Someone has to step up for car accident victims and insurance consumers
This is Fraud Prevention Month. There are many scammers ready to pounce on the unwary and we need to be vigilant to avoid becoming victims of fraud.
The RCMP, the OPP, Canada Revenue Agency, the Competition Bureau and other government agencies implore us to protect ourselves, to avoid being taken in by fraudsters.
The Insurance Bureau of Canada is also reminding us of Fraud Prevention Month, telling us to be on the lookout for insurance fraud.
And that’s got me thinking.
Sure, there’s plenty of insurance fraud. Sure, we need to stamp out crime rings that engage in staged accidents.
This includes the fraudulent body shops, towing companies and medical and rehabilitation clinics that participate in such scams.
But why isn’t there a month where we advocate for car insurance consumers and car accident victims?
There’s little doubt both are under sustained attack by the insurance industry.
Ontario accident benefits were drastically reduced in 2010.
Many were eliminated while others were cut in half.
The majority of claims are now dealt with under a so-called minor injury guideline in which benefits, including the costs of assessments, are capped at $3,500.
Proposals have been made to limit the number of catastrophic impairment designations, thereby reducing the number of victims who qualify for the broadest range of benefits.
Treatment plans and requests for treatment for accident victims are being denied at increasing rates.
Insurance adjusters have and use the power to deny assessments and treatment, without obtaining a supporting medical opinion.
Adjusters deny, delay or remove benefit payments with little or no notice, without providing any reasons.
Victims aren’t given the benefit of the doubt and are often treated as adversaries.
Mediation requests face delays of about one year.
Arbitration requests face similar delays, meaning accident benefits claims in dispute and related medical treatments can be delayed for a minimum of two years before a decision is released.
That decision can then be appealed, creating more delay.
Insurers are resisting efforts to streamline dispute resolution by insisting on mediation prior to arbitration, even if it means an additional year of delay.
Insurers retain preferred, expert physicians to deny claims, many of whom earn the bulk of their income from insurer reviews.
Many of these “hired gun” reports from assessment mills are prepared by physicians who perform “paper reviews”, without examining the victim.
Clinic administrators are writing portions of insurer medical expert reports, with the doctors writing only a small portion, because the cap on fees for reports, a mere $2,000, doesn’t allow for adequate compensation for doctors.
Legitimate accident victims are easily labelled malingerers or opportunistic fraudsters by insurers.
Decisions, including arbitration decisions, denying benefits have been based on reports by so-called experts who lack expert qualifications or proper credentials.
Victims can be buried under requests for multiple assessments.
Claimants who sue the other driver face a $30,000 deductible for claims under $100,000 and must also satisfy a stringent threshold to recover any award.
I could go on but I’ll end with this concern: In spite of the decrease in benefits, premiums keep increasing.
For example, my car insurance premium is going up a whopping 16.4% next month.
Apparently my postal zone in North York has seen a large increase in claims that trumps my accident-free record of 44 years.
So who is going to speak up for accident victims and car insurance consumers?
Even the Consumers’ Association of Canada, which used to be active in covering the insurance beat for consumers, appears to have lost interest in the subject, having issued only one press release or study on the topic since 2004, with their last release four years ago.
So who is going to declare a month in favour of accident victims and insurance consumers? Who is going to step up?
source: By Alan Shanoff ,Toronto Sun First posted: Saturday, March 17, 2012 06:44 PM EDT
An insurance policy represents an unusual form of contract. When consumers purchase insurance they are really purchasing peace of mind.
Courts recognize this by ordering insurers to pay punitive damages or compensation for mental distress where insurer conduct is particularly egregious.
The high-water mark of insurer punitive damages occurred in a 2002 Supreme Court of Canada (SCC) decision upholding a $1 million punitive damages award in a home insurance case.
Pilot Insurance Company was ordered to make the payment as a result of its high-handed conduct in denying a home insurance claim brought by Daphne Whiten of Haliburton County.
A fire destroyed the $345,000 Whiten home in 1985.
