1 Bibliography Other Resources A Study of Premium Stability and Compulsory Alberta Automobile Insurance Board for the Minister of Consumer and Corporate Affairs of the Government of Alberta (CBA [Alberta] Insurance Standing Committee September 1991). A. Abrahamse & S. Caroll, The Effects of a Choice Auto Insurance Plan on Insurance Costs and Compensation (1998) 51 CPCU Journal A. Malleson, Whiplash: An Injury National Post (11 May 2002). A.C. Hutchinson, The Case for No-Fault Auto Insurance The Toronto Star (May 1988) A21. A.C. Osborne, Report of Inquiry into Motor Vehicle Accident Compensation in Ontario, Summary of Findings and Recommendations (1988) Supreme Court of Ontario Commissioner. Achtymichuk, Tom, The failure of no-fault The Calgary Herald (June 17, 2003) A17. Act on Car Insurance The Toronto Star (July 1989) A22. An Evaluation of the Autopac Review Commission Recommendation that a Total No- Fault Automobile Insurance Scheme be Implemented in Manitoba (CBA [Manitoba] Submission March 1989). Association President Meets with BC Finance Minister Trial Lawyers Association of BC News Letter 3 (1 August 1996). Auto choice cost-savings estimates vs. Real-world experience Auto choice makes good drivers pay for bad, Nader calls insurance companies profiteers of the 1990s Auto insurance company profits are great under no-fault - the road to lower auto insurance premiums B. Daisley B.C. Backs Down from No-Fault Insurance Plan The Lawyers Weekly (July 1997) 2. B. Daisley BC CBA Galvanizes No-Fault Opposition The Lawyers Weekly (February 1997) 2. B. Feldthusen, Have the Politics of Rate Regulation Produced a Better No-Fault Regime in Ontario? (1998) 39 Les Cahiers de Droit 473. B. Raphael, Liberal Performance Can Only Get Better The Toronto Star (August 1990) D3. B. Raphael, Osborne Studies Insurance in Depth The Toronto Star (May 1988) A26. B.W. Dufwa, Assurance No-Fault Dans le Cadre des Règles de la Responsabilitié Civile (1998) 39 Les Cahiers de Droit 655. Balanced View of Auto Insurance The Financial Post [Toronto](April 1988) 12. Bill 164 Insurance Statute Law Amendment Act, 1992 (CBA [Ontario] Submission 9 February 1993). Bill 68 Ontario Motorist Protection Plan (CBA [Ontario] Submission 7 December 1989).
2 Billingsley, Barbara, Insurance caps, deductibles and thresholds may violate s. 15 The Lawyers Weekly (August 18, 2006) 7. Billingsley, Barbra. Legislative Reform and Equal Access to the Justice System: An Examination of Alberta s New Minor Injury Cap in the Context of Section 15 of the Canadian Charter of Rights and Freedoms (2005) 42:3 Alberta Law Review 711. C. Harris, Assessing Them Right (1997) 102 Canadian Insurance C.L. Isenor, Insurance Law Reform Project: Insurance Law Reform Project Abstracts, Annotated Bibliography (CBA [NS] Law and Law Reform 15 November 1994). CAA Manitoba Brief Regarding Changing the Existing Autopac System (CAA [Manitoba] March 1993). Caulfield, Timothy, "How do Current Common Law Principles Impede or Facilitate Change?" (Discussion Paper no. 24, Commission on the Future of Health Care in Canada, Roy Romanow, Commissioner, September 2002). CBC News, Alberta insurance cap on soft-tissue injuries struck down (February 8, 2008), online: cbc.ca < CBC News, Alberta insurance cap on soft-tissue injuries struck down (February 8, 2008), online: cbc.ca < Choice no-fault auto insurance is no choice at all Comparison of Auto Insurance Rates in 5 Canadian Cities: Vancouver, Calgary, Regina, Winnipeg, Toronto (August, 2001), online: Consumers Association of Canada (BC) <www.cacbc.com> D. Gardner, Comparer L incomparable: les Indemnities Pour Prejudice Corpore; en Droit