INSURANCE CHANGES

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					CHANGES TO THE SABS – NEW LIMITS, NEW
    PROCEDURES, NEW STRATEGIES




                           McLeish Orlando LLP
                          Barristers and Solicitors
                          One Queen Street East
                               Suite 1620, Box 76
                                  Toronto, Ontario
                                        M5C 2C5

                                 Dale V. Orlando
                                      2


   CHANGES TO THE SABS – NEW LIMITS, NEW PROCEDURES, NEW
                               STRATEGIES



                                   INDEX

                                                                        PAGE

INTRODUCTION                                                               4

ACCIDENT BENEFIT CHANGES                                                   4

    Definition of Health Practitioner – Section 2(1)                       4

    Catastrophic Impairment – Section 2(1)                                 4

    Guidelines of Payment of Medical Expenses – Section 14(4)              5

    Transportation Expense – Section 15(5)(k)                              5

    Attendant Care – Section 16(5)                                         5

    Case Management Services – Section 17                                  5

    Paying for the Cost of Assessments – Section 24                        6

    What do Insurers Have to Pay For?                                      6

    A Few Key Exceptions to the Approval Process                           6

    The Approval Process                                                   8

    Death Benefit Provisions – Section 25(2) & 25(4.1)                     8

    Notice of Intention to Claim – Section 32(1)                           8

    Duty to Provide Information to the Insurance Company – Section 33      9

    Termination of Weekly Benefits – Section 37(3), (4) & (5)              9

    Pre-Approved Frame Guidelines – Section 37.1                          10

    WAD I                                                                 10

    WAD II                                                                11

    Ancillary Goods or Services – Section 37.2                            13
                                       3



     Treatment Plans – Section 38                                        14

     Treatment Plans for Assessments and Examinations – Section 38.2     15

     Attendant Care Benefits – Section 39                                16

     Insurer Examinations – Section 42                                   17

     Designated Assessments – Section 43                                 18

     DAC Mandate                                                         18

     DAC Quality Management                                              18

     DAC Assessment Methods                                              19

     DAC Assessment Plan                                                 19

     DAC Selection                                                       19

     Superintendant’s Protocol for DAC Selection Process                 20

TIMELINES                                                                21

     Repayments to Insurance Companies – Section 47                      23

     Assessment before Mediation – Section 50                            24

     Designated Assessment Centres – Section 53                          24

     Responsibility to Obtain Treatment, Participate in Rehabilitation
      and Seek Employment – Section 55                                   24

RESTRICTIONS ON SETTLEMENT OF ACCIDENT BENEFIT CLAIMS                    25

EXPENSES OF ARBITRATION                                                  26

PROHIBTION AGAINST PUBLIC ADJUSTERS                                      26

MAXIMUM AMOUNT OF INCOME REPLACEMENT BENEFIT                             27

PROFESSIONAL SERVICES GUIDELINE                                          27

     Maximum Fees                                                        27

     Fees for Completion of Forms                                        28
                                          4


        CHANGES TO THE SABS – NEW LIMITS, NEW
                PROCEDURES, NEW STRATEGIES

By way of Ontario Regulation 281\03, the Conservative Government amended
the Statutory Accident Benefit Schedule (“SABS”) in a significant number of
ways. The amendments introduced by way of this regulation came into effect on
October 1, 2003.


Definition of Health Practitioner – Section 2(1)


In addition to the existing definition of health practitioner contained in Section 2(1)
of the SABS, the definition has been expanded to include occupational
therapists, registered nurses and speech-language pathologists.


Catastrophic Impairment – Section 2(1)


For injuries that occur after September 30, 2003, the definition of catastrophic
impairment will be expanded to include cases involving amputation of or
impairment causing the total and permanent loss of use of both legs. This is a
softening of the threshold for catastrophic impairment from the predecessor
legislation in that the old bill required amputation or total loss of use of both arms
or an arm and a leg.


Additionally, the definition of catastrophic impairment now treats children
differently than adults when it comes to the issue of brain impairment.            For
injuries after September 30, 2003, if a person is under 16 years of age at the time
of an accident and the Glasgow Coma Scale or the Glasgow Outcome Scale
cannot be applied to the person as a result of their age, the person may still be
deemed catastrophic if their treating doctor is prepared to indicate that they suffer
an impairment sustained in the accident that is reasonably believed to be
catastrophic after taking into consideration the developmental implications of the
                                         5


impairment. Lastly, for those deemed catastrophically impaired by virtue of a 55
percent total body impairment or by virtue of a Class 4 or Class 5 impairment due
to mental or behavioural disorder, the timing of the application of this test has
been changed from 3 years to 2 years.