Pilot took the position the Whitens torched their own home, notwithstanding contradictory evidence from the local fire chief and Pilot’s expert investigator.
Indeed, during argument before both the Ontario Court of Appeal (OCA) and the SCC, Pilot’s lawyer conceded there was no “air of reality” to the arson claim.
Yet Pilot forced the Whitens into an eight-week trial, attempting to force an unjust settlement.
The jury, apparently outraged at Pilot’s tactics, awarded the $1 million punitive damage penalty and the SCC upheld the award in its 2002 decision.
Yes, it took 17 years of legal machinations for the case to be resolved.
The Insurance Bureau of Canada intervened in the Whiten case, arguing against a punitive damages award, claiming this would “over-deter insurers from reviewing claims with due diligence, thus lead(ing) to the payment of unmeritorious claims”.
You’d think the potential of a punitive damages award would cause insurers to review claims with extra due diligence so they’d get it right, but apparently that’s not how insurers think.
Courts have recognized that insurance policies are not mere commercial contracts.
Rather, they are contracts for benefits that are “both tangible, such as payments, and intangible, such as knowledge of income security”.
That’s why insurers owe their policy holders fiduciary duties, including the duty to act in good faith.
Yet law reports serve up numerous examples of claim denials based on the flimsiest or even the absence of evidence.
Such conduct can lead to court awards of compensation for mental distress damages in favour of policy holders whose claims have been wrongly denied.
In 2006, the SCC upheld a court award of $20,000 for mental distress damages in favour of Connie Fidler against Sun Life.
Fidler, formerly a receptionist at a branch of the Royal Bank of Canada in Burnaby, B.C., had her long-term disability benefits cancelled in spite of contrary medical evidence in its files.
As the SCC decision drolly remarked “the five-year denial by Sun Life of disability benefits without medical support for the denial is, to say the least, inappropriate.”
Late last year the OCA upheld a $25,000 mental distress damage award in favour of accident victim Janey McQueen.
McQueen was involved in a 2004 rollover car accident resulting in significant, life-altering injuries.
Over a three-year period McQueen’s insurer, Echelon General Insurance Company, denied 16 separate accident benefits.
The denials covered requests for transportation to appointments, housekeeping assistance and payment for assessments.
The amount at issue was modest, approximately $20,000. Yet the insurer “created an adversarial relationship” with McQueen, which created mental distress.
It terminated housekeeping benefits “in the face of medical documentation”.
McQueen was never given the benefit of the doubt when medical reports conflicted.
The insurer refused to pay transportation expenses “in the face of clear medical evidence”.
The trial judge ordered Echelon to pay for the denied accident benefits as well as an additional $25,000 for mental distress.
In upholding the mental distress award, the OCA reminded insurers “people purchase motor vehicle liability policies to protect themselves from financial and emotional stress and insecurity.”
It’s a message insurers must remember, failing which they’ll be ordered to pay either punitive damages or mental distress damages.
Source: Alan Shanoff ,Toronto Sun First posted: Monday, March 12, 2012 07:17 PM EDT | Updated: Monday, March 12, 2012 07:19 PM EDT
Medical malpractice system doesn’t have interests of patients in mind
“Suffer any wrong that can be done you rather than come here!”
— Charles Dickens in Bleak House commenting on litigation in England in the 1800s.
Alecia Fisher was born in February, 1991 with severe brain injuries. At age 21, she is a quadriplegic, has cerebral palsy and requires round-the-clock assistance for her daily activities, including eating, dressing and bathing.
Two trials have been held to determine responsibility for Alecia’s injuries.
The first took place over eight months in 2004 and 2005, resulting in a February, 2007 decision declaring the hospital’s nurses negligent in failing to monitor her fetal heart rate for a 90-minute period during the mother’s active labour phase.
The trial judge ruled this negligence caused or materially contributed to Alecia’s injuries, leading to a multi-million-dollar award.
As happens all too often, the decision was appealed. As also happens too often, the Ontario Court of Appeal allowed it.
The trial judge was ruled correct in concluding the nurses were negligent, but that she erred in her analysis of whether the negligence likely led to the injuries.
