When you’ve been wronged and want to seek justice; you sue.
It’s sounds simple and it ought to be.
Trouble is, when it comes to accident benefit disputes following a car accident in Ontario, you can’t sue anymore. Your right to sue in Court and have your case heard before a Judge were taken away from you. That means that you can’t sue.
Understanding this concept for many innocent car accident victims is really hard to understand. It seems unfair and it is.
Instead of suing in the Courts, accident victims who are seeking compensation for their accident benefit claims follow a car accident are REQUIRED to apply to the License Appeals Tribunal Automobile Accident Benefit Service (LAT AABS) or simply know as the LAT.
The LAT is a Tribunal run by the Province of Ontario. It’s a strange place with its own unique set of rules, procedures and adjudicators.
It’s not uncommon for disputes to be resolved at a Tribunal instead of Courts. We see it in all sorts of places like the Human Rights Tribunal, Workplace Safety and Insurance Board, Ontario Land Tribunal etc.
The purpose of the LAT AABS is to get accident benefit disputes resolved in a timely, cost effective way.
But, what ends up happening is that the resolution of the dispute is neither cost effective, nor timely.
The LAT AABS does not award costs to the winning party. They will do so only in exceptional circumstances, and when such awards are made, they are nominal ($500, $750 or so).
The LAT AABS can also award special awards where insurance companies are found to be acting in a high handed manner in failing to deliver benefits. But these special awards are nominal at best ($500-$1,000 or so).
Let’s take a common example of what gets disputed at the LAT AABS: a treatment plan for a med/rehab benefit to help the accident victim on their road to recovery. Something like a treatment plan for physiotherapy, massage or psychological counselling. These treatments are NOT covered by OHIP. So if an insurance company is not paying for it, then the accident victim has to pay for said treatment out of their own pocket. And if the accident victim doesn’t have the money to pay for it out of pocket; then good luck getting better. What ends up happening is that the injury grows in chronicity and it puts undue stress and burden on the OHIP system. What ought to have been covered by auto insurance simply isn’t because insurance companies are more profitable when they don’t have to pay for things instead of the other way around. It bears repeated that this sort of treatments following a car accident are vital to helping the accident victim get better so they can get back to their ordinary lives as they were before the car accident.
What happens when a car insurance company doesn’t approve for treatment? For starters, the accident victim won’t get the treatment which they are seeking unless they pay for the treatment out of their own pocket.
If the accident victim wishes to dispute the insurance company’s decision to deny treatment, the CANNOT sue the insurance company. They must bring forth an application to the LAT AABS. The application fee is $100. That application fee, in the vast majority of cases is NOT recoverable.
That would mean that on a $2,000 denied treatment plan for massage; 5% of the amount in dispute is paid for a simple application fee to the LAT AABS.
There are many medical records which are necessary to support an application to the LAT AABS. These would include clinical notes and records from the hospital(s), doctor(s), an OHIP Summary, and records from any clinics. ODSP, Ontario Works, CPP and EI files would also be important as well. Let’s say that the conservative cost to the Plaintiff of recovering said records would be approximately $500-$1,000 (conservative estimate; likely far greater). That translates into 25%-50% of the value of the $2,000 treatment plan in dispute which is being spent on records.
You will need to copy or scan these records for the other party and for the LAT AABS. The scanning, copying an binding costs again can range depending on the size of the file. But they are again eating into the costs of the treatment plan making you wonder for a moment:
If this is costing so much; then why wouldn’t a claimant just pay for the treatment by themselves?
None of this takes into consideration to cost of paying for a lawyer, agent or licensed paralegal.
The reality is this is what the insurance companies want. The economics of bringing these claims simply don’t add up. What ends up happening in many situations is that the claimant can spend more money gathering documents and on filing fees than on the value of the treatment in dispute.
An insurance company does not bat an eye at these expenses. They are pleased to spend hundreds of thousands of dollars to fight even the smallest of cases. The party with the largest war chest will win the majority of litigation battles. And in these insurance disputes at the LAT AABS, where there are no real economic repercussions to the losing party; it makes more sense for insurance companies to unreasonably hold out paying benefits; rather than to pay up.
Aside from the cost of advancing these claims, probably the most frustrating part of it all is the delay in having a case heard. Our office had a Pre-Hearing Conference at the LAT AABS earlier this week. The case did not settle but the adjudicator was kind enough to set the matter down for a hearing. That hearing date is scheduled 13.5 months from now in 2022.
Picture an innocent accident victim who just wants to get his/her physiotherapy treatment so they can get better having to wait 13.5 month from the date of their Pre-Hearing conference to get a hearing date! This does not take into consideration the length of time that the party had to wait from the date their materials were filed to get the Pre-Hearing Conference date. What’s been established at the LAT AABS is that it’s an unfair system which penalizes innocent accident victims who simply can’t afford (either financially or from a health perspective) to wait out their cases and have their date in court. Insurance companies are grinning ear to ear. This waiting game is easy for them.