SERVICE PROVIDER AGENCIES FOR PERSONS LIVING WITH THE EFFECTS OF ACQUIRED BRAIN INJURY
THUNDER BAY AND DISTRICT LABOUR COUNCIL
THUNDER BAY AND DISTRICT CHIROPRACTIC SOCIETY
CONTENTS
Monday 26 February 1996
Auto insurance
Melissa Felteau
Markus Walser
Service Provider Agencies
Alice Bellavance, registered practical nurse
Mary Ann Mountain, clinical psychologist/neuropsychologist
Kim Wedgerfield, consumer
Thunder Bay and District Labour Council
Don Hutsul, president
Elaine Woodward
Eleanor Gardiner
Marvin Mohring
Thunder Bay and District Chiropractic Society
Bill McCallum, president
Stuart Brimmell, past-president
Matthews and Associates
David Leskowski, branch manager
Douglas Smith
STANDING COMMITTEE ON FINANCE AND ECONOMIC AFFAIRS
Chair / Président: Chudleigh, Ted (Halton North / -Nord PC)
Vice-Chair / Vice-Président: Hudak, Tim (Niagara South / -Sud PC)
*Arnott, Ted (Wellington PC)
*Brown, Jim (Scarborough West / -Ouest PC)
*Castrilli, Annamarie (Downsview L)
*Chudleigh, Ted (Halton North / -Nord PC)
*Ford, Douglas B. (Etobicoke-Humber PC)
*Hudak, Tim (Niagara South / -Sud PC)
Kwinter, Monte (Wilson Heights L)
Lankin, Frances (Beaches-Woodbine ND)
Martiniuk, Gerry (Cambridge PC)
*Phillips, Gerry (Scarborough-Agincourt L)
*Sampson, Rob (Mississauga West / -Ouest PC)
Silipo, Tony (Dovercourt ND)
*Spina, Joseph (Brampton North / -Nord PC)
*Wettlaufer, Wayne (Kitchener PC)
*In attendance / présents
Substitutions present / Membres remplaçants présents:
Crozier, Bruce (Essex South / -Sud L) for Mr Kwinter
Kormos, Peter (Welland-Thorold ND) for Ms Lankin
Marland, Margaret (Mississauga South / -Sud PC) for Mr Martiniuk
Also taking part / Autre participants et participantes:
McLeod, Lyn (Fort William L)
Gravelle, Michael (Port Arthur L)
Clerk / Greffier: Franco Carrozza
Staff / Personnel: Andrew McNaught, research officer, Legislative Research Service
The committee met at 0904 in the Victoria Inn, Thunder Bay.
AUTO INSURANCE
The Chair (Mr Ted Chudleigh): I'll welcome everyone to Thunder Bay. In true northern and western hospitality fashion, the members from the area, Mrs McLeod, from Fort William, and Mr Gravelle, from Port Arthur, have joined us this morning. Welcome to the committee. You've got a great riding, both of you.
Mrs Lyn McLeod (Leader of the Opposition): No argument from us.
The Chair: We have a bit of committee business to do this morning. There was a motion, which has been circulated to the committee, was moved by Mr Crozier.
Mr Bruce Crozier (Essex South): Yes, so I will move it again. Is that what you're looking for?
The Chair: Thank you very much, sir.
Mr Rob Sampson (Mississauga West): On a point of order, Mr Chair: Mr Crozier, if I can make one suggestion, under 1(b), it says, "The clerk of the committee forward the summary of recommendations...." These are obviously recommendations from the various people who have presented in front of us, so we should add "of the presenters" or "of the deputants," whatever you want to call them, just to clarify what those recommendations are.
At 2(a), the "recommendations" are clearly recommendations for inclusion in the draft report. I'd insert in "the subcommittee members return to the clerk of the committee their recommendations not later than March 21," the words "for inclusion in the draft report." It would read, "the subcommittee members return to the clerk of the committee their recommendations for inclusion in the draft report not later than March 21." It's a bit of a run-on, but that clarifies what these recommendations are.
Mr Crozier: In that this has some similarity to the original motion, I'll accept that.
The Chair: Could we read it into the record, please.
Mr Crozier: I move that:
1(a) The committee research officer prepare a summary of all the recommendations made before the committee and the summary be delivered to the clerk of the committee by March 7, 1996.
(b) The clerk of the committee forward the summary of recommendations of deputants to the committee members as soon as received.
2(a) The subcommittee members are to return to the clerk of the committee their recommendations for inclusion in the draft report not later than March 21, 1996.
(b) The clerk of the committee is to deliver the recommendations from the three caucuses to the committee research officer as soon as received.
3. The committee research officer is to incorporate the recommendations into a draft report.
4. The committee is to meet on Thursday, March 28, 1996, to review the draft report.
The Chair: Thank you very much. Comments?
Mr Peter Kormos (Welland-Thorold): Thank you, Chair. I'm going to be supporting this motion because I trust that, among other things, the summary will include the position I took in my submission last week that this province develop a publicly owned auto insurance system so that drivers can enjoy the same fairness and innocent accident victims the same justice here in Ontario as they do in British Columbia, Saskatchewan and Manitoba.
It's incredibly important that this government, albeit inherently opposed to concepts of public ownership -- and for the life of me, I couldn't understand why. Obviously, when one joins the picket lines this morning by OPSEU members attempting to protect public services, one sees the pain and the devastation that a cut in public services entails. But certainly the only way we're going to achieve fairness and justice for drivers, premium payers and for victims is with a public auto insurance system. The private sector has been and continues to be unable to deliver on the issues of fairness and justice.
It's important that this government, even this government -- and Mr Sampson has been quite fair in speaking about public auto insurance, more even than the last government did, during the course of his review of the crisis in auto insurance. I'm optimistic that, yes, even Mr Sampson is sympathetic and in his heart understands that public auto is the way to do it. He knows what's happening in BC, Saskatchewan and Manitoba. He knows those systems work better. I'm pleased to support this motion.
Mrs Margaret Marland (Mississauga South): Mr Chairman, I think it might be helpful, when Andrew prepares the draft report, if he could identify the source of the recommendations, just use an acronym for the Insurance Bureau of Canada or the head injury association or PC, Liberal or NDP.
Mr Sampson: I was going to resist speaking to this one, but Mr Kormos has goaded me into responding to his comments about public auto. I think this will be a step in the right direction in trying to get some recommendations to the government on how to respond. I suspect we will hear, at least from one of the parties, when they provide the recommendations to be incorporated by the research officer that public auto will be a solution. In spite of what some of the press would like to report, I have said we are not in support of public auto. I want to make that point clear on the record.
Mr Kormos: Misquoted again.
Mr Sampson: That's what happens, I guess.
The Chair: Thank you very much. Shall the motion carry? Carried.
Mr Sampson: Mr Chair, on a point of order: I've got a written submission from Citadel Assurance Co with respect to auto insurance, a letter sent to me February 16. I'll table that with the clerk, if he could pass it around to the committee members.
Ms Annamarie Castrilli (Downsview): Mr Chair, in that same vein, you may recall that last week I asked a question of the Canadian Bar Association with respect to contingency fees and the impact on insurance rates. They have forwarded a letter to me dated February 23, 1996, which provides a complete answer. Again, I would ask the clerk to circulate it, and I table it.
The Chair: Very good. Mr Carrozza, there is another circulation to be made. That concludes the housekeeping duties before the committee.
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MELISSA FELTEAU
The Chair: We could begin with Ms Felteau. There is coffee across the hall for anyone who wants it. There's also simultaneous translation available. The committee members have headsets in front of them, if we require them.
Ms Felteau, we have 20 minutes together. Welcome to the committee.
Ms Melissa Felteau: Good morning. I'm Melissa Felteau and these are my parents, Irene and Wilf.
By putting a human face on what it's like to access services through the insurance system, we hope to suggest improvements to the proposed auto legislation. Today, I would like to focus on three issues: insurer approval, accountability, and improvements to the system.
I was a passenger involved in a serious highway collision two years ago, in November 1993. That puts me under Bill 68 legislation. I sustained a ruptured spleen, broken ribs, multiple soft tissue injuries, and most seriously, a traumatic brain injury.
I was lucky. My surgeon arranged for a neurosurgical consultation and I was diagnosed within the first days, but my luck stopped there. Nobody ever told us what "closed head injury" meant, or what to do if we noticed any changes in function, ability or mood.
On my own, I found out the terrifying truth. I couldn't read, I couldn't write, I couldn't remember what I was saying halfway through a sentence, I couldn't organize a meal, I couldn't follow a conversation if more than two people were speaking, I couldn't remember how to drive to familiar places.
At the time of the injury, I was working for the Ministry of Health as head of a public relations department at a local hospital. It was terrifying to discover that my brain wasn't working as it should. Realizing that the difficulties were not coincidences caused by stress, and that everything got worse the harder I tried to work through or beyond them, led to further testing five months after the accident. It confirmed the earlier diagnosis.
My life has been devastatingly ripped apart by this injury. My point: The Glasgow coma scale had no bearing on predicting what kind of difficulties I have had to face. The bottom line here is that the insurance industry is looking for easy answers, and it's not going to find them. Injury, recovery and healing are not static rings on a bull's-eye. They are movable, messy and individualistic, particularly when we're speaking about coping with the effects of brain injury.
That brings me to my next point. I am most concerned about the amount of control insurance companies have now, and with these proposed changes, in approving or denying medical treatment. Giving the insurance industry the right to approve or deny medical treatment is tantamount to giving them the scalpel to do triple bypass surgery, and I mean "bypass." They are not trained in any way to make those decisions. They are not medical practitioners. They are not immediately accountable to anyone. And their business is driven by profits.
Let me demonstrate why I am so adamant about this issue. Earlier I stated that I was diagnosed with a traumatic injury by a neurosurgeon. That diagnosis has been confirmed by two neuropsychologists, a family physician, a neurologist, as well as two brain scans. After two painfully unsuccessful attempts to return to work, I was referred to Toronto for a vocational assessment to determine if it is still possible for me to perform the tasks of my job. It was very clear to me, my family and, eventually, the local treatment team that services do not exist locally to address the complex needs of individuals with high-end cognitive deficits. I would need to leave Thunder Bay for treatment. I have been waiting over one year for GAN Canada to approve the proposed treatment.
Although someone may not be able to see my difficulties, they are real and they are serious. Survivors of brain injury face the grim reality of trying to beat the odds of 4% to 5% of ever returning to work. I want and need to be one of those people, yet I am caught fighting a huge battle with my insurance company. Initially, GAN wanted to hire two nurses in Hamilton to review my file to determine if I indeed have a brain injury and whether services existed in Thunder Bay to assist me. Two nurses were hired to override the diagnosis of five doctors who specialize in the field and know best what services exist locally.
It doesn't stop there. Obviously, I proceeded to mediation through the Ontario Insurance Commission. I found the process ineffectual due to its lack of binding authority. When GAN refused the mediator's recommendation to at least meet with my treating practitioners, either in person or by phone, to discuss the "necessity and reasonableness" of the recommended medical treatment, the mediator should have been able to enforce immediate action on such obvious stalling tactics. Instead, GAN sent me to another three independent medical assessments. I have had five in 13 months, eating up a sizeable chunk of rehab funds. GAN is still not satisfied, even though their preliminary diagnosis is the same, and refuses to approve treatment or suggest an alternative treatment plan they are willing to fund.
The travesty of my insurer's handling of the medically necessary vocational re-entry program closes the window of opportunity each day I await their approval.
And that's not all. Three times GAN has ceased paying me the weekly income replacement. The first time was three months after I was injured. They said I was unemployed at the time of the accident despite having received all the appropriate paperwork from my employer of seven years. It took four months to be reinstated. The second time, GAN queried my salary figures. They didn't pay me for one full year. Most recently was this fall when the eighth claims adjuster assigned to my file declared he didn't get around to paying me for three months because, he said, "It's a big file." Each of these payment disruptions left me in a financial crisis.
That's not all. Since I've started keeping track of when I submit claims and when GAN Canada reimburses me, 16 out of 20 claims have gone far beyond the legislated 30-day time frame. Most of them are three to six months overdue.
0920
That's not all. So far, I've accumulated a $16,000 legal bill trying to obtain necessary medical rehabilitation and other benefits.
This has been a nightmare beyond belief. I wish I could say I'm the exception to the rule in the way insurance companies treat their customers, but I'm not. When you talk to other customers, my treatment has been disturbingly similar. When insurance brokers and companies cry foul about rising insurance costs, citing fraud and unreasonable guidelines for compensating accident victims, it rings hollow. They need to look within their own organizations, correct the many inefficiencies, learn how to communicate better with their customers, work in conjunction, not against, the individual's clinical team and get on with it.
I think the true hidden costs come from incredibly frustrated customers who find themselves denied necessary medical treatment, caught in ineffectual dispute resolution systems and resorting to suing their own insurance company for failure to provide adequate, timely rehabilitation.
As taxpayers, irresponsible handling of insurance claims affects us all. First and foremost, there is no greater loss than to the injured individual and their family. They are struggling to accept the reality that a serious injury brings. Failing to respond quickly and humanely to this individual's needs does not make their problems go away. The person is likely to resurface in the public health care system, like myself, seeing my family doctor monthly, sometimes weekly, and by also being referred to numerous health care professionals and specialists, like my speech pathologist and neurologist, to see if anything can be done while I wait one year, perhaps two, using the dispute resolution mechanisms for my insurance company to approve and fund treatment.
I can tell you that dealing with the trauma of this insurance mess at times has made my primary diagnosis 300 times worse. Until insurance companies are forced to be accountable, people like myself are going to cost the system double.