Guidelines for Payment of Medical Expenses – Section 14(4)


The SABS have been amended to indicate that, if a guideline establishing the
amount that can be charged for professional services includes a range, the
insurer will not be required to pay more than the maximum rate established under
the guideline and the insurer shall not pay less than the lowest rate established
by the guideline.


Transportation Expense – Section 15(5)(k)


The SABS have been amended such that the insurer is no longer required to pay
for transportation to and from assessments, subject to the provisions of the SABS
dealing with transportation to and from assessments under the Pre-approved
Framework Guideline (“PAF”).


Attendant Care – Section 16(5)


The attendant care provisions of the SABS have been amended to allow a non-
catastrophically injured person to increase the monthly maximum of attendant
care benefits payable to them from $3,000.00 to $6,000.00 through the purchase
of an optional attendant care benefit.


Case Management Services – Section 17


Section 17 of the SABS has been amended to allow a non-catastrophically
injured person to claim case management services through the purchase of an
optional benefit.
                                       6



Paying for the Cost of Assessments – Section 24


As you are aware by now, the obligation of insurers to pay for section 24
assessments has been dramatically altered and an application for approval
process has been instituted for many assessments.


      What do Insurers Have to Pay For?


The amended section indicates that insurers are required to pay the reasonable
fees of a health practitioner for preparing a Disability Certificate, reviewing a
Treatment Plan or preparing an Application for Determination of Catastrophic
Impairment. Additionally, insurers are required to pay reasonable fees charged
by members of a health profession for preparing an Application for Approval of an
assessment or examination and for preparing an Assessment of Attendant Care
Needs form.    Additionally, insurers will be responsible for reasonable fees
incurred for assessment and preparing a report if the assessment and report are
in connection with a benefit being claimed and the expense for the assessment
and preparation of the report are submitted for approval under a Treatment Plan
in advance of the assessment being conducted. If the insurer does not agree to
fund the assessment or report, the dispute may be referred to a designated
assessment centre.     However, the insurer will not be required to pay for
assessments conducted before granting their approval or before a designated
assessment is conducted in relation to the denied Treatment Plan.


      A Few Key Exceptions to the Approval Process


Prior approval of the insurer is not required for the cost of an assessment in
relation to preparation of a Treatment Plan, in circumstances where an
immediate risk of harm makes obtaining the prior approval impractical. If a
person is being discharged from hospital to home or is already at home, has a
serious injury and has yet to have an in-home assessment, there is an immediate
                                           7


risk of harm and our appointed OT can do an in-home assessment and complete
a treatment plan without pre-approval.


Specifically excluded     from    the   regulatory scheme   for pre-approval      of
assessments are attendant care assessments and vocational assessments. In
particular, the attendant care assessment is a way to force our choice of OT onto
a file without seeking pre-approval from the insurer in circumstances where there
is no immediate risk of harm. Have our OT attend at the client’s home to do the
assessment required for completion of the Form 1. The OT may charge the
insurer for the cost of the assessment and completion of the Form 1. Once the
OT has gathered the information necessary to complete the Form 1, they can use
the same information for completing a treatment plan for the other various
services and devices that the client needs. Pre-approval is not required because
there is no invoice for assessment related to completion of the treatment plan.


Furthermore, prior approval from the insurer is not required for assessments in
relation to the preparation of a Treatment Plan, if not more than three
assessments have been completed, the insured person has not received
treatment under the PAF, the cost of the assessment does not exceed $180.00
and not more than one assessment is completed by the same person. Prior
approval from the insurer is not required for assessments in relation to the
completion of a Disability Certificate if the cost of the assessment does not
exceed $180.00. As a result of the price cap, these provisions will have little
practical impact.


Prior approval is also not required for assessment in relation to the determination
of catastrophic impairment in circumstances where the insured person is
hospitalized or in a long-term care facility.
                                         8


      The Approval Process


If none of the above exceptions apply, a Treatment Plan or Application for
Approval must be submitted to the insurer for the cost of an assessment if we
hope to get re-imbursed. If the assessment is for the purpose of preparing a
Treatment Plan, the insurer must respond within 2 business days if the cost of
the assessment is $180.00 or less. If the assessment cost is more than $180.00,
the insurer has 5 business days to respond to the Treatment Plan. If the insurer
fails to respond to the Treatment Plan or Application for Pre-approval in
accordance with these timelines, they are deemed to have agreed to pay for the
assessment.


Death Benefit Provisions – Section 25(2) & 25(4.1)


The SABS have been amended to allow for the purchase of optional death and
funeral benefits to increase the amounts payable for the loss of a spouse from
$25,000.00 to $50,000.00, the loss of a dependant from $10,000.00 to
$20,000.00 and to increase the maximum amount payable for funeral expenses
from $6,000.00 to $8,000.00.


