Accident Benefit Reporter Vol. 4 Issue 3

In this issue:

Holiday Greetings

Once again, the holiday season is upon us, bringing with it, an opportunity to reflect on the events of the past year. We are delighted with the continued, high level of interest and support for the Accident Benefit Reporter, as we examined the complex issues surrounding Bill 59 and traumatic personal injury.

In September, the Ontario government initiated a review of this legislation and we understand that there were more than sixty submissions in response, including one from our firm. In developing this submission, we attempted to obtain the opinions of treating professionals on needed changes to this legislation. Unfortunately, the tight timing of the current review process limited the opportunity for suitable discussion. The Thomson, Rogers submission is summarized in this current issue, and is posted on our web site. We welcome feedback and questions from readers of the Accident Benefits Reporter at info@thomsonrogers.com.

We plan to continue this discussion in 2002, starting with a daylong workshop and forum, which is planned for Riverdale Hospital on January 25, 2002. Mr. John R. O’Toole M.P.P., Parliamentary Assistant to the Minister of Finance and member responsible for the review will be attending this workshop, providing treating professionals with the opportunity to make their views known to Queen’s Park. Complete details of this program can be found in the brochure that is included with this mailing. All monies raised will go to support Brain Injury Awareness Month.

We hope that you will be able to join us in January at Riverdale, or at another of the Accident Benefit Reporter workshops which will take place in various centres across the province during 2002. In the meantime, the lawyers and staff of Thomson, Rogers wish you and your loved ones the best of the Holiday Season and a happy, prosperous and safe New Year.

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Consultation Papers Submission to the Government

By Richard Halpern
Partner
Thomson, Rogers

The Provincial Government invited suggestions for possible changes to the automobile insurance system from interested parties in a Consultation Paper dated September 2001. The government solicited responses to 25 questions which were concerned with both tort claims and accident benefits issues.

Thomson Rogers, in preparing our submission to the government, attempted to get input from a variety of professionals involved in assisting accident victims in recovery, rehabilitation and accessing compensation. Unfortunately, with the very limited time allowed by the government to respond, it was impossible to incorporate many of the excellent suggestions these health care professionals had for improving the system for the benefit of injured parties. We hope to facilitate continued dialogue among health care professionals in order to persuade the government that changes to the current system are necessary to keep it fair, balanced and cost-effective.

We highlight some of the more significant suggestions made in our submission to the government.

  1. One of the more important issues to address is the definition of "catastrophic". The shortcomings of the current definition are generally well-appreciated by those involved in caring for accident victims. They include the fact that: children are not well-served by the current definition; many seriously injured adults, not qualifying as "catastrophic", are deprived of needed medical and rehabilitation benefits beyond the time and monetary limitations contained in the regulations; and, the Glasgow Coma Scale is not necessarily a good measure of outcome. There are other shortcomings, the particulars of which will not be addressed in this article.

    We have suggested that the definition of "catastrophic" be changed to remedy these problems. Claims against at-fault drivers for pain and suffering cannot be advanced unless the verbal threshold is met. The threshold provides that, apart from scarring and fatal accidents, a claim can be brought only if the person suffers a permanent serious injury to an important physical, mental or psychological function. The words "permanent and serious" have already been judicially considered, providing some guidance on the meaning of the phrase. Our suggestion is that the definition of catastrophic be the same as or similar to this threshold.

  2. Other recommendations, aimed at creating more efficiencies in the accident benefits claims process have also been suggested. Recognizing that delaying access to needed treatment can adversely affect the accident victim’s recovery and rehabilitation, we have tried to make suggestions that will expedite the process of obtaining benefits and, at the same time, reduce cost. As an example, the DAC process is time-consuming and expensive. Streamlining and limiting that process will result in considerable savings to the system. Reducing or eliminating insurer medical examinations will also result in substantial cost savings.
  3. Many health care professionals have long called for changes to the Form 1, dealing with attendant care needs of accident victims. Changes are required to make the Form 1 reflect the "reality" experienced by those who need and try to access assistance caused by injury-related limitations. As well, Form 1 does not adequately reflect the needs of children, an important, but largely forgotten, group of victims.
  4. It has been suggested by some that the need for some services provided by health care professionals is questionable and is causing a financial drain on the system. Yet, it is apparent that a very substantial amount of money expended by insurers go toward assessments (DACs and Insurer Examinations). Changes are needed to direct less money to assessments, which do not advance recovery, and more money to therapy. There should be a presumption that treatment recommended by treating health care providers (as opposed to experts hired by a lawyer or insurer) is both reasonable and necessary and ought to be implemented in a timely way. Undue delay in financing this treatment should be met with penalties severe enough to deter such behaviour.

At this stage we do not know what changes are being contemplated by the government. The insurance industry, through the Insurance Bureau of Canada, has made submissions. While it is important to recognize that insurers must stay commercially viable, the IBC recommendations, we suggest, do not adequately balance the profit motive of the insurance industry with the needs of accident victims. In the interests of weeding out questionable or frivolous claims, many meritorious claims can be affected. Therefore, the input from health care professionals regarding improvements to the current automobile insurance system is needed to ensure that current and future accident victims have representation. We hope to consult with many of you and we encourage you to make submissions to the government now.