I am very pleased to see that the Conservative government has moved so quickly to introduce much-needed changes to the auto legislation, but it does not remedy the fact that so many people are left dealing with the inadequacies of three former pieces of legislation. I believe it would be more cost-effective to grandfather these individuals into the new legislation. Failing that, provision should be made for the individual, in conjunction with their treating clinicians, to apply to the Ministry of Health to fund medical and rehab services and bill back the insurance companies. The proper care of accident victims is too important to be left in the hands of unregulated insurance companies that have proven themselves irresponsible.
While I applaud the proposed changes to streamline the dispute resolution process, in my opinion the root causes of conflict have not been addressed. Before this injury, I was an expert in the communications field. I can tell you, living through this nightmare I have witnessed some of the worst communication practices I have ever seen.
The insurance employees I have dealt with often possess inadequate skills to make decisions about serious and complex issues. They are looking for easy black and white answers. There is none. And while I agree that not one penny should be spent on fraudulent claims, I believe some companies are possessed with rooting out fraud, losing focus of what really works: early intervention, frequent two-way communication -- and I mean two-way -- and non-adversarial involvement of all parties.
I would like to recommend the following improvements to the draft legislation:
(1) Develop under the Ontario Insurance Commission a consumer-driven accreditation process for insurance companies. Compliance with standards of practice and customer satisfaction should be made public.
(2) Develop clinical standards of treatment and fee schedules to instill insurer confidence in proposed medical treatment.
(3) The individual's own medical professionals must be the ones to decide treatment based on what impairments have been incurred and how best to address the individual returning to the demands of their life.
(4) Victims must have a huge say in their treatment or it won't work. This includes choosing their practitioners.
(5) I am not convinced the designated assessment centres can accurately assess an individual's problems without the benefit of a longer-term therapeutic relationship with the person. The new independent committee under the OIC needs to address how these assessments can be done humanely and accurately.
(6) A system of advocacy needs to be in place to assist individuals in dealing with the insurance system bureaucracy or the insurer pays for the claimant's lawyer's fees.
(7) Restore the basic benefit to $1 million. With clinical and industry standards of practice in place, better understanding of treatment modalities should eliminate the need to subject injured individuals to more bureaucratic scrutiny and medical examinations.
(8) Definition of "catastrophic impairment" is invalid, partially due to reliance on the Glasgow coma scale. Individuals all react to injury and impairment differently and therefore must be assessed according to how impairments impact on their returning to the demands of their life.
(9) That provisions be made to grandfather individuals into the new legislation or provision be made to apply to the Ministry of Health to fund medical and rehab services and bill back the insurance companies.
I know how incredibly lucky I am to have what skills and abilities I have left. I also know I am so very lucky to have the exceptional love and support from my parents to come as far as I have. I often think about the people living with the effects of brain injury who, due to the nature of their injury, aren't able to say what needs to be said. I hope in some small way I've helped to make things better. Thank you for this opportunity to appear before the committee. I wish you well in your efforts to improve the insurance system in Ontario.
Mr Crozier: Thank you, Ms Felteau. You've been very clear, despite your concern at the end about being able to do so, to explain your situation and the difficulties you've had under the current insurance legislation in accessing what you feel you have the right to.
You've made a number of recommendations which we appreciate. Not being able to go through all of them, I would point to (1), that you think there should be a customer-driven accreditation process. That's rather interesting, because I think what we depend on insurance companies to do is to deal in good faith, and if there is any way we can improve that -- I am sure there are a number of stories similar to yours, because we've heard them, and the best-written legislation perhaps might not be adequate if you don't have a company, an insurer that wants to cooperate.
I, for one, certainly appreciate your attendance here and your recommendations, and I would hope we can take them back and use them to the best of their abilities.
0930
Mr Gerry Phillips (Scarborough-Agincourt): Maybe you could just articulate a little what you had in mind in (1), in terms of how it may in fact work.
Ms Felteau: Because I work in the health care system, or was working prior to my injury, I know the hospital accreditation system best, and I've participated in that process a number of times.
What I'd like to say at the outset, they found that they needed consumer input, because anyone can candy-floss anything to look good, so you need to go to the customers who have been using the services of that particular industry and ask them directly. "How good is GAN Canada" -- not very good, in my opinion -- "at doing their job?" How well is someone else doing? Then you need to develop that accreditation process so there are standards that they need to meet in terms of how many complaints they receive in a particular time frame. Are they meeting the legislative -- someone has to go and look at their records and see if they are indeed meeting the time frames.
Take my 30-day turnaround for claims. They're not meeting that. For 17 out of 27 months they should've been paying me a portion of my salary, and they aren't even paying a big part because my employer is paying the larger part. But for 17 out of those 27 months they blew it. So let's measure how they're doing. We can use facts and figures from their own records and then talk to the customers. "What kind of treatment did you get? Did they listen to you?" They don't return my phone calls. They don't return my letters, and that's even going all the way up to the president of that company.
Mr Phillips: That's helpful, thank you.
Mr Kormos: Thank you, Ms Felteau. Just this morning I was mentioning to Mr Sampson my concerns about the fact that there didn't seem to be enough consumer presentations to this committee. I'll call them victim presentations, because I think what's really tragic is that so many victims are victims first on the highway and then once again victims of their own insurer.
I recall the debate over Bill 68, which was really the effective implementation of no-fault, and the argument was, "If you're dealing with your own insurer, granted, but you see, they'll treat you good, because after all, if you don't like what they're doing to you, you'll go to another insurer." But it's all after the fact, isn't it?
Ms Felteau: Absolutely. I dropped my insurance company, but I'm left having to deal with them.
Mr Kormos: Exactly, and there's been a whole lot of talk about the cost of legals in terms of tort, but there hasn't been a whole lot of talk, the way you've talked today, about the whole cost of legals when you're trying to even access no-faults.
Ms Felteau: Exactly.
Mr Kormos: It's interesting, because you do know it and I can see that in a private sector insurance regime, as persists in Ontario, it's driven by profit, and historically the insurance industry has always had short arms and deep pockets. At the end of the day, they're real good at collecting premiums and not so good at paying out benefits. It's sort of like putting Dracula in charge of the blood bank when you let the insurers dictate what your treatment protocol is going to be, isn't it?
Ms Felteau: We have a system of universal health care and yet when it comes down to people who have been involved in auto accidents, it doesn't work for them. All of a sudden, someone else gets to determine that.
Mr Kormos: The tragedy is that there's very little consumer role and very unlikely to be any consumer role in a regulatory body. As a matter of fact former Attorney General Ian Scott wrote a treatise about the fact that regulatory bodies almost inevitably tend to be co-opted by the industry that they're regulating. The Ontario Insurance Commission is a strong illustration of that.
Wouldn't you want to see access and an assurance of funding for your legal costs, even in the event of no-faults? You may well be fortunate in that it looks like you've rung up a tab of $16,000 and you've got, obviously, I'm confident, a good lawyer and a sympathetic one and a caring one, one who's doing all the things that a good lawyer should do. But shouldn't there be a role for lawyers, even in the no-fault system, to guarantee that victims like yourself can have access to legal counsel as they so often need it?
Ms Felteau: Absolutely. I'm not even anywhere near finished my fight. God knows how I'm going to pay my legal bill at the end of it. First of all, I have a serious impairment. It's highly unlikely I'll ever work at the level I did before. On a reduced income, how am I supposed to pay for that? On top of it all, if I can't get services now and have to pay for a large number of them out of my own pocket, what's in store for me down the line?
Mr Kormos: That's right, and the private corporate insurance companies are banking on that. They know there's a huge chunk of victims who are never going to access what they're entitled to because they won't be able to afford counsel and because the system doesn't provide them with counsel, and that's called "bad faith." In a tort system there's an opportunity to take care of bad-faith operators. Unfortunately, my impression is that the vast majority of insurers in this province rely on bad faith to fatten their wallets at the expense of people like Ms Felteau and so many others. It's tragic.
Mrs Marland: Listening to Mr Kormos's analogy of Dracula in charge of the blood bank -- listening to you, Peter, representing your caucus, is like listening to the bumble-bee at the picnic. Your perspective is not that held generally by your party, I think.
It's interesting to hear the comments this morning. First of all, Ms Felteau, I want to really congratulate you on your presentation. It is impossible for us to sit here and listen to you this morning and try to visualize that you have any impairments at all. Your very articulate brief is very much appreciated by the government, and I wanted to say, in particular, last week we sat for four days and received a lot of briefs and certainly not the majority of them had a summation of recommendations at the end, and that is particularly helpful. So I wanted to thank you for that.
It seems to me, as you have so beautifully expressed, that you have been fortunate to have the support in your case of your parents for you to have come through what you have. I know that what you are expressing and what we can try to understand and try to appreciate, if we haven't been through the same experience, is the fact that what you're saying is in your case you had that good fortune, but what about all the people who struggle in what essentially is a war of rightful compensation.
It's actually compensation and security that we think we're buying when we buy our insurance, but if you end up fighting after you've sustained any kind of injury, sometimes the impairments that are the most difficult to fight for are also the ones that are the most difficult to see. We heard last week from several brain injury groups and associations, and they said that for them the most hurtful and the most demeaning of the whole experience wasn't sustaining the injury itself as much as not being believed.
I think your idea of consumer-driven accreditation and some of your other recommendations here are very clear. I'm just wondering if there's anything you would like to add that could get us, as a government, into a position where we can give the kind of leadership to ensure that the industry and the people who work in the insurance industry do not subject people to that experience of feeling that they're just not being believed.
Actually by the end of last week, and this will probably offend the automobile dealers as well, I couldn't help but think at the end of our hearings last week that the analogy that came to my mind, because I've experienced it more than once in my lifetime, is where you buy the car at the front in the salesroom and the salesperson is very charming and very helpful and guarantees you all kinds of service, and it's a big thrill when you buy that new car, then when you take it back, when it's got the noises and the rattles and the squeaks --
The Chair: Is there a question, Mrs Marland, please?
Mrs Marland: -- when you take it back at the end to the service department, that's where the battle begins. I think this is an analogy to the subject area that we're dealing with, so my question to you was: Is there anything else that you can add?
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Ms Felteau: I can. I think one of the keys is education. I'm very concerned about the fact that I've had eight claims examiners who have worked on my file, six within the first year. There was a revolving door there. Dealing with those people, I could see that they weren't highly educated, they didn't have the critical thinking skills that higher education brings. They didn't have a medical background, so they should be in no position to be making decisions about what my doctor, my neuropsychologist, my neurologist, my physiatrist say. It's very scary to have that situation happening.
Secondly, I guess it just goes back to the education. My insurance company won't even accept phone calls from me. They prefer everything to go through my lawyer. How are they ever going to understand my situation? When I write letters, they don't always get responded to, or if they are responded to, it's horrible treatment, how they treat me and all of that.
I think if more consumers found the courage and the energy -- because, my God, what it does to you to have to face this day in and day out for years upon years is horrendous. If those damn insurance companies had to sit eyeball to eyeball with me and hear what this has done to me, I think we might see a little bit of movement. Barring that, and I don't say this facetiously, but I think there's going to have to be a critical mass of people with brain injuries coming forward or insurance company employees themselves sustaining brain injuries to find out what it feels like. Because you can't tell, thank God, most of the time that I have a brain injury.
In my case then let's get on with it, because I've been raring to go since day one to get back at my life, and I have tried so hard to do that and have faced roadblock after roadblock after roadblock. It's nuts, but the days that this does affect me are real and they're horrendous. Laypeople cannot, an insurance company cannot determine what my difficulties are and they should not be given that responsibility to do so.
The Chair: Thank you very much for your presentation today. We certainly appreciate your input into our deliberations. It was an excellent brief.
I believe the committee will take a 15-minute recess.
The committee recessed from 0944 to 0958.
MARKUS WALSER
The Chair: If we could reconvene, we are ready to proceed with Mr Walser. We will have 20 minutes together. I understand you have a brief to read. We will fill any remaining time with questions. Thank you very much for joining us today and please proceed.
Mr Markus Walser: Good morning, Mr Chairman and members of the committee. I would like to begin by introducing myself. My name is Markus Walser and I am a physiotherapist who owns a private physiotherapy practice in Thunder Bay. For eight years, I have been treating clients who have sustained injuries in motor vehicle accidents. I have treated clients under all different insurance benefit plans that have been in place during that time. I am pleased to see that there is a new proposal for changing insurance benefits. We need a plan that will allow for appropriate compensation while keeping automobile insurance affordable for the residents of Ontario.
There are three main points of this legislation which I would like to address. The first is related to the proposal for the use of rehabilitation treatment plans approved by the insurance adjuster. My practice belongs to a group of over 50 practices in Ontario which have a standardized approach to treatment of clients injured in motor vehicle accidents. We have developed a system similar to the rehabilitation treatment plan in the draft legislation.
We feel that communication between the insurance adjuster and clinician is very important. We have been forwarding treatment plans to the insurance adjusters for almost one year now. Our protocol is such that we ask insurance adjusters to review our rehabilitation plan and send their responses and approval to us within three days. We ask that they forward their opinions to us via fax or telephone. We rarely have received a response from an adjuster regarding the treatment plan. Several of the adjusters we did receive a response from told us they were too busy to send us confirmation.