The amendments also make it clear that, in circumstances where an accident
results in the death of an insured person who is dependent on more than one
person at the time of death, the legislation provides for the payment of a single
$10,000.00 death benefit to be divided equally amongst the persons upon who
the deceased was dependent.


Notice of Intention to Claim – Section 32(1)


The Regulation has been amended to shorten the notice period for applying for a
benefit. Whereas, before October 1, 2003, a claimant had 30 days to give notice
of their intention to make a claim for statutory accident benefits, now the notice
period is 7 days or as soon after as is practicable. If the application submitted by
                                          9


a claimant is incomplete, the insurer must notify the person within 14 days of
receipt of the application that it is incomplete and identify the missing information.
No benefit is payable until the application is complete.


Duty to Provide Information to Insurance Company – Section 33


After October 1, 2003, a person applying for accident benefits will be required, if
requested by their insurer to submit to an interview taken under oath regarding
information needed to determine entitlement to accident benefits. The insurer
must provide reasonable notice of the date and time of the interview and must
make reasonable efforts to schedule the interview for a time, place and location
that are convenient to the person.      The person has a right to have counsel
present at the interview but must pay any costs associated with having
representation. If a person refuses to submit to the examination, the insurance
company may refuse to pay or suspend the payment of all benefits.


Termination of Weekly Benefits – Section 37(3), (4) & (5)


After October 1, 2003, if an insurance company decides that it wants to terminate
a person’s weekly disability benefit, it must give the person 14 days notice of their
intention to terminate the benefits.    If, within the notice period provided, the
person advises the insurance company that they disagree with the decision and
want to be assessed by a designated assessment centre and the person
provides a signed disability certificate by a health practitioner, the insurance
company has to continue to pay the disability benefits until the report from the
designated assessment centre is received. If the report from the assessment
centre states that the person is no longer disabled, then the insurer may
terminate benefits. If the report states that the person continues to be disabled,
then the insurer must continue to pay the benefits but may dispute the finding of
the assessment centre by applying for mediation and arbitration.
                                       10



Pre-Approved Framework Guidelines - Section 37.1


These new sections of the SABS only apply to people who claim medical or
rehabilitation benefits in respect of an impairment that comes within a Pre-
approved Framework Guideline (“the Guidelines”). The amendments to the
Insurance Act introduced by Bill 198 allow the Superintendent of Insurance to
issue guidelines mandating the provision of treatment and goods and services for
certain types of injuries, without the injured party having to obtain insurance
company approval.      Currently, Guidelines have been introduced to deal with
Whiplash Associated Disorders (WAD) Grade I and II, with or without back
symptoms.     Treatment recommendations for injuries falling outside of these
categories are to use the ordinary treatment plan procedure.


      WAD I


To briefly summarize the WAD I Guideline, it provides for a definition of
impairments that come within the Guideline. In order for a person’s impairment
to come under this Guideline, he/she must be assessed within 21 days of the
accident and diagnosed with a WAD I.


This Guideline also defines the role of the “initiating” health practitioner, and
describes the treatment covered by this Guideline. In fact, the WAD I Guideline
contains an Appendix that describes in detail the expected “Course of Treatment”
to be administered during weeks 1 through 4. It should be noted that the duration
of treatment under this Guideline is 28 days and any recommendations for
treatments required beyond the 28 day mark are to be submitted following the
treatment plan process. The WAD I Guideline also contains an appendix that
sets out the entitlement of health care providers to payment for services provided
under the Guideline.
                                           11


       WAD II


The Guideline published for a WAD II impairment is substantially similar to the
previously described guideline, with the exception of the timeline for initiating
treatment and the duration of treatment. In order for a person’s impairment to
come under this Guideline, he/she must be assessed within 28 days of the
accident and diagnosed with a WAD II. The duration of treatment under this
Guideline is determined by the date that treatment is started. If treatment begins
during the first 7 days following an accident, the duration of treatment will be 7
weeks.    If treatment is started between the 8th and 28th day following the
accident, the duration for treatment will be 6 weeks.


In order to claim under these sections of the SABS, the injured person has an
obligation to submit a treatment confirmation form (“the form”). Only one
form may be submitted in relation to the same Guideline, however, an injured
person may qualify for benefits under more than one Guideline.               There are
several requirements that must be satisfied when completing the form, which are
as follows:
      The form must be completed by the health practitioner that will be
       providing the goods and services recommended in the form. The health
       practitioner must include a statement in the form that discloses any conflict
       of interest that they personally have in relation to the goods and services
       to be provided under the form. Further, the health practitioner must state
       that they have made reasonable inquiries to determine if any person who
       referred the injured person to a service provider under the form has a
       conflict of interest and disclose the conflict if they are advised of it.
      The form must contain details of the impairment suffered by the injured
       person and indicate the Guideline under which the benefits are claimed.
      The form must be signed by the injured person unless the insurance
       company indicates otherwise
                                            12


Once completed and ready for submission, the lawyer or representative of the
injured person must disclose in writing to both the injured person and the
insurance company any conflict of interest that they have in relation to provision
of goods or services under the form. If a conflict of interest is disclosed by any of
the above noted parties, the insurer may refuse the application for the benefits.


