Snowbirds Beware! New Law in Florida Requires International Driver’s Permits

We’ve been hearing a lot about this topic in the news over the last couple of weeks, and is of great interest for those of us in Ontario who drive south in the winter, especially for March Break!

Florida has passed a law requiring all out-of-country drivers to have an International Driver’s Permit (IDP).  Failure to do so could result in fines and/or other charges.  It’s not clear what the intention of this legislation was, and if it was to ensure that tourists from overseas were confirmed to be properly licenced.  Those of us who have handled auto claims know that it can be quite arduous to confirm licence details from drivers from overseas, further hindered by communication and language barriers.  In all likelihood, this law stemmed from such issues, and not because of us, their cousins north of the border.

In Ontario, anyone staying in the province for less than 3 months does not need an IDP. These drivers only need a valid licence from their home province or country, and need to be at least 16 years old.  After 3 months, an IDP is needed. More information can be found here on the government’s website.

What are the implications of failing to get your IDP for your Florida vacation?  One is that your insurance company might not cover you if you are in an accident.  This can have dire consequences for large repair and medical bills. As per CAA (the only place in Canada where you can get an IDP) this new law is not being enforced for Canadian drivers, pending further review of the law.  However, strictly speaking, if you do not have a valid licence, your insurer can deny coverage.  So, what now?

You’ll likely want to err on the side of caution, and join the lineups at CAA to get your International Driver’s Permit.  It’s a quick process, the cost is $25, and you must be at least 18.  Don’t worry!  It’s just a translation of your information.  You don’t have to write a test.

Stay tuned for further updates!

Guest Blogger – Police Reports: Investigative Linchpin or Adjuster Crutch?

Kevin Quinley
Quinley Risk Associates, LLP

We are pleased to introduce Kevin M. Quinley, our guest blogger.  He has a great blog on his own site, www.claimscoach.com, and has graciously allowed us to feature him as a guest blogger.  Kevin Quinley CPCU, ARM, AIC is the principal of Quinley Risk Associates LLC, a boutique claims consulting firm based in the Richmond, Virginia area. He provides his nationwide clientele with services related to claims training, productivity, litigation support and expert witness services. He is the author of 10 books and over 600 articles on various aspects of insurance, risk management, claims handling and litigation management. You can reach him at *protected email* or at his website, www.claimscoach.com.

Police Reports: Investigative Linchpin or Adjuster Crutch?

To what extent should an adjuster rely upon a police investigation? Should it substitute for the adjuster’s investigation or part of it? Or, should it simply augment the investigation but not be viewed as a substitute for it?

This issue arose recently in the context of a bad faith claim where I was engaged as an expert witness. The plaintiff/policyholder alleged, among other things, that the insurance carrier failed to conduct an adequate investigation. Part of the argument was that the insurance adjuster relied too much on the police investigation and did not do more in the way of taking a formal statement from the policyholder and interviewing witnesses.

The Police Report reflected the account of the incident (an alleged assault and battery) from the standpoint of the insured and of witnesses. There was no dispute about what happened in the incident itself. The coverage dispute pertained more to the policyholder’s intent and whether his actions triggered the “expected or intended” or the “willful and malicious” policy exclusions.

This raised the issue as to whether adjusters are obliged in every case to go beyond the Police Report or whether, in certain cases, the report can be the cornerstone of an adjuster’s investigation.

As new adjusters, we are often taught — rightly — to NOT view police reports as sacrosanct. Police Reports can contain errors, just as medical reports or even attorney reports can contain errors. Typically, police are not eyewitnesses to an accident or incident. Their reports will capture facts relevant to the breaking of laws and ordinances.

However, in some instances a Police Report might serve as the cornerstone of a claims investigation. This is not to say that the Police Report always constitutes the end-all and be-all of a claim investigation. It is not to say that the Police Report is necessarily the entirety of an adjuster’s investigation. However, there may be situations where there is no need for the adjuster to plow the same investigative ground that the police have tilled if the basic facts of a claim are not in dispute.

