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Despite COVID-19 guidelines, insurers still deny attendant care claims | Joseph Campisi

Thursday, August 20, 2020 @ 1:03 PM | By Joseph Campisi

Joseph Campisi %>
Joseph Campisi
On June 3, more than two months after Ontario declared a state of emergency, the Financial Services Regulatory Authority of Ontario (FSRA) released an Interpretation titled: “Statutory Accident Benefits Claims during the COVID-19 Outbreak.” Its declared purpose is “to provide FSRA’s Interpretation of the requirements of subsections 1(9), 3(2)5 and 6(1) of O. Reg. 7/00 — Unfair or Deceptive Acts or Practices under the Insurance Act” in the context of statutory accident benefits (SABs) claims during the COVID-19 crisis.

These subsections set out the following as unfair or deceptive acts or practices:

  • 1(9). Any conduct resulting in unreasonable delay in, or resistance to, the fair adjustment and settlement of claims.
  • 3(2)5. Charging an amount in consideration for the provision of goods or services to or for the benefit of a person who claims statutory accident benefits or who otherwise claims payment under a contract of insurance, where the amount charged unreasonably exceeds the amount charged to other persons for similar goods or services.
  • 6(1) The failure or refusal of an insurer without reasonable cause to pay a claim for goods or services or for the cost of an assessment within the time prescribed for payment in the Schedule.

In recognition of the additional challenges and complexities facing SABs claimants — such as communicating with adjusters, providing paperwork, attending treatment and assessments and receiving in-home support — the FSRA issued this guidance to announce its intention to use the regulatory tools at its disposal to ensure that claimants are treated fairly during the pandemic.

This guidance is in keeping with the statutory mandates of the FSRA:

  • to contribute to public confidence in the insurance sector;
  • to protect the rights and interests of insurance consumers;
  • to deter deceptive or fraudulent conduct, practices or activities by the insurance sector; and
  • to promote high standards of business conduct in the insurance sector.

FSRA’s release of this document highlights the use of unfair or deceptive acts or practices by the insurance industry relating to accident benefits claims in the first months of the crisis, despite website slogans of insurers, like: “Working together to deal with COVID-19” and “We believe that insurance is about people. Our priority is to be there for customers and brokers when they need us.”

It is disheartening that many auto insurers did not seize the opportunity to proactively take steps to alleviate the additional hurdles that claimants inevitably would face once the state of emergency was announced. With the decrease in commuter and occasional traffic, the number of new accident benefits claims has dropped dramatically, although people continue to pay monthly premiums to the insurers.

This windfall for the insurance industry could have been utilized for the benefit of all SABs claimants. For example, treatment and other benefits could have been approved on a “without prejudice” basis, pending an independent medical evaluation (IME) to be scheduled once the restrictions are lifted. A response along these lines would accord with the insurers’ duty of utmost good faith and would genuinely assist accident victims in these difficult times.

Instead, we have seen an ongoing pattern of unfair or deceptive acts or practices which prioritize profit and “fighting fraud” over the well-being of injury victims and their families. Examples of this behaviour include:

  • Placing/maintaining claimants in the Minor Injury Guideline (MIG) when they have pre-existing conditions, or concussion or psychological diagnoses;
  • Denying reasonable benefits claims pending an IME;
  • Refusing to pay family members for providing attendant care when no other reasonable options are available;
  • Refusing to provide maxed-out catastrophic impairment (CAT) applicants with ongoing benefits coverage;
  • Refusing to fund virtual and/or self-directed care;
  • Insisting on formalities for processing of benefits instead of providing accommodations (e-mail, virtual signatures, etc.).

These and other acts and practices cause months-long delays in accessing necessary treatment, care and income replacement benefits. As a result, claimants are forced to return to work to support their families, seriously injured claimants go without necessary attendant care and treatable conditions may fail to resolve or regress from lack of treatment.

In forcibly reminding auto insurers of their obligations under O. Reg 7/00 there is some hope that the FSRA Interpretation will provoke a more humane and dutiful response from the insurance industry than we have seen to date.

What’s more, the regulator explicitly warns: “Compliance with this Guidance will be reviewed by FSRA as part of its supervisory activities related to auto insurance,” although no details related to penalties for non-compliance are provided.

We cannot rely upon the threat of FSRA review at some unspecified time in the future. However, we can use the Interpretation as leverage when advocating for our clients. Insurers should recognize that failing to meet the FSRA’s expectations in accident benefits claims ultimately will result in lengthy and overwhelmingly successful claimant disputes at the Licence Appeal Tribunal.

Hopefully, by continuing to highlight these expectations, many disputes can be avoided and our clients will receive the fair treatment they deserve.

Joseph Campisi is the managing partner of the personal injury law firm Campisi LLP. He is a certified specialist in civil litigation and an adjunct professor of insurance law at Osgoode Hall Law School.

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