If the insurance company intends to refuse to fund the benefits due to a conflict of
interest they must advise the person in writing within five days and indicate that a
new application can be submitted.           However, if there are no other service
providers within 50 km of the injured person’s home that are able to provide the
services indicated in the form, the insurance company must pay the benefits
despite the conflict of interest.    Within the same five days, the insurance
company must also acknowledge receipt of the form and state whether the policy
was in force at the time of the accident.


Once the form has been accepted by the insurance company, they are required
to pay for the medical and rehabilitation benefits described in the Guideline to
which the form relates. Payment must be made by the insurer within 30 days of
receiving the invoice. An insurance company does not have the right to have an
injured person assessed by way of an Insurance Examination or DAC
assessment in relation to an application for goods and services under a
Guideline.   If an insurance company disputes that a Guideline applies to an
injured person and it is subsequently found by a court or arbitrator that the
Guideline does apply, any benefits received or assessments undergone by the
person in accordance with the Guideline are deemed to have been reasonable
and are payable by the insurance company.


If the injured person changes health practitioners during the course of treatment
under the form, they must file an amended treatment confirmation form. The
insurance company does not have to fund goods and services in the amended
treatment confirmation form if they have already been provided under the
Guideline.
                                        13



If the timelines set out in a Guideline are not complied with, claims for medical
and rehabilitation benefits must be submitted to the insurance company in
accordance with the current treatment plan system.


Ancillary Goods or Services – Section 37.2


In relation to certain impairments, the Guidelines will allow an injured person to
apply to the insurance company for ancillary goods or services. These are goods
or services that are specifically permitted under the Guideline to be applied for,
but which require approval from the insurance company before a benefit is
payable. An injured person who wants to apply for ancillary goods and services
must include the claim on their treatment confirmation form. If the form includes
a claim for ancillary goods and services, the following rules apply:


      Within five days of receipt of the form, the insurance company must advise
       what, if any, ancillary goods and services it is prepared to pay for and
       provide a reason for the refusal to pay for the rejected goods and services.
      If the insurance company does not agree to fund all of the goods and
       services, it must advise the injured person that he/she is required to attend
       a DAC that is to determine if the rejected goods and services are
       reasonable and necessary.
      If the insurance fails to respond appropriately within five days it must pay
       for the ancillary goods and services.


If a DAC assessment is required in relation to the rejected ancillary goods and
services and the DAC determines that the goods or services recommended were
reasonable and necessary, then the insurance company must pay the expense.
If the DAC determines the expense to be unreasonable, the insurance company
is not required to pay. The DAC finding may be disputed by way of mediation
followed by arbitration or a court proceeding.
                                          14


Treatment Plans – Section 38


The section of the SABS dealing with the treatment plan process has been
amended in several ways:


      Insurance companies may reject treatment plans for medical and
       rehabilitation benefits that are submitted with respect to impairments that
       are the subject of a pre-approved treatment Guideline, if it is still within the
       timeline set out in the guideline. The insurance company’s refusal is final
       and not subject to review.
      Before a treatment plan may be submitted to an insurance company, it
       must be signed by the injured person and it must include a statement by a
       health practitioner that the person’s impairment does not come within a
       pre-approved framework Guideline.
      If an insurance company intends to reject some or all of the
       recommendations in a treatment plan on the basis that they are not
       reasonable, it must provide the injured person with a notice within 14 days
       of receiving the application. If the insurance company fails to give the
       notice, it must pay for the goods and services provided under the
       treatment plan starting after the expiry of the 14 days and ending when it
       gives notice indicating its refusal to pay.
      If an insurance company intends to reject a treatment plan on the basis
       that the impairment is one to which a pre-approved guideline applies, it
       must provide the injured person with a notice within 5 days of receiving the
       application and refer the injured person to a DAC to determine if the
       person has an impairment to which a Guideline applies. Pending receipt
       of the DAC report, the injured person may submit a treatment confirmation
       form and receive treatment in accordance with the form. If the insurer fails
       to provide the notice within 5 days, they may not reject the application on
       the basis that a pre-approved framework guideline applies and they must
       follow the normal procedure for submitted treatment plans (i.e. Accept or
       reject the plan within 14 days and refer reject plans to a DAC)
                                          15


      The pay now, dispute later provisions of the SABS have been revoked.
       These sections formerly required that an insurance company had to pay
       for the first 15 treatments or all treatments incurred in the first 6 weeks
       following an accident for chiropractic or physiotherapy sessions.