The draft legislation proposes that every practitioner must develop a rehabilitation plan that must be approved in 14 days. Based on our experience, I feel that this expectation will be difficult for insurance adjusters to meet within the stated time frame and will have a negative impact on our clients. Holding up treatment for 14 days potentially increases the length of rehabilitation. Research has demonstrated that early intervention decreases the length of rehabilitation. We have only recently been able to minimize the time lag from the motor vehicle accident to initial physiotherapy assessment, through ongoing education of referring physicians. This proposal further delays the start of treatment, time during which the client will be receiving accident benefits while not receiving any treatment.
The rehabilitation treatment plan proposal creates another problem in that it allows the insurance adjuster to determine approval of treatment. Accountability of the clinician is very important. All clinicians should be required to provide care that is both appropriate and cost-effective. The need for evidence-based practice is being demonstrated in all facets of our clinical work. It may therefore be an appropriate standard to apply to this draft legislation. If all clinicians adhere to appropriate standards of practice, they should make clinical decisions, and not the insurance adjuster.
The second area of concern deals with the lack of guidelines regarding conflict of interest in the draft legislation. The notion of informing the client that a conflict of interest exists is definitely not enough to protect the public interest. The client must trust the clinician in order for an effective therapeutic relationship to exist. They therefore rarely will question the clinician's motives when they are informed of the conflict. There are numerous situations where there exists the opportunity for the financial interest of the clinician to be a higher priority than the best interests of the client. Referral for profit cannot be allowed to continue. This system is definitely responsible for some of the increase in rehabilitation costs. No practitioner, no matter what their profession, should ever be allowed to make a referral for profit. This cannot wait for the Ministry of Health guidelines; it must be part of this legislation.
The final area of concern is with the dispute settlement mechanism. The use of designated assessment centres, mediation and arbitration needs to be available in a timely manner. The present system has had significant delays. I have concerns that the system will continue to be too slow. If an insurance adjuster disapproves of a treatment plan and pushes the process all the way to arbitration, it could take two years to get approval. Treatment plans for complicated clients are more likely to be contentious. These clients cannot wait two years for treatment; the chances of a client making significant progress after a delay of two years is minimal.
I would like to offer my support for the following items in this draft legislation that I feel are an improvement over the current automobile insurance legislation. These concepts are ones that will have a positive effect: the decrease in the limits on income replacement benefits; the implementation of a 26-week waiting period for non-earner's benefit; the reimbursement of actual expenses under the caregiver benefit; the anti-fraud measures; and the reduction in basic medical and rehabilitation benefits for non-catastrophic injuries.
I hope that the goal of passing legislation that is fair and cost-effective can be realized. I also hope that the province of Ontario will not require new legislation in the next few years. I would be nice to have some stability. Thank you.
The Chair: Thank you very much, Mr Walser. We have about five minutes each for questions. Could we start with the third party.
Mr Kormos: When you're talking about conflict, because much ado has been made, and not inappropriately so, about lawyers and their association with rehab clinics, I trust that's one of the areas you're concerned about.
Mr Walser: Yes.
Mr Kormos: Similarly insurance companies and rehabilitation, because we've heard over the course of last week and once again today that an insurance company has a real strong interest in paying out the least amount of money that it can; I trust that you don't think insurance companies should be setting out treatment regimens or protocols either then.
Mr Walser: I feel that anybody referring a client to a treatment facility should not financially gain from that. An insurance company should not be allowed to own a facility, a lawyer should not be able to own a facility and a physician should not be allowed to do that. But by the same token, I shouldn't be allowed, as an owner of a practice that also has massage therapy services, to be able to refer on to my massage therapist and profit from that referral. Nobody should profit from the referrals.
Mr Kormos: You raise of course the issue of rate stability, premium stability. You must have been around during Bill 68, back in 1989 and 1990. We've gone through governments so quickly over the course of the last few years, and I'm as sensitive to that fact as anybody could be. But when the Peterson government promised control on premiums with Bill 68, it didn't happen. And then the New Democratic government, after it had abandoned public auto insurance with Bill 164, promised 4% premium increases; it didn't happen then.
Now one of the problems here is, you see, the IBC predicts that with this scheme we're looking at something like 7.6% a year in premium increases. That seems to be their minimum. Now notwithstanding that IBC, the Insurance Bureau of Canada, says that, Zurich Insurance, the second-largest insurer in the province of Ontario -- and certainly that, in my view, gives it a capacity, because it has such a large number of motor vehicles insured, to understand the impact -- talks about premium increases twice, almost three times that 7.6% suggested by the IBC. There's nobody I've talked to who considers anything from 8% to 20% premium increases to be a stabilization of rates. How do we respond to that?
Mr Walser: The only thing that I can address is the area that I have some expertise in, and that's rehabilitation benefits. I realize as a member of a service provider in that field that we have, by the way we've escalated the costs within that, increased the cost of automobile insurance. A proposal where we make sure that we provide good quality care that's evidence-based practice care, that we don't have the ability to get into conflict-of-interest situations, will help to keep rehabilitation costs down. That's one area that's going to affect rates. Other things are outside my scope of expertise and I can't address them. It would make sense that if we decrease costs in other areas, we can probably help to keep the rates down. But my recommendations are that we eliminate conflict of interest in that we go to a system that makes clinicians accountable for what they do. Having the insurance adjuster make a decision on whether or not treatment's appropriate is not something that should happen. Clinicians are the best to determine what should be clinically done.
Mr Kormos: Because the insurance adjuster, as often as not, doesn't know diddly-squat about the required medical or rehab treatment.
Mr Walser: Their education is not in a medical field. Whatever their training, they're trained to be insurance adjusters; they're not clinicians.
Mr Kormos: I trust then you as well would be supportive of a victim being entitled, because of the very special nature of medical treatment and rehab, to pick the therapist, doctor, treatment centre, because of the very unique and subjective nature of matters of trust and reliability and rapport.
Mr Walser: I think we definitely need to have choice within the system, but I think we also need to continue to educate the clients of the fact that they do have choice and also to educate them as to how can they decide whether a clinician is doing a good effective job or not.
Mr Kormos: You see, we've heard from people even trying to access the no-fault end. Basically, Bill 68 took away most rights of the innocent accident victim. Bill 164 finished the job off and left the innocent accident victim without any recourse to courts short of the illusion of recovery for pain and suffering. What does the victim do who needs an advocate, who's fighting with an insurance company that has, as I've said, short arms and deep pockets? They're profit-motivated. How do we give that victim the representation, the advocacy that he or she needs?
Mr Walser: Again, this is not totally within the scope of my area of expertise, but having worked under the system of pre-no-fault where we were in a pure tort system, I don't want to see it go back to a true tort system simply because the lawyers often drove the type of rehabilitation people got. When you were still in litigation, your goal was not necessarily to get better but to increase your settlement. We've discovered in catastrophic injuries where people have been under OMPP and through Bill 164 that it takes such a long time to go through the legal system that the legal system is not a great area of recourse for somebody who needs funds. We need to make funds available to people for appropriate treatment, for cost-effective treatment, and if there's additional financial loss or the right to sue for pain and suffering, that's going to be deemed by the politicians. That's outside my area. I just want to make sure that people get appropriate treatment that's going to be cost-effective in a timely manner.
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Mr Kormos: I was going to quote Charlie Harnick, the Attorney General, but I'll have to wait till the next one.
The Chair: Charlie's probably pleased about that. Could we move to the government side. Mr Sampson.
Mr Sampson: Thank you very much for your presentation. I guess we're going to hear this throughout the day from Mr Kormos about public auto insurance and how it produces the least expensive rate. I should bring his attention to a survey that was done by a private firm with respect to the costs of operating a 1996 mid-sized vehicle in various cities across Canada. The most expensive was in Montreal where, by the way, they have a public auto program, and the least expensive was in Alberta, Edmonton in fact, where they have a private auto program heavily focused on tort. I will bring that to the attention of my friends at Zurich, who are telling me that the tort component produces escalating costs in auto insurance etc.
Mr Kormos: Bring tort back.
Mr Sampson: But in Montreal, it says here, "High costs are driven not by fuel prices but by having the highest auto insurance rates in Canada." This is the program that a lot of people said we should follow, that we looked at and didn't follow.
Mr Kormos: Because it's not an NDP system.
Mr Sampson: But let me talk briefly about this issue on conflict of interest. It's an item that we struggled with, and one of the conclusions we came to was it would have been very difficult, and I think it's almost impossible frankly, to legislate out conflict interests, because you could say, "All right, you're not allowed to refer to your own clinic for profit," and what will end up happening is that some individuals will refer to their friends and it'll be cross-referrals and we wouldn't have solved the problem.
I think the solution to the problem, though, is to have some confidence level created in the auto insurance industry by the insurance companies themselves, by the practitioners themselves and by the claimants that the service levels being provided by the various health practitioners are meeting some appropriate guidelines.
That's why we are looking very carefully at the process of accreditation, and this would be accreditation where all the stakeholders involved would have a say, because I think that brings some ownership back, as I have been saying, into the system so that the auto insurance companies will have confidence that a certain health care provider, since they are accredited and they are involved in that accreditation process, is providing the appropriate treatment.
Right now, as you know, we don't have that. I think that would be a giant step in the right direction and it is in fact one of the items that this DAC committee, as it's called in the draft legislation, could deal with right away. But do you see value in the accreditation process? Do you see any value in making sure that practitioners, at least as it relates to auto insurance, are accredited?
Mr Walser: I have a lot of respect for your position on the fact that we as clinicians in the insurance industry need to take some responsibility for conflict of interest. I don't feel that necessarily legislation must be put in, but we have to have some system. Accreditation may well address it, but we need to address this issue earlier as opposed to later.
Now, we've had a number of statements as to when the MOH guidelines are going to come out. They were going to come out in the late fall, they were going to come out in January, then in March. We haven't seen anything come out. Whether we go through an accreditation process, which I think has a lot of value to it because it can involve all the stakeholders, or whether we go through a legislative process, I think we need to address the issue because I don't think that the clients themselves are capable. I'm not saying the public cannot be educated, but the big issue is I have to trust the clinician I go to or the therapeutic relationship won't exist. If I suspect them of doing underhanded things all the time, it won't work that way. So if I know that there isn't going to be a conflict of interest because there's something to take care of that in the first place, I can continue to trust my clinicians.
I need my clients to trust me or else I can't do my work. But that open trust also allows me to do an awful lot of things if I decide that I'm going to be unethical. Right now, nobody is trying to stop anybody from doing that.
The Chair: Thank you very much. Could we move to the opposition.
Ms Castrilli: Thank you, Mr Chairman. As you know, I'm not generally given to making comments before this committee, but I feel that I must on this occasion, since Mr Kormos brought up the issue of insurance under a Liberal government. I'm looking specifically at figures presented by the insurance bureau and figures that have been prepared with respect to the ultimate cost per vehicle.
In both the rates and the cost, what the charts show is that from the period of 1990 to 1994, which is that time frame that Mr Kormos was speaking about, both the cost and the premiums decreased. I think that's important for us to have on the record, that if there have been escalations in those two areas, they in fact occur post-1994, when Bill 164 took shape.
I have a question for you, since you are a practitioner in this area. We've had a great deal of input on what constitutes catastrophic injury and how this might be amended. There are a great many victims, as you know, who feel that the definition may be too limiting. I just wonder, from a practical perspective, how you view it.
Mr Walser: I think that the definition is limiting, very specifically around head injury, and there is another group coming on after me that is discussing further how mild and moderate head injuries will very often need more than $75,000. By the definition that's presently in the legislation, a majority of those people we deem to be mild and moderate head injuries would not fall under the catastrophic category.
In terms of, if I separate out traumatic brain injury from general orthopaedic injury, which is the large bulk of what we do, do I feel that we have a reasonable definition and that $75,000 will probably cover the expenses? I don't have a lot of concerns. I was very concerned when the original proposal came out at $25,000, because I know that a complicated orthopaedic injury can chew up that money very appropriately and very quickly. But our definitions in terms of what is catastrophic regarding orthopaedic-related injuries -- I think it's reasonable. We're always going to run into situations if we have something in place where under mediation or arbitration or if somebody makes a ruling and says on the bottom, on the last category for catastrophic, there is some leeway to allow certain people in.
The overwhelming majority of clients I would see would fit very well into this two-tier system. Where I have some problems -- and I treat head injuries in my practice as well -- is it's a delineation there and there's another presentation that can probably speak more appropriately to it than I can.
Ms Castrilli: So you'd like a little more flexibility at the lower end.
Mr Walser: Yes, traumatic brain injury especially.
Mr Phillips: I want to follow up on something I think you said earlier. I think you expressed some concern that some people may not participate as actively in rehabilitation as they might otherwise if there is an opportunity to sue for significant economic loss. I don't know whether I interpreted you right or not. But you've been in business now since 1988, I gather.
Mr Walser: My personal practice has been open two and a half years. I've been in private practice in this city for eight years. If I can clarify for you, by an example, it was pre-no-fault, pre-OMPP, and we're talking in the mid to late 1980s. You knew when one of your clients had been to see their lawyer the day before. Typically they came in and presented differently to you the next day, because the lawyer was saying, "You've made some improvements, but this is going to potentially affect the size of our settlement." We tended to draw things out a lot more, because the settlement process takes a long time.
Now, these were a lot of settlements in the $5,000, $3,000, $7,000 range, which are eliminated because of the cap. So are we going to have that? As a clinician, does litigation present a difficulty to me? Yes, because the lawyer is another party who is trying to affect a different thing. They're trying to maximize the financial return for the client, and maximizing recovery is not always conducive to maximizing the financial gain. Am I saying we have a whole unethical system? No. But those two aren't always going in the same direction. We're trying to get people back into a normal livelihood as quickly as possible. If the lawyer is trying to get a good settlement for somebody, then they're trying to maximize that. They say, "If we get an extra month out of this, we'll get this."