Consider a straightforward accident where Car  A rear-ends Car B.  No one disputes that, and it is reflected in the police report.  Is the adjuster still obliged to track down, identify and take statements from all witnesses? At some point, this appears to be overkill.

Unless the adjuster is on notice that the Police Report is in some way erroneous or disputed, and if nobody disputes the basic facts of a straightforward accident, there may be instances where the adjuster can rightly rely on a police investigation for the bulk of the fact-finding without being accused of laziness.

The overarching principle is that adjusters and insurance companies are obliged to conduct reasonable investigations. This is required in many state unfair claim practice statutes. It is also found in the NAIC Model Unfair Claim Practices Act. Of course, “reasonable” is not defined. There is no paint-by-numbers description of what goes into reasonable. The statutes do not delineate the components of a “reasonable” investigation. What is reasonable in terms of investigation must be determined by the particulars of each individual claim.

At one extreme, you have straightforward scenarios where it is undisputed that Car A rear-ended Car B. If the police report reflects that, both drivers agree and there is no evidence to the contrary, then perhaps the police report can serve as the cornerstone of the adjuster’s investigation.

At the other extreme are complex and disputed facts situations. These could include the Deepwater Horizon oil spill in the Gulf of Mexico or the Fukushima nuclear meltdown in Japan. Here, official reports might be taken with a grain of salt and should be the starting point, not the endpoint of an insurer’s investigation.

So, where do you stand on the issue?  Are there situations where the Police Report can substitute for a big chunk of the adjuster’s investigation, OR is the adjuster obligated to always go back over the features captured in the report? 

 

Insurance Fraud

With the new Accident Benefits regulation in effect for 2 years, have these changes had an effect on fraud? Is the amount of fraud reduced or have the culprits gotten better at hiding it?  It seems like we’re always two steps behind!

Time will tell, if the amount of fraud is being reduced, especially with the drastic increase in the amount of mediations being scheduled through FSCO.  Hopefully, less fraud will equal lower claim payouts AND lower premiums.

We’ve attached 2 videos from the Insurance Bureau of Canada that demonstrate the implications and financial cost of fraud.

Try here if you can’t view the videos below:

Insurance Bureau of Canada – Fraud on the Rise in Ontario

IBC Organized Insurance Fraud

 

 

“Early Offer” Alternative to Medical Injury Litigation

A word or two from Jim Cameron, President, Cameron & Associates:

Interesting!  New Hampshire has adopted a new medical malpractice injury claim procedure.

The claimant would present an “early offer” to a facility or service provider they deem responsible for the injury. The offer would be based on specific defined criteria of “actual out of pocket medical expenses make an offer based on the actual out-of-pocket medical expenses, replacement services … and 100 percent of the claimant’s salary, wages, or income from self-employment or contract work lost as a result of the medical injury. There is also an allowance for some attorney fees or court costs. It is not intended to be a complete settlement as pain and suffering and the more contentious aspects of a claim are NOT included. Some payments can be made on a schedule for selected injury types. The tort system could still provide the ultimate resolution and this is not intended to replace the tort system but merely supplement it.

The process has its own adjudication rules and is completely voluntary on both sides.

This will be a state to watch in 2013 when this takes affect.

Read this article for more information on this program.


Medical Rehabilitation Limits after September 1, 2010 (Part II)

The Minor Injury Guideline and Income Replacement Benefits

by Nick White, Accident Benefits Consultant

The current three tiered approach to medical rehabilitation limits is not new.  Insurers were already used to handling claims in the Pre-Approved Framework (PAF), which is arguably a precursor to the Minor Injury Guideline (MIG).   The new MIG seems more inclusive in its definitions, and at first blush, far less porous than the PAF.