Treatment Plans for Assessments and Examinations – Section 38.2


For applications that are submitted to the insurer for approval of examinations
and assessments under section 24 of the Regulation, the following requirements
must be fulfilled:


      The application must contain a statement by a health practitioner
       disclosing any conflict of interest that exists and stating that the
       examination is reasonable and necessary.
      The injured person’s lawyer or other representative must disclose any
       conflict of interest
      The insurer may give a person notice within 2 business days that it is
       rejecting the application on the basis of a conflict of interest unless there is
       no other person able to conduct the assessment within 50 km.
      Within 2 or 5 days of receiving the application, depending whether the cost
       of the assessment is greater or less than $180.00, the insurance company
       must provide the injured person with a notice stating which examinations
       or assessments it will pay for and providing an explanation for the denied
       examinations or assessments. For any examination or assessment that
       has been rejected, the insurance company must refer the application to a
       DAC. If the insurance company does not provide the notice within the
       time required, it must pay for all assessments and examinations in the
       application. If the DAC determines that the examination or assessment is
       reasonably required in relation to the benefit claimed, the insurance
       company must pay the cost of the exam or assessment.
                                         16


      Payment for examinations and assessments that are approved by the
       insurance company must be made within 30 days of receiving the invoice
       for the cost of the assessment.


Attendant Care Benefits – Section 39


Pursuant to the amendments to the Regulations in this area, the insurance
company can no longer demand a certificate from a health practitioner stating
that the attendant care is reasonable.        Instead, the insurance company may
request an assessment of attendant care needs in the Form 1. If an insurance
company accepts an application for attendant care benefits after receiving the
Form 1, it must start paying the benefit within 14 days of receipt of the Form 1. If
the insurance company intends to deny the application for attendant care
benefits, it must do so within 14 days of receipt of the application or, if it
requested a Form 1, within 14 days or receipt of the Form 1 and require the
person to attend a DAC.


If the injured party is receiving an attendant care benefit in a certain amount and
the insurance company determines that the benefit should be reduced or
terminated, it must require the injured party to undergo an assessment at a DAC
to determine the benefit amount. The same procedure applies if the injured
person feels that the benefit should be increased and submits and application to
the insurance company to increase the attendant care amount and the insurance
company refuses to fund the increased amount. In either case, the insurance
company must continue to pay the previous attendant care benefit amount
pending receipt of the report from the DAC. Once the DAC decision is rendered,
it is binding on both parties, subject to a determination through the mediation and
arbitration/litigation process. In catastrophic cases, if it has been more than two
years since the date of the accident, neither the insurance company nor the
injured person can apply to change the attendant care benefit amount, unless it
has been more than one year since the date of the last attendant care DAC
assessment.
                                        17



If an insurer intends to terminate an injured party’s attendant care benefit at the
two year anniversary of the claim on the basis that the person’s impairment is not
catastrophic, it must provide the injured person with notice at least 14 days
before the last benefit payment. If an injured person applies for a determination
of catastrophic impairment within two years of the accident and the insurance
company requires him/her to be assessed by a DAC to determine that issue, the
insurance company must continue to pay the attendant care benefit pending
receipt of the decision of the DAC.


Insurer Examinations – Section 42


Section 42 of the SABS has been amended to state that an insurance company
may not require an injured person to attend an insurance examination (“IE”) with
respect to an application for a benefit that is provided under a pre-approved
framework guideline or is an ancillary good. Additionally, an insurance company
is no longer permitted to demand an IE in relation to an application for a medical
benefit or rehabilitation benefit under Section 14 or 15, unless the application is
the subject of mediation or arbitration/litigation. If an insurance company requires
a person to attend an IE, it now must provide a date that is at least 5 business
days from when the injured person receives the notice. Once the IE report is
received by the insurance company, it must now provide the injured person with
the report within 5 days instead of the 7 days previously allowed.


As was the case before the amendments, if an injured person fails to attend a
properly scheduled IE or fails to properly participate in the assessment, the
insurance company may terminate the benefits to which the examination relates
until the injured person complies.       However, if the injured person has a
reasonable excuse for not attending or participating in the IE, the insurance
company must pay the benefits that were withheld during the period of non-
compliance.
                                        18


Designated Assessments – Section 43


Section 43 of the SABS has been amended to shorten the period that an
insurance company has to notify a DAC of the requirement for an assessment
from 15 days to 5 days. If the insurance company fails to notify the DAC within 5
days, it must pay the disputed benefit until it notifies the DAC of the need for the
assessment. Also, there is an added requirement that the insurance company
provide the DAC with information necessary to complete the assessment within
the same 5 days. There is a new requirement that the DAC deliver its report
within 14 days of the assessment, except with assessments dealing with the
reasonableness of ancillary goods, in which case the report must be delivered
within 5 days.


