Hitting the Mark Aiming for Successful SABS & MIG outcomes

The more things change, the more they stay the same. Slightly more than six months after the rollout of the revamped Statutory Accident Benefits Schedule (SABS), including the implementation of the Minor Injury Guideline (MIG), health care providers have raised concerns about decisions adjusters are making with respect to a claimant’s health. Conversely, adjusters are raising concerns about health care providers’ treatment requests made on behalf of claimants.

There may always be a professional divide – and perhaps even a little mistrust – between the two sides. But steps need to be taken to ensure the claimant is receiving the appropriate care in order to return to a pre-accident state of health. Furthermore, steps should be taken to reduce the risk of bad faith claims or unnecessary payouts in the event of a tort case. As adjusters work through a claim, they should ask for all the appropriate information before making a decision about the care a claimant needs. This will aid in the reduction of the need for prolonged care and hopefully the risk of a tort claim in future.

Minor Injury Guideline

If a claimant falls within the Minor Injury Guideline, the health care provider should be submitting an OCF 23  (Pre-approved Framework Treatment Confirmation Form) to initiate the treatment. If a health care provider believes the claimant falls outside the MIG and requires access to the higher limits, they will submit an OCF 18 (Treatment Form). The OCF 18 must be accompanied by compelling evidence as to why a pre-existing condition would prevent the claimant from reaching maximum recovery if they were subject to the limits under the MIG. Simply sending in an OCF 18 with no accompanying compelling evidence is not adequate.  

Unfortunately, a number of clinics, especially in the Greater Toronto Area, are not processing OCF 23s; everything is being sent to the insurer on an OCF 18, outlining reasons why the claimant should not fall within the MIG, according to Lisa Fazzari, accident benefits claims technical advisor with The Economical Insurance Group. She says this is in direct conflict with the Financial Services Commission of Ontario’s (FSCO) bulletin, Superintendent’s Guideline No. 02/10, which states: “most persons injured in car accidents in Ontario sustain minor injuries for which the goods and services provided under this Guideline are appropriate.” The Guideline goes on to say: “The existence of any pre-existing condition will not automatically exclude a person’s impairment from this Guideline. It is intended and expected that the vast majority of pre­existing conditions will not do so.

“Only in extremely limited instances where compelling evidence provided by a health practitioner satisfactorily demonstrates that a pre-existing condition will prevent a person from achieving maximal recovery from the minor injury for the reasons described above is the person’s impairment to be determined not to come within this Guideline.”

According to Fazzari, FSCO’s expectation was that 65 per cent of all claims would fall under the MIG. “When we hear that, from our standpoint, that’s what we expect to come in through the door and it’s not,” Fazzari says.

On the other hand, an adjuster cannot simply deny a claim because he or she feels it should fall within the MIG, Fazzari points out. It is up to a medical assessor to determine what the injury is and whether the pre-existing condition is such that the MIG is inappropriate. “Our adjusters do not make the medical decisions, they make the benefit administration decisions,” she says. “They have a right under the regulation to go to an insurer examination to determine what’s reasonable and necessary based on the information provided . . . . And once they get that subsequent information, that’s when they make the benefit determination.”

When the OCF 18 comes through the door, the adjuster’s role is to review the diagnosis and whether the evidence is compelling enough to warrant the claimant with a pre-existing condition being bounced out of the MIG.  This is when gathering information is critical to making a decision with respect to the administration of benefits.

“Certainly the adjuster is not a medical assessor,” said Kelly Stevens, chair of the educational committee for the Canadian Independent Adjusters’ Association Ontario Region. “When a benefit is denied, the adjuster has to give all medical and non-medical reasons why a benefit is denied. It is very important that whenever you deny entitlement, or deny goods or services, you give careful consideration to all medical and non-medical reasons.”

“Adjusters have to be really cautious –  especially through the independent [adjuster] network in Ontario, where we are acting on behalf of our clients – about not appearing to render a pseudo-medical opinion in the denial,” Stevens adds.

Adjuster decisions

Ensuring the file is complete is critical. The adjuster must help the claimant receive required and adequate care and treatment. He or she must also ensure adjusters and insurers are not being accused of acting in bad faith.

