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Fair Accident Benefits, Fairly Delivered: The Marshall Report

Who is David Marshall,  and why has he been commissioned by the Province of Ontario to write a report on car insurance and car accident litigation in Ontario?

Good question.

If you haven’t heard of David Marshall, here is an interesting article about him from January 31, 2015 in which is he is described as “the Man Ontario Workers love to hate“. He was the president and CEO of the Workers Safety & Insurance Board (WSIB).

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.”

The rights of injured workers, and their benefits have steadily declined while Mr. Marshall has been at the healm of the WSIB. The province wants wants to bring these sort of cost cutting measures to car insurance, accident benefits and tort claims for car accidents.

Mr. Marshall was commissioned to prepare a review of Ontario’s car insurance system entitled: Fair Benefits Fairly Delivered. As an aside, I love these holier than thou, altruistic sounding titles for reports or acts which are just designed to screw innocent people out of money, benefits or their rights. The fancier and nicer sounding the act or report, generally, the more it hurts the public. Like “Right to Work” legislation or “Tort Reform“. Both of these titles sound great to the public, yet both screw people royally.

A  few things I agreed with Mr. Marshall’s report:

  1. Ontario’s accident benefits should NOT be reduced. I mean, how much more can we cut people’s benefits? A reduction from a $100,000 med/rehab benefit down to just $3,500; along with a million dollar reduction in CAT benefits, followed by an incurred threshold for attendant care benefits, with no more care giver benefits and reduced non earner benefits? How much lower can we possibly go?
  2. There is an urgent need to revise and simplify the legislation and current set of regulations and focus on desired outcomes and less on the details of process.
  3. In conjunction with making the rules and regulations governing the system simpler, the government should seriously address the need for enhanced consumer education. This needs to be done because the SABS are so complicated. Even for personal injury lawyers!
  4. The government should undertake a comprehensive review of auto insurance pricing alternatives with a view to providing more competition in the marketplace.
  5. The Insurance Act and regulations should be amended to include only broad principles and entitlements for benefits. Again, the SABS are far too complicated!
  6. Insurance companies must change their role from managing costs to delivering care to their customers. They will need to change their claims management and related practices in the process. They will also need to innovate and compete on service and cost. Let’s see what steps will be done to make this change…GoldFingerBanner

The rest of the report is a farce. It seeks to transform accident benefit and tort law for car accident claims in to a WSIB system which has, by all standards, failed the people of Ontario on so many levels. Every point of this report was written like it was by a person who has never seen a car accident case (tort) from start to finish. I found the report offensive and insulting to accident victims and hard working personal injury lawyers across the province. It fails to acknowledge:

  1. Car accidents and insurance law is adversarial! Liability, causation, damages, mitigation of damages are all very live issues in car accident claims. If insurers wanted to pay out immediately on claims, then they should do so! But you know what. They often don’t!
  2. Insurers don’t pay more on claims than they have to, and they fight claims that have, or don’t have merit as a cost saving measure. It’s cheaper for them to fight the claims, than to pay them out.
  3. All injuries are different, and impact injured accident victims in different ways. To asses a “meat chart” to accident victims and to take away their rights to the Courts is wrong. If the government is seeking to go in that direction (which they are appearing to do), then let the people of Ontario know about it, instead of trying to hide it.
  4. The report focuses on contingency fees of Plaintiff Personal Injury Lawyers. What about the legal fees incurred by insurers? What about the retainer agreements between insurer and defence lawyer being filed for the public to see? Why recommend that only one side’s retainer be disclosed, but not the other side’s? Why are one side’s “fees” being attacked, while the other side’s legal fees are not even mentioned? I would love to know how much in legals some of these large insurers paid to fight claims across Ontario. Mr. Marshall doesn’t seem to care, not has he factored this in to his equation. This is a big miss if you’re going to be attacking fees only on one side of the coin.
  5. It seemed lost on Mr. Marshall that accident benefits were introduced as consumer protection legislation. There is an inherent power imbalance when it comes to an injured accident victim vs. an deep pocketed insurer. The suggested reforms, particularly when it comes to access to justice and legal fees only increase that power imbalance thus making it more difficult for people to get the benefits they deserve.
  6. Have we not learned our lessons from shady WSIB doctors and DAC Centres? Why are we seeking to prohibit an injured accident victim from challenging the medical opinion of a doctor? Haven’t we learned that not all medical doctors are created equal, and not all are ethical, nor do all play by the same set of rules? Seeking to silence doctors, or an accident victim’s rights to challenge the opinions of doctors is something you might find in a communist country or totalitarian state. Here is what Mr. Marshall recommended when it comes to these one stop medical centres: “In relation to medical condition and treatment, the opinion of the independent examination centre should be taken as definitive by arbitrators.” Their word is law, and there’s nothing you can do about it if the doctor doesn’t like you, doesn’t understand your condition, or has sold out to get more work by stating whatever the regular wants him/her to say in his/her report.


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