Handler formerly worked in auto insurance regulatory policy for the Ontario government.
The Ontario Government filed new regulations as part of the process to eventually license health care clinics and assessment centres operating in the auto insurance sector. The regulations cover a public registry of licenced facilities (Regulation 350/13), licensing of providers (Regulation 348/13) and requirements of the principle representative of each licensed facility (Regulation 349/13). The report recommending a licensing system was made by the Automobile Insurance Anti-Fraud Task Force in 2012.
The public register of licensed and former licensed service provider’s licence to be maintained must contain the following information about each licensee and former licensee:
1. The name in which the service.
2. The licence number.
3. The licensee’s mailing address in Ontario.
4. The date on which the licence was issued.
5. Whether the licence is in good standing or is suspended.
6. Any conditions that apply to the licence.
7. Any periods of time during which the licence was suspended.
8. Any periods of time during which the licence was revoked.
9. The name of the licensee’s principal representative.
10. The address of every facility, branch or location in Ontario of the licensee.
Eligibility criteria for facilities
A service provider’s licence may be issued to an applicant if all of the following requirements relating to the applicant’s business systems and practices and the management of its operations are satisfied:
1. The applicant has a mailing address in Ontario that is not a post office box.
2. The applicant has an email address.
3. The application includes the particulars of the individual to be designated as the service provider’s principal representative.
4. The principal representative has provided an attestation on the applicant’s behalf relating to the applicant and the application and relating to the applicant’s compliance with the Act.
5. The application includes the particulars of each facility, branch or location in Ontario that the applicant operates or intends to operate.
6. The applicant must agree to bill insurance companies through HCAI.
In determining whether an applicant is not suitable to hold a service provider’s licence, the Superintendent is required to have regard to the following circumstances:
1. Based on past conduct of the applicant, there are reasonable grounds for the belief that the applicant will not carry out in accordance with the law or with integrity and honesty the completion or submission to an insurer, reports, forms, plans, invoices or other documentation or information authorized under the SABS.
2. Whether, having regard to the past conduct of any of the following persons, there are reasonable grounds for the belief that the applicant’s business systems and practices and the management of its operations will not be carried on in accordance with the law or with integrity and honesty:
- The applicant.
- If the applicant is a corporation, a director, officer or shareholder of the corporation.
- If the applicant is a partnership, a partner of the partnership.
- If the applicant is a sole proprietorship, the sole proprietor.
- The person to be designated as the applicant’s principal representative.
- An employee, agent or contractor of the applicant.
3. Based on past conduct, there are reasonable grounds for the belief that the applicant’s business systems and practices and the management of its operations will not be carried on in accordance with the law or with integrity and honesty.
4. Whether anyone associated with the business is engaged in a business or undertaking that would jeopardize the applicant’s integrity and honesty in relation to the applicant’s business.
5. Whether anyone associated with the business has made a false statement or has provided false or deceptive information to the Superintendent, with respect to the application for a licence, or in response to a request for information by the Superintendent.
Eligibility criteria for principal representatives
An individual who satisfies the following criteria is eligible to be designated by a licensed service provider as its principal representative:
1. The individual has the following status in relation to the licensee:
- If the licensee is a corporation, he or she is a director or officer of the corporation.
- If the licensee is a partnership, other than a limited partnership, he or she is a partner.
- If the licensee is a limited partnership, he or she is a general partner or a director or officer of a corporation that is a general partner.
- If the licensee is a sole proprietorship, he or she is the sole proprietor.
- If the licensee is not a corporation, a partnership or a sole proprietorship, he or she is responsible for the day-to-day control and management of the licensee.
2. The individual has the authority to make decisions on behalf of the licensee with respect to matters related to the licence and matters related to the licensee’s compliance with the Act and to communicate with the Superintendent about those matters.
3. The individual has the authority to exercise the powers and perform the duties described above.
Powers and duties of principal representatives
1. Take reasonable steps to ensure that the licensee complies with the Act.
2. Take reasonable steps to ensure that the licensee’s business systems and practices and the management of the licensee’s operations are carried on in accordance with the law and with integrity and honesty.