The health care community is concerned about decisions some adjusters are making  after receiving an OCF 18. Undertaking research for an article, Teresa Riverso, president of Supportive Environments, contacted rehabilitation associations throughout Ontario to ask them what common issues they faced as a result of the province’s auto insurance reforms. Associations told her some adjusters were denying OCF 18s on the grounds of the treatment not being necessary. “They didn’t think that the diagnosis deemed the assessment of the treatment that was being planned,” Riverso said. “That’s really concerning, because obviously they are making medical decisions without knowing the client, not having med/rehab training and not knowing what kind of diagnosis requires what in terms of assessment and rehab.

“Perhaps they are not really cognizant of the fact that they are making a medical judgment. I think in some cases it could be an internal policy. Perhaps they are being told that certain diagnoses are to be automatically denied, or that certain diagnoses don’t require treatment, and as such they are to deny the OCF 18 without consideration given to individual circumstances, such as pre-existing medical conditions. There is a lack of communication between adjusters and providers and, as such, adjusters are making decisions in a vacuum; decisions for which they do not have med/rehab training. This raises all kinds of ethical and legal questions..”

Adjusters are hesitant to agree with this statement. They way they see it, they are following the requirements under the SABS to gather appropriate documentation. And thus, if they do ultimately reject a treatment plan, they will have the medical evidence to back up their judgment call related to the administration of benefits. “We are absolutely not allowed to reject a treatment plan without medical documentation indicating it is not necessary,” says Lori Ryther, president of Claridge Insurance Adjusters Inc.

Kadey B.J. Schultz, partner with Hughes Amys LLP, says she has not seen denials without medical information. Sometimes when adjusters deny claims, the decisions reflect a lack of information from health care providers that would support the belief a claimant has suffered more than just a predominantly minor injury, she points out. Some insurers, when they receive the treatment request, send the file straight to a paper assessment. As a result, the medical records on which the denial is based might be restricted to the submitted treatment plan.  Insurers could also call for an  in person insurer’s examination (IE). Based on the results of the IE, the claimant will either be kept within the MIG or be bounced out. In other instances, an insurer might deny an OCF 18 based on the medical information in the file
and comments within the OCF 18 that do not support exemption from the MIG limits. If this happens, the claimant is entitled to treatment under the MIG until such a time when medical information shows the MIG does not apply, or a second OCF 18 is submitted. By this time, most insurers have arranged for an IE, if it wasn’t completed initially, Schultz says. When it comes to a psychological issues being raised, most insurers are arranging for in person IEs right away.

“I’m not seeing any insurers not doing anything and just leaving them in the MIG,” Schultz says. “What should be happening is the treatment providers should send in an OCF 23 to initiate the MIG process. And if they still need more treatment after the MIG process has been completed, then they would explain why they would fall out of the MIG.”

But it doesn’t seem to be going that way.

“There has not been a shift at all in terms of these rehab facilities of concern,” she points out. “They aren’t claiming that their clients fall within the MIG. They are submitting OCF 18s instead of OCF 23s and they are just pounding the insurers with OCF 18s – whether it’s for assessments or for treatments, they are still doing it.”

The reality is, the determination an adjuster makes relates to policy coverage and affordability of the payment, says Laurie Walker director of Ontario auto accident benefits with McLarens Canada. “There has to be some understanding on the part of the adjuster, and it’s based on the information that they have been provided with,” Walker says. “It [comes] from the person who is assessing that injured party and if they have been clear in the goals that treatment plan is to achieve.”

Pre-existing medical conditions

Riverso says she has heard health care providers are providing information about pre-existing medical conditions, as well as the required medical documentation, and yet adjusters are still coming back saying they are not in agreement with the diagnosis and recommended treatment. “They are providing compelling evidence and they are still being denied, so that the person, once they are finished with the MIG, do not get any other kind of ongoing treatment.”