A second trial was ordered. It took place over 12 days in late 2011. The second judge released his decision February, 14. Once again the court declared the nurses negligent and that there was a connection between the negligence and the injuries.
So, you ask, finally, after 21 years, Alecia’s family will receive the compensation they deserve and need to pay the extraordinary expenses for Alecia’s care?
Perhaps. You see, there’s nothing to stop Victoria Hospital of London, Ontario (part of the London Health Sciences Centre) from appealing and seeking a third trial.
Our rules permit it and the hospital would be within its rights.
Cassidy Ediger, was born in January, 1998 with severe brain injuries. She cannot speak, is tube-fed, and confined to a wheel chair.
Her cognitive functioning may achieve the level of a four or five year old. She is totally dependent on others for her daily needs.
The trial against her mother’s obstetrician took place in 2008, with a decision awarding $3.2 million released in March, 2009.
The British Columbia Court of Appeal reversed the trial ruling and dismissed the lawsuit last May, concluding it hadn’t been sufficiently established the negligence of the obstetrician was the likely cause of the birth injuries.
Last month, the Supreme Court of Canada agreed to hear an appeal of the BCCA decision. If successful, there could be a new trial in 2013.
Matthew MacGregor was born in January, 1999. He has a form of cerebral palsy, cannot walk or talk, has severe cognitive deficits and is fed through a tube implanted in his abdomen.
His life expectancy is about 30 years and he requires care almost on a 24/7 basis.
His trial took place over a three-month period in late 2008, with a $2.6 million ruling in favour of the parents released in August, 2009.
The appeal of this decision is being argued later this month and he will likely have lived half his life before the litigation has concluded.
Zmora Gutbir was born in 1984. She too has cerebral palsy and requires constant care. Her trial took place in 2010, resulting in a multi-million dollar award against Toronto General Hospital.
The appeal was dismissed last month, allowing the award to stand, barring a successful appeal to the Supreme Court of Canada.
These four recent negligence cases illustrate a disturbing pattern in the world of medical malpractice.
Ask yourself, who benefits from such interminable litigation?
How many other cases aren’t brought forward due to the potential costs and uncertainties of litigation, with its zero sum winner-takes-all approach?
And what will it take before we change our adversarial, lawyer-driven negligence approach to these tragic incidents?
Source: Alan Shanoff ,Toronto Sun First posted: Saturday, March 03, 2012 08:00 PM EST
The main rationale for no fault car insurance accident benefits is simple.
We want people injured in car accidents, regardless of who is at fault, to have quick access to medical and rehabilitation benefits not covered by OHIP, without having to go through the lengthy and expensive process of a lawsuit.
By doing this, we help them recover more quickly and try to prevent their injuries from becoming worse.
But increasingly, the injured are unable to obtain expeditious access to benefits due to the growing practice of insurance companies denying requests for treatment.
According to a survey released last month by the Alliance of Community Medical & Rehabilitation Providers, representing about 3,500 Ontario health care providers, 42% of all requests for treatment are now being rejected by insurers. (The survey reports the denial rate was 11% prior to September, 2010.)
Under Ontario law, claimants cannot go to court to enforce their no fault accident benefits unless mediation has been sought and has failed. This forces denied claimants into the mediation stream at the Financial Services Commission of Ontario (FSCO).
Mediation is supposed to be fast and cheap. Indeed, the law requires a mediator to attempt to effect a settlement “within sixty days after the date on which the application for the appointment of the mediator is filed.” FSCO rules state mediation must be completed within 60 days of the filing of an application for mediation.
But FSCO, a government body with a self-described mandate “to provide regulatory services that protect the public interest and enhance public confidence in the regulated sectors” takes the position the 60-day period doesn’t start with a claimant’s request for mediation, but only when the FSCO “deems” the application to be filed.
They won’t do that until they appoint a specific mediator for the claim. With current backlogs, mediations don’t take place until 10 to 12 months after the filing of a mediation request.
