Personal Injury Law: FSCO must now tackle arbitration delays

While congratulations may be in order to the Financial Services Commission of Ontario for finally getting a handle on the enormous backlog of mediations, the next problem to address is the arbitration timelines for both getting a date for a hearing and, what may be the most frustrating thing ever, waiting indefinitely to receive a decision afterwards.

Most plaintiffs’ personal injury lawyers detest FSCO arbitrations and avoid them whenever possible. The cumbersome arbitration process makes it impossible to quickly and economically arbitrate any day-to-day treatment denials. There’s simply no way to arbitrate a treatment denial and get a timely result and, even if that was possible, the cost of arbitrating would greatly exceed the amount in dispute even after considering the modest FSCO cost contribution consequences.

The unfortunate result is that accident victims have to pick their battles with their accident benefit insurer rather than fighting every small dispute along the way. And as a result, plaintiffs’ personal injury lawyers try to work around the day-to-day treatment denials by persuading adjusters on the merits of the request, investigating other options, and making a business case to the insurers about the cost of approving the recommended treatment as opposed to engaging in an expensive dispute process they won’t be successful in.

Currently, the matters arbitrated at FSCO are the big ones, such as the catastrophic impairment designation and ongoing entitlement to weekly benefits. And while getting an arbitration date can take a long time, what’s most frustrating is waiting several months for the decision itself.

Plaintiffs’ personal injury lawyers forced to arbitrate have recently been complaining about the growing delays in receiving decisions. For example, in April 2012, we arbitrated the issue of a claimant’s ongoing entitlement to a weekly benefit. To date, we’ve received no decision.

In another example, we’re waiting for the outcome of a priority dispute arbitration that took place in December 2012.

These examples of extensive delays in receiving arbitration decisions aren’t the norm but are far too common.

The FSCO dispute system needs an overhaul. The system needs binding timelines, a simplified and expedient process for day-to-day disputes, and, most importantly, severe cost consequences for unsuccessful insurers that can afford to pay the penalties and can modify their behaviour in fear of them.

The current system forces accident victims to all too often compromise their positions to avoid the delays and expenses of the arbitration process. The system must change to level the playing field between vulnerable accident victims and sophisticated insurers.

Darcy Merkur is a partner at Thomson Rogers in Toronto practicing plaintiff’s personal injury litigation. He’s a certified specialist in civil litigation and creator of the personal injury damages calculator.

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