It’s a situation that 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 of the red tape, leap over all of the hurdles the accident benefit insurer puts in your way, and things run smoothly until the insurer secures a 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 care recommended by the treating health practitioner is unnecessary and unreasonable.
What do you do?
You try to persuade the insurance adjuster to reconsider the denial by providing additional medical support for the request and explaining how the report is sloppy and riddled with numerous factual errors. The insurer, however, maintains the denial.
Now what?
You know that any means of disputing the denial could take years to resolve.
You imagine explaining to your client the dispute process in which they’ll have to file for mediation with the Financial Services Commission of Ontario but won’t be able to get a mediation date any time soon. As a result, you tell them they’ll either have to wait until they get a mediation date or wait 60 days and then rely on the now-accepted deemed-failed mediation rule. Only then do they have the privilege of filing for arbitration or litigating in the courts, you tell them. If they take the shorter arbitration route, they can expect to wait more than a year given long lineups resulting from reliance on the deemed-failed mediation rule. Of course, they then have to wait an uncertain length of time for the results of the arbitration all the while knowing 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 the no-fault system is immediate access to necessary benefits. A lengthy dispute process to resolve claims for immediate benefits is absurd.
Meanwhile, while the dispute is pending as your client suffers without the treatment.
You can threaten claims for bad faith, mental anguish, special damages, and punitive damages, but the accident-benefit insurer isn’t worried since an independent medical examination report supports the denial.
What we need is a better dispute process that’s more efficient and timely. We need a system that’s accessible 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 practising plaintiff’s personal injury litigation. He has been certified as a specialist in civil litigation by the Law Society of Upper Canada and is the creator of the personal injury damages calculator.