Last December’s report of the Ontario Auditor General said about 50% of all claims result in mediation requests. With an estimated 36,000 applications for mediation being launched in the current fiscal year, the backlog isn’t likely to decrease.
What are accident victims facing a denial of benefits supposed to do? How can they get the attention of the FSCO and insurers to force them to do something about the backlog?
The Kitchener Waterloo law firm Morell Kelly, for example, has hundreds of clients awaiting mediation. They want the 60-day period enforced, so they started lawsuits for four of their clients who had waited longer than that.
Lawsuits will put pressure on the insurers and that can only help the existing situation.
In this case, the insurers could have negotiated settlements rather than face hefty litigation costs.
Instead, the insurers brought applications to dismiss the lawsuits, arguing they should not have been commenced as no mediations had “failed”.
The insurers adopted the FSCO position that the 60-day period doesn’t start until a mediator had been appointed for a claim.
But Superior Court of Ontario Justice James W. Sloan rejected the insurers’ dismissal applications.
In a Feb. 8 decision, he noted the insurance law is supposed to be consumer legislation and claimants who cannot access accident benefits on a timely basis should not be forced to wait “100, 300 or 500 days for mediation.” He called the insurers’ position “preposterous”.
Mediation is supposed to be fast and inexpensive. Forcing injured people to wait a year for non-binding mediation before they can seek a remedy through the courts or arbitration, encourages insurers to deny claims and creates hardship for claimants waiting for treatment and prescription medication.
This ought to have been thrashed out during last year’s Ontario election campaign. Now, even with our minority government, it seems no party wants to bring this urgent problem to the attention of the Legislature.
Source: By Alan Shanoff ,Toronto Sun First posted: Saturday, February 18, 2012 07:43 PM EST
Suing doctors is costly Malpractice suits are a lengthy, arduous, expensive and emotionally debilitating process
Suing a doctor for medical negligence or malpractice is not for the faint hearted.
It is a lengthy, arduous, expensive and emotionally debilitating process where success can rarely be assured.
Matthew MacGregor was born in January, 1999, “lifeless with no heartbeat and no respiration.” With aggressive resuscitation and cardiac compression his heart began beating and he took his first spontaneous, yet tentative breath at the five-minute mark of his life.
He has a form of cerebral palsy, cannot walk or talk, has severe cognitive deficits and is fed through a tube implanted in his abdomen. His life expectancy is about 30 years and he requires care almost on a 24/7 basis.
Matthew’s parents sued the hospital and obstetrician for negligence. The trial took place over a three-month period in late 2008, with a lengthy and complex decision ruling in favour of the parents released in August, 2009.
Ontario Superior Court Justice J.R. Henderson concluded the obstetrician’s negligence — wrongly intervening in the labour with forceps — caused Matthew’s injuries.
He awarded Matthew and his parents approximately $2.6 million. That included the costs of attendant care, housing modifications, equipment and other out-of-pocket expenses.
It may sound like a lot, but after expenses, it won’t make the MacGregors wealthy, nor will it make right what went wrong during Matthew’s delivery.
No easy task
Winning the lawsuit was no easy task. The obstetrician didn’t admit liability or wrongdoing. His lawyers put Matthew’s mother through a vigorous cross-examination.
They put forth expert witnesses to argue the absence of negligence, that at worst the obstetrician made mere errors in clinical judgment, and that even if negligence occurred, it didn’t cause Matthew’s injuries.
The trial judge had to wade through very complex medical testimony before reaching his decision.
But winning at trial didn’t result in any money being paid because the obstetrician has appealed the decision.
The appeal will be argued in March. Therefore Matthew has now lived almost half of his life expectancy without the resources the court award would have allowed.
The MacGregor case provides a good illustration of why our system of compensation for medical errors must be reformed.
The lawsuit was commenced in 2000, yet it took eight years to reach trial. Matthew was 10 when the trial decision was released. He will be 13 when the appeal is argued and likely 14 when the appeal decision is released.
Imagine the absurdity if the appeal decision is then appealed to the Supreme Court of Canada.
