Tricks of the Trade 2013 Vital Accident Benefits Updates Presented by: Miller Thomson LLP Helen D.K. Friedman Bryan Horrigan Katie Quinlan 2012 was a very interesting year. Vital developments in 2012 will guide 2013. What Happened in 2012: Key Accident Benefits Cases There have been a number of recent important decisions concerning Accident Benefit issues. Like the Hurst decision, most will likely have a negative impact on insurers. Henry v. Gore Mutual Insurance Company (2012 ONSC 3687) Economic Loss/Appeal Pending. Mr. Henry was catastrophically injured in an accident on September 28, 2010. At the time of the accident, Mr. Henry s mother had been working full-time as an assistant manager for a retail store earning approximately $2100 per month. Post-accident, she took a leave of absence and provided attendant care services to her son on a full time basis. The Form 1 indicated his attendant care needs were approximately $9500 per month ($3500 more than the $6000 SABS limits), which his insurer, Gore, did not dispute. Gore took the position that it would indemnify the service provider (Mr. Henry s mother) to the extent of her financial loss. Rather than paying the full amount of the Form 1, it paid her for her Attendant Care services provided in the amount that she would have earned through her retail job in attendant care benefits (i.e. $2100) (Her economic loss ).
Page 2 The applicant, Mr. Henry brought an application pursuant to Rule 14.05(d) and (h) to determine a dispute with respect to quantum of Attendant Care payable to an insured for services rendered by his mother. The Application Judge found that if a family member stays home from work and loses income in order to provide Attendant Care services, the definition of incurred has been met. It was held that economic loss was a threshold rather than a quantum, as the regulations were not of any assistance in calculating the amount. This omission implied that no such calculation is relevant beyond a finding that the person has sustained an economic loss. Economic loss is a threshold finding for incurred expenses but is not intended as a means of calculating the quantum of the incurred expense. As such, Gore was required to pay Attendant Care Benefits in accordance with the Form 1, being $6000 per month. Galdamez v. Allstate Insurance Company of Canada (2012 ONCA 508) The claimant was injured on October 26, 2002 when a car ran over her foot. Prior to the accident, she worked at a supermarket. According to the claimant, she returned to work four days after the accident on modified duties and hours. She eventually left her job for good on January 19, 2004 and she had not worked since that date. The claimant applied to the driver s insurer for Statutory Accident Benefits on November 8, 2002. On January 7, 2003, the insurer advised her that she may be eligible for more than one weekly benefit and provided her with an Election form. The claimant completed the form on January 15, 2003, indicating she wished to receive an Income Replacement Benefit. On January 28, 2003, the insurer informed the claimant she was not eligible for an Income Replacement Benefit because the Employer s Confirmation of Income form indicated that she only missed one day of work as a result of the accident, and that, under s. 5(2)(a) of the 1996 SABS, no benefit is payable for the first week of disability. The insurer also noted that because the claimant had elected Income Replacement Benefits, she was not entitled to Non-Earner Benefits. The claimant commenced an action against the insurer for breach of contract and failure to pay Income Replacement Benefits. In its Statement of Defence, Allstate pleaded, among other things, that the claimant did not meet the disability test for Income Replacement Benefits. That action was scheduled for trial in November 2011. In 2009, the claimant wrote to the insurer and applied for a Non-Earner Benefit arising from the same accident. The insurer denied her request and the claimant started the present action on December 16, 2010. On a summary judgement motion, the judge dismissed the claimant s action against the insurer. He concluded that because the appellant was employed at the time of the accident, she could not qualify for Non-Earner Benefits, regardless of whether or not she met the disability requirement. The Court of Appeal overturned this decision. It held that ss. 4 and 12 of the 1996 SABS imply that a claimant s status as an employed person does not, in itself, establish that the claimant is ineligible for Non-Earner Benefits. S. 12(1)(1) states that an individual can only qualify for a non-earner benefit if he or she does not qualify for an Income Replacement Benefit and suffers a complete inability to carry on a normal life. Thus, even if a claimant is employed at
