by Carman Lee
Having worked in plaintiff personal injury law since my call to the bar, I have learned and witnessed just how important it is to be represented by counsel in a lawsuit against a negligent party. The Rules of Civil Procedure govern most aspects of litigation. The formalities and procedures are endless and for the most part, must be followed. The various ways in which the Rules of Civil Procedure protect, guide and assist parties are so extensive that even the most experienced litigators have to consult the Rules of Civil Procedure on occasion. To complicate things, every few years the Ontario government enacts changes which may substantially alter what was in place before. Therefore, the norm is that parties in litigation are represented by counsel and those who are self-represented are often at a disadvantage.
In a claim against an Insurer for no-fault benefits pertaining to a motor vehicle accident, however, we often see many claimants without legal representation. These self-represented claimants are assisted by guidelines available to them from the Financial Services Commission of Ontario, as well as advice and documents provided by their insurance company adjuster. An adjuster is a representative assigned by the insurance company to handle your accident benefits claim.
Once an adjuster is assigned to your claim, he/she will typically send out a package of accident benefits-related documents for your review and forms for your completion. These documents provide details as to what obligations you have as a claimant. For example, to process your claim, an adjuster will request that you complete and submit an OCF-1 Application for Accident Benefits. If you are claiming entitlement to a specified benefit, such as the Income Replacement Benefit, then the adjuster will ask that you submit an OCF-3 Disability Certificate completed by a healthcare professional to substantiate your injuries. These documents are fairly straight forward and the process looks easy at the beginning. This is why we often see claimants remain self-represented. The paperwork is completed and weekly benefit cheques are received. Physiotherapy and other medical clinics are often familiar with the paperwork involved as well, and thus, the claimant usually does not encounter too much difficulty getting their treatment started.
However, there are many advantages of having a lawyer represent you in your accident benefits claim. At the beginning of the accident benefits claim, an adjuster will often cite section 33 of the governing legislation, the Statutory Accident Benefits Schedule (SABS), to request that a claimant sign OCF-5 Permission to Disclose Forms and other consent forms allowing the Insurer free rein to request your medical documentation. Many claimants do not question this request, or some claimants may have suspicions raised but still sign the forms since the adjuster advises that the Insurer is entitled to this information and benefits may be suspended if the required documentation is not received. Once the adjuster receives these signed consents, they will request your medical records from your doctors from usually two years or more before the motor vehicle accident. What adjusters do not divulge to claimants, however, is that the Financial Services Commission of Ontario has issued a “Dispute Resolution Practice Code” which is meant to provide guidance on the procedures relating to accident benefits claim not covered by the SABS. The Code states that, with limited exceptions, Insurer’s should be provided with medical records from only one year pre-accident and onwards. Presumably, this is to protect a claimant’s privacy and to limit the Insurer’s right to information from reaching too far.
Another reason why it is advantageous to have a lawyer represent you in your accident benefits claim relates to the Insurer’s right under section 33 of the SABS to arrange Insurer’s Examinations. Insurer’s Examinations are medical assessments arranged by the Insurer and conducted by medical professionals of the Insurer’s choosing. These assessors are meant to provide a medical opinion to the Insurer regarding entitlement to benefits. For example, in order to meet the medical test for the Income Replacement Benefit, a claimant must “suffer a substantial inability to perform the essential tasks of his/her employment”. An adjuster reviews the medical opinion from the assessor and makes a determination as to whether a claimant is entitled to the benefit in question.
However, the Insurer’s right to arrange Insurer’s Examinations is restricted. Pursuant to the SABS, an Insurer’s Examination can only be obtained when the examination is reasonable and necessary to determine whether a claimant is entitled to a benefit, and proper notice is provided. For example, if a claimant is not claiming attendant care benefits, then it would be unreasonable and unnecessary to conduct an Insurer’s Examination to assess this entitlement to attendant care benefits. A self-represented claimant, however, may still allow the examination to proceed because their adjuster has insisted that the Insurer’s Examination will be able to provide useful information to the adjuster to support the claim, or that the medical assessor can provide treatment recommendations. Adjusters may have very good reasons to support why they want an Insurer’s Examination to be conducted; however, their reasons may not satisfy the test contained in the SABS. Insurer’s Examinations are no doubt an invasion of privacy and the SABS has built in protections to prevent unjustified invasions of privacy.
These are just two examples of common instances in which a self-represented accident benefits claimant may be at a disadvantage as opposed to a claimant who is represented by a lawyer. A lawyer can actively monitor the Insurer’s action and ensure that the adjuster’s requests are in compliance with the SABS.
Self-represented claimants can better protect themselves if they carefully review the documents provided by the Insurer and the specific sections of the SABS pertaining to the benefits in question. When something does not seem right, speak to your adjuster and ask questions. Do not accept the advice of your adjuster without question.
If your injuries are substantial enough to cause you to miss time off work or to necessitate a long rehabilitation, you may want to seriously consider retaining a lawyer early on in your claim. If you wait until you encounter problems with the Insurer (such as a denial of important benefits), it may be too late for your legal representative to undo any damage already done to your claim. For example, if you have undergone an Insurer’s Examination which the Insurer had no right to request, the Insurer may already be equipped with a medical opinion which denounces the severity of your injuries. Your newly retained lawyer will already have one obstacle to overcome in getting your benefits back on track. The earlier a lawyer is involved in your accident benefits claim, the more protections and advantages you will have in place as you pursue the benefits you are rightfully entitled to under Ontario laws and your insurance policy.