by Barbara L. Legate
OBIA Newsletter, November, 1998
Consider these typical examples of termination of statutory accident benefits:
1. You
have been receiving weekly income replacement benefits for the last two
years, and suddenly you get a letter in the mail with an
official-looking document telling you that you no longer qualify. The
insurer just sent you to an “independent medical” examination and cites
the doctor’s opinion as the reason to stop your benefits. Your
own doctors tell you that you cannot return to any kind of work now,
and you will need extensive rehabilitation before that will be
realistically possible.
2. Your
physiotherapist has you on a maintenance program- that means you will
have to have physiotherapy for the rest of your life to maintain your
current level of function. Without it you will regress. Despite the
written opinions and treatment plans given by your own doctors and
therapists, you receive a letter in the mail telling you physiotherapy
will be cut off in four weeks.
3. An
occupational therapist came into your home and recommended a variety of
renovations and modifications to make it easier for you to get around
independently. The insurance company agrees to pay for some of the
modifications but refuses to pay for the more expensive
renovations.
Unfortunately,
in these all-too familiar scenarios, many people think the insurance
company representative must know what they are doing, and accept the
decision. Others are certain the decision must be wrong but do not know
what to do about it, or are afraid of the expense involved in disputing
it. Others still are so used to insurance company doctors deciding
their fate they forget the opinions of their own doctors count. This
article is written to give you an idea of what you can do and what
rights you have to dispute the decision of the insurance company, and
the steps involved. It is not a complete guide to dispute resolution.
REMEMBER – OVER THE COURSE OF YOUR LIFETIME THESE BENEFITS CAN BE WORTH HUNDREDS OF THOUSANDS OF DOLLARS. DON’T JUST GIVE UP!
Designated
Assessment Centers have become part of the process of resolving
disputes with insurance companies. Last month’s newsletter dealt with
that topic, and you should refer to both this article and the DAC
article if faced with a termination of benefits.
Trust
your common sense. If the decision made by the insurance company seems
fair, balanced, logical and based on an assessment of all of the
available medical information, you may find yourself facing a decision
that is hard to contest. If the decision strikes you as unfair, biased,
based on limited information or on one medical opinion in isolation, or
simply doesn’t make sense to you, then you should look further into the
matter. If the decision has far-reaching effects on you, like the
stoppage of income replacement benefits, you should look further.
Does
an intermediate position make sense? Does the truth lie somewhere
between your position and the insurers? Is there something you could
live with that might be accepted by the insurance company? Look
carefully at mid-ground options, always keeping an eye on the
consequences of choosing those options. Take the time to discuss them
with your own doctors and therapists.
Remember, sometimes a telephone call to the adjuster will clear the matter up. Perhaps you have information she does not. Perhaps your situation has changed or the original plan no longer makes sense to your therapist and the adjuster just isn’t aware of the change. With very little effort, you may be able to straighten matters out.
Do not get angry, frustrated or upset – get prepared.
Get
prepared by looking at the insurance policy. What do you need to prove
to show you are qualified to receive the benefit you are seeking? In
the case of rehabilitation or medical benefits, you have to demonstrate
that the proposal is reasonable and necessary.
You
will need a health practitioner to say that it is reasonable and
necessary. Using the physiotherapy example above, your physiotherapist
and medical doctor should give you a written opinion stating the
treatment is reasonable and necessary, and why. It is best if the
letter goes on to state what will happen if you do not get the
physiotherapy. This
is important. Many insurance adjusters will think twice about denying
benefits if faced with an opinion that you will get worse if you do not
receive the therapy being recommended.
Get
the best opinions you can. Many adjusters will ignore the opinion of a
physiotherapist, or other non-physician health practitioners. So go to
the top. If you have a specialist, ask him or her for an opinion. Don’t
be shy. Your physician is obliged to provide opinions to you in
writing. In most cases that will not be an issue. However, you are
generally required to obtain prior approval from your insurance company
for the cost of the letter from your health practitioner before the
letter is prepared if you want the insurance company to pay for the
letter. In these cases, if your insurance company’s approval is not
obtained, it will not be required to pay for the costs of the report
and you will not be permitted to dispute your insurance company’s
refusal to pay. If your insurance company refuses to pay for the cost
of the letter, the insurance company is required to give notice of the
decision within either 2 or 5 business days, depending on the costs of
the preparation of the letter, and refer the matter for review by a
designated assessment centre to determine if the insurance company must
pay for your health practitioner to prepare the letter.
There
are, however, certain circumstances where prior approval for a letter
from your health practitioner will not be required. The regulations
relating to the exceptions to the requirement of pre-approval are
complex and beyond the scope of this article. You should speak to an
experienced lawyer to determine if your circumstances permit you to
obtain funding from your insurance company for a report from your
doctor without obtaining prior approval.
Make
sure your physician understands what is going on. The best way to do
that is to provide her with all of the letters from the insurance
company’s doctors and the letter you received denying the benefit. Then
give the doctor a copy of the section of the policy.
Caution:
sometimes merely reading the policy will be misleading. Interpretations
of the policy can be very important is certain cases. You must get
legal advice in those situations.