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BILL 59, Rehabilitation Funding Decision Models. Can we do better?

By David MacDonald
Partner
Thomson, Rogers

Thomson, Rogers thanks its readership for participating in the health care professional opinion survey this year. The resulting database of information has been correlated, summarized and presented to Mr. John R. O’Toole, M.P.P., and Parliamentary Assistant to the Minister of Finance.

This Accident Benefit Reporter encloses a conference application and a "Suggestions For Change" submission form, which we invite you to complete and return to Thomson, Rogers, to the attention of David MacDonald, for compilation and presentation to Mr. O’Toole at the Riverdale Conference.

The following is a summary of information gleaned from the health care professional opinion survey.

Survey Sample:
122 Health care professionals responded. The professionals were: chiropractors, physicians, speech pathologists, occupational therapists, psychologists, physiotherapists, social workers, rehabilitation counselors, nurses, kinesiologists, and other rehabilitation professionals.

Survey Results:
Survey respondents’ use and familiarity with treatment plan:
Survey Highlights:

  1. 94.3% of respondents participated in the preparation of a treatment plan for victims of motor vehicle accidents;
  2. 85.2% of respondents have rendered treatment or have provided services pursuant to an approved treatment plan since November 1, 1996.

Effectiveness of Treatment Plan in Facilitating Treatment:

Survey Highlights:
The concerns voiced by the health care professionals in response to the thirty-two questions put to them can be grouped into two categories:

  1. Inappropriate denial of health care professional’s recommendations for treatment; and
  2. Impact upon accident victim of delay in access to medical and rehabilitative needs.

Inappropriate Denial of Health Care Professionals’ Recommendations for Treatment:
Survey Highlights:

  1. 58% of survey respondents found that insurers rarely or never contacted the provider to obtain further information about the proposed treatment plan before giving notice that the treatment plan would not be funded.

Impact Upon Accident of Delay in Access to Medical and Rehabilitative Needs:
Survey Highlights:

  1. 76% of survey respondents familiar with the treatment plan approval process found that insurer representatives always, usually or sometimes had taken more than fourteen days to issue a decision to approve or deny a treatment plan.
  2. 82% of respondents found that the delay in funding treatment plan recommendations always or usually had a negative effect upon the accident victim’s accident-related impairments.

Results of Inappropriate Denials:

  1. Increases burden on public health;
  2. Destabilizes victim’s focus on recovery;
  3. Increases barriers to recovery;
  4. Loss of productivity:
    1. for victim;
    2. for victim’s employer.
  5. Increases costs to insurer:
    1. IRB’s;
    2. assessment expenses;
    3. transfer payments to OHIP;
    4. loss of income claims.
  6. Reduced likelihood of return to function.

Goal to be Achieved Through Changes to Treatment Plan Approval Process:
A treatment approval and delivery model should support the delivery of timely and co-ordinated medical and rehabilitative services and devices with the goal of returning the victim to the maximal level of recovery as quickly as possible.

Fostering a Co-operative Approach:
To reduce approval delays the process must increase dialogue and foster a co-operative approach among the victim, treatment provider and insurer.

Effects of Adversarialism:
The adversarial elements of the current process destabilize the accident victim’s focus on recovery. As one respondent noted "where an adversarial climate develops it can cause psychological impairments which can prolong recovery".

Recommendations Concerning the D.A.C. Process:

  1. D.A.C. members should be members in good standing with their affiliate colleges, and should remain bound to fulfil their ethical responsibilities and best practices in accordance with their College’s Code of Ethics;
  2. D.A.C. members should have a duty of care to victims assessed;
  3. D.A.C. assessors should be drawn randomly from a pool of certified and qualified specialists on a blind referral basis;
  4. make the D.A.C. system transparent:
    1. require D.A.C.s to list associated assessors;
    2. make them become accredited through the F.S.C.;
    3. publish individual D.A.C.s’ rates of approval / denial;
    4. provide information about whether D.A.C. assessors have done or continue to do IMEs for insurers.

Recommendations Concerning the Accident Victim’s Need for Early, Coordinated and Sustained Intervention:

  1. allow funded treatment to proceed during waiting periods associated with approval of the treatment plan and while a disputed treatment plan is awaiting determination by a D.A.C.;
  2. deem an automatic approval of the treatment plan if the insurer has not responded within 7 days;
  3. oblige the insurer to attend case conferences and team meetings for the provision and co-ordination of rehabilitation services;
  4. prevent the insurer from denying a treatment plan or a portion of a treatment plan unless the insurer:
    1. communicates by telephone or in person with the treatment provider recommending services;
    2. obtains a written review of the treatment plan by an appropriately qualified health care professional; and
    3. provides specific, health care professional-based reasons for rejecting the treatment plan.
  5. incorporate a pay pending resolution of dispute system for the first 12 weeks after the accident to a maximum of $4,000.00 for services provided by all health care professionals;
  6. provide for automatic approval for services recommended by professionals associated with a treating public hospital required on or for discharge;
  7. allow appropriately qualified rehabilitation case managers certified by a college covered by the Health Disciplines Act and/or the Financial Services Commission of Ontario to provide services for non-catastrophic cases where the victim is paediatric, or has sustained multiple trauma or has sustained mild to moderate brain injury.

