Strict code needed for insurance medical assessments

In spite of positive developments to fight auto insurance fraud in Ontario, some “bad apples” remain unregulated, resulting in the wrongful denial of millions of dollars to legitimately injured claimants, Toronto critical injury lawyer Patrick Brown writes in Lawyers Weekly.

“Insurance medical assessment clinics have existed for decades. They offer insurance companies one-stop shopping for reports. An insurer contacts the assessment clinic who then either provides a list of doctors to pick from, or simply picks a doctor for the insurer. The clinic then arranges an assessment either at their site or at the listed doctor’s office,” explains Brown, a partner with McLeish Orlando LLP.

“Not only does the clinic act as a broker, it provides an added feature called ‘quality control.’ The clinic’s quality control specialist reviews the doctor’s report and then delivers it to the insurance company and ultimately, the claimant. Depending on the opinion, insurers may use these reports to stop treatment, cut off income, or classify an injured person as ‘non-catastrophic’ (thereby cutting off access to $2 million in benefits),” he adds.

Superior Court decision

However, Brown says examples such as the 2006 Ontario Superior Court decision in Macdonald v. Sun Life Assurance Co. Of Canada — where a clinic’s actions were found to have constituted an unwarranted and undesirable interference with the proper function of an expert witness — and a similar 2014 ruling in Burwash v. Williams, “only rise to the surface when there is a trial or arbitration and production forced on the third party.”

Well over 95 per cent of claims never get to that stage, he says.

“For those lawyers practising in the area, the third party files are refused and production never granted until trial or arbitration. When something untoward is discovered, matters settle, hearings are aborted, confidentiality clauses are placed into releases and no one hears what happened. It is shameful that this culling of the bad apples has fallen solely on the shoulders of a select few personal injury lawyers and their clients who seldom can afford the risk of litigation,” writes Brown.

Brown cautions that this aspect of the present system will worsen when more reliance is placed on “in writing” hearings, which will determine the majority of claims as of June 2016.

“The use of third party insurance assessment brokers should be stopped. All insurer assessments should be conducted under a strict code that does not allow ‘quality control’ and reports are prepared strictly by the doctor engaged. Full production of files should be made in all cases to both the represented and unrepresented claimants.”