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Commentary from Brian Goldfinger on the “Fair Auto Insurance Plan” in Ontario

On December 5, 2017, Ontario Finance Minister Charles Sousa along with Attorney General Yasir Naqvi announced another set of major reforms to car insurance in Ontario. This set of reforms has a grandiose name, much like all of the other reforms which have been introduced in the 14+ years of Wynne rule in Ontario.

The “Fair Auto Insurance Plan” is intended to lower premiums in Ontario, and reduce fraud. Both sound like great things. Haven’t we been trying to reduce premiums over the past 30+ years? In that time period, have your premiums gone down? Have the premiums of your neighbours, friends, family members or loved ones even gone down in the past 5 years? Likely not according to our very informal survey of asking real people if their premiums have gone down.

The Fair Auto Insurance Plan is based on the recommendations from the Marshall Report, created by former head of the WSIB David Marshall. The Toronto Injury Lawyer Blog covered the Marshall Report entitled Fair Accident Benefits, Fairly Delivered in a previous entry here. If you haven’t read up on the Marshall Report, I suggest that you do if you want to better understand what the Liberal Government is hoping to accomplish.

Some things you should know about the WSIB and David Marshall:

The WSIB is the subject of a multi million dollar class action law suit alleging that workers compensation and benefits were unfairly slashed.

The WSIB has been criticized by treating doctors of injured workers for ignoring their medical opinions.

Under Marshall’s watch, the unfunded liability pool of the WSIB has been shrunk from a high of $14.2 billion to just over $9 billion in five years, the number of workers not back to work after a year has dropped by more than half and lost time claims have dropped by 17 per cent — from 50,667 in 2009 to 41,987 in 2013. All the while employers are paying the highest premiums in Canada.

Ontario Federation of Labour president Sid Ryan calls Marshall “the equivalent of the modern day bounty hunter.”

His job is to disqualify injured workers from receiving their rightful benefits . . . The $400,000 is his bounty for his work over the last year,” Ryan said.

Catherine Fenech, of the Ontario Network of Injured Workers’ Groups, said since Marshall arrived, “we’ve seen a steady decline in the number of claims being accepted . . . and an increase in workers being told the board thinks they can go back to work no matter how badly injured they are.”

This is who the Ontario government commissioned to review car insurance. Food for thought…..

Some highlights which I would like to comment on regarding the “Fair Auto Insurance Plan“:Goldfinger-logo-icon-300x300

  1. Implementing standard treatment plans for common collision injuries such as sprains, strains and whiplash: In lay person’s English, they are seeking a one size fits all approach to medicine and personal injury management. Unfortunately, the human body isn’t one size fits all. Car accidents are not one size fits all. Everyone is different. Do you think a 90 female with pre-existing spinal issues and depression is going to heal the same way as an able bodied 20 year old male with no pre-existing health issues? What works for one person, does not necessary work for the other. Some people react positively to medication and physiotherapy, others don’t. If this were the case, then we wouldn’t need many doctors at all. We could all consult with a one page pamphlet on how to get better and that would be the end of it. The notion that accident management and recovery is as simple as a one size fit all approach is arrogant, ignorant, and insulting to all injured accident victims who are dealing with complex pain management issues. All this will do is place additional burden on the OHIP System after nobody is able to heal from their accidents given this simplistic approach.
  2. Introducing Independent Treatment or Assessment Centres to evaluate whether or not proposed treatment or benefits is considered reasonable and necessary. This is flash to the past. We had these from circa 1994-2006 when they were called “Designated Assessment Centres” or DACs. DACs were failures then. They will be failures again. Please keep in mind that insurers will continue to fund the reports coming out of these Independent Assessment Centres, so how independent will they truly be.
  3. Having these Independent Treatment or Assessment Centres in Hospitals!?!?! Have you visited your local hospital lately? Was it full or was it empty? Did it appear that they would host an additional 200-500+ patients a day? It’s common knowledge that hospitals are at their very limits and resources for beds, nurses, doctors, etc. are weaning thin. Putting the additional burden or accident benefit management on hospitals will be a detriment to the healthcare system.
  4. Stopping Fraud in its tracks with the creation of the Serious Fraud Office in the Spring of 2018. Are you telling me that the mechanisms we had in place with the OPP Fraud Office, RCMP, and FSCO Fraud Office weren’t serious enough? If those offices didn’t have enough power or resources, then what have you been doing for the past 14 years you have been in power if fraud was such a big issue?!??!!!?!?  Here is a hot take on car insurance fraud:

Everyone agrees that fraud is very bad and should stop right away.

But, it’s the boogey man. In my 15 years of personal injury work I have seen one fraudster. That person was arrested. End of story.

Fraud is the boogey man. It exists; yes…. but it’s not as rampant as the IBC and the provincial government will have you believe. Has anyone asked the IBC and the Government what they have defined as fraud? Give me some specific examples of fraud which are going unchecked and ruining our system:

Is it staged car accidents? If so, the police are pretty good at busting these guys, and insurers and FSCO have the resources to sniff out the stagers and deny their claims. If the police don’t have the resources to bust up car accident staging rings, then give them the resources to do so.

Is the fraud fake treatment? If so, again there are pretty good mechanisms in place in the Insurance Act, with Insurers and with FSCO to sniff out who the fakers are.

Is the fraud driving with fake car insurance? If so, I know where are charges under the Highway Traffic Act and the Criminal Code to put these guys in jail. Another policing issue about giving the police more resources if this is the case.

We all agree that fraud is bad. Knowing how the IBC and the Government defines “fraud” and calculates those fraud costs is a question which has yet to be answered. I suspect some digging will show that these numbers are inflated to justify cuts to the insurance protection of hard working, everyday people. I suspect that the IBC will define almost everyone with a legitimate claim as a fraudster. Accident benefits for catastrophically injured accident victims, the people, who need the help the most have been cut from $2,000,0000 down to $1,000,000….because “fraudsters” have escalated insurer operating costs???? Does that justify cutting benefits by $1,000,000 to the people who need the help the most. Truth is that insurers don’t want to pay out benefits.The less they pay out in benefits, the more they can report in profit. And at the end of the day, profit is what this is all about. Not fraud. Not reducing your premiums. Not care. MONEY.

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