Accident victims group takes issue with report on Ontario auto dispute resolution system

A recent report on Ontario auto insurance dispute resolution includes six paragraphs discussing insurers’ medical examinations, but the recommendations ignore the effect of “flawed” medical opinions, an accident victims’ group suggested Friday.

The Ministry of Finance released Tuesday the final report of the Ontario Automobile Dispute Resolution System (DRS) Review, written by J. Douglas Cunningham, former associate chief justice of the Ontario Superior Court.

Cunningham was appointed in August 2013, by Finance Minister Charles Sousa to review auto claims dispute resolution in Ontario and to provide recommendations on “systemic causes of and solutions to the mediation backlog, potential changes to the current structure, a delivery model and process, the addition of a dispute prevention process for the system and other issues related to the viability of the DRS.”

Cunningham noted in the report he was not mandated to make recommendations on insurers’ medical examinations.

“Nevertheless, many stakeholders felt it was important to provide comments on insurers’ use of independent medical assessments,” Cunningham wrote.

“These medical assessments are not unique to Ontario’s auto insurance system. They are used by almost every other insurance program, as well as by workers’ compensation systems and employers.”

However, he stated there needs to be a “culture shift” adding that “medical experts appearing before adjudicators should have a duty to the DRS and not to the party that has retained them.”

He recommended that medical experts “should be required to certify their duty to the tribunal and to provide fair, objective and non-partisan evidence.” He added arbitrators with the Financial Services Commission of Ontario (FSCO), when hearing auto claims disputes, “should ignore evidence that is not fair, objective or non-partisan and, in such instances, the expert should not receive compensation for appearing as a witness.”

Despite this recommendation, the FAIR Association of Victims for Accident Insurance Reform said in a press release Friday, that the final report “ignores that flawed medical opinions would affect a case all the way through the system and in fact, beyond hearings for those who find themselves having to apply for (Ontario Disability Support Program) and (Canada Pension Plan) when they are turned down by their insurer.”

FAIR, an advocacy organization representing auto accident victims, was one of 33 stakeholders who made submissions to the Cunningham report.

“The medical opinion evidence in respect to Ontario’s vulnerable and often cognitively impaired accident victims should be of the utmost importance and of the highest quality to satisfy our courts who must decide whether or not an injured person is entitled to benefits,” FAIR stated Friday. “There is no more important evidence than that and it is central to the recent mediation backlog – too many legitimate claims indiscriminately turned down by insurers based on questionable medical reports.”

In the past, FAIR has criticized the College of Physicians and Surgeons of Ontario for not publishing the names of independent medical examiners (IMEs) who have multiple complaints made against them, unless those complaints were referred to the CPSO disciplinary committee. For its part, CPSO has stated it is only mandated to provide specific information on doctors, such as restrictions on their licences and the results of disciplinary and incapacity proceedings.

In his report, Cunningham noted that CPSO requires IMEs to have “objectivity and impartiality,” but he added those qualities are difficult to evaluate.

“I have been told by consumer advocates that the health regulatory colleges have not been responsive to complaints regarding members who conduct IEs,” he wrote, referring to insurer examinations. “IE assessors working in the auto insurance system have no standard assessment protocols, report formats or timelines, and I imagine it must be a challenge to insulate themselves from outside influence.”

The government needs “to reach out to health professional associations and the insurance industry in order to educate experts on their duty to provide fair, objective and non-partisan evidence,” Cunningham wrote. “In addition, I would like to see arbitrators ignore evidence that is not considered fair, objective and non-partisan and, in such instances, the expert should not receive compensation for appearing as a witness.”

That was one of 28 recommendations in the report, which also recommended that the government mandate “timelines and sanctions regarding settlement meetings, arbitration hearings and the release of arbitration decisions,” as well as an electronic filing system.

“Insurers are currently able to log into the Dispute Resolution Case Directory to determine how many mediation applications have been entered into the system by FSCO,” Cunningham wrote. “When an electronic filing system is developed, I would hope that the system have the ability to inform an insurer automatically when an application is filed.”

He also recommended that hearings be conducted as paper reviews “in cases where there are $10,000 or less of medical and rehabilitation benefits in dispute, or where the dispute involves a determination as to whether the claimant’s injuries meet the minor injury definition.”