Commun et Dans la Loi Sur L assurance Automobile (1998) 39 Les Cahiers de Droit 429. D. Gardner, Presentation (1998) 39 Les Cahiers de Droit 209. D. Macdonald, No-Fault Money (1997) Canadian Lawyer D.J. Mullan Q.C., N.J. Tuytel & W. Clark, The British Columbia Class Proceedings Act: Will It Open the Floodgates? (1996) 14 Can. J. Ins. L. 30. D.K. Bartlett III, R.W. Klein & D.T. Russell, Attempts to Socialize Insurance Costs in Voluntary Insurance Markets: The Historical Record (1999) 17 Journal of Insurance Regulation Drummie, Gretchen, Glimmer of hope lies in Alberta : Bumps and roadblocks in auto insurance cases Law Times (April 28, 2008) 18. Dubik, Lesia, Have Your Say: Re: Keeping a leg: Priceless Winnipeg Free Press (October 14, 2006) A16. E. McCarthy & T. Onyshko, Ontario No-Fault Insurance Threshold Doesn t Violate Charter The Lawyers Weekly (December 1992) 36. E. Nordman, The History of No-Fault Auto Insurance (1998) 16 Journal of Insurance Regulation E.M. Levine, Letters to the Editor, The Lawyers Weekly (August 1999) 4. Fact sheet on no-fault auto insurance Fault/No-Fault Insurance Task Force Report (CBA [Alberta] Report April 1991). Finley, Lucinda, When priceless becomes worthless Trial (September 2005) 44.
3 Finley, Lucinda. The Hidden Victims of Tort Reform: Women, Children, and the Elderly (2004) 53 Emory L.J G. Adair, Auto Insurance Coverages in Canada (tabulated form). G. Adair, Auto Insurance Coverages in Canada according to IBC website (textual summary). G. Adair, Auto Insurance Tort/Threshold/No-Fault by Jurisdiction. G. Brett, Insurers Still Back Rejected No-Fault Plan The Toronto Star (April 1988) A10. G. Brett, Lawyers Rap Insurers No-Fault Auto Plan The Toronto Star (August 1987) C1. G. Bruni, The Other Side of Claims (1999) 104 Canadian Insurance 8-9. G. Howard, NDP Has Little Time on Auto Insurance: Quick Action Demanded by Both Companies and Drivers The Financial Post [Toronto] (October 1990) 10. G. Monforton, No-Fault Insurance A Mistake The Financial Post [Toronto] (August 1989) 12. G. Monforton, Osborne Wise to Leave Auto Insurance Alone The Toronto Star (May 1988) A24. G. Smorang, Presentation on Bill 45 (CBA- Manitoba 1998). H. Burshtein, Introduction of No-Fault Regime Will Cost Lawyers Millions in Fees, Manitoba Practitioners Say The Lawyers Weekly (July 1994) 27. H. Burshtein, Manitoba s No-Fault Plan: Some Lawyers Think the Province Went Too Far When It Introduced Auto Insurance Reforms in March The Lawyers Weekly (July 1994) 1. H. Freedman, Placing Relevant Facts Before the Court in a Constitutional Challenge Employment and Labour Law Reporter 104. H. Groutel, Indemnisation Sans Egard à la Responsabilité et Interpretation de la Loi du 5 Juillet 1985: La Longue Marche (1998) 39 Les Cahiers de Droit 395. H. Luntz & G. Paton, Compensation for Loss of an Economic Nature: An Australian Perspective (1998) 39 Les Cahiers de Droit 491. I. Aikenhead, Legislative Watch The Verdict 11. Insurance Law Reform Project: Towards The Road Ahead (CBA [NS] Law and Law Reform 1995). J. Cameron, No-Fault Insurance Will Increase Accidents The Toronto Star (January 1990) A16. J. Geddes, Board Would Increase Car Rates, Report Says The Financial Post [Toronto] (April 1988) 3. J. Lewis, Brokers Regret Osborne Rejected No-Fault Policy The Toronto Star (April 1988) B2. J. Middlemiss, Lawyers Are Waging a No-Fault War The Lawyers Weekly (29 March 2002) 5. J. Mucalov, Lawyers Slam BC No-Fault Auto Insurance Report- Allen Report Focus on Personal Injury Law The Lawyers Weekly (March 1997) 7. J. Schnoor, No-Fault Automobile Insurance in Manitoba: an Overview (1998) 39 Les Cahiers de Droit 335.