Page 3 the time of the accident (and does not meet the IRB disability test), they may still be eligible for a Non-Earner Benefit providing they meet the NEB disability test. The insurer also argued that the claimant met the Income Replacement Benefit disability test, however, the court cited the fact that that issue was soon to be tried, as a basis for not accepting the argument on a summary judgment motion. Thus, a person employed (and earning) at the time of an accident (and thereafter) could still be entitled to receive Non-Earner Benefits under the SABS under certain restricted circumstances. Note that the decision is essentially procedural in nature only and no determination was made of the merits of actual entitlement. Wawanesa Mutual Insurance Co. and Webb (FSCO P11-00015, July 18, 2012) The insurer appealed a FSCO arbitrator s decision that held that the claimant who slipped on some ice several steps away from her vehicle was involved in an accident for the purpose of claiming accident benefits. The SABS defines accident, as follows: accident means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device. The claimant testified that on the date of loss she was going to visit a friend. There was no snow or ice on the road. However, there was a snowbank, two feet in height and over a foot wide going from the road to the curb that ran the length of the north side of the street. The only way to get onto the sidewalk was through access points that had been shovelled out. To the best of her knowledge the city clears these access points. There was no other way to access the sidewalk than through these access points. She testified that she was able to park her car directly in front of an access point, in front of another vehicle. She stated that she exited her car on the driver's side, locked the door and walked around the car to the front. It took her a few seconds and two or three steps to get to the access point. When she put her foot onto the access point, she slipped on ice and fell backwards. As a result of this fall, Ms. Webb broke four bones in her right foot. The arbitrator found that the claimant met the requisite purpose and causation tests for establishing that she was in an accident : The Director s Delegate held that the arbitrator was wrong on the causation test. The claimant had parked her vehicle, physically exited it, closed the car door, locked it, put her keys in her purse, walked up the side of the car, crossed in front of the car without incident, proceeded to an access point a foot ahead of the front bumper of the car, and then fell. She was not in the process of actually alighting from the vehicle when the incident took place. No automobile contributed physically to her injuries. There was a temporal distance between the physical exiting of the car and the injuries. It was concluded that there was a new and independent source of the claimant s injuries other than her car, namely, ice and snow at a pedestrian access point resulting from the weather conditions that, in the circumstances of this specific case, broke the chain of causation.
Page 4 Insurers still need to remember that these issues are fact driven, meaning some "slip and falls" might still be considered to be accidents under the SABS. Pastore v. Aviva Canada Inc. (2012 ONCA 642) The claimant was involved in a car accident and suffered a fractured left ankle. She had numerous surgeries and ultimately applied for a catastrophic determination. The issue in dispute at Arbitration was whether the claimant was catastrophically impaired due to a mental or behavioural disorder, under subsection 2(1.1)(g) of the SABS. The arbitrator accepted that the assessment of a Class 4 impairment in one area of function was sufficient to meet the definition of catastrophic impairment. This was the only area of function she reviewed in detail. On this basis, she concluded that the claimant had suffered a catastrophic impairment. On appeal, the Director s Delegate agreed with the Arbitrator that a Class 4 impairment was required in only one of four areas of functioning to establish a CAT impairment. The Divisional Court disagreed with FSCO and granted the insurer s application for judicial review. The Court found that the Director s Delegate had failed to properly appreciate the effect of the incorporation of the Guides into the SABS. The Guides are incorporated into the SABS and must be treated as part of the legislative scheme. A plain reading of the words in s. 2(1.1.)(g) bearing in mind the context and purpose of the legislation and taking into account the FSCO Guidelines makes it clear that all four areas of function are to be accounted for in an assessment of catastrophic impairment. The Court of Appeal held on standard of review principles, the Divisional Court failed to give the Director s Delegate sufficient deference. The Court of Appeal held that the decision of the delegate, in which he concludes that the use of a in the definition of catastrophic impairment in cl. (g) refers to a single, functional impairment due to mental or behavioural disorder at the marked level, constituting a catastrophic impairment, is a reasonable decision. The reasoning process was logical and transparent and the result is within the range of reasonable, acceptable