Recommendations Concerning Catastrophic / Non-catastrophic Designation: Survey respondents recommended as follows:

  1. deem injured children to be entitled to the benefits available to those having sustained a catastrophic impairment;
  2. change the catastrophic definition to include the impact on functioning and;
  3. when there is a permanent impairment, increase the funds available;
  4. a formula needs to be developed to assess degrees of loss rather than to dichotomise victims based upon whether they have or have not sustained a catastrophic impairment.

Recommendations Concerning the Form and Content of the Treatment Plan:
Allow health care professionals who have their Masters Degree in Social Work and accredited Speech Pathologists and Occupational Therapists to sign Treatment Plans.

Summary of Key Recommendations and Conclusions:
Delay and adversarial elements are frustrating effective rehabilitation efforts. The solution lies in a limited "pay pending resolution of dispute" approach to rehabilitation which allows members of all Colleges currently regulated by the Health Disciplines Act, M.S.W.s and O.T.s to recommend and receive funding for treatment.

Treatment Plan Recommendations:
A system should be created whereby the assigned adjuster who receives a treatment plan arranges telephone contact with treatment provider unless the insurer automatically agrees to fund the rehabilitation. If, despite this communication, an agreement is not reached, any decision not to fund the treatment plan should be made only after a rehabilitation professional of appropriate qualification reviews the treatment plan, and has a dialogue with the recommending treatment provider and provides a written review of the treatment plan.

"Mandating" a Co-operative Approach to Funding and Providing Treatment:
A new protocol must increase dialogue to promote and increase understanding of:

  1. the accident victim’s impairments;
  2. the anticipated manner by which the recommendations made by health care professionals will reduce those impairments;

In order to reduce as much as possible the human and economic toll that delayed or denied treatment has upon the victim, the insurer, employers, public health and society.

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The Ontario Neurotrauma Foundation

By Wendy Moore Johns
Partner
Thomson, Rogers

The Ontario Neurotrauma Foundation (the "Foundation") is a non-profit organization dedicated to the prevention, rehabilitation and treatment of spinal cord and traumatic brain injuries. Through its research grant program, the Foundation supports knowledge creation, knowledge transfer and skill building, in an effort to reduce the incidence, prevalence and impact of spinal cord and traumatic brain injuries.

One of the many Foundation grant recipients is a research study authored in part by Dr. Andrew Howard of the Hospital for Sick Children in Toronto. Dr. Howard’s research study is focused on injury prevention for children travelling in automobiles.

Unfortunately, children have not benefited from advances in automobile safety to the same extent as adults. This is due in part to the misuse of safety devices including air bags and child seating restraints. The main objective of Dr. Howard’s study is to measure the association between the correct use of child restraints and the severity of injuries suffered by children in automobile crashes. The study also hopes to provide a better understanding of the biomechanics of injuries suffered by children in automobile crashes.

The study is a 3-year, two-center study with the Hospital for Sick Children in Toronto and the Childrens’ Hospital of Eastern Ontario in Ottawa. The study will include 90 children (primarily newborn to age 8) who are admitted to the trauma unit with injuries sustained in automobile crashes. Transport Canada is a vital participant in the study and provides information through its collision investigation teams who examine accident scenes, vehicles and child restraint systems.

Largely, children who ride in automobiles in Canada are restrained. However, there is a great burden on the caregiver to ensure that child restraints are used properly. The proper use of child restraints is difficult because children are growing and changing size; there are many dangers inside cars (i.e. airbags); the child must be properly held to the restraint; and the restraint must be properly held to the car. The correct use of a child restraint is not an easy task.

In order to optimize the protection of children traveling in automobiles, we need a better understanding of what can be done. Dr. Howard’s study aims to come up with recommendations regarding what is causing injuries to children in automobile crashes. In turn, this information could be used to better protect our children.

A logical next step of the study is to develop software technology for simulating the automobile crashes currently being studied; thereby providing a place to study hypothesis of automobile crashes.

In the long term – information regarding how children are injured in automobile crashes could be used to assist child restraint manufacturers to produce a product that cannot be used incorrectly.

For more information about the Ontario Neurotrauma Foundation or the Crash Protection study, contact their websites at www.onf.org or andrew.howard@sickkids.ca.

For more information regarding childrens car seats and restraint systems, we suggest that you visit www.safekidscanada.ca.

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The material in this newsletter is provided for the information of our readers and is not intended nor should it be considered legal advice. For additional copies or information about "Accident Benefit Reporter", please contact Thomson, Rogers.

"Accident Benefit Reporter" is a publication of Thomson, Rogers, Barristers and Solicitors Suite 3100, 390 Bay Street, Toronto, Ontario M5H 1W2 Tel 416-868-3258 Toll Free 1-888-223-0448 Fax 416-868-3134

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Posted: December 1, 2001