4 J.B. Patterson, No-Fault Benefits Investment Primer (1997) 64 Canadian Underwriter J.E. Murphy, No-Fault in the Distance? (1993) The Verdict. J.E. Murphy, President s Comment The Verdict 1. J.G. Borenstein, Interjurisdictional Motor Vehicle Accidents (1999) 49 Federation of Insurance & Corporate Counsel Quarterly J.L. Carr, No-Fault Automobile Insurance Theory and Practice: The Ontario Experience (University of Toronto 1996). J.M. Miller, Compensation for Motor Vehicle Injuries in New Zealand 39 Les Cahiers de Droit (1998) 371. J.R. Hunter & J. Doroshow, Premium Deceit: The Failure of Tort Reform to Cut Insurance Prices (1999) Citizens for Corporate Accountability & Individual Rights. K. Boyle, Mediation and the Insurance Corporation of British Columbia (draft paper by former Chief Counsel of ICBC, January 21, 2002). K. Morrison, No-Fault Response to Alex Macdonald The Verdict K.A. Price, Editorial TheVerdict 2-3. K.A. Price, Editorial TheVerdict 2-3. Keep Government Out of Auto Insurance The Financial Post [Toronto] (9 May 1991) 14. L. Harris, No-Fault the Issue that Will Not Go Away The Verdict L. Klar, The Osburne Report: No to No-Fault (1989) 68 The Canadian Bar Review 301. L.R. Meyer, Just the Facts (1997) 106 Yale Law Journal Letter from Joan Claybrook and Frank Clemente Opposing S.2454, the auto choice reform act Letter from R.L. Kopstein to The Provincial Court of Manitoba (2 August 1989). Long, Bumpy Road The Financial Post [Toronto](February 1989) 8. M. Conrod, Ontario Benefits System Eliminates Litigation for Economic Losses The Lawyers Weekly (25 March 1994) 12. M. Conrod, Ontario No-Fault Benefits for Accidents Outside the Province (1996) 14 Can. J. Ins. L. 94. M. McIvor & D. Todd, The Fight Over No-Fault Maclean s (April 1987) T8. Maclborski, Jamie, Protect consumers from industry Edmonton Journal (June 14, 2003) A19. N. Dunlop, People in Motion Showcases: The Enablers (1997) 64 Canadian Underwriter No-Fault Insurance Issue (1993) The Advocate. No-Fault Insurance No Answer for BC Trial Lawyers Association of BC News Letter (October 1995). No-Fault Discriminatory to Women Trial Lawyers Association of BC News Letter 2 (23 July 1996). O. Lippert, Lessons from the B.C. No-Fault Insurance Battle (1997) Canadian Lawyer 11. Ont. Auto Insurance Plan Replaces Threshold with $15,000 Deductible The Lawyers
5 Weekly (December 1991). Ont. Moves to Restore Right to Sue In New Auto Insurance Plan The Lawyers Weekly (1 March 1996) 2. Ontario Motorist Protection Plan The Lawyers Weekly (March 1993) 5. P. Kulig, BC Automobile Insurance (1997) Canadian Lawyer 35. P.K. Nigel & W.Clark, No-Fault Benefits in British Columbia: Must Out-of-Province Auto Insurers Pay the Same as ICBC? (1995) 13 Can. J. Ins. L. 39. Pederson, Rick, Huge injury settlements defended: Paraplegic Association slams no-fault insurance Edmonton Journal (June 9, 2003) A10. Public Citizen <http://www.citizen.org/congress/civjus/nofault/> Public Citizen <http://www.citizen.org/congress/civjus/nofault/> Pure No-Fault Insurance: Not the Only Option for Motorists (CAA [Manitoba] July 16, 1993) R. Joost, Automobile Insurance and No-Fault Law (2001) 2D Westgroup Publication, Cumulative Supplement. R. Letarte, L indemnisation des Victimes en Fonction des Pertes Non Economiques Résultant de Blessures Ou de DécPs: Regime d État de Droit Commun? (1998) 39 Les Cahiers de Droit 523. R. Nader, No-Fault- The Saskatchewan Experience (1999) 1 The Saskatchewan Advocate. R. Pullen, The Battle Over Auto Choice (1998) 99 Best s Review (Prop/Casualty) 14. R. Speirs, No Sign of No-Fault System Auto Insurance Reform Still in Ditch Government Set to Release Report Which Will Bring Added Confusion The Toronto Star (April 1988) D6. R. Tetrault, L Appréciation du Lien de Causalite Entre le Préjudice Corporel et le Fait Accidentel