And who benefits from this litigation? One hopes the MacGregor family won’t lose the appeal and will benefit financially from the court award, but whatever they ultimately recover will be reduced by significant legal fees, as well as fees paid to their expert witnesses.
It seems lawyers benefit the most from most medical negligence litigation.
The Canadian Medical Protective Association, the body that provides professional liability protection for Canadian physicians has released a report which summarizes money paid out on medical claims during the five-year period 2006-2010.
During that period $816 million was paid out in settlements and court awards, but an additional $371 million was paid to lawyers on the claims.
That’s a whopping 31% of the money paid and doesn’t cover the legal fees paid by the plaintiffs. Legal expenses
When you add in the fees paid to plaintiffs’ lawyers and the costs of expert witnesses, along with all of the other costs of the litigation, it seems injured people, like Matthew and his parents, receive only about 33% of every dollar expended in dealing with medical negligence claims.
Any system that can take more than a decade to resolve a case and rewards lawyers more than injured parties is pretty pathetic.
Source: Alan Shanoff ,Toronto Sun First posted: Saturday, February 04, 2012 07:17 PM EST
Re “Ontario insurers leave catastrophically injured at risk” (Jan. 8 ): Alan Shanoff did a public service by commenting on the Court of Appeal’s decision in Kusnierz v. Economical. The Insurance Bureau of Canada suggested in its letter to the editor (Jan. 15) that a review of the CAT impairment designation is underway which will “resolve any uncertainty.” From the perspective of the Ontario Trial Lawyers Association any uncertainty has now been resolved by the Court. The “uncertainty” — whether physical and psychological impairments should be combined in determining the overall impairment of an individual — was resolved in favour of combining those types of impairments. For Mr. Kusnierz, whose leg was amputated, it meant that when assessing the impairment of his entire person, it was appropriate to look at both the physical impairment from the loss of his leg and the psychological impact of that injury. In our experience, no one is startled to learn that this should be the approach. The suggestion that Shanoff is fighting for a generous system that “ensures the legal community will make money” is unfair and unfortunate. Surely Mr. Kusnierz and people like him injured in car crashes would agree that this case was about ensuring the most seriously injured in our society receive the accident benefits they require. To take a swipe at Shanoff and the lawyers who help the injured recover their accident benefits from their insurers was unnecessary and inappropriate.
Andrew Murray
President-elect, Ontario Trial Lawyers Association
(It should have been obvious to the insurer that Mr. Kusnierz’s injuries were catastrophic)
Why is the public paying for doctors’ malpractice insurance?
Unless you’re a doctor or medical negligence lawyer you’ve likely never heard of the Canadian Medical Protective Association (CMPA).
When Ontario government and Ontario Medical Association negotiators sit down to negotiate fee schedules and pay for physicians’ services, there’ll be little or no mention of the CMPA.
It refers to itself as a not-for-profit, medical, mutual defence organization.
Its self-described mission is to “protect the professional integrity of physicians and to contribute to a high quality health care system by promoting safer medical care in Canada.”
To most doctors and to those unfortunate enough to find themselves the subject of a medical malpractice lawsuit, however, the CMPA is a type of insurance company.
It provides professional liability protection for Canadian physicians.
But it’s also a unique insurance company.
Its physician members don’t pay any premiums.
Instead they pay “membership fees.”
But whatever you call it, when doctors get sued they turn to the CMPA to defend them. And aggressively defend them it does, employing the best legal talent money can buy.
There are four unique things about CMPA “insurance.”
First, there’s no deductible or co-payment by doctors on claims.
Second, the premiums, or membership fees, don’t increase if a doctor suffers one or even multiple claims.
Third, there are no limits on the insurance.
Fourth, and most important, taxpayers pay most of the premiums.
That’s right, the public pays most of the premiums for doctors’ medical insurance.
In fact, they are the only professionals who have the public picking up their professional liability insurance premiums.
Don’t be fooled by those who argue CMPA membership fees aren’t the same as insurance premiums. It’s a difference without any distinction.