Both the MIG and the PAF limited a claimant’s access to Attendant Care Benefits (ATC), again predicated on the notion that the injuries sustained are minor, soft-tissue in nature.  The new Schedule dictates that if their injury is still ‘Minor’ as described in the Guideline, they are not eligible for ATC.  The Schedule also  allows a person to escape from the restrictions of the Minor Injury Guideline if they can demonstrate by compelling evidence provided by a health practitioner that due a pre-existing condition  will prevent them from achieving maximal recovery from the minor injury[1].  The nexus between Attendant Care Benefits and the MIG , appears to be fairly straight forward.  The nexus between the Income Replacement Benefit (IRB) and the MIG is far more difficult for an insurer to navigate.

The PAF limited a claimant’s recovery of IRB to a 12 or 16 week cap depending on whether the injuries described were a WAD I or WAD II.  The MIG has no such connection to IRB.  A claimant determined to be in the MIG will collect IRB predicated on medical eligibility based on the Disability Certificate (OCF-3), which can be reassessed by requesting an update OCF-3 and/or moving to an insurer’s examination.

A major hurdle for insurers has come out of this more inclusive definition of a Minor Injury  – it includes partial tears.  An insured person who uses their shoulders regularly in the job, and sustains a partial tear rotator cuff, may meet the pre-104 week test of ‘substantial inability’ to engage in their pre-accident employment.  So if insurers read the letter of the SABS – they will pay the MIG limit of $3500 in medical rehabilitation and pay IRB for 104 weeks (at which time the test changes to a ‘complete inability’).   The insurer will have to hope the claimant can access community resources, OHIP or their private plan if applicable.

What is a claims handler to do? Do you hold the letter of the SABS/ MIG and simply pay  $3500, the maximum level of  medical rehabilitation benefits, and hope that FSCO and/or the Courts agree in your literal interpretation?  Or do you identify these files now and allow these claimants to leave the MIG, access medical rehabilitation beyond $3500 in the hope of minimizing the length of time they collect a disability benefit?

An  argument can be made that the partial tear (and other injuries)  – if not treated will become chronic thus negating the original MIG determination.   This could put not only the accident benefit insurer in an awkward situation, but ultimate increase the volume of third party bodily injury claims.


[1] The Superintendent’s Guideline 02/10

 

Are You Ready for the AB Mediation Backlog “Fix”?

On May 23, 2012, Tom Golfetto, Executive Director of the FSCO Dispute Resolution Group, issued a letter updating stake holders on the progress of DRS initiatives. The RFP procurement process in nearing completion and he expects that the first set of files will flow to the outsource vendors at the beginning of July. They expect that outsource vendors will be able to handle 2000 mediations per month and 500 arbitrations. This is in addition to the 2,793 mediations being handled per month by FSCO DRG staff. It was conspicuous that Tom’s letter did not give the number of cases currently in backlog but that was estimated at 30,000 (see our previous blog entry)

The problem with the math is that it does not account for the estimated 3,000 new cases coming in per month. If this number stays constant, FSCO staff can only keep up with the new ones and the backlog will be reduced at the rate of 2,000 per month over the next 18 months to 2 years.

The letter is available here.

In any event, the “warning” to be ready for the onslaught echoes my article “When the Dam Bursts”, FSCO warns: “please ensure that you retain additional staff as necessary, so that there are no scheduling delays due to unavailability of your staff”.

Cameron & Associates would be pleased to assist Insurers to resolve this challenge on a long and short term basis. Contact us for more details.

Thank you,

Jim Cameron & Team

AB Mediation Backlog: When the Dam Bursts

This article was recently published in Canadian Underwriter Magazine.

It is an expansion on Jim’s previous blog post.

Feedback on the articles and blog posts is always appreciated!

A PDF copy of the article is available here: When the Dam Bursts Jim Cameron.

ARE WE READY?

By Jim Cameron, FCIP, CRM, C.Arb, President, Cameron & Associates Insurance Consultants

Thirty-five thousand cases and counting: What happens when the dam bursts?

Currently, under Ontario’s Insurance Act[1], if you have a dispute with an insurer involving the payment of accident benefits under the SABS (Statutory Accident Benefits Schedule), you must file for mediation with the Dispute Resolution Practice Group (DRPG) at FSCO (Financial Services Commission Of Ontario).