determinations. All of that said, the Court of Appeal may have applied the incorrect standard of review, with the potential that Pastore may have a limited shelf life. FSCO Mediations Hurst v. Aviva Insurance Company (2012 ONCA 837) This much anticipated decision was issued by the Ontario Court of Appeal on November 29, and is bound to have some significant fall-out for insurers and claimant s counsel. The Court of Appeal upheld a lower court decision which found that Applications for Mediation received by FSCO that have not been mediated within 60 days are deemed failed. A Report of Mediator is not required for an insured to commence litigation. Section 281(2) of the Insurance Act prevents insured persons from commencing actions against their insurer unless they first sought FSCO mediation. S. 280(4) requires the Mediations to be conducted within the prescribed time. Section 280(7) states that Mediations have failed when the mediator has given notice to the parties that the Mediation will fail or when the prescribed or agreed time for Mediation has expired and no settlement has been reached. The Court agreed with the insureds counsel that section 10 of O. Reg 664 -
Page 5 Automobile Insurance prescribes the time to be 60 days after the date on which the application for the appointment of a Mediator is filed. Accordingly, once this 60 day period expires, insureds are free to commence litigation, despite the fact that no Mediation has been held and no Report of Mediator has been issued. It was held that the 60 day time limit is an integral part of the legislative scheme that aims to provide a speedy Mediation process. The failure of FSCO to perform its statutory duty to provide a Report of Mediator did not extinguish an insured s right granted by the statute. The court also dismissed the concern that the absence of a Report for Mediator would allow for a perpetual limitation (s. 281.1(2)(b) permits a 90 day extension following the issuance of a Report of Mediator) as more imaginary than real since the issuance of a Mediator's Report is necessary for the 90 day extension. Changes to the regulation could be made to remedy this situation. Ultimately, if parties do not agree to extend the time line for Mediation as per Rule 19 of the Dispute Resolution Practice Code, then it could be inferred that the insured persons have chosen to commence an action and the time limit is still two years from the denial of the benefit. Accordingly, there may be a significant number of claims for which the limitation period has already (unwittingly) expired. It is not entirely clear how this affects claims that are currently in the backlog, where the denial of benefit was over two years ago. An argument could be made that such claims would have to proceed to Mediation before actions could be commenced, since failing to do so would put them outside of that two-year limit. FSCO had been taking the position that the clock does not start running until a Report of Mediator is issued, indicating a failed mediation. As such, litigation was not being commenced until after a Report was issued. Practically, it is difficult to anticipate exactly what effect this decision will have on Accident Benefits disputes. The average wait time for Mediation in 2012 is 365 days. Currently, there are approximately 36,000 backlogged Mediations. Subsequent to the lower court s decision, claimants began issuing Statements of Claim in the Superior Court and Small Claims Court against their Accident Benefits insurers, without Reports of Mediators. Generally speaking, insurers were not completely bombarded with such claims, however, that could change in light of the Court of Appeal s affirmation. Where claimants filed FSCO Applications for Arbitration before Mediations were completed, FSCO had been holding them in abeyance before the Court of Appeal decision was issued. In light of the decision, FSCO has indicated that these Applications will now proceed to Arbitration. Although FSCO did not provide exact numbers, it is expected that this will result in a significant and immediate influx of FSCO Arbitrations. Nevertheless, given that approximately 70-75% of FSCO Mediations are successful, many claimants (and their representatives), may wish to wait for Mediation to proceed, where they believe that their claim can be settled in that forum. This is a more cost effective route to take than immediately proceeding to litigation. For the insurers, avoiding an Arbitration filing fee by settling at Mediation is a significant cost benefit. That said, where prospects of settlement may not be as strong, we can anticipate that claimants would rather proceed to litigation immediately after the 60 day period to speed up an inevitable process. Overall, we can expect a shift in the burden from FSCO Mediations to Arbitration and court proceedings. These are inevitably more expensive and time-consuming forums for dispute resolution. Litigation costs for insurers will inevitably and significantly increase for accident benefits claims.