Ontario taxpayers pay over $100 million a year in CMPA premiums.
That may be a small part of the annual health budget, but Ontario taxpayers have contributed over $1 billion for CMPA premiums over the past decade.
That’s a significant amount of money, especially in these lean times when public sector wage restraint is supposed to be the rule.
It’s not as if the CMPA needs all this taxpayer money.
According to its most recent annual statements, as of the end of 2010, the CMPA held almost $3 billion in net assets.
After deducting funds committed to capital assets and a risk retention reserve fund, the CMPA holds $572 million in unrestricted net assets.
I understand doctors are basically public or civil servants receiving most of their income from a single payer, the government. But the public doesn’t pay other expenses incurred by doctors. So why this one?
Aside from the fact significant taxpayer money is going to a third party, with little or no accountability on how that money is spent, this creates an unfair situation where a person injured due to medical negligence is subsidizing the legal defence of the doctor being sued.
The doctor has the benefit of using the best legal talent money can buy with taxpayer funds, while the injured person must make do with whomever he or she can afford.
Yes, some good plaintiff’s lawyers take cases on a contingency basis but they face substantial obstacles in getting cases to trial — there were only 96 lawsuits against doctors that went to trial across Canada in 2010.
One of these obstacles is the high cost of litigation, which isn’t a factor for doctors.
Worse, the way CMPA membership fees are structured, there’s no penalty for doctors who violate the standards of their profession.
There’s no deductible and no fee increases no matter how many claims are made against a doctor.
If I’m a poor driver and get into several accidents my premiums will go sky-high, or I will become uninsurable.
Not so for doctors who foul up.
Yes, doctors deserve fair compensation, but they don’t deserve this taxpayer subsidy.
Source: Alan Shanoff -torontosun.com Saturday, January 21, 2012, 7:25 PM
While the insurance industry has loudly proclaimed the pervasiveness of insurance fraud, it has been quietly leading a battle to deny benefits to the most seriously injured car accident victims.
That battle is being waged over the definition of catastrophic impairment.
Accident victims in this category are entitled to enhanced medical and rehabilitation accident benefits of up to $1 million.
As of September 2010, those seriously but not catastrophically impaired are entitled to reimbursement of medical and rehabilitation benefits to a maximum of only $50,000 (although this can be doubled to $100,000 for an additional premium).
Prior to September 2010, the limit was $100,000.
But none of this money goes into the pockets of accident victims; the money is to be used solely for reasonable and necessary expenses.
Robert Kusnierz was injured in a 2001 car accident resulting in significant injuries. His left leg was amputated below the knee.
Due to cysts and deterioration of the stump, he often uses a walker or wheelchair rather than a prosthesis.
He has had 10 different prostheses. Even with them, he can walk well only on flat surfaces.
He suffers from headaches and pain in his shoulders, neck, back, hips, knees and right ankle.
He lost his job and suffers from “severe” psychological symptoms, likely meeting the diagnostic criteria for a major chronic depressive disorder.
Not surprisingly with such significant injuries, Kusnierz exhausted his $100,000 medical and rehabilitation limit as of late 2005.
That’s because prostheses, wheelchairs, assistance devices, attendant care, housekeeping services, medication expenses, home modifications and other costs all come out of the accident benefit limits.
It’s easy to exhaust them, particularly in cases of serious but not catastrophic impairment.
You’d be hard pressed to find many people to argue Kusnierz’s injuries don’t constitute catastrophic impairment.
Even his insurer, The Economical Mutual Insurance Company, agreed if his physical and psychological injuries were combined, Kusnierz would have satisfied the definition of catastrophic impairment.
Didn’t meet definition
But ignoring years of precedent, his insurer argued combining physical injuries with psychological injuries is not permitted in making a catastrophic impairment designation, and neither the physical injuries nor the psychological injuries alone satisfied the definition of catastrophic impairment.
In late 2010, Justice P.D. Lauwers of the Ontario Superior Court accepted that argument, ruling in favour of the insurer.
Kusnierz launched an appeal to the Ontario Court of Appeal.
