It happens way too often. Your personal injury client is seriously injured and needs ample care and rehabilitation. Thankfully, and with effective legal representation, you navigate through all the red tape, leap over all of the hurdles the accident benefit insurer puts in your way and things run smoothly until, finally, the insurer secures a game-changing highly contentious Independent Medical Examination report that leads to crucial treatment and care denials.
The report, often by someone specializing in Independent Medical Examinations, rather than treatment, concludes that the treatment or care recommended by the treating health practitioner is unnecessary and unreasonable.
What do you do?
You try to persuade the insurance adjuster to reconsider their denial by providing additional medical support for the request and by explaining how the report is sloppy and riddled with numerous factual errors, but the insurer maintains their denial.
You know that any means of disputing the denial could take years to resolve.
You imagine explaining to your client the dispute process – that you will have to file for mediation with the Financial Services Commission of Ontario, that you won’t be able to get a mediation date anytime soon so you will either have to wait until you get a mediation date or wait 60 days and rely on the now accepted deemed failed mediation rule, and only then do you have the privilege of filing for Arbitration or litigating in the Courts. If you take the shorter Arbitration route, you can expect to wait more than a year given the longer than normal lineups resulting from reliance on the deemed failed mediation rule and then you have to wait an uncertain length for the results of the Arbitration, all the while knowing that you are waiting for a decision from an Arbitration you argued more than 6 months ago and that any decision is still subject to appeal.
You consider options to expedite the process or move for interim relief, but are conscious of the fact that almost everyone in the dispute queue, including a large number of your clients, have similarly time sensitive complaints.
The accident benefit dispute process makes no sense. The premise of nofault benefits is immediate access to necessary benefits. A lengthy dispute process to resolve claims for immediate benefits is absurd.
Meanwhile, while the dispute is pending, your client suffers without the treatment (and the insurer doesn’t suffer at all).
You can threaten claims for bad faith, mental anguish, special damages, punitive damages, but the accident benefit insurer isn’t worried since their denial is supported by an Independent Medical Examination report.
What we need is a better dispute process – a more efficient one, a more timely one – one that can be accessed without delays that impede a claimant’s recovery.
Developing a new process and gaining support for it will be a challenge and will take time. In the meantime, we need to make Independent Medical Examiners more accountable for sloppy or biased reports, and we need to make insurers more accountable for relying on them.
Darcy Merkur is a partner at Thomson Rogers in Toronto practicing plaintiff’s personal injury litigation, including plaintiff’s motor vehicle litigation. Darcy has been certified as a specialist in Civil Litigation by the Law Society of Ontario and is the creator of the Personal Injury Damages Calculator.
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