“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


Huntington’s Benefit Golf Tournament August 22, 2012

Huntington Society of Canada logo

Cameron & Associates is pleased to sponsor Huntington’s Benefit Golf Tournament on Wednesday, August 22nd, 2012 at Deer Creek.

We would love to have our friends and colleagues join us to help support the fight against Huntington Disease.

Register by July 3rd for a reduced Early Bird rate.

Registration is easily done online, and there are sponsorship & volunteer spots available:

Hope to see you there!


CIP Society GTA – Annual Fellows’ Golf Tournament

Another beautiful day to be golfing!  We really enjoyed this tournament was on Monday, June 11, 2012.

This year the CIP Society of the Insurance Institute were rewarded for moving their tournament from September to June with excellent weather. Wyndance Golf Club in Goodwood was the spectacular venue.

Cameron & Associates helped sponsor the event & Sharon Cameron ran the putting contest where players competed for Blue Jay tickets for an upcoming game. Jim, Brian and Derrick were joined by Scott Pidduck, now joining QBE as a professional indemnity underwriter. Our “Green” Team’s score of -10 did not carry the day but we finished tied for 3rd (4th by retrogression).

All proceeds from the Mulligans, putting contest and the raffle tickets went to the John E. Lowes Scholarship Fund.  This is a great cause, and we were very happy to be a part of the group supporting this through golf!


Derrick, Jim, Scott & Brian

OIAA Golf Tournament June 8, 2012

Jim, Brian, Sharon and Derrick attended the OIAA tournament at Deer Creek. Beautiful weather all day long made for a very pleasant day on this lovely course.

All proceeds of the day went to Big Brothers and Big Sisters the charity chosen by the OIAA.

Blair Boilard, the Northern Ontario Delegate all the way from Elliot Lake, Ontario, ran a tight ship (again) so that the tournament with 600 golfers went like clock work. Jim won a Sony Blue Ray DVD player which will be re-donated to our upcoming Huntington Society Golf Tournament on August 22nd at Deer Creek.

We look forward to next year and always love meeting up with old friends on the course!

Jim, Sharon, Brian and Derrick

Jim, Sharon, Brian and Derrick OIAA Golf 2012

Golfers walking to their carts

The Call to the Carts

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

At the Forefront – Insurance Institute Seminar

Louis Gagnon, President and Chief Operating Officer of Intact Insurance spoke to a capacity crowd of 98 Insurance executives at the Insurance Institute’s “At the Forefront” seminar on May 23rd, 2012.

This presentation included discussions on:

  • Operational Excellence
  • Understanding the Changing Customer
  • Attracting and Keeping Talent

Louis’ message on how to achieve excellence was to focus on the consumer and listen to what they say and design products and services around that. This is not that easy to accomplish in an environment where some of the products, such as auto insurance, cannot be differentiated by law.

Like most visionaries, he believes that the social media will shape the landscape of how to best deliver products and services going forward.

This was a great seminar and I was very glad to have attended.  The presentation sparked a lot of interest and conversations on the subject of considering the customers’ needs and demands, as well as the changing demographics of the workforce.

Thanks again to the Institute for hosting this informative session!

Jim Cameron

Coaching and Mentoring Program (C.A.M.P.)

With the summer fast approaching, we got to thinking of C.A.M.P.!  Even though this C.A.M.P. doesn’t involve mosquitoes and campfires, we’re still very excited.

This program is specifically tailored to your needs.  We offer one-on-one coaching and mentoring both in-person and on the phone.

Who this program suits:

  • Small claims departments
  • Claims handlers who need focussed and specific training
  • New adjusters
  • Adjusters transitioning to handle a new line of claims (e.g. from Auto Physical Damage to Bodily Injury or Accident Benefits or from Personal Lines to Commercial)
  • Brokerages who handle claims in-house

This is a suggested program:

  • One on one mentoring with an experienced claims professional
  • In-person & telephone mentoring
  • Technical assistance on coverage and procedural issues
  • Assistance with file action plans, including investigation
  • Call observations, and feedback
  • Assistance with correspondence response
  • Reserve recommendations
  • Exposure identification
  • Negotiation best practices
  • Statement taking basics, observation & feedback
  • Coaching on the Litigation process

In a nutshell, this program provides you with immediate technical expertise, coaching and training to further hone your claims handling skills.

Program Delivery and Timelines:

Month one: One to two days per week of side-by-side coaching (can be full or half days), followed by as-needed phone consultations, charged hourly

Month two: One to two days every two weeks of side-by-side coaching, followed by as-needed phone consultations, charged hourly

Ongoing: Phone consultations, with one day per month of side-by-side coaching and follow-up after month 2

Contact Us

If you have specific claims training requirements for an individual or small group, we can design this program for you.

We’d love to chat more about our C.A.M.P., let us know how we can help!

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

Brian Grieve, Vice President: or 416-350-7359

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.


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.


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.