Opposition was based on a host of red flags, chief among them:
- a widespread lack of sufficient expertise by LAT Members to address the complexities of SABS disputes, coupled with the legislature’s decision to abandon the binding precedent established under FSCO over 25 years of specialized adjudication by seasoned arbitrators;
- insufficient resources to provide thoroughly reasoned and supported decisions- a by-product of the LAT’s overarching mandate to dispose of disputes quickly and cheaply;
- a disturbing lack of independence from the Ontario legislature going forward, given the incessant agenda by government and the insurance industry to lower insurance premiums through limiting payouts on claims; and
- a potentially unconstitutional denial of access to the courts and of the right to appeal on the merits of the claim.
The consensus (which, sadly, has been proven accurate), was that the new partisan, cost-cutting dispute resolution system was designed and would function as a highly effective deterrent to the pursuit of legitimate accident benefits claims. This deterrent effect, in turn, would engender more aggressive denials of claims for benefits by insurers, with less fear of financial consequences.
Under the FSCO regime, a successful claimant could expect to receive an award reflecting the costs to pursue the dispute. The rationale behind an award of costs is that a successful outcome demonstrates that the insurer should simply have paid the benefits rather than forcing the claimant to pursue her rights at a hearing. Following the same logic, the award generally also provided amounts to cover the costs of expert reports required to prove the claim. Finally, a special award on top of the amounts owed and any other costs could be levied against an insurer to punish unreasonable or improper behaviour.
Under the LAT, costs awards have been virtually eliminated. They will only be awarded in cases where a party has acted unreasonably, frivolously, vexatiously or in bad faith. According to one LAT Member, “Costs awards… are to maintain civility and order during proceedings, to deter conduct that threatens the orderly and civil resolution of an application, and to ensure that the Tribunal’s process and other participants are respected. They are not to compensate parties for the cost of bringing or defending claims or to punish” (P.B. and RBC Insurance Company, 2017 CanLII 9816 (ON LAT).
As a result, a claimant must commission any expert reports required to argue her claim without hope of recovery at the hearing. The claimant’s lawyer might be willing to defer the costs until the settlement of her personal injury claim IF it is successful. However, it is clearly an injustice to foist the costs onto the victim, particularly in a complex dispute (for example, a determination of catastrophic impairment), where several experts must provide evidence on the claimant’s behalf.
Such obstacles are not encountered by the insurer, who remains at liberty to commission cookie-cutter medical reports as the standard mechanism for denying benefits. These reports serve as the basis for its case at the hearing as well.
By the end of 2016, no oral hearings had been conducted at the LAT. The intention of the amendments to the SABS is to streamline claims toward some form of written response, including a written hearing. 75% of the 2016 hearings were conducted by written submissions. The remaining claims proceeded by a hybrid teleconference/written submission model. Reliance on written materials denies the claimant the right to act as her own best witness. It is far easier to uphold a denial against a folder of medical files than against an actual injured mother, son, worker, or caregiver.
Many of these 2016 decisions have concerned the applicability of the Minor Injury Guideline (MIG). The MIG defines certain injuries (generally “soft tissue” injuries) and limits claims to $3500 for treatment of these injuries. While the sincerity of the claimant is often a deciding factor in a dispute over entitlement to treatment or other benefits, it is usually crucial in a MIG dispute, because of the nature of the injuries themselves, the bias against chronic pain and other soft tissue injuries, and the (overstated but real) potential for exaggeration or malingering.
If it is unfair to deny a “standard” claimant the right to speak on her own behalf, it is often fatal to a MIG claimant’s case. Under FSCO, the claimant had ample time to establish the nature and duration of injuries and associated loss of function after being pigeonholed into the MIG. Extended treatment beyond the MIG limits and compelling expert and treating reports were part of the evidence that could be brought forward in support. And, the claimant could be examined and cross-examined to test her story before the arbitrator.
The shorter timelines and lack of costs under the new system make it exceedingly difficult to document and substantiate the chronicity and complexity of a condition. In tandem with the lack of oral testimony, the deck is now even more fully stacked against soft tissue injury victims. Effectively, the new regime functions to deny these claimants appropriate treatment both at the early stages where the injuries have a realistic chance of healing, and once they have become chronic from the failure to treat.
This is the chilling new reality facing injured claimants.
Where are we now?
As you may know, Campisi LLP took the fight to the Attorney General earlier this year, opposing the LAT amendments to the SABS on constitutional grounds.
Among the grounds of challenge, the most contentious involved the legislature’s decision to eliminate the right to sue in the Superior Court of Justice. Formerly, once mediation of a disputed item failed, claimants could either proceed to arbitration through FSCO or sue in court. This right of access is a fundamental principle of our legal system and of civil society as we want it to be.
Despite widespread support from both sides of the Insurance bar, healthcare professionals and members of the public, the court found that no violation of our rights as citizens had been committed, or that any such violation was a reasonable limitation on a costs/benefits analysis.
Undeterred, we continue to fight the insurance machine within the confines of the system. It is a massive challenge, and one that we embrace.
Under the new regime, your role as advocates for your patients has assumed even greater importance. You are far less likely to be called on to provide expert or treating opinion reports and will not generally have an opportunity to speak on behalf of your patients at a hearing. In order to help balance the scales, and to help us and other personal injury lawyers resist the machine, you must be accurate and comprehensive in your diagnoses, charting, Disability Certificates (OCF-3) and reports.
In the decided cases, a lack of clear medical information from family physicians, hospital staff and rehabilitation professionals has allowed the LAT to dismiss the claims of significantly injured people in need of support, treatment, and/or income replacement. For example, in A.P. and Aviva (2016), the family physician identified, “evidence of cervical facet joint involvement which has been established as a common contributor to chronic pain symptoms,” in response to ongoing pain complaints by his patient. This was dismissed at the LAT hearing for failing to diagnose an injury or condition which would require treatment outside of the MIG. Since the doctor was not given an opportunity to elaborate at the (written) hearing, the claimant was unsuccessful despite obvious ongoing impairment and need for treatment.
We wholeheartedly encourage you to recommend that your motor vehicle collision patients speak with a reputable personal injury lawyer or firm at their earliest opportunity. Apart from our vested interest in representing these patients, we feel that an early consultation can help defeat many of the traps and bullying tactics of the insurers, whether these patients ultimately become clients or not.
To illustrate, under the LAT regime, a claimant can no longer seek retroactive payment of benefits incurred prior to the receipt by the insurer of a properly completed OCF-3. If a patient is seriously injured, it might be several weeks or even months before thoughts turn to compensation from her insurer for lost income or caregiving capacity. This can place an extraordinary burden on the household, in addition to the trauma and upheaval of dealing with the injuries, and can cause irreparable harm.
Working together, we can help deserving claimants access the benefits for which they have paid in good faith, believing that they would be protected in times of dire need. The insurance industry and now the Ontario government have demonstrated clearly that they are only interested in profit.
It is time to fight back.