The mandate of FSCO’s DRPG is to provide a fair, timely, accessible and cost effective process for resolving claimant disputes over entitlement to accident benefits. This mediation must have taken place and failed before you can proceed to the courts through a lawsuit or by arbitration (again to be filed with the DRP).

The act provides that such mediation shall take place within 60 days of the filing date with FSCO. FSCO has found itself facing a marked increase in the number of mediation requests filed, coupled with Government imposed staff freezes. The result is a backlog of about 35,000 mediations. The auditor general observed that in the 2010-11 fiscal year, no mediations were completed within the 60 days required by law.

The number of mediations pending at the end of the FSCO fiscal year increased from about 3,000 in 2007 to 27,000 in 2011, a 645% increase.

The situation is only getting worse: the latest figures show 3,000 new cases per month. Estimates suggest the current backlog is about 36,000 cases. If nothing were to be done, the backlog could reach 48,000 cases by the end of this year.

FSCO Mediations  BY THE NUMBERS

0                 Number of mediations completed within 60 days

3,000        Number of new cases per month

35,000      Number of cases in backlog

Ontario auditor general Jim McCarter commented on this situation in December 2011. Citing increased demands and constraints on resources, he noted it is taking between 10 and 12 months to resolve mediated disputes instead of the legislated requirement of 60 days. He also commented that FSCO does not capture information to allow it to assess the reasons why the number of mediations has sharply increased over the past five years.

Surprisingly, his report stated about half of all injury claims end up in mediation. In addition, 80% of all mediations originate in the Greater Toronto Area, even though only 45% of the injured auto accidents victims live there.

The Vicious Circle

The report openly questioned FSCO activities in ensuring that insurance companies apply standard due diligence in adjusting or questioning benefits claims under the SABS.  In response, FSCO indicated it had issued bulletins to companies to respond to the September 2010 changes by more proactively challenging questionable claims.[2] The problem is, however, that when insurers challenge payments, more disputes over payment of benefits arise — and therefore claimants seek mediation more often.

The Response

FSCO implemented a procedure in which the insurer and claimants could consent to fail a mediation and then move on to the next step — litigation or arbitration. This was unpopular with both claimants and insurers. Insurers pay $500 for each mediation; they felt this money might be wasted if mediation could be bypassed without any chance to talk to the claimant and discuss or offer settlement.  Claimants, who are not charged for the cost of mediation but have to pay their representative, often want to mediate and obtain a settlement without going through the next very expensive steps of litigating or arbitrating.

FSCO also recently implemented eCalender, to help the parties schedule mediations electronically and conduct settlement “blitz” days for certain cases. The backlog, however, continued to mount.

After a consultation process to determine the availability of external private sector dispute resolution services with the requisite capacity and expertise, FSCO posted a Request for Proposal (RFP) on MERX, the province’s electronic tendering system. In its Jan. 13, 2012 update, FSCO announced it was seeking up to four outside firms to attack the backlog of mediations and the expected increased demand in arbitrations.

FSCO originally expected to have contracts with qualified service providers by May 2012. At the time of writing, no awards of contracts have been announced and a May date seems unlikely.

Justice Delayed is Justice Denied

In the interim, the judicial and arbitral systems have recently addressed the rights of claimants stymied by the backlog. Two court decisions and an arbitration decision found that the FSCO Dispute Resolution Group did not comply with the requirement of completing mediation within 60 days of the date of filing.

In Leone and State Farm, FSCO arbitrator Jeffrey Rogers concluded on a preliminary motion that the case could proceed to arbitration without mediation. He reasoned that Nicholas Leone faced the potential of irreparable harm as a result of delay in recovery of benefits to which he is entitled. “The erosion of statutory rights to a speedy dispute resolution process can have serious consequences for both sides,” Rogers wrote. “My ruling brings little comfort to applicants as a group, since it potentially moves the backlog from mediation to arbitration.”