Dans le Cadre de la Loi Sur Lássurance Automobile (1998/1999) Revue de Droit de l Université de Sherbrooke 245. R.A Devlin, No-Fault as a Rational Response to Rate Regulation (Wilfred Laurier University 1994) [working paper]. R.A. Devlin, Liability Versus No-Fault Automobile Insurance Regimes: An Analysis of the Experience in Quebec (Wilfred Laurier University 1988). R.C. Henderson & J.M. Livermore, Compensation for Non-Economic Loss, the Tort- Liability Insurance System, and the 21st Century (1998) 39 Les Cahiers de Droit 571. R.G. Elgie, T.A. Caulfield & M.I. Christie, Medical Injuries and Malpractice: Is It Time for No-Fault? (1993) 5 Health Law Journal 97. Rand s Projected Cost savings: don t believe the hype Recent Case Law (1996) 12 Can. J. Ins. L. 95. Report finds insurance premiums in no-fault states continue to soar repealing no-fault is the fastest way to lower the price of insurance Report finds insurance premiums in no-fault states continue to soar repealing no-fault is the fastest way to lower the price of insurance S. Brostoff, Auto Choice System Seen Saving Consumers $8B (1998) 102 National Underwriter (Property & Casualty/Risk & Benefits Management) 2, 37.
6 S. Sclafane, 1997 A Bust for State Auto Ins. Reforms, but Pluses Emerge (1997) 101 National Underwriter (Property & Casualty/Risk & Benefits Management) 3, 40. S.837, federal auto no-fault bill S.D. Sugarman, Quebec s Comprehensive Auto No-Fault Scheme and the Failure of Any of the United States to Follow (1998) 39 Les Cahiers de Droit 303. S.E. Stock & N.M. Rottier, No-Fault in the U.S. The Verdict S.T. Gerdel, The Screwdriver and the Doberman (1998) 93 Life Association News Saskatchewan, Legislative Assembly Hansard, April - June Select Committee on Private Passenger Automobile Insurance (Chair: Wally Stiles), "Auto Insurance for New Brunswick" (Fredericton: Legislative Assembly of New Brunswick, November 2002). SGI, Flyer No-Fault Injury Insurance The Facts. SGI, Guide to Personal Injury Protection SGI, Saskatchewan Auto Fund Annual Report Study Rules Out Premium Savings Under NDP s Auto Insurance Plan The Toronto Star (10 April 1991) F12. T. Onyshko, New Threshold Scheme to be Established- Lawyers Groups, Insurance Companies Reach Deal to Amend Ontario Auto Plan The Lawyers Weekly (23 July 1993) 1. T. Onyshko, Ont. Judges Hint They ll Interpret Threshold in Auto Insurance Liberally The Lawyers Weekly ( 4 December 1992) 1. T. Onyshko, Ontario Ruling Widens Right to Sue for Victims of Traffic Accidents The Lawyers Weekly (January 29, 1993) 1. T. Onyshko, Use Political Action to Oppose No-Fault Plans, Lawyers Told The Lawyers Weekly (24 January 1992) 1. Texas Auto Rate Cuts Ordered (1998) 98 Best s Review (Prop/Casualty) 67. Too Inflexible The Financial Post [Toronto] (April 1988) 18. Tort Liability and Compensation Issues (Canadian Bar Association, 1999 Annual Meeting 21/22 August 1999) Resolution A, Understanding the Personal Injury Benefits Plan Saskatchewan Legal Education Society Inc. (March 1995). V.L. Bajtelsmit & R. Bouzouita, Market Structure and Performance in Private Passenger Automobile Insurance (1998) 65 Journal of Risk & Insurance W. Walker, Insurers Boost Own No-Fault Plan to Battle Proposed Public Scheme The Toronto Star (March 1987) A1. W. Walker, Little Joy for Drivers in No-Fault Plan The Toronto Star (September 1989) D4. W. Walker, Plan for No-Fault Car Insurance May Violate Rights, Lawyers Say The Toronto Star (March 1987) A1. W. Walker, Report Predicts Lower Rates for Motorists The Toronto Star (April 1988) A10. What consumer advocates are saying about the McConnel choice no-fault auto insurance scam
7 What people are saying about choice no-fault (S. 837 & HR 1475) Y. Lambert-Faivre, L indemnisation des Victimes de Prejudices Non Economiques (1998) 39 Les Cahiers de Droit 537.