The Insurance Bureau of Canada (IBC), the national industry association representing Canada’s home, car and business insurers, intervened in the appeal, trying to uphold the pro-insurance decision.
It’s hard to overestimate the parsimonious nature of such conduct since there are very few cases where physical or psychological impairments would not be considered catastrophic when assessed separately, but would be considered catastrophic when combined.
Happily for Kusnierz, the Court of Appeal’s decision, released in late December, reversed the lower court ruling, concluding that allowing physical and psychological injuries to be combined in making a catastrophic impairment assessment “promotes fairness and the objectives of the statutory scheme.”
But the battle isn’t over.
The Ontario government is sitting on a report by a panel of experts to the Financial Services Commission of Ontario. FSCO is responsible for the regulation of car insurance in Ontario.
This report, prepared by a group comprised of eight members, two of whom have been consultants to the IBC and two of whom have received research grants from the insurance industry, argues against combining physical and psychological impairment.
These experts argue there isn’t “sufficient evidence that combined impairment ratings are more clinically meaningful than using separate criteria.”
Try telling that to Robert Kusnierz.
Source: By Alan Shanoff ,Toronto Sun First posted: Saturday, January 07, 2012 05:27 PM EST
The Interim Report of the Ontario Auto Insurance Anti-Fraud Task Force released earlier this month is more interesting for what it doesn’t report than what it does.
Naturally, it reports on the apparent increase in claims costs, particularly no-fault accident benefits between 2006 and 2010, with the greatest increase in the GTA.
Naturally, this has led to dramatic premium increases with Ontario having Canada’s highest car insurance premiums.
Certainly there are anomalies which require investigation.
How is it that accident benefits claims frequency has increased while the number of people injured in car accidents has decreased?
Why have accident benefits claims gone up dramatically compared to health care inflation?
Why are costs rising more rapidly in Ontario compared to other provinces?
The possible reasons explaining these anomalies are many, but as illustrated by the very name of the task force, only one reason appears to be on the table: Fraud, with an emphasis on consumer fraud.
That’s where I part company with the task force.
True, it discounted the oft-cited industry estimate of $1.3 billion of fraud per year, stating the “figure cannot be considered a verifiable measure of the extent of fraud at this time.”
But the report is based primarily on facts and figures supplied by the insurance industry.
Clearly, the industry has an incentive to exaggerate claims costs, as well as fraud. That’s not to say there’s no fraud. Certainly, fraud exists. But the extent is debatable.
As stated by the task force, there are several types of insurance fraud: Organized fraud such as staged accidents, premeditated fraud such as fraudulent billings by repair shops and health care providers, and opportunistic fraud.
The first two types are clear cut and require effective steps to stamp them out, but opportunistic fraud is in the eye of the beholder.
As the task force states, “opportunistic fraud occurs when individual claimants inflate the value of their claim.”
That opportunistic fraud exists cannot be denied, but it is surely the most debatable and likely the slowest-growing type of fraud.
Justifies abuses
Sadly, for claimants, it is being used to justify many of the insurance abuses that afflict legitimate accident victims.
Jack Fireman, a personal injury lawyer who represented the insurance industry as defense counsel for many years before switching to the plaintiff side in 2000, argues we need a task force to examine the “rampant abuse by the insurance industry of legitimate claimants.”
Decisions from Financial Services Commission of Ontario (FSCO) arbitrators are replete with examples of the wrongful delay and deny tactics of insurers.
The insurance industry has a penchant for using preferred vendors to provide medical assessments of accident victims.
I recently wrote about a psychiatrist whose prime occupation was conducting psychiatric assessments of accident victims, mainly for insurers.
This psychiatrist conducted up to 50 insurance assessments a month with a projected income from assessments “in the range of some $600,000 per year.”
Often these preferred vendors conduct what are called paper reviews. They don’t even examine the accident victims before rendering their pro-insurer opinions.
And if they don’t render pro-insurer assessments, their lucrative practices may dry up.
Insurers also put forth unqualified experts to deny legitimate claims.