In Cornie v. Security National, Ontario Superior Court Justice James W. Sloan heard four cases on the issue of whether or not a mediation is deemed to have failed if not heard within 60 days of filing. He concluded: “The SABS are for the benefit of injured motor vehicle victims and are often required in a timely fashion. It makes perfect sense that the legislation ….refer to a 60-day time limit to deal with such disputes. The insurance companies take the position that the accident victims must simply wait…. I find that submission preposterous.”

In Younis v State Farm, the insurer sought a stay of proceedings because the plaintiff had not completed a mediation as required by Section 280 (1) (2) and (8) of the Insurance Act and Section 19(1) of the DRPC. The action started more that seven months after the submission of the application for mediation. Ontario Superior Court Justice Guy DiTomaso found that the mediation had failed both on an interpretation of the Code, ss. 280(4), 280(7) of the act and s. 10 of O.Reg. 664.

The arbitration and all of the decisions above are under appeal. The first of the appeals is expected to be heard this summer.

The Effect if the Appeals are Upheld

Let’s assume claimants with mediations pending can bring either a court or an arbitration case more than 60 days after filing for mediation. Using the number of 35,000 to estimate the backlog, this means insurers would be billed $500 per mediation (deemed failed) for a total of $17.5 million. The cases would then have to either be arbitrated or tried.

Arbitration cases automatically cost the insurer $3,000. If half of the above cases end up in arbitration, that would result in $52.5 million in FSCO costs, plus most likely $5,000 in counsel fees (another $87.5 million), and these numbers completely ignore any settlement or benefit loss payment costs.

If half the cases proceed to court, there would be no FSCO costs, but the defence costs per file would most likely exceed the figures noted above. Since a large number of these disputes involve sums of less than $25,000, insurers may find themselves in Small Claims Court, a scenario with which insurers have dreaded over the years due to the unpredictability of results and the significant costs of defending there.

The bigger problem is how either the arbitration system or the court system, both of which are already stretched, will find the resources to deal with this huge influx of cases.

Practical Problems

Should the appeals succeed, or be further appealed or delayed, huge issues still arise out of FSCO’s attack on the backlog. Some industry sources suggest a large portion of the current backlog consists mainly of cases in which treatment providers are seeking the costs of their exams, and insurers consider those costs to be exorbitant and not reasonable and necessary. These disputes are not likely to settle at mediation.

Similarly, any cases involving the new changes to “incurred expenses” definition or the Minor Injury Guideline, or other novel issues, are not going to be settled at mediation. Insurers will demand a decision by a court or arbitrator on the critical issues affecting entitlement going forward.

Statistics cited in the auditor general’s report suggest that 70% of the cases have settled historically. Maintaining that rate going forward will be unrealistic. If it drops to 50%, an additional 12,000 new cases would appear annually before the courts or at arbitration starting as early as this fall.

FSCO, has cautioned insurers, law firms and paralegals to being planning to ensure adequate staffing levels so that there are no scheduling delays due to unavailability of the parties.

Of course, nothing in the legislation precludes an insurer from settling the case at any time. No requirement exists for a claimant filing for mediation to notify or copy the insurer; indeed, the insurer’s first official notice may be when the mediator is finally appointed. Adjusters should, however, be aware of files denied when their position led to the dispute.

FSCO CEO and Superintendent of Financial Services, in response to a question posed at the CIP Symposium on April 26, 2012, stated that it was clear that the current DRG is not working.   He refused to speculate on what is next.

One question remains: With claims counts down and staffing levels rationalizing, are insurers ready?

 

______________________________________________________________________________

[1] Section 281 (2) of the Insurance Act

[2] See FSCO Bulletin A 02/11, issued 22 March 2011

 

Medical Rehabilitation Limits after September 1, 2010 (Part I)

This entry is by Nick White, AB Consultant with Cameron & Associates.

Nick began his career in insurance in 2007 and quickly moved into Accident Benefits where he continues to handle all levels of injury claims. He has championed settlement and dispute resolution projects as well as many training initiatives.