Page 6 Backlog Initiatives 1 As of September 2012, FSCO began assigning Mediation files to ADR Chambers at a rate of approximately 2000 per month. This much anticipated initiative has proved effective in reducing the backlog of Mediations. As can be reasonably expected, the transition has not been perfectly smooth, and some participants have expressed concern regarding logistical issues as well as mediator expertise. FSCO planned to begin assigning Arbitration files to ADR Chambers in October 2012. Once current Mediation files work their way through the system, FSCO expects to assign up to 500 Arbitration files per month to ADR Chambers. Given the Arbitrations that had been held in abeyance prior to the Court of Appeal decision in Hurst and the ability of claimants to proceed to Arbitration without mediating their disputes, increased assignment of files to private Arbitrators cannot happen soon enough. CAT Definition Updates 2012 saw two significant updates with respect to the definition of a Catastrophic Impairment: the Ontario Court of Appeal decision in Pastore v. Aviva 2, and the release of the Superintendant s Report on the Definition of Catastrophic Impairment. As noted above, the decision of the Court of Appeal in Pastore upheld the decision of the FSCO arbitrator and the Director s Delegate, finding that the use of a in the definition of catastrophic impairment in s. 2(1.1.)(g) refers to a single, functional impairment due to mental or behavioural disorder at the marked level. This decision served to broaden the definition of catastrophic impairment with respect to claimants experiencing mental or behavioural issues following an accident. This year also saw the release of the Superintendant s Report on the Definition of Catastrophic Impairment in the Statutory Accident Benefits Schedule. In 2010, the government instructed FSCO to consult with the medical community and make recommendations for the amendment of the CAT definition. FSCO assembled a Catastrophic Impairment Expert Panel, who made recommendations to the Superintendant. The Report, which is dated December 15, 2011 and was released by FSCO on June 12, 2012, dramatically alters the current tests for determination of catastrophic impairment. The Report recommended changes with respect to seven different classes of injury. Paraplegia/Tetraplegia The panel recommended the introduction of the American Spinal Injury Association (ASIA) scale as part of the definition of CAT for these injuries, which the Superintendant accepted. The panel noted that the ASIA scale has become the standard in medical practice and is commonly used in routine spinal cord injury care. It also noted that the ASIA scale involves a standardized examination protocol, which is less subjective than the AMA Guides and as such can be expected to produce more reliable and consistent results and more effectively identify CAT claimants. 1 http://www.fsco.gov.on.ca/en/drs/pages/mediation-backlog-initiatives.aspx. 2 Pastore v. Aviva Canada Inc., 2012 ONCA 642.
Page 7 The Superintendant s proposed definition of CAT due to paraplegia or tetraplegia consist of two prongs: the neurological recovery is such that a permanent ASIA grade can be determined with reasonable certainty; and either the permanent ASIA grade is A, B or C, or the permanent ASIA grade is D, provided the claimant has a permanent inability to walk independently indoors less than 10 metres and/or requires urological surgical diversion, an implanted device, or intermittent or constant catheterization in order to manage the residual neuro-urological impairment. Severe Impairment of Ambulatory Mobility The panel recommended the definition of CAT due to severe impairment of ambulatory mobility as: Trans-tibial or higher amputation of one limb; or A severe and permanent alteration of prior structure and function involving one or both lower limbs as a result of which the claimant is currently participating in or completed a period of in-patient rehabilitation in a public rehabilitation facility, and it can be reasonably determined that the claimant has or will have a permanent inability to walk independently and instead requires at least bilateral ambulatory assistive devices. The Superintendant accepted the panel s recommendation, with the exception of the requirement that the claimant participate in or have completed an in-patient rehabilitation program. Blindness The panel recommended the definition of legal blindness in both eyes due to structural damage to the visual system. Non-organic vision loss (hysterical blindness) is excluded from the definition. The Superintendant accepted the recommendation, with the addition of reference to the 20/200 vision threshold as clarification of the term legal blindness. Traumatic Brain Injury in Adults The panel changed the CAT definition criteria quite significantly in this category. It recommended the elimination of the Glasgow Coma Scale as a measurement tool for determining CAT impairment. It instead suggested that a claimant is granted interim CAT status when accepted for admission to a program of in-patient neurological rehabilitation at a recognized neurological rehabilitation centre, and that a claimant s permanent CAT impairment be determined in accordance with the published guidelines for the Extended Glasgow Outcome Scale (GOS-E) to be either in a Vegetative State (VS) after 3 months or Severe Disability Upper (SD+) or Severe Disability Lower (SD-) after 6 months, or Moderate Disability Lower (MD-) after one year due to documented brain impairment, provided the determination has been preceded by a period of in-patient neurological rehabilitation in a recognized rehabilitation centre. The Superintendant accepted the recommendation, with the exception that a claimant evaluated as Vegetative (VS) after one month qualifies as CAT.