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The other concern I have is, what happens if we go on to a system which is being proposed where the lawyers get a third of the settlement? There's that much more onus to make the settlement bigger. I'm not accusing lawyers of being unethical here, but they have a larger financial stake in the outcome of this thing. If I get a $50,000 settlement as opposed to a $40,000, I get this much more money.
It's a difficult system. Tort needs to be part of this system because I see people lose out, especially the people at the end where they're not catastrophic but have had a difficult and long recovery. They have had financial losses in addition to what the legislation covers. They should be able to get compensated for that.
By the same token, if I've had two years of having my life turned upside down and I'm going to go well above and beyond the $15,000 cap that I have to break before the insurance company has to pay, I think a client should be justified in having the right to sue. But we had an awful lot of trivial lawsuits that made it difficult as clinicians in the old system. We don't want to see that come back, but we want to see people be able to get compensated for having their lives absolutely disrupted -- the innocent victims. And I see those people: the person who gets hit by the impaired driver. The impaired driver does not get injured and they have their live turned upside down for two, three, four, five years. If we don't have some avenue for those people to get compensated, then we're not being fair by them.
The Chair: Mr Walser, I appreciate your presentation before the committee today. Thank you for joining us.
Mr Walser: Thank you for your time.
Mr Kormos: Chair, if I may, Mr Sampson speaks of Quebec, not fully revealing that Quebec is a blended system with partnership between a public system for bodily injury and private sector coverage for tin and glass. But I say this to Mr Sampson: I will debate him any time, before or after June 21, anywhere, on the issue of public auto insurance, and I challenge him now to do that before any bill by this government is put before the Legislature, because the arguments on behalf of public auto insurance will prevail any day of the week.
The Chair: Perhaps we could have that debate, Mr Kormos, when we're not infringing on other peoples' times.
SERVICE PROVIDER AGENCIES FOR PERSONS LIVING WITH THE EFFECTS OF ACQUIRED BRAIN INJURY
The Chair: I would like now to welcome the service provider agencies for persons living with the effects of acquired brain injury.
Welcome to the standing committee on finance and economic affairs and our inquiry into auto insurance. We have 20 minutes together. If you would identify yourself, please, for the Hansard record. If you have a brief, we can start there, and any time remaining we can use for questions. Please proceed.
Ms Alice Bellavance: Good morning, Mr Chair and members of the committee. I'll introduce our panel first. I'm Alice Bellavance and I'm a registered practical nurse. I'm also the executive director of the Organization for the Multi-Disabled, which is a community-based rehabilitation service for individuals with brain injury. On my immediate right is Dr Mary Ann Mountain, who is employed at St Joseph's General Hospital, which is also an AVI provider, and she's also a clinical psychologist and neuropsychologist. On my far right is Kim Wedgerfield, who is a consumer of the system.
I'll begin with our presentation. I believe you have a copy of a brief that was circulated. This submission is made on behalf of a collective group of agencies -- the two that I just mentioned -- as well as health practitioners, regulated health professionals and consumers.
Initially, I want to speak to the impact of traumatic brain injury, particularly as it relates to northwestern Ontario.
Approximate incidence, nationally/internationally: It is recognized that there's an incidence rate of 199 per 100,000 of population. However, in the district of Thunder Bay the incidence rate is much higher; it's 374 per 100,000.
Approximately half of traumatic brain injuries are related to MVAs.
The majority of those who are injured are between the ages of 16 and 34, and the survivors often live normal lifespans.
Common sequelae often include severe cognitive impairment; severe physical disability; communication deficits; complete inability of the victim to take care of himself or herself in areas such as eating, dressing, toileting and other basic functions; aggressive/assaultive behaviour and other behaviourial changes including sexual inappropriateness, impulsivity, irritability, impaired memory and judgement, apathy, depression and substance abuse.
In our area, we only have one lead/trauma hospital and it serves a huge geographic area of 525,907 square kilometres. This decreases the ability for individuals to access emergency services because of the geography. There are also transportation difficulties. In a lot of northern remote communities, we have to rely on volunteer ambulance services.
There's limited access to specialty services as well as being able to access all of the various services along a continuum to complete recovery.
There are specific service issues to northern, remote first nations communities as well.
Recovery from complex injury to the brain can take years. Therefore, treatment plans should not be time-limited; however, they should be reviewed regularly over the course of a year. I know that one of the common denominators that we keep seeing in the documentation is the 18 months to two years, and that doesn't apply to a severe brain injury.
If associated disorders are not adequately treated in the early stages, initial effects may be compounded by the sequelae noted above.
Many survivors with mild to moderate injuries suffer severe functional limitations without appropriate and timely rehabilitation.
Service provider agencies in this area currently are serving approximately 70 to 100 participants per year.
During the acute rehab phase, the cost of services can range anywhere from a few thousand dollars per month to $30,000.
The average cost of long-term care per participant is $130,000 per annum, ranging from approximately $80,000 to $180,000, dependent on individual needs.
In the north we can add additional costs for travel, accommodation, prolonged treatment time due to related travel and, in the extreme, where individuals have to move to regional centres to access service.
Dr Mary Ann Mountain: We have a couple of concerns about the proposed legislation, first the absence of provisions for immediate payment for rehabilitation. Most of the physical recovery from brain injury occurs during the first 12 to 24 months after the injury. If adequate treatment is not provided to survivors during this critical period, the possibility of the development of severe behavioural and emotional disorders is greater. If these disorders are not treated in the early phases of rehabilitation, the treatment may be extremely difficult and costly for individuals, families, institutions and society.
Additionally, without added provision for the often lifelong rehabilitation and support needs of the survivor, it has been demonstrated that many of the disorders associated with TBI -- for example, depression, irritability, substance abuse -- increase over time. The absence of sufficient supports has far-reaching financial and social consequences.
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The proposed legislation does not permit immediate access to critical rehabilitation and support needs of the survivor and, again, many of the disorders associated with TBI will increase over time.
The proposed legislation does not permit immediate access to critical rehabilitation services and supports. There, again, we look at a greater long-term burden on the public system, with exorbitant and unnecessary institutional care costs. The decision to treat should be clinically driven, not based on an insurance or a business rationale.
The application procedures proposed may cause a lengthy wait between injury and the start of rehabilitation. Sometimes an injury is not diagnosed as catastrophic but becomes catastrophic because proper rehabilitation services have not been provided. Vigilance is required in the immediate management of brain injury to ensure the cost-effectiveness of resources invested in this treatment. Additionally, an effective and timely dispute resolution mechanism needs to be in place. The current system has many problems and there is little in the proposed legislation to address it. The Ontario Brain Injury Association spoke to a panel to deal with disputes in its submission. We would support the mechanism as proposed by them.
The legislation should provide for a mandatory payment of initial rehabilitation costs for traumatic brain injury victims similar in principle to the mandatory prepayment provisions set out in subsection 42(6) of the proposed regulations.
Ms Kim Wedgerfield: The "catastrophic impairment" definition must include mild and moderate injury. The $1 million in medical/rehabilitation coverage and the additional $1 million in attendant care coverage largely addresses the need of those whose injury is catastrophic. In addressing the needs of the vast majority of individuals who have sustained a brain injury, however, the legislation falls short in the following areas:
Victims who are not deemed catastrophic based on the Glasgow coma scale may not receive adequate payments but will be eligible only for payments on a reduced scale, which will be grossly inadequate in some cases. Other indicators of severity that can be considered are: period of PTA -- post-traumatic amnesia; length of loss of consciousness; skull fracture and damage to the underlying dura; usage of World Health Organization definitions for impairment, disability and handicap. It should be noted that in remote communities with volunteer emergency personnel, GCS may not even be applied, or hours later at an emergency department; however, not always consistently.
Allocation of funds between medical/rehabilitation coverage and attendant care coverage are not flexible enough to allow for ongoing, comprehensive rehabilitation. In some cases, all medical/rehabilitation dollars may be exhausted prior to the need being eliminated, and the funds for attendant care may not be adequate to continue rehabilitation efforts due to the monthly cap on usage of these monies.
Attendant care is not adequately defined. Attending care should be defined to include the requirements of TBI victims for the assistance of another human being for the completion of daily activities of living.
The $2-million cap may in some instances be grossly inadequate.
The lifetime care costs of a TBI victim may increase over time, beyond the proposed limit. The legislation must provide for periodic increases in coverage to ensure that costs can be met.
Ms Bellavance: In conclusion, we realize and validate the need for effective cost containment set out in the proposed legislation, both for the insured and the insurer. However, it should not be at the expense of innocent victims. The legislation will increase costs, both monetarily and societally, to taxpayers. To the extent that a traumatic brain-injured victim's care is not covered by benefits, insurance or the victim's personal resources, the government of Ontario will be obliged to pay for the direct costs of care -- medical/rehabilitation and attendant care -- chronic hospitalization and indirect costs such as dependants, costs to the correctional system and other societal costs. Therefore, it is of interest to all to ensure that TBI victims can obtain adequate coverage.
The development of standards of care and outcome measures with the view to efficacy is a goal that we should actively work towards with providers -- whether they are private or public, not-for-profit or for-profit -- the insurers, government and consumers.
The balance of the brief just lists who the providers, professionals and public were that submitted this brief. Thank you.
The Chair: Thank you very much. We have about three minutes each for questions, if we could start with the government site.
Mr Ted Arnott (Wellington): Thank you very much for your recommendations. They'll be very helpful to the committee over the course of our deliberations. There is one statistic that frankly struck me as startling. You indicated early in your brief that the approximate incidence of serious brain injury or traumatic brain injury in the Thunder Bay district is almost double the national average. I just wondered how you can account for that. We look at the incidence of these injuries certainly from a human point of view as well as an economic point of view, and if we can reduce the incidence, it's in the public interest, obviously.
Ms Bellavance: Want me to answer that one? Part of it's just the geography, the distances that we have to drive, the types of roads we have to drive them on and also the climatic conditions that we have to drive them in. If you think this statistic is startling, the Ontario Brain Injury Association did a study in northeast Ontario and there's a section of highway -- I believe it's also referred to as the Devil's Corridor, Highway 69 -- where the incidence rate is 469 per 100,000. Part of it has to do with the conditions of our roads; part of it has to do with geography. The kinds of things we do for a living in northern Ontario that make us have to drive those roads in the first place; if you're working in mining and forestry, you have to drive a long way to get to work.
Mr Joseph Spina (Brampton North): Thank you for your presentation. I wanted to come to the last paragraph where you talked about, "The development of standards of care and outcome measures with the view to efficacy" as a goal we should be working towards, and another statement you made that said, "The decision to treat should be clinically driven, not based on an insurance/business rationale." Is that kind of an endorsement for a treatment plan concept? The previous presenter said they have a system where they develop a treatment plan for the patient but part of the problems that are being experienced right now -- and I know that Ms Felteau experienced it earlier as well -- was the early intervention factor. Is there a role for the DACs here? Should they be beefed up? How could that maybe be structured to make it an earlier intervention process so that treatment can get under way as soon as possible?
Dr Mountain: I'll address that one. I think there are two points to be made there. One is for the individual who is identified early on, and usually that does involve being admitted and treated in a hospital, in a neurosurgical unit. The issue there is, once they're discharged from the hospital, can we establish a continuity of care so that they're not sitting around waiting for someone to approve a treatment plan? The second issue, though, is the people who are not identified early on. Usually these are people with quite severe orthopaedic injuries and a relatively mild brain injury. So even though it will be noted on the hospital record that a head injury has occurred, nobody thinks to tell the person until a year or a year and a half later, and by that time they're so wound up at the problems they're having that you have a greater difficulty.
I think the issue here is getting a mechanism in place, and perhaps the DAC is the place to start that, where the transfer from the hospital to the community can be made smoothly and also where there is an earlier identification, perhaps a clinic where people are just screened if they have come to hospital with a concussion, so that we know what we're dealing with up front. There's no question that the longer you delay treatment, the more costly it is.
The Chair: Can we move to the opposition.
Ms Castrilli: Thank you very much for your presentation. It's very thoughtful. This is our second week of hearings. During the first week we heard from many, many deputants, but it's our first trip to northern Ontario to hear the concerns of people here. I'm particularly struck by two aspects of your presentation where you deal with the impact of traumatic brain injury in this area. I wondered if you might elaborate on them, because it's the first time we have encountered it. Specifically, you talk about, "specific service issues for northern, remote first nations communities." I think that would be interesting for us to hear a little more about. The second point deals with the additional costs in the north for things like travel, accommodation, treatment and so forth, and what you think the figures are; how much it adds to the costs of people you treat.
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Ms Bellavance: As it relates to the first nations communities, I think quite often once a person is medically stable they will return to their reserve. But the services are extremely limited. We've done some very long distance work with Big Trout Lake and Kingfisher Lake and some of those very remote communities. Not only are we dealing with the issues of isolation and distance, but we're also dealing with the issue of culture and whether they want to deal with our type of rehabilitation. So it's very compounded.
We find that many individuals don't usually attempt to access the more traditional rehabilitation services that we're familiar with. I think one of the things we'll have to look at is how we adapt our rehabilitation to meet their cultural needs. Maybe then we can start addressing some of the needs of the folks on the northern reserves, because right now we're doing not a very good job.
Ms Castrilli: So it doesn't happen now?
Ms Bellavance: It doesn't happen. They tend to just go home and, because they may experience significant behavioural issues, then quite often what happens is they end up in the corrections system. For those individuals who are significantly physically compromised, they become homebound, and it creates a toll on the family in terms of them providing care.