Indeed, arbitration decisions from FSCO arbitrators are replete with examples of unqualified “experts” having been retained to argue against legitimate accident victims. Isn’t that equivalent to opportunistic fraud?
In examining the increasing cost of claims, shouldn’t we be examining the increase in costs attributable to defence or insurer medicals, adjuster’s fees and legal fees paid to insurers’ defence lawyers?
If the task force’s final report is to have any merit, it must obtain independently audited figures and claims costs attributable to both sides, consumers and insurance companies.
Source: By Alan Shanoff ,Toronto Sun First posted: Friday, December 16, 2011 08:58 PM EST
High Levels of Arsenic Found in Some Apple Juice and Grape Juice: Study -------------------------------------------------------------------------
The amount of arsenic found in some fruit juice exceeds the amount considered safe for drinking water, according to the findings of a new study.
Consumer Reports released the results of an investigation into arsenic levels in fruit juices on November 30, finding that the 10 percent of juices tested had more arsenic than what is legally allowed in drinking water.
Part of the problem, Consumer Reports noted, is that there are no arsenic standards for juice and similar beverages.
The Environmental Protection Agency (EPA) has set a limit on arsenic in drinking water of 10 parts per billion (ppb). Some arsenic occurs naturally in some fruits, but there is a type of arsenic known as inorganic arsenic that does not. Inorganic arsenic is a known human carcinogen. Even the 10 ppb level has been hotly contested by health experts, many of whom say it should be higher.
The Consumer Reports study tested 88 samples from 28 different apple juice and grape juice products, and found that 10 percent of the samples tested had arsenic levels exceeding 10 ppb, most of that arsenic was inorganic. The group also tested the samples for lead, and found that 25% exceeded 5 ppb, the legal lead limit for bottled water.
High levels of lead can damage the developing brain of an unborn or young child, causing neurological problems, learning disabilities and lowered intelligence, as well as seizures and death in some cases.
Two samples of Walgreens 100% Grape Juice had 24.7 and 17.4 ppb of arsenic. Both those samples also had high levels of lead, with 10.1 and 14.7 ppb respectively. Another Walgreens 100% Grape Juice sample had 9.71 ppb arsenic, under the drinking water standard, but 15.9 ppb of lead; more than three times the amount of lead allowed in bottled water.
Another juice that tested consistently high for arsenic was Walmart’s Great Value 100% Apple Juice. Three samples tested had arsenic levels of 13.9 ppb, 11.5 ppb and 10.1 ppb. Welch’s 100% Grape Juice also tested high, with two samples that were found to have 12.4 ppb and 10.7 ppb of arsenic.
The juices with consistently low levels of arsenic included Juicy Juice 100% Apple Juice Non Frozen Concentrate, and Red Jacket Orchards 100% Fuji Apple Juice Never From Concentrate (refrigerated). No samples from those two juices ever exceeded 2 ppb for arsenic. Both were also below the bottled water standards for lead, with Red Jacket Orchards juice registering less than 1 ppb of lead in every sample.
Consumers Union, which is the advocacy division of Consumer Reports, is calling on the FDA to establish a 3 ppb arsenic limit for juice and a 5 ppb limit for lead. The group says that the limits are achievable, pointing out that 45% of the samples tested would have met such requirements.
The FDA informed Consumer Reports earlier last month that it is considering arsenic standards for juice, but is still collecting data to determine where those limits should be set. In September, the FDA stated that it believed apple juice consumption posed little or no risk, but since then it has received eight apple juice test samples with total arsenic levels of up to 45 ppb. That, and other data the agency has obtained, has led the FDA to decide that arsenic levels in juice need further investigation, Consumer Reports stated.
The American Academy of Pediatrics has a number of recommendations on the amount of juice children should drink. Those recommendations include:
Avoid giving infants under six months old any juice. Limit the amount of juice consumed by children six years old and younger to a maximum of four to six ounces per day. Limit the amount of juice given to children older than six to eight to 12 ounces per day.
Source: Published December 1st, 2011 - aboutlawsuits.com/