Similar to the amended provisions dealing with IE’s, if an injured person fails to
attend or participate in a properly scheduled DAC, the insurance company may
terminate the benefits to which the examination relates until the injured person
complies.   However, if the injured person has a reasonable excuse for not
attending or participating in the DAC, the insurance company must pay the
benefits that were withheld during the period of non-compliance.


      DAC Mandate


In addition to the existing “Staged-Focused DAC” process, all Med/Rehab DACs
will be required to provide a “Fast-Track DAC” process to accommodate the
expanded role of DACs as a dispute resolution mechanism under Bill 198.


      DAC Quality Management


The DAC must have the necessary infrastructure and personnel to provide an
impartial service, demonstrating responsiveness, acceptability, competence,
appropriateness, effectiveness, and efficiency.      Compliance with the SABS
                                         19


Regulation, DAC Standards (outlined in this Manual), and all Guidelines issued
by the Superintendent of Financial Services is required.


        DAC Assessment Methods


There are increased expectations and more opportunities for DACs to conduct
Paper    Review    or   Combination      Method     assessments.     Requests     for
Clarification/Information from the insured person, insurer, or clinicians in the case
may be used to supplement documentation or assessments when necessary. In
addition, a single assessor will be used whenever appropriate.


        DAC Assessment Plan


All Fast-Track DACs have a standard fee and process; therefore, DACs are not
required to provide an assessment plan to either party.


These Fast-Track disputes require that the DAC offer its opinion within five
business days. In any circumstances where a DAC cannot meet these timelines,
the referral MUST be returned to the insurer within 24 hours of receipt.


The Section 24 fast track DAC is to determine if the assessment is reasonable
and that the fees to be charged for the assessment is reasonable.


        DAC Selection


The Superintendent will select a DAC if:


• the insurer and the claimant do not jointly select a DAC within two business
days; or the DAC jointly selected by the parties is unable to begin an assessment
within 14 days of the request for an assessment, and the parties ask the
Superintendent to select another DAC.
                                         20


       Superintendent’s Protocol for DAC Selection Process


1. In the event that the insurer and the claimant do not jointly select a DAC, the
insurer must request that the Superintendent select a DAC on behalf of the
parties.


2. The insurer representative is required to initiate the process via the DAC
Selection Request form that can be downloaded (in WordPerfect or Word format)
from the DAC Selection page on FSCO’s website at www.fsco.gov.on.ca.


3. The insurer representative is required to complete the request and certify that
the information is accurate. The insurer will attach the request to an e-mail and
send it to FSCO at dacselection@fsco.gov.on.ca.


4. Within two business days, FSCO will send to the insurer representative, via e-
mail, a confirmation certificate specifying the DAC selected. Each certificate will
have a FSCO file number that can be used for verification.


5. The insurer must initiate a referral to the specified DAC by completing an OCF-
11, printing a copy of the confirmation certificate, and attaching the copy of the
certificate to the OCF- 11. The insurer is also required to ensure the claimant or
the claimant’s legal representative receives a copy of the certificate.


6. Insurers and claimants are prohibited from using this process to make more
than one request for selection of a DAC unless one of the following conditions
applies:
           (a) The DAC previously selected by the Superintendent has
           declared a conflict of interest that is not being waived by the
           parties; or
           (b) The DAC previously selected by the Superintendent is
           unable to conduct the assessment within the required time
           frame; or
                                     21


       (c) The claimant is being sent for an additional assessment as
       required by the SABS (e.g. subsequent disability assessment or
       multiple treatment plans), and the parties do not jointly select a
       DAC in the manner required by the SABS.




    Timelines

   Section 24 Applications for Approval of Assessments – Insurer Response
    to insured 2 or 5 days if more or less than $180.00


   Treatment Plan – insurer response to insured within 14 days or approved
    until denied.


   If Treatment Plan denied on basis it is PAF injury – Insurer must advise in
    5 days.


   Section 53 (1.3 and 1.4) of SABS: the insurer and insured must mutually
    agree on a DAC within the Geographic restrictions – not later than 2
    business days of being notified that the DAC assessment is required. If no
    agreement then the Superintendant of FSCO Shall select the DAC.


   Section 43. (1) 1 of SABS. The insurer shall notify the designated
    assessment centre within five business days. The insured person and the
    insurer shall provide the person or persons who will conduct the
    designated assessment with such information as is reasonably necessary,
    within the same period of five business days.