8 The Myth of Improved Rehabilitation: Adjuster Care vs. Medical Care by Lyle Harris* Harris & Brun, Vancouver, BC The insurance industry s perception of the high costs of whiplash-associate disorders (WAD) led to a decision by the Quebec Automobile Society to fund a major study on those disorders. The Quebec Task Force on Whiplash-Associated Disorders (Task Force) was formed, and spent nearly two years reviewing 10,382 research papers on the treatment of whiplash. The Task Force determined that only 62 of those papers were valid and reliable for further study. The Task Force published its monogram in the April 15, 1995 supplement of Spine. The Task Force study revolutionized the way insurance companies looked at WAD. One of the most important developments was a classification system for whiplash complaints: Grade I: Grade II: Grade III: Grade IV: Neck complaints of pain, stiffness, tenderness only: no physical signs. Neck complaint and musculoskeletal signs (i.e. restrictions of movement). Neck complaints and neurological signs. Neck complaints and fracture and dislocation. The Task Force suggested that most current whiplash treatments were seen as lacking in scientific validation. Physical therapy, such as chiropractic, physiotherapy, and massage, were found to be effective only in the short term. The Task Force concluded that the quickest way for a victim of WAD to recover was to resume normal physical and vocational activity as soon as possible. A key finding by the Task Force was that the incidence of whiplash claims was lower in jurisdictions that had no-fault compensation than in jurisdictions with compensation in tort. For example, the incidence of compensated whiplash claims in Quebec in 1987 was 70 per 100,000 population. In Saskatchewan, pre-no-fault, the incidence of compensable whiplash was said to be 700 per 100,000 population. 1 Many insurance companies subsequently adopted the Task Force s findings, leading to a cookie cutter approach to rehabilitation across the country. Insurance Corporation of British Columbia (ICBC), for example, completely revamped its standard short-form medical report (CL24A) to encourage doctors to classify the whiplash as a grade I, II, III or IV. Insurance company doctors began more routinely cutting off physical therapy and urging claimants to resume normal activities as soon as possible, as suggested by the Task Force. Rehabilitation centres, funded almost entirely by insurance companies, put recovering whiplash claimants through standard protocols and rehabilitative exercises. These rehab centres reported 1 Page S19.
9 Waddell s signs of non-organic behaviour 2 directly to the adjuster, leading to questions about the motives of the claimant. The template was a quick physical recovery: claimants who did not recover within an acceptable time were not considered well-motivated or not buying into the program. The Task Force study established the protocol of adjuster care : rehabilitation funded by the adjuster with highly confidential medical information that flowed directly to the adjuster, rather than through the claimant s doctor. If the personal physician s advice conflicted with the approach of the independent medical examiner and the rehabilitative program, it could generally be ignored. The scientific validity of the Task Force s conclusions have been subject to significant criticism. For example, Teasell and Merskey 3 noted that the Task Force determined end-date for recovery from whiplash injuries was the date of discontinuation of payments, and not the date of resolution of symptoms. In addition, patients who complained of recurrences were specifically excluded from the Quebec data set. According to Teasell and Merskey, when patients with recurrences were included, the percentage of patients who failed to recover had risen from the reported 2.9 percent to as high as 12.4 percent after one year. Teasdell and Merskey write: it is impossible to draw valid conclusions about the natural history of whiplash injuries from this study because it did not study recovery from whiplash symptoms and excluded the majority of patients who were classified as recurrences from the final study analysis. On April 20, 2000 the New England Journal of Medicine published an article, Effect of Eliminating Compensation for Pain and Suffering on the Outcome of Insurance Claims for Whiplash Injury 4. The primary author of the study was Dr. J. David Cassidy, a member of the Quebec Task Force. The authors studied a population consisting of all persons in Saskatchewan who filed claims for compensation for whiplash injuries between July 1, 1994 and December 31, Saskatchewan had changed from a tort