There's a situation, I know, on one of the remote reserves where the caregiver gets so exhausted that the individual then is admitted to the hospital in Red Lake for anywhere from two to three weeks every couple of months just to give the family respite, which is not an appropriate use of an acute care facility either.
Ms Castrilli: What would your recommendation be around that?
Ms Bellavance: I think we need to do some real work with first nations communities. Whether they themselves learn how to do the rehab or whether we adapt ours to meet their needs, I don't know. There's no easy answer. We're facing those issues not just in the rehab but also in the long-term-care sector. There's sort of a parallel planning system going on right now for long-term-care services as well.
Ms Castrilli: And the issue of additional costs?
Ms Bellavance: Mary Ann, maybe you could speak to that one.
Dr Mountain: Just for an example, Fort Frances, which certainly has a hospital and has some rehabilitation personnel, does not really have anybody who is familiar with treating mild brain injury. So with a case that I'm familiar with and some of the other clinicians in this area are, we fly in and out or the families fly in and out. You can look at, for each clinician going in, just in terms of the flight, the accommodation, that sort of thing while you're there, anywhere between $600 and $1,000 per trip. That $75,000 can get chewed up very quickly when you're doing that kind of travelling. If the family has to uproot and move, certainly you're looking at an even greater expense.
Ms Castrilli: So your recommendation would be that $75,000 may not be high enough for the north.
The Chair: If we can move to the third party. Mr Kormos.
Mr Kormos: Your comment about the tendency, especially of private corporate insurers, to look at injuries solely from the economic point of view of course attracted my attention. I used to practise criminal law -- and I should tell you, the more years I spend with provincial politicians, I realize how much more suitable the background in criminal law was for a career in politics.
I sadly noted what you reflected on, and that's not to suggest that all TBI/ABI victims find themselves in difficulty with the law, but, especially among young people, the frequency of ABI and TBI among young people who weren't criminals by any stretch of the imagination. If we want to talk about the cost, about the economics of an injury, let's talk about the real cost of not treating TBI and ABI, which is a multiple of the actual cost of treating them.
The impression I'm getting is that the sooner you treat the more effective that treatment or rehabilitation program is going to be, and I can't for the life of me understand how there could be this artificial dividing line between those who pass the threshold for catastrophic injury and those who don't quite meet it. The fact is that this legislation as it presents itself now says that a whole lot of ABI/TBI victims are going to find themselves untreated because they don't pass an arbitrary threshold which seems to have as its sole basis the profit interests of a private corporate insurance sector.
I find it incomprehensible that any member of this committee or any member of the Legislature could tolerate having ABI/TBI victims not treated because of the need to create that artificial dividing line. Clearly there are going to be some people who come just up to it but don't quite make it over that one point on the gradation. That is really tragic. Have I, in essence, got the thrust of your explanation on this?
Dr Mountain: I think so. Perhaps I could give the committee a very cogent example of this. A couple of the people who are being treated in Fort Frances now by a group of us out of Thunder Bay were injured in a very nasty accident. They were stabilized at the local hospital, airlifted to Winnipeg for neurosurgical intervention, lost probably about six months of being in school and still now have a lot of behavioural problems and learning problems. One of the kids in this accident had a Glasgow coma scale of four and one had a Glasgow coma scale of 15. I would defy you at this point to tell me which is which, based on where those kids are right now.
The Chair: Thank you very much for your presentation to the committee today. We appreciate your input.
THUNDER BAY AND DISTRICT LABOUR COUNCIL
The Chair: I would like now to introduce the Thunder Bay and District Labour Council. Gentlemen, welcome to the standing committee on finance and economic affairs. We have 20 minutes to spend together. If you'd like to make a presentation, then we could fill any remaining time with questions. Please identify yourselves for the Hansard record and commence.
Mr Don Hutsul: My name is Don Hutsul. I'm the president of the Thunder Bay and District Labour Council. On my right is Joe Hanlon, who is an executive officer of the Thunder Bay and District Labour Council. First of all, I want to welcome the committee to Thunder Bay. We've seen many of your members here in the past and probably will continue to see some of them in the future.
On behalf of its 11,000 members, the Thunder Bay and District Labour Council submits the following presentation on the Ontario government's draft auto insurance legislation to the standing committee on finance and economic affairs.
As for the issue at hand, it is beyond the endurance of the long-suffering public that this is back before the Legislature in 1996. It is less than two years since the insurance industry issued its public testimonials to the compromise reforms set out in Bill 164. The usual oaths were sworn by the leaders of this industry that they could and would live with the Bill 164 reforms as an alternative to a public auto insurance plan and that rates would be stable.
It is only some six years since these same insurance executives swore the same oath of rate stability to the Peterson government when it brought in its MPP insurance plan. It is now perfectly clear that the only constant in the auto insurance field is the unlimited ripoffs by them with the full support of this government. Their greed for profit is insatiable and their commitment to governments past and present is as worthless as smoke.
It is time at long last for a government of Ontario to recognize that automobile insurance must be regarded as a public utility. For the majority of Ontarians a car is essential. Ontario law rightly requires full insurance coverage as a condition to be licensed to drive. Given these realities, it is completely unacceptable that auto insurance continues to be regulated for the profit of private insurance companies instead of in the interests of the general public. The situation now is that the state forces people to buy auto insurance and leaves them at the mercy of hideous rate gouging.
The time has come to put an end to the pretence that this most treacherous of industries can be regulated. The time has arrived for a public auto insurance plan which will guarantee decent coverage at affordable rates for all drivers in Ontario.
If the stakes weren't so high for the average Ontarian, the government's draft bill would be a joke. The notion that benefits can be reduced by resorting to tort, the right to sue for financial loss, is totally absurd. Worse, everyone knows it's absurd. It only means that auto insurance premiums will once again be used to fatten the pockets of lawyers etc, who will be the only beneficiaries. All the studies undertaken by the Ontario government over the past 10 years have affirmed the basic reality that settling claims through lawsuits in court is the most costly and inefficient way to provide benefits to accident victims.
What is most disgraceful about this government's collusion with the insurance industry is that the money to enhance profits and legal fees is being confiscated directly from innocent accident victims. An innocent accident victim's weekly no-fault benefit under the current law will be drastically reduced. An injured victim on basic short-term disability benefits will go from 90% of net income to a maximum of $1,000 a week to 85% of net income to a maximum of $400 a week. On top of this, medical and rehabilitation benefits are being slashed for innocent accident victims to a tiny fraction of their present entitlement.
The government's argument that the restoration of the right to sue will redress any injustice is known by historical experience and extensive research to be completely false. The Peterson government introduced its own no-fault insurance plan in 1990 precisely because it was clear that Ontario's tort-based system had totally failed to provide adequate and timely benefits to accident victims and led to a wild escalation of insurance rates during the 1980s. The Liberal plan was itself flawed inasmuch as it provided benefits that were so low that insurance company profits went through the roof. Bill 164 was a negotiated compromise which was supposed to permit the continuance of a private insurance sector with stable rates and adequate no-fault benefits for accident victims.
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In Alberta, where there's primarily a tort-based system with some very limited no-fault benefits, rates increased on average 17.7%, 19.9% and 11.9% in 1991, 1992 and 1993 respectively. That translates to a 43.5% increase in just three years -- the numbers are from the IBC, Alberta division. BC has a public auto system, primarily tort-based with some no-fault benefits. During the years 1990 through 1994 insurance rates increased by 41.4%. Manitoba introduced a full no-fault system in 1994 due to the rising rates under a tort-based system. Therefore, I predict within four years Ontario's rates will increase up to 40% to 45% under your proposed tort framework.
I remember in 1991 when the insurance companies placed ads in the newspapers saying, "Your car insurance. It's working better now and we can make it better yet." Really? If that is so, who is it working better for? The province's property and casualty insurers whose profits soared to $229 million during the first quarter of 1991, while many innocent victims couldn't collect a single penny for pain and suffering. Pretty self-serving, but then you have $229 million in quarter profits and the other side of this story, the victims' side, has none.
This legislation will not lead to lower premium rates. You have only said this legislation would bring improved rate stability, which we've heard for the last 10 years. In fact I see our rates skyrocketing with the return of the tort system, plus costs for lawyers and courts. I see more costs when you talk about the options involving private arbitrators. One can see more costs when the government will be able to recover costs incurred by the public health system from insurers, who will then pass on those costs to me and everyone else who drives.
I have seen and read the government's auto insurance draft legislation highlights. Insurance companies, lawyers, arbitrators and brokers stand to gain a windfall. The insurance companies are now competing with the banks for record profits. I, for one, have had enough.
The Chair: Thank you very much. We have a round of four minutes. Could we start with the opposition, please.
Mr Crozier: Thank you, gentlemen, for your brief. You've certainly been very descriptive in your position and how you feel on auto insurance and what the effects of this proposed draft would be. I only note for interest that you are suggesting it's time to recognize that the automobile insurance must be regarded as a public utility. Well, if it is, it will probably be sold off shortly to private industry, so you'll be right back where you started again.
More seriously though, you've suggested that, "All of the studies undertaken by the Ontario government over the past 10 years have affirmed the basic reality that settling claims through lawsuits in court is the most costly and inefficient way to provide benefits to accident victims." Do you have, from preparing your submission, any of those reports that you might share with us?
Mr Hutsul: No, sir. I wish I could, but I have had a serious number of barriers, I guess, since I found out I was going to make this presentation. My secretary had booked holidays and I was in a quandary as to how to get the document prepared. I'm not a whiz kid on a computer or typewriter, so I spent two days on my computer preparing the document and lost it. Early this morning I had to get the secretary in to redo it. Then I found out that our printer was not attached to the computer, and she had to run from office to office. I apologize for not having that type of information.
Mr Crozier: Notwithstanding that, it must have been prepared with that as background material.
Mr Hutsul: Definitely.
Mr Crozier: So if you're able to, if you do recover it, I certainly would appreciate receiving it, if we could, because I think that's important.
You also, sir -- I must be a bit defensive in this respect -- suggest that the Liberal plan was flawed as it "provided benefits that were so low that insurance company profits went through the roof." I shouldn't have said "defensive." I should say we're supplied with information that's different than that. In other words, the insurance companies will tell us that their profits have not gone through the roof and that the premium is underpriced on the street, as they call it.
In any event, it was pointed out earlier this morning, and perhaps you would be interested, that in the period 1990 to 1993, information provided by the Zurich insurance company and the Insurance Bureau of Canada has shown that both cost and rates reduced in the period 1990 to 1993 and that then rates began to go up again in the period 1993 to the present. That's some information you may want to at least have a look at.
The other thing, and you comment on it, is the benefits have been reduced, yes, from $1,000 a week to $400 a week, although you can then, depending on your financial situation, because many people in Ontario don't make $1,000 a week, buy up to that coverage.
Mr Hutsul: Exactly, with added costs; again, another added cost.
Mr Crozier: Perhaps not. I throw this out: We can presume, although we're not finding this to be the case, and it's a mystery to me, that the benefits are being reduced. I agree with you. Where the mystery comes in is that we're told by almost everyone that rates are going to increase on average 7% to 8% a year. Then there are a couple of other areas --
The Chair: Do you have a question, Mr Crozier? Your time is coming to an end.
Mr Crozier: No, that's fine.
The Chair: Could we move to the third party, please.
Mr Crozier: I don't know why you picked on Margaret and me. This guy down here doesn't always have a question.
The Chair: Mr Kormos has been very good on the clock. Mr Kormos, the floor is yours.
Mr Kormos: Brother Hutsul, Brother Hanlon, welcome. There, I've done it, I've said it. I've referred to my friends as brothers, as they are. You know what the Tories are going to say? They're going to say, "Look, Kormos and the NDP are in bed with organized labour." I say to them, I'm pleased to be in bed with organized labour. It beats being in the back pocket of corporate Bay Street by any stretch of the imagination.
I tell you, brothers, once again this is an important perspective to bring forward. The fact is that the western publicly owned systems have delivered, with greater efficiency and with greater fairness, auto insurance that still has lower premiums than the private sector here in the province of Ontario.
For the life of me -- although Mr Sampson now insists that he's misquoted by the press -- of course you're always misquoted when you're reluctant or embarrassed about what you said -- he made reference to the fact that maybe at some point even this government might have to consider public auto insurance.
You point out, and of course I would want to reinforce, that it was New Democrats who fought for a no-fault component in the tort system to make sure that all victims, whether at fault or not at fault, received rehab and wage replacement benefits, and you're right, the reduction from 90% of net to 85% of net, regardless of the cap, is still going to be a reduction in benefits for people who seek wage replacement.
My question is, Mr Sampson earlier, you see, in an effort, firstly insisted that he was misquoted -- and maybe he's right; I give him the benefit of the doubt -- but he also used Quebec's system, which is not a pure public system, because the private sector is in there like a bunch of dirty dogs, grabbing the most profitable end of it, the tin and glass.
I challenge Mr Sampson to a debate any time on the issue of public auto insurance versus what this government is proposing. I'm wondering if the Thunder Bay and District Labour Council would be pleased to host such a debate between Mr Sampson and me, so we could see really how indefensible this government's position is in opposition to public auto insurance. Would the Thunder Bay and District Labour Council be prepared to host that type of debate?
Mr Hutsul: The Thunder Bay and District Labour Council has a lot of expertise in formatting these types of debates and any other types of debates. We will be more than willing and pleased to.