           A   complete    Staged-Focused         DAC   Referral   Package
           minimally consists of the following:
           a. OCF-11
                                    22


          b. OCF-18(s)
          c. OCF-14 (only if insurer has waived insured person
          signature on Part 14 on OCF-18)
          d. Insurer’s written confirmation that insurer and insured
          person have agreed to waive Conflict of Interest (as
          necessary).
          e. Any reasonably necessary file information.


          Any additional, reasonably necessary information received
          from either party is incorporated into the assessment. For
          example:


          a. Relevant OCF-21(s)
          b. Relevant medical reports
          c. Relevant clinical records
          d. DAC reports.


          Video surveillance materials, or any transcript of any
          examination under oath pursuant to the SABS, are not
          accepted after the first assessment appointment is started.


          If the OCF-18(s) is a Recurring, Similar OCF-18, it is
          managed as per SF 4.


   DAC provides an “OCF 11 – Section 4) DAC Assessment Plan” to insurer
    and insured for approval, setting out the cost of the DAC – Insurer must
    respond within 72 hours with approval to proceed (OCF 11, Section 16)
    otherwise no assessment.


   Fast-Track DACs have a standard fee and process, eliminating the need
    for an Assessment Plan. The DAC will ensure that: It adheres to the
    standard fee and process for Fast-Track DACs.
                                         23



      Any clarifying information needed is requested as soon as identified and in
       the most expeditious way like fax or e-mail. If the information isn’t
       provided within 14 days of request, then the assessment proceeds without
       it or the DAC assessment is terminated. If it is a fast track DAC, 2 days
       are allowed before proceeding or canceling the DAC.


      DAC response within 5 days for fast track DAC.


      DAC response within 42 days for staged focused DAC. (14 days for each
       phase of Intake, Assessment and Report) Note SABS section 43(5)
       states that the DAC must deliver its report within 14 days of completion of
       the last assessment.




Repayments to Insurance Companies – Section 47


Section 47 of the SABS has been amended to expand the circumstances under
which an injured person is required to make a repayment to an insurance
company. For example, if an injured person disputes the termination of his/her
income replacement benefits and demands a DAC assessment and the DAC
supports the insurance company’s decision to terminate benefits, the injured
person is required to repay the benefits received after the date specified in the
notice of termination and the date the DAC report is received. An insurance
company can also demand a repayment of cancellation fees charged to them as
a result of DAC assessments that the injured person fails to attend or cancels
without providing sufficient notice in accordance with the new Pre-assessment
Cancellation Fee Schedule.
                                       24



Assessment before Mediation – Section 50


Section 50 of the SABS has been amended to prevent an injured person from
applying for mediation until he/she has actually undergone a requested
assessment at a DAC, whereas the previous Regulation simply required that the
injured person make himself/herself reasonably available to attend a DAC
assessment should one be requested. In the case of an IE, the injured person
must not apply for mediation until he/she has made himself/herself reasonably
available for the assessment. The meaning of “reasonably available” has been
defined such that a person is not considered to have complied if he/she has
failed to attend a scheduled IE and has not yet completed an examination
pursuant to a request for a re-attendance.


Designated Assessment Centres – Section 53


The provisions contained in Section 53 of the SABS dealing with Designated
Assessment Centres have been amended to require a DAC to notify the
insurance company and the injured person of any conflict of interest it has within
3 business days of receiving the request for the assessment. After the DAC
declares a conflict of interest, the conflict can be waived if both the insurance
company and the injured party agree. If there is no agreement within 3 business
days, the parties are deemed to have disagreed on whether the DAC should be
permitted to perform the assessment and the matter is referred to the next
nearest DAC able to conduct the assessment.


Responsibility to Obtain Treatment, Participate in Rehabilitation and Seek
Employment – Section 55


Under the amendments to Section 55 of the SABS, if an injured person does not
obtain treatment and participate in rehabilitation as is reasonable, available and
necessary, the insurance company may terminate income replacement, non-
                                         25


earner or caregiver benefits following 14 days notice, unless the person
complies. The insurance company must resume paying the benefits if the injured
person starts appropriate treatment/rehabilitation.      Previously, the insurance
company was permitted to reduce benefits by 50% for a failure to obtain
treatment/rehabilitation.


Likewise, under the amendments to Section 56 of the SABS, if an injured person
fails to make reasonable efforts to return to employment or seek alternate
employment for which he/she is qualified, the insurance company may
completely terminate income replacement benefits following 14 days notice, as
opposed to a 50% reduction.