system to a no-fault system on January 1, The information was used to study the impact of two major types of auto insurance: 1) tort liability with add-on benefits, and 2) pure no-fault insurance, on the incidence and duration of whiplash claims. During the tort period (July 1, 1994 to December 31, 1994), there were 417 claims per 100,000 population for compensation for whiplash injuries. During the first no-fault period (January 1 to June 30, 1995), there were 302 claims filed per 100,000 population and 296 claims filed during the second no-fault period (July 1 to December 31, 1995). According to these figures, the number of whiplash claims decreased approximately 28% when Saskatchewan changed to a pure no-fault system. However, the study was funded by substantial payments by Saskatchewan Government Insurance, received widespread criticism for conceptual flaws and manipulation of data. The major conceptual flaw in the study was the definition of recovery. Again, the study did not measure medical recovery of the patient, but once again measured the duration of the insurance claim, which arguably has little to do with the physical status of the claimant. In a letter dated August 1, 1995, which is now in the public domain 5, Jon Schubert, Assistant Vice President, Injury Claims and Rehabilitation, SGI, wrote to Dr. Cassidy: Dr. Gordon Waddell, FRCS(Ed), suggested in Spine, 1980; 5: that there were five non-organic signs that suggested that the presence of any three out of seven were strongly suggestive that other factors such as psychological, psycho-social, secondary gain or malingering were present. Dr. Waddell published a follow-up monogram in Spine, 1998; , suggesting that the non-organic signs have been misinterpreted, both clinically and medico-legally. Abstract, Pain Research & Management, New England Journal of Medicine , April 20,
10 Most insurance companies use [the settlement] date as an indicator of when the claim filed can be closed. I personally don t think settlement date is a very good indicator of the degree of injury or recovery. About the final payment date, designated as the date the file could be closed, Mr. Schubert continued: The date when the insurance company makes the last payment for expenses, income replacement or treatment. Again, I don t believe this date is a particularly helpful indicator. A large number of studies, reports and letters 6 have criticized Dr. Cassidy s selection of the final payment date as the end date for the claim. In addition, anecdotal evidence suggested that, at the commencement of the no-fault regime in January 1995, SGI did not establish files for individuals who reported sustaining injuries but did not believe they would qualify for any benefits. 7 Interestingly, a co-worker, Dr. Emma Bartfay, PhD, also later filed a lawsuit against Dr. Cassidy, asserting that she was told to produce statistical results that would prove that whiplash victims recovered faster under the province s new no-fault system. A November 3, 1996 letter obtained by the Saskatoon StarPhoenix, the study s former research director, Dr. Ken Yong-Hing, accused SGI personnel of interfering with the study group s work. 8 The message from these dubious studies clearly shows the absence of evidence that injured claimants recover more quickly under one system than another. Assumptions that force all whiplash victims into inflexible treatment templates fail those who do not fit: persons more vulnerable to trauma, aged persons, persons with psychological afflictions, or persons who for whatever reason simply do not recover. Such treatment regimes, funded by insurers whose object is to minimize their financial exposure, are poor substitutes for the care of competent and caring physicians whose first responsibility is to the patient/claimant. In other words, adjuster care funded by no-fault insurance, should not be substituted for physician care. * Chair, CBA National Working Group on No-Fault Compensation The views expressed in this paper are those of the author. They do not necessarily represent the views of the CBA and have not been approved as official CBA policy For example, atla.org, The Fault With The New England Journal of Medicine s No-Fault Report, and various letters including letter from Dr. Michael Freeman to Coalition Against No-Fault in Saskatchewan; May 8, 2000 letter Dr. Harold Merskey to Ms. Lorie Terry, addendum letter from Dr. Merskey to Ms. Terry (undated) all in public domain, accessible at PIPP review committee public meeting, Saskatoon, Saskatchewan, June 16, 2000 accessible at Cited in atla.org, The Fault With The New England Journal of Medicine s No-Fault Report, above, note 5 page 2.