3. Ensure that the licensee takes reasonable steps to deal with any contravention of the Act.
4. Make recommendations to the licensee regarding changes in its business systems and practices and the management of its operations, as necessary, to ensure that these standards are achieved.
5. Take reasonable steps to ensure that a system of supervision is in place to ensure that these standards are achieved.
6. Provide such attestations on the licensee’s behalf relating to the licensee and relating to its compliance with the Act, as may be required by the Superintendent and within the time required by the Superintendent.
The Financial Services Commission of Ontario has allowed the appeal of a previous arbitration decision with respect to the Minor Injuries Guidelines (MIG).
In the appeal decision Scarlett and Belair Insurance [FSCO P13-00014] Director’s Delegate David Evans allowed the appeal of the earlier decision by Arbitrator Wilson. Our original blog post on this decision can be referenced by clicking here.
Director’s Delegate Evans has ordered that all issues be subject to a full hearing before another arbitrator.
This appeal decision provides a few glimpses of what is likely to come from a new arbitration hearing with respect to the Minor Injury Guidelines:
- The dominant test of whether a person falls into the MIG is if the injury was predominantly a minor injury;
- The burden of proof always rests on the insured, not the insurer, of proving that he or she fits within the scope of coverage;
- “Compelling evidence” is more than “credible evidence”; and
- The MIG is binding and is not only advisory.
The Director’s Delegate also noted that the arbitrator’s decision breached procedural fairness by raising cases and statutory provisions of his own accord after the arbitration hearing without providing notice to the parties or an opportunity to respond.
FSCO Releases Decision Clarifying What Is a “Medical Reason” for Denial of a Benefit and Insurer’s Examination
The Financial Services Commission of Ontario (FSCO) has released a decision clarifying what is considered to be a “medical reason” for an insurer to deny a benefit and for the insurer to demand that an insured attend an insurer’s examination under Section 44 of the Statutory Accident Benefits Schedule (SABS).
In the decision, Kadian Augustin and Unifund Assurance Company [FSCO A12-000452] Arbitrator Susan Sapin considers whether or not Ms. Augustin is allowed to dispute the insurer’s denial of treatment because she failed to attend an insurer’s examination. In order to make a determination Arbitrator Sapin needed to consider whether or not the insurer’s examination was compliant with the SABS.
Unifund wanted to send Ms. Augustin to an insurer’s examination to determine if she was within the Minor Injury Group (MIG) after receiving a treatment plan that, if approved, would take her out of the MIG. Unifund provided the following notice to Ms. Augustin in their Explanation of Benefits: “Based on our review of the medical documentation provided to date, we require an assessment by an independent medical assessor, in order to determine if your impairment is predominantly a minor injury as described in the Minor Injury Guideline. Please see the Notice of Examination for further details.”
Arbitrator Sapin found that this explanation did not comply with Section 38(8) of the SABS because it did not state that Unifund “believes” the MIG applies, or why. Nor did it state the “medical reasons and all of the other reasons why the insurer considers any goods or services, or the proposed costs of them, not to be reasonable and necessary. The arbitrator noted that it provided no reason, medical or otherwise, explaining why it refused to pay the benefit.
Arbitrator Sapin goes on to explain,
Although this might seem a very fine point, that is what the sections [38(8), 38(9) and 38(10)] actually say. The legislature chose this wording, and recognised principles of statutory interpretation require me to interpret it in a reasonable fashion and in the overall context of the accident benefits scheme. Given that an insured person’s treating practitioner must provide a factually based medical opinion to support a claim for treatment outside the MIG, I find it is reasonable to require an insurer who chooses to refuse to pay an initial claim to counter with something more than simply a desire “to determine if your impairment is predominantly a minor injury as described in the Minor Injury Guideline,” as Unifund has done in this case. This is particularly so where, as in the case here, Unifund refused to pay for the treatment pending an IE, a response I find undermines the stated purpose of the MIG to provide access to early treatment, a purpose based on sound medical principles.