Adjusters, however, say they are not always seeing compelling evidence come through the door. “I believe that the intent of that wording (in the SABS) was additional medical documentation outside of that treatment plan,” Ryther says. “The compelling evidence isn’t the OCF 18. The compelling evidence is the accompanying documentation indicating there is a problem here that would take them out of the MIG. I beg of these health care providers to provide me with whatever documentation they may have in their file, other than a phone call from a lawyer, that makes them think this assessment in needed.”
Ideally, for many adjusters, compelling evidence would come from a family doctor – or a health care provider – who has seen the claimant prior to the accident. Someone who knows the claimant well.

“I don’t believe the compelling evidence should be from the treatment provider,” Ryther says. “I believe it should be a separate letter from a family doctor. That’s what [happened] in the past: You would get these treatment plans with these diagnoses, none of which were in any of the documentation that preceded it. We’re not saying their diagnosis is wrong, but there is no other supporting evidence. They are saying ‘compelling’ evidence. Well, if that the only compelling evidence is your assessment, no, it’s not going to work.”

Ryther added she has seen occasions when a treatment plan comes in, and a specialist has made an assessment that appears to be outside his or her area of expertise – a chiropractor diagnosing a psychological injury, for example. “That, to me, isn’t compelling evidence,” because the proper testing hasn’t been done – an intake interview, for instance,” she says.

Some adjusters have suggested a claim should be initiated under the MIG to ensure the claimant is able to start recover and treatment immediately. From there, further review can be done – perhaps by way of an IE or after re-submission of an OCF 18 – to determine if the claimant requires more care or if there is an actual diagnosis there.

Psychological symptoms/diagnoses

Since Ontario’s auto insurance reforms were implemented on Sept. 1, 2010, adjusters report seeing more frequent diagnoses of psychological and psychosocial impairments.

“There is a significant increase, and it is occurring at the onset of a claim as opposed to prior to September, when it was somewhat mid-stream to the claim,” Walker says. She submits the psychological and psychosocial claims are coming in earlier because there are differing opinions on whether the minor injury guideline includes psychological impairment.

“Psychological symptoms are being listed on the request for treatment – sleeplessness, anxiety, fear of driving, tearfulness,” Walker observes. “Those are symptoms. That is not a diagnosis. The minor injury guidelines, as issued in the bulletins by FSCO, clearly state the minor injury treatment protocols offer treatment for psychosocial issues, so for symptoms.”

Tammie Norn, president of ProFormance Adjusting Solutions, says she will receive a first OCF 18 with eight psychological impairments listed on the form. “That’s no longer ‘minor’ as defined by the guideline,” Norn says. “But at that point, we’re not medical experts; we’re not going to make that decision just based on that form. It’s not a predominantly minor impairment because of all these psych issues, so let’s go have this assessed by way if an IE.”

Early diagnoses of post traumatic stress disorder (PTSD) are also being submitted, even though PTSD cannot be diagnosed for at least three to six months, Walker says. “We’re getting it very shortly after the motor vehicle accident,” she says. “And we question whether that is an effort simply to pull someone out of the minor injury guideline, to access a higher level of benefits.”

Others have not seen a huge influx in psychological claims as anticipated. “There are certainly instances where that is there, so we are trying to address that through the independent examination route to get a baseline and to have a review of whether or not that does necessitate some different management of the claim,” says Lynn Anderson, vice president of health care services at Aviva Canada. “But by and large, we haven’t seen a huge . . . influx of those kinds of conditions.”

Asking for more information

A key to handling and adjusting these OCF 18s, is to request more information from the health care provider straightaway. Sometimes, it’s a matter of simply making a phone call to let the practitioner know the OCF 23 is available for MIG claims.

Riverso says she has never been asked for more information after submitting an OCF 18. It’s usually a straight denial. She says she has heard the same from other health care providers to whom she has spoken: the claim is denied with no explanation as to why even if the adjuster is called.

Norn says her firm always calls the clinic first to hear out a situation. In fact, they have had some success in getting a clinic to resubmit a request under an OCF 23. Sometimes an OCF 18 is submitted that does not indicate pre-existing conditions at all. But because they don’t want the claimant to be limited to $3,500, they will check off ‘no’ under minor injury. At this point, if a call to the clinic yields no or limited result, Norn says adjusters will go to paper review to ensure nothing is being missed.

“We are asking for the right disciplines to be doing a review of that, then examination, to ensure that’s actually the accurate and correct diagnosis,” Anderson says.