RESTRICTIONS ON SETTLEMENT OF ACCIDENT
BENEFIT CLAIMS

Effective October, 1, 2003, Ontario Regulation 275/03 restricts injured people,
through their representatives, from entering into a full and final settlement of their
accident benefit claims until after the first anniversary of the day of the accident,
except under certain circumstances.           An earlier settlement is allowed is
circumstances where:


      The injured person has started an action in court regarding an accident
       benefit dispute and examinations for discovery have started;
      The injured person has filed for arbitration at the Financial Services
       Commission of Ontario with respect to the accident benefit matters in
       dispute and a pre-hearing conference has been completed; or
      The injured person and the insurance company have agreed to enter into
       a private arbitration regarding the accident benefit issues in dispute and an
       arbitration agreement has been entered into.
                                           26




EXPENSES OF ARBITRATION

Ontario Regulation 275/03 also amends Ontario Regulation 664 of R.R.O 1990 to
restrict the criteria that an arbitrator can consider in awarding expenses of an
arbitration proceeding to the following:


      Each party’s degree of success;
      Written offers to settle and in particular, the timing of the offer, the
       response to the offer and the result in relation to the offer to settle;
      Whether novel issues were raised in the proceeding;
      The conduct of the party or the party’s representative that tended to
       prolong or hinder the proceeding including failures to comply with
       undertakings and orders; and
Whether any aspect of the proceeding was improper, vexations or unnecessary.



PROHIBITION AGAINST PUBLIC ADJUSTERS

Effective November 1, 2003, Section 398 of the Insurance Act provides a blanket
prohibition of individuals soliciting the right to negotiate or negotiating settlement
of claims, for compensation, arising out of motor vehicle accidents. The Act and
accompanying Regulation, carve out certain exceptions to the general
prohibition. The prohibition does not apply to the following people:


      Lawyers acting in course of their law practice
      A person who is an employee of a practicing lawyer where the person is
       dealing with an accident benefit claim under the direct supervision of the
       lawyer
      A person who has errors and omissions insurance of not less than 1
       million dollars and does not provide services with respect to claims that
       are known to be or reasonably believed to be catastrophic
                                             27




MAXIMUM AMOUNT OF INCOME REPLACEMENT
BENEFIT

Pursuant to Ontario Regulation 380/03, effective January 1, 2004, Section 7(1) of
the SABS has been amended to reduce the maximum amount payable for basic
income replacement benefits from $400.00 per week to $300.00 per week. The
Regulation also amends Section 27(1) of the SABS.             Insurers will also be
required to offer optional income replacement benefit coverage in the amount of
$400.00 per week in addition to the current optional benefits of $600.00, $800.00
and $1,000.00 per week.


PROFESSIONAL SERVICES GUIDLELINE

FSCO Superintendent’s Guideline No. 01/04 significantly reduces the amount
that auto insurer’s are liable to pay for:


      medical benefits under clauses 14(2) (a), (b) or (h) of the SABS;
      rehabilitation benefits under clauses 15(5) (a) to (g) or (l) of the SABS;
      case management services under subsection 17 (1) of the SABS; or
      conducting an examination or assessment or provision of a certificate,
       report or treatment plan under subsection 24 (1) of the SABS.


       Maximum Fees


Automobile insurers are not liable to pay for expenses related to professional
services rendered to an insured person that exceed the following maximum
hourly rates:
                                           28



  Health Profession or Provider         Maximum Hourly    Maximum
                                             Rate        Hourly Rate
                                            Non-         Catastrophic
                                         Catastrophic
Chiropractors                               $95.00         $114.00
Massage Therapists                          $49.00         $75.00
Occupational Therapists                     $84.00         $101.00
Physiotherapists                            $84.00         $101.00
Podiatrists                                 $84.00         $101.00
Psychologists          (other    than      $126.00         $151.00
Master’s level)
            Masters of Psychology
Speech Language Pathologists                $94.50         $113.00

Registered Nurses, Registered               $77.00         $92.00
Practical     Nurses     and    Nurse
Practitioners
Unregulated Providers
Case Managers                               $49.00         $75.00
Kinesiologist                               $49.00         $75.00
Family Counsellors                          $49.00         $75.00
Psychometrists                              $49.00         $75.00
Rehabilitation Counsellors                  $49.00         $75.00




       Fees for Completion of Forms


Automobile insurers are not liable to pay expenses that exceed the following
maximum fees for the completion for certain accident benefit forms by member of
the health professions and health care providers listed in this Guideline, (These
                                       29


maximum fees do not apply to the assessments related to the completion of
these forms.


                    Form                        Maximum Fee for Completion of
                                                Form
Disability Certificate (OCF-3)                              $62
Treatment Plan Form (OCF-18)                                $62
Form 1 – Assessment of Attendant Care                       $62
Needs
Automobile     Insurance   Standard   Invoice                $0
(OCF–21)
Application for Approval of an Examination                  $62
(OCF-22/198)

				
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