Medical Rehabilitation Limits after September 1, 2010 (Part I)

With the reforms to Bill 198 now comfortably (so to speak) in place both insurers and plaintiffs have developed their own strategies and styles for handling medical rehabilitation limits and the Minor Injury Guideline.   It was no surprise that plaintiff lawyers were quick to chime in on the pitfalls of the new regulations – and that insurers were quick to point out the need for reform to control exploding premiums – but what about claim handlers?

We have all heard and (if you drive in Ontario) experienced your standard policy non-catastrophic medical rehabilitation limit lower from $100,000.00 to $50,000.00 with your premium remaining the same or increasing.  This disparity is the first battle cry of any plaintiff lawyer arguing the reform is flawed, and frankly if you pay premium in this province, you may be inclined to bang the drum with them.

The second complaint regarding medical rehabilitation from any plaintiff lawyer (and possibly claimant) is likely going to be the combining of the insured’s cost of examinations with their scheduled medical rehabilitation limits.  Cost of examinations prior to the reform were not capped, and became a huge bone of contention between insurers, lawyers and other stake holders because of escalating out of control costs and insurance fraud.  Clinics could in essence propose anything and ultimately it was no threat to the claimant’s medical rehabilitation or other scheduled limits.  It also allowed for the tort file to be built on the backs of accident benefits so to speak.  I’m not a litigator, but clearly there is a trend of some plaintiffs (and defence) to simply amass mountains of medical reports in an attempt to sway an arbitrator, judge, jury and so on.

What is a claimant to do?  How does a claimant manage their medical rehabilitation and substantiate their on going disability?

Carefully.   Not only does the plaintiff lawyer or claimant have to monitor these limits, but the insurer too needs to look at the facts of every file and do something that has been lost in recent years: Call claimant, call the lawyer, call the doctor.

If Mrs. Insured has had a severe accident, and right now has to wait two years to determine she may or may not have sustained a catastrophic impairment. Mrs. Insured (and her lawyer) must work with the insurer and visa versa.  The lawyer cannot send her to a gamut of assessments only to find that $20,000.00 in medical rehabilitation limits have been squandered.

The adjuster cannot blanket approve all treatment only to be left with a badly impaired claimant collecting specified benefits, such are IRB or CareGiver, long after her treatment dollars are gone.  The two need to call each other. The adjuster must always keep in mind that we are seeking to lessen the effects of disability to help the claimant recover and reduce the duration of the claim.   It cannot be done by aggressively denying treatment nor can it be done by blindly approving every proposal that crosses the desk.

Optional Accident Benefits Case

Each day we’re seeing more & more impacts on the claims process & findings due to the Ontario Statutory Accident Benefits Schedule change effective September 2010.

One of the implications for direct writers, agents & brokers is the additional optional benefits.  Each company has developed a strategy on how to offer these benefits & how to track a client’s acceptance or decline of these benefits.  The implications of how this is documented can have legal consequences, as demonstrated in the case Zefferino V. Monnex.  The reason that this case ultimately failed is because the client did not prove that she would have purchased these benefits, had they been adequately explained to her.

Thomson Rogers did a write-up on this case in their March issue of The Accident Benefits Reporter.

So, brokers, insurers & direct writers, continue to dot your i’s and cross your t’s!

 

Mediation Skills Workshop

We are excited to announce that we have expanded our “Mediation Assistance Program” to include a Mediation Skills Workshop.

In this one-day workshop, you will receive tips & coaching in Mediation Best Practices through examples, demonstrations & role-plays.  We will help you to effectively prepare for & participate in mediations.

Topics discussed:

  • File & strategy preparation
  • Challenges in file management
  • Information on relevant regulations, practice notes & forms
  • Mediation process & goals
  • Mediation behaviour & etiquette
  • Communication skills
  • Settlement practice tips

Stay tuned for our next scheduled session, or let us know how we can tailor this workshop to meet your specific needs.

Contact Us

Nicole Langley, Training & Business Development:  *protected email* or 416-306-2857

Brian Grieve, Vice President: *protected email* or 416-350-7359