Mr Kormos: Okay, I'd be more than pleased. Mr Sampson, that's an invitation from here in Thunder Bay. I'll come up here at any time it's convenient to the labour council and I'll even accommodate you, sir. We can talk about the real issues here: That's public ownership where there's fairness for premium payors and justice for victims, or more profiteering by the private sector.
What the insurance companies don't talk about is interest rates. That's really what it's all about. It's about taking billions of dollars out of the pockets of Ontarians, investing them and getting incredible returns, of course, depending upon the level of interest rates.
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Also, they don't talk about reserves, because the private sector insurance companies can generate reserves which create artificial losses. That's how they've been avoiding taxes for decades when making enormous profits. The fact is that nobody has been talking about those during the course of these committee hearings. That's unfortunate as well, because really the private insurance sector has an interest in high interest rates, because that's where they make their big bucks, and they were making, during the course of OMPP, billion-dollar profits annually, taken out of the pockets of every Ontarian. They stand to make even more under this legislation here. It's important that you and other working people continue to speak out against this sort of charade and illusion.
Thank you, brothers, for being here.
The Chair: If we could move to the government side.
Mr Wayne Wettlaufer (Kitchener): In so far as Peter's stance on government automobile insurance is concerned, he of course is running for leader of the party and naturally he has to do some posturing. However, I would like to bring to your attention something that you said in your submission here. That is that BC has a public auto system, primarily tort-based with some no-fault benefits. Their premium increases have increased from 1990 to 1994 by 41.4%, which is just slightly lower than the Alberta increase -- sorry, Alberta's is in three years.
I want to point out that John Kruger, who is the former chairman of the Ontario rating board, made a submission last week, and at that point in that submission he agreed with me when I pointed out to him that Ontario's automobile rates for comparable coverages were not significantly higher than other provinces with government-run insurance, especially when you take into consideration the fact that Ontario has more vehicles from the London to Toronto corridor than most other provinces. There is considerably more exposure to automobile insurance claims as a result of that.
The other factor that nobody has been able to come to grips with, either government-run insurance plans or private insurance plans, is how to control the cost of repairs. We see that new vehicles are costing anywhere from 30% to 40% higher than they were only four years ago, five years ago. We are seeing that to reconstruct a car in a body shop would cost four to five times as much as the initial cost of that car. That's because of the replacement price of parts from the manufacturer as well as the body shop's mark-up and of course the labour costs. Until someone can get a handle on how to control costs of repairs, automobile insurance rates are going to rise.
We've already heard that Rob Sampson has said that increases of 7% to 8% a year, which were predicted by the insurance companies last week, are not satisfactory, that we will make changes.
The point I'd like to make here is that this is draft legislation which is presented to the public for the public's input and for the input of the opposition and third parties so that we can come to grips with this problem, hopefully develop a plan which will bring costs under control and at the same time provide reasonable benefits for the average person.
There was also a comment made by the Liberals that under OMPP insurance costs were considerably lower. I wish to point out that insurance companies --
Interjection.
Mr Wettlaufer: Yes, I know. Insurance companies underreserved their claims under OMPP in 1990, 1991 and 1992.
Ms Castrilli: There is no disclaimer here. This is their document.
Mr Wettlaufer: I'm speaking from experience. I can tell you they made corrections to those claims in the years 1993 and 1994 and that did contribute to their loss pictures in 1993 and 1994.
That's all, Mr Chair. Thank you very much.
Mr Hutsul: I thought I was being asked a question. I just heard a statement.
Mr Wettlaufer: That was a statement.
The Chair: The members can use their time to either make a statement or ask a question. Did you have a concluding remark?
Mr Hutsul: I certainly did. I'd like to address this comment to Mr Sampson. I've got your speaking notes on February 9 in regard to auto insurance reform. If I can quote, it says, "Currently we have a system of gold-plated benefits available to all those who are insured, regardless of fault." Can you explain "gold-plated benefits"? I'm not sure where you're coming from with that comment, because if you look --
The Chair: I'm afraid your time has expired.
Mr Hutsul: That's great. I think I'm allowed another minute, because I understand that you people are ahead of the game here a little bit. I think there are a few minutes. The one question I'd like to direct to Mr Sampson is that when you talk about all our gold-plated benefits, I can assure you that I wear no gold jewellery, have no gold fillings in my mouth, but if I look around the table I can spot a couple.
If we talk about gold-plated benefits, if you look in the cities of Vancouver, Calgary, Edmonton, Toronto, Montreal, we see 20-, 30-, 40-storey towers owned by the insurance industry. Not only one of those cities, not two, not three, not four, not five, but 10 and then some. What I'm trying to visualize is, who has the gold-plated benefits?
The Chair: Thank you very much, Mr Hutsul. We thank the Thunder Bay and District Labour Council for its presentation today.
ELAINE WOODWARD
The Chair: We would now welcome Elaine Woodward. Welcome to the standing committee on finance and economic affairs. We have 20 minutes together. If you would like to make a statement, we would then fill the remaining time with questions. Please proceed.
Ms Elaine Woodward: Thank you for the opportunity to make this presentation. I'm presenting as an independent regulated health care professional, an occupational therapist in private practice. The opinions presented in this brief are from my experience working with the industry over the past four years, a little bit before that but mostly in the last four year.
My involvement has been assessment and treatment of individuals involved in motor vehicle accidents, as referred by insurance adjusters directly sometimes, or by case managers of rehabilitation companies providing rehabilitation coordination on behalf of the insurer.
As an occupational therapist, I always evaluate and treat the insured clients in their environment of most significance. This environment may be the home, the school or the workplace, and sometimes it's both.
The referral is usually to assess function as it relates to the essential tasks the person did before the accident in the areas of self-care, productivity, which includes school, homemaking tasks or employment, and in leisure pursuits.
The question I'm usually asked is: "Can the person do the essential tasks? If not, why not? What will help them return to their pre-accident status?" The recommendations may be equipment, home modifications, vehicle modifications, education of the client in principles of safe body mechanics, energy conservation, work simplification, planning, pacing etc. The education may be for the family, the workplace or the school personnel.
On the job site, assessment may be documenting the physical demands of the job or evaluating the ergonomic fit between the job and the worker and making recommendations of equipment and/or education to facilitate a safe return to work.
In my practice, insured clients are encouraged to take responsibility for their health, wellness and rehabilitation by being an active participant in the rehabilitation process to which they're entitled through this legislation.
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I fully support the government's commitment to reform this present automobile insurance legislation and I think this draft legislation provides a reasonable working document for discussion. There are, however, some areas of concern which I think, if they are addressed, could make this legislation better.
The purpose of this legislation, as I understand it, is to assist motor vehicle accident victims who pay premiums to the automobile insurance industry recover from their injuries and return to their pre-accident status as closely as possible, in as little time as possible and at an affordable cost.
Many things impact this process for better or for worse. The system begins with individuals who have been traumatized and may have suffered losses in health, in life role, in property and/or in wages. They often feel that they've been wronged by a party who is to blame but walks away uninjured. Thus, an adversarial situation often develops early in the claim which, if not reversed, has a detrimental effect on the rehabilitation of the insured client. To effect positive results, relationships which build trust, motivation and self-responsibility must be established by early intervention with the appropriate services. The expectations and limitations must be clearly defined in this insurance legislation to minimize the need for mediation or the tort process.
It is the responsibility of the insurer, the health care and rehabilitation providers, at times the legal community and most certainly the insured client to work together in a spirit of cooperation to attain the rehabilitation goal in a timely and cost-effective fashion. Finalization of a bill which is clear in definition and expected process will facilitate the early resolution of claims and contain the cost of automobile insurance for us all.
Point 1 is the definition of "health practitioner": Early intervention of rehabilitation services with clear treatment plans by all health care providers is key to a timely rehabilitation process. As a regulated health professional, occupational therapists assess the potential to restore functional ability and assume the demands of former lifestyles in the areas of self-care, productivity and leisure. I assert that occupational therapists should be added to the definition list of "health practitioner" in the reform legislation.
While some insurers are referring early to OT, we are still getting referrals after months or years of benefits and dependence on services which could have been resolved much earlier with timely occupational therapy intervention. I want to give you some examples of that. I think it's helpful if you can hear how these things really work.
On the issue of early intervention, I'd like to present a client who was about a 25-year-old married woman with small children. My referral came one month post-injury. This had been a traumatic event. Her husband had also been injured at work. This family was in a turmoil, and I think very wisely the insurance adjuster actually obtained case management in this case, because she suspected that there might be some problem with this woman. She had an injury of the shoulders. She was started very early on a physio program, a program that was very active and asked for a lot of self-responsibility of the client, and she rose to that.
I was asked to see her at home, and over two visits only we discussed a number of issues and she admitted that she had previously been excessive in her cleaning and when she tried to continue with this it caused her great problems and she said she wasn't able to do anything. We tried a few pieces of ergonomic equipment and we talked about self-responsibility and about getting back to doing the things she did before, and in two visits with this woman, who was quite enthusiastic and responded very well to treatment, she was able to do all her own housework and return to work very shortly thereafter on her own accord. She said, "I'm better and I'm going." So that was a very good example.
One that was not so good was a date of injury in June 1994 and she was finally given a referral in October 1995. By now, we had a woman with two small children, unable to do to her housework to the standards she wanted and without a lot of pain, was angry, was very depressed, felt she'd lost control of everything, had a husband who was extremely angry that he had lost a number of things his wife used to do and was calling the insurance company and giving them a really bad time because nobody paid any attention to her. She, I think, felt very abandoned by the insurance company. A person came once to see her at home and said, "Oh, you're doing your own housework, everything's fine, goodbye," and never came back. She had no idea that someone could come and help her understand what was going on and show her that there was an easier way to do it.
By this time, she had a lot of problems emotionally, and so there was much more that was needed with her. As well as an active treatment program for physio -- it wasn't physio actually; this was a fitness-based activity for her, and she'd been on long-term chiropractics, which was winding down. She now went into a program that was health-focused, that was fitness-focused, and not treatment-focused. She also needed a lot of teaching around body mechanics and a lot of assurance that she could do this with some very minor, minor equipment that cost maybe $25, for housework. Also, this woman had spent a long time in directing her career towards computer work. She now had some injuries that were giving her a terrible time, and no one had ever stopped to say: "This is how you need to be sitting. This is how your computer should be set up. If you had a chair that cost you $300, you then would be able to do this work." So the outcome was happy, but it was about a year too late.
The last one I'll just share with you is a very enthusiastic woman who takes good responsibility for her own health and her fitness as well but has had a lingering problem with a shoulder pain which she did not understand. She's had a couple of trials of physiotherapy that were supposed to then change over into a fitness-related facility, which she was supposed to do on her own and didn't know how to do it, but nobody ever saw her at home to realize that that was one of the problems, and to also realize that if she changed a number of things in her home, she would be able to do this herself. And she had, in a way, taken some of her benefits back on her own. However, she was surprised that there was a service that could help her with that, and it took almost three years for somebody to make that referral.
I believe that if occupational therapy were defined as a medical practitioner, we would be called in much earlier to identify the implications of a diagnosis on function and to provide intervention to effect restoration or adaptation. The result would be cost containment along with early engagement, but I think more important than that is this early engagement of a client in returning to a pre-accident function.
Under accountability: Treatment plans for all regulated health care professionals and other service providers should be required as a way to enhance accountability and predict treatment costs. This is standard practice for occupational therapy intervention, whether you work with the insurance industry or whether you work in a hospital. It's just something we always do. Following assessment, a report is generated which outlines the presenting problems, the recommendation for remediation, and it also predicts the duration of intervention expected.
Delay in the approval of treatment sessions recommended on assessment, however, results in loss of momentum and motivation for the client, and also to some extent to the caregiver. You get all excited when you assess someone and you're ready to start on this and then you wait three weeks and have heard nothing from the insurer. So I think there are some problems with delay and with communication there.
But it is suggested that the treatment plan not be tied to funding approval, provided it is goal-related and with clear objectives. I repeat what was said by the team talking about acquired brain injury: that perhaps there could be a system of having some funds agreed up front that can go ahead and be used so that this delay does not occur. I think this is one of the major problems, one of our major blocking points, in getting people started early and resolved early, this business of waiting for approval.
In catastrophic injury: In reference to the proposed definition of the catastrophic injuries, I strongly suggest that this area requires significant clarification. The presentation that you had this morning really starts that clarification, and I don't pretend to be able to top what they said. They are the people who really work with acquired brain injury. I have in the past, and I see that there is a myriad of problems. The things that they have reported this morning are certainly the things I've seen: the business of this long delay and of the adversarial situation that is often set up between the insurer and the person, who is already struggling with their lifestyle and the effects of acquired brain injury, and now they also have to struggle with an insurance company that doesn't want to pay for things. They feel responsible that their health care providers aren't even getting paid. There are major problems in this area, I think.
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I also think that consultation with the specialized ABI treatment units, particularly those that work in the community setting, is certainly suggested to determine a fair definition of what a catastrophic injury is as it relates to brain injury. It's certainly imperative that this definition be clear if it's to determine the ceiling of benefits available for rehabilitation. Ambiguity encourages this adversarial situation which slows the rehab process and has a detrimental effect on the insured client and their family.
Reduction in benefits: The delay of weekly benefits for non-wage-earners to 26 weeks post-injury is certainly supported. This has removed a possible disincentive to recovery. It is further suggested that where homemaking or child care services are paid in the case that an insurer is deemed unable to perform these roles, consideration be given to making payments only to parties that are not related to the insured.