If an adjuster has the proper information and requests what is needed to make a determination, then he or she is in a good spot to decide confid
ently whether they fall in or out of the MIG, says Debbie Laxton, national client service manager of accident benefits at Crawford & Company (Canada) Inc.

Request for IE/further information
 
An opportunity exists to go to an IE as a means to determine whether or not the requested treatment is required. There is some debate about how frequently this is being used.

Prior to the auto reforms, Riverso says she used to receive more requests for IEs. Since September 2010, occupational therapists have noticed a decline in referrals for IEs. “I don’t think adjusters are using them as much as they did before,” Riverso says. “What also seems to be happening is they don’t necessarily go along with the recommendations being made in the IEs if a claimant does require intervention. Then you ask the question, ‘Well why did we bother? What’s the point of doing an IE if you are not going to abide by the recommendations being made by your own therapist’?”

An adjuster is not qualified to make a decision about what constitutes a pre-existing condition and what doesn’t. Therefore, they will look to an in-person IE to have the person physically assessed.

According to Norn, as soon as the claims are submitted, adjusters are asking for pre-accident notes and records, hospital records, ambulance call reports, etc.

“That’s a key tool to be able to use that,” Laxton says. An IE is not a requirement in a denial. However, since adjusters are not medical doctors, they need documentation to be able to support a denial. Adjusters need to be able to make a decision confidently and if they can’t, then they use the IE. “That’s a tool and that’s something that will support our position in the long run,” Laxton says. “You have not just the decision that the adjuster made, without any good supportive documentation or reasons behind it, but you do have the insurers examination to support you. Either way, if you are going to approve or deny. I think that’s a key tool.”

Sources say adjusters should be requesting further information, including:

• medical documents from all health care and treatment providers;
• clinical notes and records of any health care provider the claimant has seen before and accident the accident;
• pharmacy records;
• decoded OHIP summary/OHIP records to determine health care providers the claimant has seen;
• educational records;
• employment records;
• hospital records;
• walk-in clinic records;
• test results;
• x-ray reports;
• pre-accident history;
• treatment provider records; and
• transcriptions;

Other steps an adjuster should be taking include:

• gathering as much information as possible;
• reviewing the documentation as it comes in;
• willingness to reverse a decision if compelling evidence comes in;
• more internal supervisory touches on the file to assist and ensure adjusters are handling them per the protocols;
• detailed statement-taking;
• following-up with appropriate questions;
• statutory declaration; and
• examination under oath

Meet with the claimant and find out what is going on, Schultz recommends. “Many OCF 18s that come across my desk talk about symptoms,” she says. “When you meet with the claimant, they tell you they have never had that symptom. This is why you have to investigate; why you have to meet with the claimant; why you have to ask them questions about what their symptoms are.” Schultz recommends asking them what they are experiencing. “Ask them frankly about the actual treatment they are receiving, detailed questions.”

Some independent adjusting firms have a health care department internally. This department should be used to provide medical expertise on a file. “Adjusters have to make decisions based on medical evidence, and so we acknowledge that adjusters aren’t always equipped to do that. That’s why we’ve gone to that team approach of [referring matters to] the medical people within that team,” says Heather Matthews, vice president of health care management at Crawford & Company (Canada) Inc. “Those medical people are not doing anything from an adjudicative standpoint. They are simply there as medical expertise . . . It’s basically, ‘Here is our expert opinion on that treatment plan or the clinical notes.”

Arbitration/mediation

In the end, it will be years before the courts give some guidance as to whether adjusters, insurance companies and health care providers are proceeding as they should post-reforms. “Right now, we are essentially in a two-year holding pattern,” Schultz says. “Every insurer is doing their best to figure out what the MIG and what the minor injury definition actually means; what ‘medical reason’ actually means; and how they are supposed to approach these initial OCF 18s that are coming in when it would appear, from all of the information on the file, that the person should fall under the minor injury definition. We are not going to know if we are doing it right, if anyone is doing it right, probably until the spring of 2013, when the first decisions will start to come out, particularly given the enormous backlog (mediation and arbitration) at FSCO.”

This leaves a huge uncapped exposure for the insurance companies.