The arbitrator also provides a guideline for insurers for a proper denial of an application for a benefit that would take the insured out of the MIG as follows:
I find it follows logically from these requirements that in its s. 38(8) notice to the insured person that medical benefits will not be paid, the insurer, in explaining why the benefits are not payable, must indicate that it has reviewed the Treatment and Assessment Plan and any medical documentation provided; compared it to the criteria in the MIG; and determined either that there is insufficient compelling evidence (of pre-existing injuries or conditions, for example) or insufficient medical documentation to persuade it that the accident injuries fall outside of the MIG, and therefore, the insurer believes the MIG applies and the treatment claimed is not reasonable or necessary (because the treatment does not conform to the MIG treatment protocols, for example). I find that type of response would meet the insurer’s obligation to provide “medical reasons” as required by s. 38(8) when it chooses to refuse benefits because it believes the MIG applies.
Also of note is the arbitrator’s distinction between a “medical reason” and a “medical opinion”:
A medical opinion, such as that required of the health practitioner who submits the Treatment and Assessment Plan, is based on facts obtained from an assessment of the insured person’s medical condition, in person or otherwise. As stated above, an insurer does not have the benefit of its own medical opinion at the time it receives the initial treatment plan, and can only obtain one by exercising its right to an IE, founded in s. 38(10), and for which rules are set out in s. 44(5).
With respect to the need for a medical reason to be provided by an insurer when notifying the insured for their need to attend an insurer’s examination under Section 44 of the SABS, Arbitrator Sapin states as follows:
As stated above, I find s. 38 and s. 44 must be read together, as the right to an IE is founded in s. 38(10) and arises from the insurer’s right under s. 38(8) to refuse a claim for treatment. I have already identified that the “medical reasons and all of the other reasons” in the refusal notice should include, at a minimum, a statement that the claims adjuster has reviewed the MIG and the treating health practitioner’s medical opinion, and has concluded that the health practitioner has not provided compelling evidence that the person’s injuries are outside the MIG, or that the treatment claimed is reasonable or necessary. The “medical and other reasons for the examination” in the Notice of Examination under s. 44(5) should contain substantially similar information.
This decision can be read in its entirety by clicking here.
Smitiuch Injury Law’s own Michael Smitiuch is quoted in the latest issue of the Law Times in an article addressing the provincial government’s call for a 15% reduction in auto insurance rates.
He notes that the planned cuts are modest compared with the reductions in available benefits since 2010. “Fifteen per cent is certainly not too much. For Ontario consumers since 2010, benefits have been severely restricted, but the majority of claimants are still paying the same premiums. It’s like they’re still paying for a full tank of gas except now they only get it filled up halfway.”
You can read the article in its entirety by clicking here.
Smitiuch Injury Law is pleased to host its annual seminar, entitled “Accident Benefits: Practical Issues for Health Care Professionals.” It will be held on Wednesday, September 25, 2013 at the Brantford Golf and Country Club.
The keynote topic at this year’s seminar will be on “Living With and Caring for an ABI Survivor – A Mother’s Perspective”. Bernie Perry, the mother of an acquired brain injury survivor, will identify the struggles and successes she has experienced in her daughter’s recovery and rehabilitation. Bernie will be accompanied by her case manager, Jody Abbot and Dr. Diana Velikonja, a clinical neuropsychologist at Storrie, Velikonja and Associates in Burlington.
The afternoon will also provide an update on the latest news and case law in Ontario Accident Benefits, followed by an open forum with an expert panel to answer participant’s questions. The expert panel will be composed of Ms. Heather Driver (Financial Services Commission), Tamara Forbes (Forbes Health Management), Anna-Marie Musson (Miller Thomson) and Chris Jackson (Smitiuch Injury Law).
The afternoon will begin with registration and lunch at 11:30 a.m. and will end with a cocktail reception and social at approximately 3:30 p.m.
This event is 100% complimentary.
If you wish to attend please RSVP no later than September 18, 2013 by calling 519-754-1558 or by email to [email protected].
A copy of the invitation can be accessed by clicking here.
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.
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.