The provincial government appears ready to deliver on its promise to eliminate Designated Assessment Centres (DACs). It has been long recognized that the DAC process is a very expensive one and many believe that little benefit comes from that process. To some, the DAC process is terribly flawed and biased in favour of the insurance industry. Others argue that DACs provide independent medical assessments that promote resolution of conflict between the injured person and their insurer. Either way, proposed regulations have been circulated which, perhaps with minor changes, are expected to become law in the next few months.
The proposed regulations (changes to O. Reg. 304/96) essentially replace more Insurer Examinations (IEs) for the DAC assessment process . For injured people, this is certainly the most significant change in the proposed regulation. Before exploring the expansion of IEs, some other important changes merit discussion.
Proposed section 32.1 allows insurers to have injured people who are in hospital or long-term care facilities examined by a health care professional even before any application for benefits has been submitted. The rationale for such a significant change is allegedly that this new section allows the insurer to determine whether there are medical and rehabilitation needs to be met immediately upon discharge. The report generated by this examination cannot be used later by the insurer to deny an application for benefits. Even though this examination might reveal a need for a benefit, there is no obligation in the proposed regulation that it be paid. It is still up to the injured person to submit all the appropriate forms to collect a benefit. Concerns for the injured person under this section include proper disclosure of rights to the person and matters of informed consent. This section essentially allows an IE before any steps have been taken to claim benefits and before the injured person has had an opportunity to seek legal advice.
Proposed changes under section 24 will allow IE assessors to consult with treating health care practitioners. It is difficult to imagine any benefit to the injured party from such a consultation and it is more likely that the purpose of the consultation would be to influence the opinion of the treating practitioners. This change is proposed despite previous assertions by the government that there ought to be a move back to allowing treating doctors to make treatment decisions.
Multiple Disability Certificates can be requested of the injured person by the insurer. Under the proposed changes, failure to deliver these certificates within 15 business days can result in a suspension of benefits. This is so despite the fact that the Disability Certificate must be completed by a health care practitioner who may not be able to produce it that quickly.
By far, the most significant change concerns IEs under section 42. It can be anticipated that the expanded right to IEs will, at least to some extent, offset the hoped-for savings from the elimination of DACs. Each denial or questioning of entitlement to a benefit will result in an IE. The insurer is free to choose any assessor to conduct the IE, as long as the injured person does not have to travel beyond a proscribed distance. There is no restriction on the assessor travelling.
Particularly worrisome for the injured person is section 42(10). This subsection requires the injured person to provide “all relevant prior test and examination results and such other information and documents as are relevant and necessary for a review of the insured person’s medical condition” within “5 business days” after notice of a section 42 IE. There are a number of practical difficulties with this requirement. First, it is unreasonable to expect that the injured person will know what information and documents are “relevant”. Second, it is impossible for a non-medical person to know what documents are “necessary”. Third, there will undoubtedly be some expense associated with the collection of this material. Finally, most, if not all, of the required documentation will be in the hands of third parties (i.e., hospitals, doctors, radiology clinics, etc.), over whom the injured person has little control. Yet failure to comply may result in a stoppage of benefits.
Section 42 IEs can be multi-disciplinary, despite the fact that they are merely responding to a request for benefits, likely supported by a single health care professional. There are no meaningful limits on the scope of the examination or the amount of money the insurer can spend on their expert. Yet there are significant limitations on the ability of the injured person to support the claim for benefits and dispute the findings of the insurer’s expert witnesses. Proposed section 42.1 provides some limited ability to respond to the IE, but is so restricted as to be virtually meaningless to the injured party in most circumstances. The time constraints imposed on the injured person for responding to an IE (usually 20 days to deliver a report from notice of denial) are likely, in practice, impossible to meet. The amount to be paid for these responses is so inadequate (maximum for a specialist is $900) that it is difficult to imagine a health care practitioner prepared to take on the task or perform an analysis sufficient to resist the IE opinion. Insurers face none of these limitations.
While the elimination of DACs is good for injured people and likely to yield a considerable savings to the auto insurance system, what the government now proposes heavily favours the insurance industry to the detriment of the injured person. The draft regulation is densely drafted and difficult to understand for lawyers. It will be impossible for the injured person to navigate through this regulation without legal advice.
Another opportunity has been missed to simplify the process and substantially reduce expense. More forms, more assessments and more steps seem typically to be the response to the need for reform. It is time to reverse this trend. Clearly the interests of injured people and consumers are inadequately represented when auto insurance reform is considered.
We will be monitoring another upcoming change which is certain to be contrary to the interests of injured people: Preferred Provider Networks.