Send
a copy of the letter you get from your doctor and health practitioners
to the insurance company. Ask the adjuster to reconsider. Do not wait
forever. Go to the next step if you are still not satisfied.
If
you and your insurance company disagree about your entitlement to or
the amount of a benefit, you must first attempt to resolve the matter
through mediation. A mediator from the Financial Services Commission of
Ontario must conduct the mediation. How do you get this started?
Fill
out an application for mediation. You can obtain one from the Financial
Services Commission of Ontario. Sometimes your insurance company will
provide one to you. A lawyer practicing in this field will have them
available.
Carefully
complete the form. Attach the letters from your doctors and health
practitioners. Include a brief letter that sets out the facts of what
happened in the crash, your subsequent treatment and how you got to
this point. It is helpful if you have information about the matter that
others will not if you set those out in the letter.
If you live outside of
The
first thing the mediator will do is introduce herself. She will point
out that her role is only to assist you and the insurer to solve the
dispute, not to decide anything. Most will avoid even offering an
opinion. In my experience, the majority of
mediators will not try to push you in one direction or another. They
will ask questions, perhaps explain why the insurance company may have
a legitimate concern, or point out the strengths and weaknesses of each
case. But he should not push you into settling. That is a decision you
should make for yourself.
If you settle with the insurer at the mediation, there may be some paper work to fill out.
Caution:
sometimes the insurance company will use the opportunity of the
mediation to cash out your benefits. Do not engage in that discussion
if you are not prepared to consider your life-long needs.
If you do not settle with the insurance company, you have four choices:
Many
readers will be scared to death to see a lawyer. The expense of legal
advice looms large to someone who has no money due to disability.
Should
you see a lawyer? I used to practice family law years ago. Often the
Judge would be faced with a spouse who had a lawyer and one who did
not. The one who did not would be encouraged by the judge to get a
lawyer. He pointed out that the support order, although a small amount
each month, over time would be in the tens if not hundreds of thousands
of dollars, and that justified getting advice. Accident benefits are
just like that.
The
insurance company will have a college-educated, highly trained and
experienced specialist dealing with the claim. He may very likely know
the mediator, sometimes on a first-name basis. A lawyer can even the scales.
Your insurance company representative may have told you that you do not need a lawyer. Getting
advice like that from an insurance company is a lot like the hen asking
the fox if it is safe to come out of the hen house. Your insurance
company has a huge budget for legal advice. It gets general advice on
interpretations of the law, specific interpretations, pays for lawyers
to train their adjusters and mediators, to write manuals and guides, to
review recent decisions of the court and the Arbitrators; the list goes
on. It is always to the insurance company’s advantage to keep you as
uninformed as possible. And that always means keeping you away from
lawyers.
If
you find the mediator was pushing you in one direction or another, or
you thought at the end of it there were weaknesses in your case that
you did not anticipate, it would be a good idea to get legal advice
before you settle.
If you are going to dispute the matter further, you will need a lawyer.
The next step in the process is to decide whether you should go to court or to the Ontario Financial Services Commission. You have a choice. There are a number of differences between the two systems as far as the results and procedures are concerned.
How long it takes to get to the hearing? – In my jurisdiction,
How
much money does it cost to start? – Arbitration is less costly to begin
with. However, if you are successful against the insurance company, you
may recover less money for court costs from it in Arbitration than in
court.
What
are the pre-hearing/trial procedures? – Court cases require more
extensive pre-trial procedures. There is an oral examination under oath
of all the parties, whereas there is not for an arbitration. Documents
that are relevant to the case must be exchanged in each system. There
is a form of pre-hearing conference in each system, designed to try to
settle the case, determine if the participants are ready to go and give
an idea of available dates.
How
certain is the hearing date? – Although you may get to court sooner in
some areas, the precise day is not known in all cases. In the
arbitration system, you will be given a fixed date.
What penalties can be assessed at the hearing? - At
arbitration, the arbitrator can grant what is called a “special award”
against the insurance company. In court, punitive damages or damages
for bad faith can be awarded against the insurance company in an
appropriate case.
These
are just some of the factors to take into account in deciding where to
go to resolve your dispute with the insurance company. If you have a
lawyer, you should discuss these with him or her if any are of
particular concern to you. Your lawyer will be familiar with local
circumstances, which may be different from what is described above.
There are many others that you ought to consider, that will rely upon
the judgment of your case, how it will be treated by the courts or the
commission, the jurisprudence in each, the novelty of the issues
addressed – the list goes on and on.
Although
it is a frightening and daunting prospect to take on an insurance
company, in many cases you should. It is an unfortunate reality that
some insurance company representatives are playing the odds. They just
cut off benefits in the expectation that many people will just accept
their decision. In other cases, the insurance company is simply wrong,
or has not received good advice, either medical or legal.
The
purpose of this article and the others that have appeared in this
Newsletter, is to empower you to take action to protect yourself and
receive what you are entitled to under your insurance policy. Your best
protection can be knowledge and information. This article is just a
starting point. Other sources of information are the Financial Services
Commission of Ontario, its web site, and The Insurance Ombudsman.