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Personal Injury Law: Accident-benefit dispute process makes no sense

|Written By Darcy Merkur

It’s a situation that happens way too often. Your personal injury client is seriously injured and needs ample care and rehabilitation. Thankfully, and with effective legal representation, you navigate through all of the red tape, leap over all of the hurdles the accident benefit insurer puts in your way, and things run smoothly until the insurer secures a highly contentious independent medical examination report that leads to crucial treatment and care denials.

Darcy Merkur

The report, often by someone specializing in independent medical examinations rather than treatment, concludes that the care recommended by the treating health practitioner is unnecessary and unreasonable.

What do you do?

You try to persuade the insurance adjuster to reconsider the denial by providing additional medical support for the request and explaining how the report is sloppy and riddled with numerous factual errors. The insurer, however, maintains the denial.

Now what?

You know that any means of disputing the denial could take years to resolve.

You imagine explaining to your client the dispute process in which they’ll have to file for mediation with the Financial Services Commission of Ontario but won’t be able to get a mediation date any time soon. As a result, you tell them they’ll either have to wait until they get a mediation date or wait 60 days and then rely on the now-accepted deemed-failed mediation rule. Only then do they have the privilege of filing for arbitration or litigating in the courts, you tell them. If they take the shorter arbitration route, they can expect to wait more than a year given long lineups resulting from reliance on the deemed-failed mediation rule. Of course, they then have to wait an uncertain length of time for the results of the arbitration all the while knowing that any decision is still subject to appeal.

You consider options to expedite the process or move for interim relief but are conscious of the fact that almost everyone in the dispute queue, including a large number of your clients, have similarly time-sensitive complaints.

The accident benefit dispute process makes no sense. The premise of the no-fault system is immediate access to necessary benefits. A lengthy dispute process to resolve claims for immediate benefits is absurd.

Meanwhile, while the dispute is pending as your client suffers without the treatment.

You can threaten claims for bad faith, mental anguish, special damages, and punitive damages, but the accident-benefit insurer isn’t worried since an independent medical examination report supports the denial.

What we need is a better dispute process that’s more efficient and timely. We need a system that’s accessible without delays that impede a claimant’s recovery.

Developing a new process and gaining support for it will be a challenge and will take time. In the meantime, we need to make independent medical examiners more accountable for sloppy or biased reports and we need to make insurers more accountable for relying on them.

Darcy Merkur is a partner at Thomson Rogers in Toronto practising plaintiff’s personal injury litigation. He has been certified as a specialist in civil litigation by the Law Society of Upper Canada and is the creator of the personal injury damages calculator.

  • PI Enthusiast
    IME Assessors are not family doctors, they do not work in hospitals, and they don't provide physiotherapy or chiropractic treatment to patients. These are doctors who receive referrals from insurance companies and write paper reviews.

    There are definitely bad apples within the treatment provider community but the determination of whether or not a treatment plan is reasonable or necessary do not lie with them but within the hands of the IME Assessors (as AB adjusters rely on their report to approve or deny medical care).

    FSCO has closed down many provider clinics for Insurance Act violations, but what have they done to regulate the IME Assessors? Does anyone know?
  • aliengoo
    The Personal injury lawyer in Ontario has their hands tied with the various limitations. These lawyers take on cases, and finance them. The good ones will be fair, and not get anything less than what their client deserves within legislative limitations. These are heroes, and their peers need to step up, and help ALL legitimate claimants in these mad times where protection has literally disappeared. More frightening, how some doctors are refusing referrals to help certain patients with chronic pain, FM, RSD type illness as a result of an MVA. CPSO has no problem with this discriminatory treatment. If the professionals don't "get involved, "some MVA victims are further distressed, and victimized. The flawed car insurance legislation's negative affect is too far reaching.
  • Mike
    There needs to be a focus or study relating to Insurance industry practices. Insurers time and again know the way out of paying is to put the injured party through the long drawn out process and they play this game effectively. They lobbied and received the OK to cut the accident benefits in half a couple of years ago - The Insurance Brokers Association of Ontario do not even have the common sense to look out for the policy holders. Aside from lawyers, no one else can effectively assist the injured party when the insurance companies bail on them. The process is very flawed..... we have a decent product, too bad the insurers have all the say.
  • Brian
    I can't count the times, over the years, that I've said this assessment system "makes no sense" and is in fact "nonsenical" - sometimes even farcical- only to be ignored and dismissed as "ranting". And now after all these years this headline! So will OTLA say Mr. Merkur's column is an "unsustaniated rant" from the lunatic fringe. Or does this column reflect a new and revised OTLA consensus on the shoddy insurer assessment problem?
  • Victims R Us
    I am glad to read lawyers are trying to advocate more publicly for the car insurer victim.It is baffling how a similar claim would be treated in contrast in many states. Where a successful claimant would be left with critical,quality of life long term support:medical, financial. Instead,Ontario victims unable to return to gainful employment appear to be left in sub poverty given ODSP leaves a single person barely $14000 annually,Punitive,special damages,and bad faith have to be uncapped to acknowledge the distress a victim is truly put through.Previous successful claims should have the opportunity to benefit from any such change.Until then,justice hasn't been received by even successful claimants.
  • Tammy
    A person enters into a contract with the auto insurance company and pays the monthly premium to ensure they will be covered in the unfortunate event of a motor vehicle accident. The Insurers aren't being the safety net they pretend to be when they sell us our policies, this is a breach of contract !

    Maximum potential recovery happens in the first 2 years after the injury is sustained. If legitimate medical, psychological, and emotional supports that are required are denied, accident victims pay with the quality of their lives!
  • Brian
    But which "truth" is the "truth" about these insurer assessments? The contradictory portrayals are mind-numbing. There is Mr. Merkur's take in this column which calls into question the recent letter written by the President of the association of IME/IE insurer vendors saying that all the insurer assessments are of high quality and that all the insurer assessors always abide by all rules and regs governing the Ontario auto insurance domain. Then there is the assertion made not long ago by a top plaintiff lawyer that the claimants are in fact exaggerating symptoms and that the insurers need to get tougher on them. But what if they aren't exaggerating - what if the real problem is that it is insurer assessor accusations of malingering that have been on the rise - rather than actual malingering. The letter from the president of Canada's national association of assessment vendors warned that shoddy assessments might no longer be tolerated. Can Law Times reconcile these contradictions?
  • aliengoo
    How did the government forget to offer consumer protection, and regulate a product that is mandatory for those who drive? Every year at insurance renewal I wonder how a driving record without at fault claims, or moving violations continues to inflate while receiving less goods, and service . As I read about the provincial car insurance reviews, or how corporate, and union political donations are free flowing,i sadly draw some clarity. Tax payers really need to wake up by demanding justice, and balance has to be applied to car insurance. Or at least have uncapped special, and punitive damages,retroactive*to claims that qualify. The province has to stop protecting the service providers involved with car insurance.
  • Rhona
    The level of dysfunction that presently exists because of these flawed IMEs is the result of the Financial Services Commission ignoring the plight of the policy-holders. They seem to have forgotten that there is a duty to the tax-payer who is legislated to buy insurance. Consumers rely on our government to ensure that the product is viable and best serves those in need. Poor quality control of IMEs must be corrected if the system is work in the way it was intended and the only way to accomplish this is to hold the IME provider and the insurer accountable.
  • aliengoo
    Ontario car insurance = dysfunction junction
  • Darcy Merkur
    I totally agree.
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