Page 8 Other Physical Impairments The panel recommended that the CAT definition under this category is a physical impairment or combination of physical impairments that, in accordance with the AMA Guides to the Evaluation of Permanent Impairment, 4 th edition, results in 55 percent or more impairment of the whole person. It further recommended that the CAT definition should not allow pain to be quantified as a separate impairment. The Superintendant accepted the recommendations. Psychiatric Impairment With respect to a CAT determination for a psychiatric impairment, the panel recommended a combination of factors, and recommended that psychiatric and physical impairments not be combined in the determination. The Superintendant accepted these recommendations. The panel defined a psychiatric CAT impairment using a combination of factors, including: Post-traumatic impairments must arise as the direct result of diagnosed DSM-IV-TR Major Depressive Disorder, Post Traumatic Stress Disorder, or Psychotic Disorder; Impairments due to pain are excluded except to the extent to which they prolong or contribute to the severity of the psychiatric disorder; Impairments arising from traumatic brain injury must be evaluated using the traumatic brain injury criteria; Global Assessment of Functioning (GAF) score of 40 or less; and In determining the GAF score, there must be demonstrable and persuasive evidence that the impairment(s) very seriously compromise independence and psychosocial functioning, such that the claimant clearly requires substantial mental health care and support services. Demonstrable and persuasive evidence includes: Institutionalization; Repeated hospitalization due to severe psychiatric impairment; Appropriate interventions and/or psychopharmacological medications; Determination of loss of competence to manage finances/property/treatment decisions/care for independents; Monitoring through in-person psychiatric follow-up reviews at least one per month; and Regular and frequent supervision and direction by community-based mental health services to ensure proper hygiene, nutrition, compliance with medication/other therapeutic interventions, and safety of self or others.
Page 9 Traumatic Brain Injury in Children The panel made a number of recommendations with respect to CAT determination based on paediatric traumatic brain injury (prior to age 18). First, a child who sustains a traumatic brain injury is automatically deemed to have sustained a CAT impairment if he is either: admitted inpatient to a Level 1 trauma centre with positive findings on CT/MRI scan indication intracranial pathology as a result of the accident; or admitted in-patient to a publically funded rehabilitation facility for a program of brain injury rehabilitation. Further, the panel recommended that paediatric CAT impairment be defined on the basis of any one of the following criteria: At any time after the first three months the child s level of neurological function does not exceed the KOSCHI Category of Vegetative; At any time after the first six months the child s level of function does not exceed the KOSCHI Category of Severe; At any time after the first nine months the child s level of function remains seriously altered such that the child is for the most part not age appropriately independent and requires supervision/actual help for physical, cognitive and/or behavioural impairments for the majority of his waking day. The Superintendant accepted the panel s recommendation for designation of catastrophic impairment of children, however he recommended that the definition be modified such that a child resulting in a KOSCHI category of Vegetative at one month, rather than three months, be designated as CAT. Further, he recommended that the Holland Bloorview Kids Rehabilitation Hospital be requested to conduct a study on the reliability of the KOSCHI scale, the results of which should be used to possibly revisit the recommended designation. Interim Benefits One of the most notable recommendations in the Report is the panel s recommendation of the creation of interim benefits. The panel recommended, and the Superintendant accepted, that when qualified, a claimant would have access to an additional $50,000 in coverage for medical, rehabilitation, attendant care and assessment expenses, the benefit of which would be managed by the claimant s treating physician. The panel recommended that the following groups of claimants be eligible for receipt of interim benefits: Traumatic Brain Injury in Adults: when accepted for admission to a recognized inpatient neurological rehabilitation program. Other Physical Impairments: any patient who s traumatic physical impairment rating is at least 55% WPI at least three months post-accident.