I've certainly had experience with this, where the payment of family members in some cases sets up a disincentive to resumption of pre-accident duties, and that may not be particularly on the part of the client. However, when a family member has been making a nice little bit of money from doing your housekeeping or from looking after your children for a long time, I have known clients to get in the middle of that kind of an argument with a sibling, actually, who was very annoyed with her that in fact she was taking on some of these things and she was losing her income. She had a lot of stress around that, and we spent a lot of time about being assertive and saying what needs to happen here. So I suggest that as perhaps a way to avoid that.
While $75,000 for non-catastrophic injury is seen as adequate for most cases, please consider that in northern Ontario, where health care services are spread over a wide catchment area, the costs of sending professionals to rural areas or bringing the insured clients to the services may drive the costs higher than that cap for some individuals who, while perhaps not meeting the catastrophic definition, certainly have complex impairments and needs. The area of northern Ontario from Sault Ste Marie to the Manitoba border -- and that's what we kind of consider northern Ontario from up here -- is certainly vast, and we're often underserviced in treatment services.
Interjection.
Ms Woodward: Mary Ann Mountain's talking about the costs of travelling to outlying areas. I certainly would echo that, absolutely. You add another $600, $700 on to the assessment costs when you have to travel to Terrace Bay or Marathon or whatever to do an assessment.
Tort provision: It's been my experience that when litigation is in process at the same time as rehabilitation, there is a detrimental effect on the rehabilitation process and in turn on the insured client. The use of early mediation to settle claims before commencing tort action is strongly supported.
Where tort action is initiated by the insured, early disclosure to the insurer and effective communication for all treating members would minimize the disruption and delay in the rehabilitation process.
I pose this question to you: Would a waiting period before tort action could begin be a reasonable measure to allow the maximum benefit for the rehabilitation process? I think this can only happen if there is some agreement that there can be money set up up front, especially for catastrophic injuries that you need that money right off the bat and you should not have to be involved in a tort system to get the insurance company to do what it ought to be doing for you.
I want to just give you one example about that, and I'm almost finished, ready to close. However, I saw a client just recently who has been approximately three years now post-motor-vehicle accident, a head injury of a young woman in her middle 30s who has had significant functional problems since this accident. She said -- and I almost quote what she said. It was before I actually decided to do this presentation, and her quote was, I think, just so appropriate for you to hear.
She said: "I wish I had never decided to sue. We did it early after the head injury, before I really knew what I was doing. I think it's affected the way doctors view me, it's affected the way my neighbours view me, and even my family members, as someone trying to get a fortune. It's in a small community and some friends of the other person involved won't even speak to me. Everything now hinges on money. I wish it was now just about helping me to deal with my disability."
I understand that people do need access to the tort system, but I think in lots of cases it really has a bad effect. I certainly echo what Markus Walser said about the fact that you can usually tell when a client has been to see the lawyer. There is a marked difference, and the rehabilitation goes one step backwards.
Thank you for your attention to these comments on the proposed auto insurance legislation and for the opportunity to provide input to this reform process. It's hoped that as a result of this public consultation process a document can be finalized which is fair and equitable and which, above all, provides a solid framework for the successful rehabilitation of the injured insured client. I look forward to providing occupational therapy services under this new legislation. Thank you.
Mr Kormos: Thank you, Ms Woodward. In my experience with both motor vehicle victims and workplace injury victims, with workers' compensation clientele, there's an incredible sense of frustration, rage, injustice -- I could go on and on with the adjectives -- by people who are injured but who then perceive themselves as being victims twice, first a victim of the event that caused the injury and then a victim of a system that doesn't recognize or appreciate or understand or empathize with that injury. Can you simply respond to that and perhaps expand in terms of your experience?
Ms Woodward: I think that's very accurate. It's my experience that that happens very often, and I think one of the contributing factors to that is this business that they do not get early intervention. They feel abandoned by the system. Certainly we've learned that in workplace injuries, one of the first places you start is when the injury happens and they need attention, they need it right now and they need it from the workplace. With this and the insurance industry, they need attention and they need it right at the very beginning. But the responsibility needs to be there on their part, that they have a very active role in this, and in fact they are ultimately responsible for their own health and the direction.
Mr Sampson: Thank you, Ms Woodward, for your presentation. I want to talk to the item of extra costs, especially as they relate to perhaps the extra costs that residents of northern Ontario, as you call it, might have to absorb or face as part of the treatment process. Currently those extra costs, the costs of transportation, the costs of the independent evaluations, are actually included in the cap available, the $1-million cap. We felt it wasn't appropriate to have the medical rehabilitation limits deal with costs and that's why we attempted to extract from those limits items such as what you're talking about: transportation, independent examinations, assessment certificates etc. So in fact in this proposal those cost items are excluded, not included in the cap, and don't have a cap themselves, with the exception that they of course must be reasonable and agreed to by the industry and the person absorbing the costs.
I think that's gone a long way to deal with the issue that it may cost more money to get from point A to point B in northern Ontario than it would, for instance, in my riding in Mississauga. I think that's a fair recognition of the diversity of this province and how some Ontarians face more expenses just to get the treatment than others might.
Ms Woodward: I'm glad to hear that.
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Mr Sampson: Again, though, it does have to be a reasonable expense and it does come under an insurance veto, but I think that's fair. To a large degree, we've also said that the amounts payable by the insured in these categories need to be in accordance with the fee schedule. I think it's appropriate for us to understand that it's not right for an independent examination in Mississauga to cost $1,000 but to cost $6,000, for instance, somewhere else, or vice versa. That doesn't seem to be fair, so we felt there was some need to establish a fee schedule.
Ms Woodward: I agree with that, I do, but I think that it needs to be consulted with the professional associations or their colleges, whoever is that appropriate body, to do that.
Mr Sampson: Yes, no question. I think the colleges need to be involved in the process. So do the insureds, as I said to an earlier deputant, so that those two parties, inclusive of the claimant, have some ownership in where the money is being spent and how it's being spent and to ensure that everyone's eye is on the same ball, which is, try to maximize within the available dollar resources the recovery of the claimant.
Mrs McLeod: I have to say I'm not sure that northern Ontario is reassured by Mr Sampson's response. I wonder whether or not those increased costs will still be reflected in increased premium rates for northeners as the premiums begin to go up.
I appreciate your brief and its emphasis on rehabilitation and getting accident victims back into their regular workplace or their way of life as quickly as possible. If I've understood the other presentations made on this issue, though, the idea of a waiting period before tort action could be taken might actually aggravate the problem because of the sense that you've got to focus on maximizing your sense of pain and suffering in order to hold the case long enough to get into court and make your case, and that in the past has been a deterrent to rehabilitation.
Ms Woodward: Perhaps for the case of pain and suffering, but what's being proposed here is that we go back into full tort system for everything. I would see perhaps for that category it might be, but it still has a detrimental effect. I don't care what category it is in. That needs to be recognized.
I think too, though, that there are many people who work together to make this process work and I think that at this time we don't really work together to make it work, and that would be a help, if all of the parties were able to meet periodically or whatever to talk about common goals and how we can do that, and how we can do it cooperatively. Surely the whole thing is to help people who pay premiums get better fast and get back to their own lives.
They don't want to be disabled; they truly don't. Yet, it seems to me that it's so scattered and that it's a very adversarial system. If we could stop that and if we could get a policy that would stay in effect for quite a long time, something that we all feel is fairly reasonable and we could work on that, I think there's some room to do this.
Mrs McLeod: Are you concerned that with the proposals in front of us exactly the opposite may happen, that the combination of, as you've described it, a huge re-opening of the tort system, including pain and suffering, combined with a significant reduction in benefits, may force the clients you work with into court whether they want to be there or not?
Ms Woodward: Absolutely, I do.
The Chair: Thank you, Ms Woodward, and the Lakehead Occupational Therapy Services for your presentation today. We appreciate it, and I'm sure it will be valuable to us in our deliberations.
ELEANOR GARDINER
The Chair: We now welcome Eleanor Gardiner. Welcome to the standing committee on finance and economic affairs. We appreciate your attendance this morning. I understand you have a brief which has been or is being distributed. If you would like to present that brief, we can use any remaining time for questions.
Ms Eleanor Gardiner: Thank you. I appreciate this opportunity to come before you. Before I introduce myself, I wish Mr Kormos were here because I would like to use inclusive language. I am a working lady, not just working men.
The Chair: I'm sure he'll be back.
Ms Gardiner: I'm an occupational therapist and I also practice as a rehabilitation consultant with other occupational therapists and consultants. We are involved in case management, and that's the coordination of treatment and vocational programs not only in Thunder Bay but in the northwestern Ontario region which, as the previous speaker mentioned, goes from Sault Ste Marie to the Manitoba border.
I wish, on our behalf, to address considerations and definitions and some clarifications that may be required to best serve the needs of the insured with the new auto insurance legislation. I am not going to read entirely from my presentation to you but rather to summarize some things.
Our provincial body, the Ontario Society of Occupational Therapists, hereafter known as OSOT, has submitted a position statement on February 19 outlining well the principles and philosophies in the legislation which are important to occupational therapists and which we certainly support. However, we share and would add some concerns as case managers and also as residents of northwestern Ontario to continue to provide rehabilitation in a timely and cost-effective manner.
First, the definition of health practitioner. The omission of the occupational therapist from your list of designated health practitioners is significant in the overall delivery of rehabilitation if "the impairment is one that an occupational therapist is authorized by law to treat."
By definition under the Regulated Health Professions Act, the scope of practice of an occupational therapist "is the assessment of function and adaptive behaviour and the treatment and prevention of disorders which affect function or adaptive behaviour to develop, maintain, rehabilitate or augment function...in the area of self-care, productivity and leisure." This profession, which is focused on the assessment and restoration of function, is conspicuously absent from the listing of professionals who are authorized to certify that a functional disability or impairment of function exists.
Occupational therapists are currently being contracted by the insurance industry throughout the rehabilitation process. You have heard this from my colleague Elaine Woodward. Often, with fewer and shorter hospital admissions, we are called upon very quickly to evaluate clients so they may manage in their home during a convalescent period. I have had an adjuster call me when a lady in her 70s was discharged from emergency, about three hours after the impact of a truck upon her, and went home with a cast on an upper extremity and on a foot. Needless to say, she had a few barriers to personal care and coping. Client B was sent directly from a hospital, with no support services, in a body brace. Imagine the shock and trauma of facing your home and not knowing how you're going to get to the bathroom or how you can get out of bed or perhaps how you can manage to move a cup of coffee from one side of the room to the other.
First, we focus on practical solutions that give opportunity for clients to again feel a sense of independence, self-responsibility and that they are safe in that home environment. As individuals improve, we may return to see them through to a return to home responsibilities. This is the care of their home. In the case of one of my clients, she was responsible for cooking meals for her grandchildren. Likewise, we may work with a client and employer to effect a satisfactory return to work. Hence, as our professional philosophy and practice is focused on goals of independence, that is return of function for home, work and leisure, our inclusion, concurrent with other cited health professionals, should expedite that client's rehabilitation.
Second, treatment plans. The submission of treatment plans is welcomed as an intent to ensure accountability. However, as OSOT has asserted, this accountability should extend to all regulated health professionals and other service providers. I think that Ms Woodward has alluded to a situation where there can be abuse of the system and use of moneys with other service providers if there's not a rationale.
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In rehabilitation case management we provide an individualized rehab plan and services which are based on the treatment plans provided by rehab team members, and these assist with providing direction to the client's rehabilitation and therefore increase a proactive and effective approach to management of the file and coordination of timely progress reports. I think there is a variety of standards at the moment, and Mr Sampson's comment about accreditation may address some of that. As far as having timely progress reports, I think we are all accountable for where that client is in the system.
Rehabilitation's ultimate goal, and to feel that rehabilitation is complete and the insurer's focus, is a return to work or at least to pre-accident activity. With case management, liaison with the employer is established early. OT as well may play an integral part, and this will be reflected in their treatment plan. These links to pre-accident status and the real world avoid delays and the client perhaps developing a sense of being a patient, versus person status. I like working with physiotherapy clinics that graduate clients into community fitness programs; you stop seeing yourself as a patient who is essentially sometimes a victim, and this makes a difference.
In the north, in Thunder Bay and other small towns where independent adjusters provide service to large parent companies based a distance away -- I might mention that several insurance companies have closed their offices here and we must work through their head offices in Ottawa, Montreal, Kitchener or Toronto -- it is unclear in the draft legislation if these adjusters will be able to approve quickly a timely and reasonable treatment plan or service, or will this yet be another delay in the initiating of appropriate intervention for a client?
Third, designated assessment centres, their role in treatment approval. We agree with OSOT's position that in a DAC's review of a treatment plan, should there be a dispute, it must be a peer review so the expertise of that specific profession be brought to the evaluation. However, if treatment plans from each team member include time lines and rationale for the treatment, the adjuster should not find it difficult to evaluate as to its inherent value for the dollar, and therefore give approval. However, it is not clear how and/or the specific basis on which the DAC will be used at this fairly early stage to review treatment plans, and what will the turnaround time be for that review and approval process? During this delay, what is the program status of the client?
Fourth, reduction in benefits. I'm going to echo some of the comments of previous speakers. Certainly the expectation of the insured and the ever-increasing benefits available prior to this new legislation could often negate motivation and resolution in rehabilitation. For people who were in rather awkward job situations, sometimes there is not the incentive to return, or do they welcome that opportunity to resume normal activities if there have been burdens and responsibilities that they were not enjoying at that time? The removal of non-earner benefits we also see as helpful in motivating people to a return to normal activities.