Page 10 The panel also recommended that interim status cease as soon as a final determination is made, in accordance with Criterion III Guidelines, and in any event no later than two years after the onset of interim benefits. The Superintendant accepted the panel s recommendation with the following modifications: Eligibility for adults with traumatic brain injury should include admission to an outpatient or day patient rehabilitation program The application for interim benefits should be integrated into the application for CAT impairment determination and must be signed by a physician/neurologist. Treatment and Assessment Plans to access interim benefits and make claims for goods and services must be signed by the claimant s primary treating physician. It is important to note that none of the recommendations of the panel which were accepted by the Superintendant have any legal force until the SABS are amended to include the new tests. Anti-Fraud Task Force Recommendations In July 2011, the Ontario Government appointed the Ontario Auto Insurance Anti-Fraud Task Force to assess the extent and nature of fraud present in the Ontario auto insurance industry and to provide recommendations for actions to reduce the incidence of fraud. The Task Force was directed by an independent steering committee, which collaborated with regulators, auto insurance stakeholders, and government representatives to produce realistic recommendations to combat the prevalence of fraud in the industry. The Task Force s Interim Report was released in December 2011 and the Final Report was released in November 2012. The Final Report of the Task Force provided 38 recommendations for the prevention, detection, investigation and enforcement, and regulatory roles with respect to fraud in the industry. Prevention The Task Force made eight recommendations for increased prevention of fraud. The Task Force recommended the creation of a joint Anti-Fraud Awareness Implementation Group between the government and insurers to implement and oversee consumer engagement and education. It was recommended that educational materials in various forms of media be available to consumers and that a dedicated, multilingual website be created to explain the claims process. This recommendation includes education for consumers on how to avoid, detect and report fraudulent activity. The Task Force put the onus on insurers with three of its prevention recommendations. It recommended that the government require insurers to publically disclose how they choose the businesses and professionals that they recommend or refer consumers to, such as independent medical examiners, as well as how these vendors are assessed. It also recommended that insurers be required to ensure public information with respect to complaints protocols is easy to both locate and understand. It further recommended that
Page 11 FSCO, when conducting audits, should ensure that insurers have complied with the protocols and practices they have disclosed to the public. The Task Force made a number of recommendations regarding fraud prevention in the towing industry. First, it recommended that the government implement a province-wide licensing scheme for the towing industry, to be administered by a dedicated administrative authority, which would address fraudulent practices, road safety, and consumer protection issues. Insurers were recommended to collect information and data about towing expenses to facilitate the analysis of the relationships between tow operators, collision repair facilities, and health care clinics. In terms of legislation, the Task Force recommended that the Repair and Storage Liens Act be revised to reduce unreasonable storage costs for damaged vehicles. Of note for insurers, the Task Force recommended that insurers be permitted to collect a cancellation fee from claimants who fail to attend an insurer examination without reasonable notice or explanation. While this recommendation is a step forward for insurers, the ability to collect will undoubtedly be difficult. Finally, the Task Force placed an onus on the government to reduce uncertainty and delay for legitimate claims by aggressively moving to: address the Mediation backlog at FSCO and develop a better dispute resolution framework; introduce minor injury treatment protocols that are rooted in scientific evidence; and amend the SABS to clarify that insurers are required to provide claimants with full explanations when refusing to pay benefits. Detection The Task Force made eleven recommendations for fraud detection. The detection recommendations have a large statutory component and provide for changes to key legislation in order to allow for quicker detection of fraud. They are also heavily focused on the creation of a database or organization to pool and analyze claims data in order to combat fraud. The Task Force recommended that insurers move aggressively to establish an organization to pool claims data in order to identify potential cases of organized and/or premeditated fraud. In order to facilitate this, it also recommended that the provincial government urge the federal government to secure the passage of amendments to PIPEDA that are before the House of Commons in Bill C-12. It noted that the goal should be to remove any undue limitations on the ability of insurers to pool claims information to detect fraud. The Task Force also urged FSCO to amend the forms used by consumers applying for auto insurance and for accident benefits to contain a disclaimer allowing for the pooling of information in order to combat fraud. Also of note, the Task Force suggested HCAI as a potential tool for the organization of this data. With respect to clinics, the Task Force has recommended that the government require the licensing of health clinics that treat and assess claimants, and empower FSCO to regulate the clinics business practices. It also recommended that claimants play a more active role in detecting and preventing fraud, and specifically recommended that claimants be required to confirm attendance at treatment facilities. It further recommended that insurers provide an itemized list of invoices to claimants every two months, in the hopes that fraudulent activity may be detected more quickly. In order to encourage reporting of suspicious or fraudulent activity, the Task Force recommended that FSCO created an Auto Insurance Fraud Information Hotline to facilitate the flow of information. It also recommended that the government introduce legislative protection for individuals who in good faith provide information about potential fraud. The
Page 12 Task Force also recommended that the government amend the Insurance Act to enhance FSCO s powers to obtain additional information to conduct investigation and enforcement. For insurers, the Task Force stated that they should have the ability to examine a claimant under oath in cases of loss transfer and priority disputes, without prejudice to the right for an examination under oath that now exists. It was also noted that the Ministry of Transportation should continue its work on the Electronic Collision System, which will provide an electronic space for the reporting of collisions and the filing of witness statements, police statements, photos, and more. Investigation and Enforcement The Task Force made ten recommendations for fraud investigation and enforcement. The recommendations largely provide for an increase of the scope and authority of FSCO. As with its recommendation for detection, the Task Force recommended that the Insurance Act be amended to enhance FSCO s powers to investigate and sanction unfair or deceptive acts or practices. It also recommended that FSCO be given the authority to oversee and audit the business and billing practices of health clinics and individual healthcare providers who invoice auto insurers, as well as the authority to provide a range of sanctions where they are found to be contravening FSCO s business practice standards. The Task Force also recommended that the government endorse the development of protocols for active information sharing about suspicious cases among the investigative divisions of FSCO, WSIB, and OHIP. It further recommends that FSCO explore the development of protocols to permit FSCO investigators to exchange information with investigators from federal entities such as the CRA. The Task Force recommended two changes with respect to the SABS. First, it recommended that charging insurers a higher price for goods and services than retail price and requesting a claimant to sign a blank form be added to the list of activities described as unfair or deceptive acts or practices subject to sanction under the SABS. Second, it recommended that the government consider amending the SABS to allow insurers to suspend Income Replacement Benefits where there is compelling evidence that the claimant has submitted a fraudulent claim for medical or rehabilitation accident benefits. This amendment was noted to be considered in conjunction with efforts to create a more timely and effective dispute resolution system. With respect to organized fraud, it was recommended that fraud investigators working in the private sector provide information to FSCO where it would be relevant to detecting, investigating and enforcing sanctions against people engaged in premeditated or organized fraud. Further, it noted that police services should considered joint-force collaboration when an organized fraud ring operating in multiple jurisdictions is discovered. Finally, the Task Force recommended that the Ministry of the Attorney General should continue to ensure early assignment and continuity of Crown counsel in large, complex auto insurance prosecutions, where possible. Regulatory Roles and Responsibilities Finally, the Task Force made nine recommendations with respect to regulatory roles and responsibility, many of which are the result of the above-noted recommendations.
Page 13 With respect to FSCO, the Task Force recommended that the government consider changes to its mandate to reflect the new responsibilities it is recommended to assume. It also recommended that the government ensure that government-wide hiring constraints do not delay or prevent FSCO from acquiring staff to carry out its new responsibilities. Further, it recommended that consistent with the broadened mandate of FSCO, the government should consider broadening the terms of reference for the required review of the Superintendant of Part VI of the Insurance Act. The Task Force also recommended that the Minister of Finance should commission an independent review of FSCO s success in carrying out its new responsibilities, at an appropriate time. The Task Force made a number of recommendations with respect to members of LSUC. It recommended that LSUC engage with FSCO and be responsive to issues related to lawyers and paralegals practicing in the auto insurance system. It also recommended that auto insurance system participants report any concerns with the conduct of a lawyer or paralegal to the LSUC. Finally, it recommended that the government clarify the exemption of lawyers and paralegals from the unfair or deceptive acts or practise regulation, so that it applies to lawyers and paralegals only when they are acting in a legal capacity. With respect to health regulatory colleges, the Task Force made two recommendations. First, it recommended that the colleges with members that regularly work with auto insurance claimants should enhance their understanding of the consequences associated with auto insurance fraud and ensure that complaints of fraud are investigated and lead to appropriate disciplinary action. Second, it was recommended that colleges work together to develop professional standards, guidelines, and best practices to improve the quality of the independent medical assessments of claimants conducted by their respective members. What to Expect in 2013 As was the case with 2012, we can expect that 2013 will bring just as many surprises and significant changes in the Accident Benefits world. 2013 may finally bring an Arbitration or court decision with respect to the MIG, which will hopefully provide some much needed clarity with respect to MIG file handling. Both insurer and claimants representatives appear to be waiting for the perfect test case, which we may see following two and a half years with the MIG. Also pending are decisions on the problematic issue of incurred including the Gore v. Henry appeal. We may also some movement with the FSCO backlog, as ADR Chambers is now underway servicing Mediations. The fail rate of Mediations has increased in 2012 and will likely increase further in 2013, as a result of the Court of Appeal decision in Hurst. We can expect with the increase of failed Mediations to find a corresponding increase in Arbitration and litigation proceedings, which should signal 2013 to be a very busy year. It will be interesting to see whether the personal injury bar will be able to address the anticipated volume in a timely manner.