While the cap of $75,000 for non-catastrophic injuries is sufficient in most cases, we would put before you for consideration and/or clarification -- Mr Sampson, I did listen very hard to your comments about the north but I do worry too that that may come back in our premiums -- that between the regular guys and catastrophic injuries there are what I would like to call complex injuries. They require an ongoing multiplicity of services for resolution, for example the soft-tissue injury or minor fracture where concurrent factors lead to post-traumatic stress, depression or chronic pain. I can cite situations where the individual was there and seeing perhaps another person involved in the accident who was critically injured, and their own injuries are not by any means catastrophic, but it certainly leaves a great many other things hanging in the balance. I've just recently gone through a lot of time and effort, and so has the insurer, with a client for whom anger and depression are such large, large components that with four different individual, independent assessments, three of the specialists said there is a requirement for psychiatric intervention because it is impeding physical recovery. And there will be times where the $75,000 may not be rigidly applied and we hope that will be considered.
With a lack of required specialized services readily at hand for assessment or treatment sometimes in our northern geographic catchment area, we may be faced with longer accident benefit coverage as clients wait for these services. I've had a client who waited eight or nine months just on a consultation, and that's not faulting even the system, it's just a fact of life that if you only have one neurosurgeon you only have one neurosurgeon. In the meantime, if they're referred to another centre, we've got those added costs of transportation.
Time delays do cost in ongoing benefits, but they also cost in impetus towards resolution in rehabilitation. I think the previous speakers have mentioned the fact of accommodation, meals and so on. Also, very many times you are faced with having a travelling companion if that client is at risk in any way, whether it's cognitive impairment or is a juvenile.
In smaller northern communities, there's a need to acquire and then coordinate the multiple services associated with a given injury. As noted by the OSOT position statement, it's unclear whether the costs for case management service will be limited in duration or dollar caps or whether they are in fact a part of the $75,000.
For many in the north, hard work and independence in a sometimes unforgiving environment is a way of life. However, many of these individuals impaired by a motor vehicle accident may have limited aftercare. They're flown out of their community. Early intervention with a focused, goal-oriented treatment program is a mysterious maze in our health system when they're in a strange environment. For the first time, this very independent individual feels helpless and the loss of function may mean a very real loss of livelihood in our resource-based communities. Finding and arranging appropriate treatment expediently, return to that home community and to work is the role of the case manager, and we may act as a consistent reference point during this time.
We would ask that clarification be provided regarding the statement in the summary chart on page 7: "Case management -- insurer required to pay for case management related to the coordination of medical, rehabilitation or attendant care services."
I pose some questions below this: How will the need for case management be decided and when? Who will request and/or make this decision? What will the funding framework limitations be for this provision? Will there be a time limitation for case management? How will this be decided and by whom?
I've talked again about the stabilization of premiums, and we won't go into that again.
The definition of "catastrophic injuries," which is the fifth point, we have concern with it being based entirely on medical condition. The client must be evaluated in the context of the effect of the injury on function in home and vocational setting. I think one of my colleagues made mention of the fact that the loss of a small digit may be nothing to someone who's just having a close grip on a chainsaw at a later stage, but if you're a violinist, it is indeed catastrophic. So we may have to look at it in context.
I'll turn now to head injuries and our concern there, again relating to the Glasgow coma scale score 9 as being the predictor of functional impairment. This is neither practical nor accurate. Our experience has provided us with a number of examples and Dr Mountain alluded to those in the Fort Francis area, where you would be defied to decide who had the coma scale that would put them into the catastrophic area.
Education, return to work, behaviour and many secondary psychological issues have significantly affected lives. Someone may look fine but be disoriented. The impact upon physical, emotional, psychological, academic, social, avocational and vocational aspects of a person's life requires examination and input from a very wide team of professionals whose scope of practice is represented by each of the above problems.
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Another area where we've conferred with the department of Labour and WCB as well as the insurer -- and I think it is something to take stock of -- is return-to-work programs for these head-injured clients. Employers are naturally reticent and there's a need to clarify policies regarding the responsibilities of the insurer and those of the employer in this situational work placement. We've had unfortunate delays because of this.
Consideration of the involvement of family members: I think for any of you who have children, the very thought of having one of them impeded in their development by a head injury, you can imagine the effect it has on parents and how they handle that situation, or a spouse who has been the main breadwinner. So the effect on caregivers and support systems needs also to be addressed with respect to ever-increased services required.
Dr Mountain talked about the cost of flying out, and at the moment, we have very specialized tutoring services being flown to that area, we have physiotherapy, in relation to those cases. It's a pretty high ticket.
If a head-injured client is a juvenile or student and if they do not fit the current limited definition of "catastrophic," there are many family and education problems that may plague them for years, and these cannot be handled by our shrinking public system.
These are just some of our concerns about the acquired brain injured:
Litigation: As the legislation reintroduces the tort system, we as treatment professionals and case management consultants attempting to bring a client to his or her ultimate goal in rehabilitation find ourselves caught in this adversarial situation. The relationship with the client may become nebulous for whom we've had support and rapport and all of a sudden, there's a: "Look at you. Oh, you're trying to get me back to work," and the lawyer is saying: "Wait. Don't get better too fast because we've got to get our case in order." There's so much that the client is capable of doing and it makes them feel better about themselves, and we don't want to see a system that removes that sense of "I'm getting better."
Will the legislation be reviewed to be more specific and provide guidelines for a system of communication between the insurance and legal communities?
At a time when publicly funded services are being reduced and cost control is essential in the insurance industry, clients need to know that if they require legal counsel or direction, they are not entering an either/or but perhaps a both/and arena, an arena where there is some map indicating the avenues of communication between the parties involved, and the client may continue to focus on a return to their normal living lifestyle.
Any relationships which diminish trust, motivation and self-responsible actions on the part of the client are detrimental to rehabilitation. When there is litigation in progress, simultaneous with administration of accident benefits, there is a recognizable impact on rehabilitation.
I suggest perhaps the use of a case conference process, which is I think what Ms Woodward was relating to, where all parties are together, and education of the clients. I don't think we think, as we keep changing legislative acts concerning insurance -- I don't think we realize that the average person on the street gets no education about their roles, their responsibilities and their rights. They should be educated by both the insurer and the lawyer, and then they may act in a way that is in their best interests, but also so we don't end up in such an adversarial position. With stated guidelines, that may be helpful to all team players including myself who feels I'm suddenly caught between that legal and insurance community. I appreciate your patience at the end of a very, very long morning and thank you again for this opportunity.
The Chair: Thank you, Ms Gardiner. We do have time for a very brief question period. Perhaps we could ask for one minute in that area.
Mr Spina: I just wanted to draw your attention to a point. You had asked a question about whether the case management expenses were included in the $75,000 or not. They're supposed to be excluded according to the current draft.
Ms Gardiner: Okay. I did read through the draft and I did not manage to see that as being specific, so perhaps -- I think there's room for just rewording.
Mr Spina: Sure. On page 4, you said it's not clear how or on what basis the DAC would be use to review treatment plans and I guess my only question was if, with the time commitment, what would be your ideal scenario? Should the DAC come in right at the very beginning before a treatment plan, or when a treatment plan is created, or should there be a time frame based on either a treatment level or a time frame like five weeks or something like that?
Ms Gardiner: I think what I'm really saying is that perhaps the DAC won't be needed at that point. I think the DAC's role is going to be more important and is going to come up more often, not in that first bit of treatment, because usually if there's rationale, the adjustor is happy with that. But if the adjustor had expected that six weeks of treatment might be adequate, I think it is incumbent on the treatment provider, as Markus has said, to make sure their rationale and their time lines are very explicit so that the adjustor won't have to turn it over to the DAC, because I can foresee four to six weeks while they're getting a turnaround on that. My concern is what happens in that time.
The Chair: Thank you very much. Can we move to the opposition? Miss Castrilli
Ms Castrilli: Thank you very much, Miss Gardiner. It's good to have a case manager. We haven't had many of them before us to explain to us what their work entails. I really have a longer question which I may ask you to comment on perhaps later, separately, but let me just ask a brief one. You indicated, and the draft legislation in fact says, that insurance companies will be responsible for paying case management fees. As I read the legislation, though, that is a benefit that must be applied for by the insured and that the insurer either then pays or informs the reasons why that cost won't be covered. Were you aware of that?
Ms Gardiner: Yes.
Ms Castrilli: It's not automatic. I mean, there is a --
Ms Gardiner: I'm quite aware that it is not automatic and I am also saying, at this point, that is why I would like to see some more specific wording. I would also like to know the criteria on which the insurer will be able to refuse or approve the case management, because a lot of cases, unfortunately, if we wait even four months, hang on for a year where they might have been cleared up in four or five months.
Ms Castrilli: I'd be interested, Mr Chair, in having Miss Gardiner's comments -- the questions that she asked around case management -- you've posed some questions. I'd really be interested in your thoughts on how to answer those question. I know we can't do it now but if, perhaps, you could forward us some additional materials on that score, it would be really helpful.
Ms Gardiner: Certainly. I can --
The Chair: We would see that it was distributed to the members of the committee, that being the case.
Ms Gardiner: That's fine. I can forward it through perhaps --
The Chair: To the clerk, if you would.
Ms Gardiner: To the clerk. Okay.
Mr Kormos: Miss Gardiner, the $75,000 cap for the non-catastrophically injured victim: there just seems to be no rhyme nor reason. The impression one gets from you is that most of those people won't be affected by the cap because most of the rehab program for a non-catastrophic will fall below that cap.
Ms Gardiner: Yes.
Mr Kormos: But the fact remains that the cap will exclude the perhaps rare, or even not so rare, but still in the smaller numbers of persons who don't pass the catastrophically injured threshold, but who none the less have injuries serious enough to warrant maybe $95,000 or $100,000 or $110,000 worth of rehab without which they're never going to be restored to as close to a position as possible as they were before the accident. There seems to be no real logic, then, for having this two-tiered system. Is there any that you can think of from the insurer's point of view?
Ms Gardiner: What our professional group has said is that, for the most part, yes, $75,000 is going to be quite adequate. But I think that if we reach that threshold, I would hope that individual insurers and companies would recognize that they are going to have to perhaps, not necessarily in the legislation, indicate a willingness to review on an individual basis.
Mr Kormos: You see insurers as far more benign about this than I ever have. I think if the legislation that's there is going to permit them to impose that cap, by God, they're going to impose the cap because that's a dollar-and-cents industry.
Ms Gardiner: Well, then that again is something that should be reviewed.
Mr Sampson: Why is that cap there?
The Chair: Thank you very much, Miss Gardiner.
Ms Gardiner: Well, I think there has to be some cap. Thank you.
The Chair: We appreciate your input very much and it will be considered in our deliberations, I can assure you. That brings to a close our morning session. I would remind the committee that we have a 12 o'clock checkout and that has been extended, I understand, until 1 o'clock. You can leave your bags in this room, those of us who are departing this evening. This committee will stand in recess, then, until 1:30 this afternoon. Thank you very much.
The committee recessed from 1202 to 1334.
MARVIN MOHRING
The Chair: If we could call the meeting back to order, we have the pleasure now to hear from Marvin Mohring. Welcome to the committee. We have 20 minutes together. You can start with your presentation and we will finish off with questions. Please begin whenever you're ready.
Mr Marvin Mohring: Good afternoon. My name is Marvin Mohring. I'm the advocacy chairperson with the Ontario Massage Therapist Association. I'm a registered massage therapist and kinesiologist working and living in northwestern Ontario. I've had the opportunity to work with automobile accident victims with my two disciplines since 1991. I'm here on behalf of the registered massage therapists in the northwest as well as the rest of Ontario.
I would like to thank you for the opportunity to address the committee on such an important issue. I am aware the committee has heard the presentation from the Ontario Massage Therapist Association and recognize the need to include registered massage therapists in the definition of "health practitioner." I wanted to present today to provide a perspective based on my clinical experience.
The draft legislation has good balance and I'm supportive of its content. As a registered massage therapist, I regularly treat people injured in motor vehicle accidents. Under the Massage Therapy Act, 1991, my records must include a copy of a treatment plan. It has been my experience that in creating a treatment plan with the injured individual, the outcomes or goals are known and are realistic to each of the involved parties. This includes the injured individual, the therapist and the third-party payer. This information clearly communicates the direction of the treatment, including the expected time frame. However, my professional opinion is included in this process. To have someone else make a treatment plan would create delays in treatment as well as possible confusion in the administration of the treatment.
Based on my clinical experience, treatment plans serve as a measuring stick, demonstrating the effectiveness or ineffectiveness of my treatment. When the goals have been reached, I conclude treatment. If the goals are not being achieved, I will refer the individual to a suitable health care professional. Cost-effective rehabilitation may involve an individual or a team of therapists from different disciplines in different locations.
I've included a letter from Dr John L. Remus. Dr Remus is an orthopaedic, traumatic and reconstructive surgeon extensively involved throughout northwestern Ontario. He has seen the benefits of massage therapy. In his letter he outlines how early treatment, including massage therapy, benefits the injured individual, allowing early recovery and return to work. Obviously, the more rapid recoveries equate to lower rehabilitative costs.
Injured individuals must have access to the appropriate health care professionals in a timely fashion. Injured individuals must have access to registered massage therapists who are experts in providing assessment and treatment of the soft tissues and joints of the body. I urge the committee to include registered massage therapists in the definition of "health practitioner" in the auto insurance legislation.
I thank you for the opportunity to present my perspective as a registered massage therapist. If you have any questions, I'd be happy to answer them at this time.
The Chair: Thank you very much, Marvin. We have lots of time for questions. If we could start with the opposition, it will be a five-minute round of questions.
Mr Phillips: I'll begin and Mr Crozier, I'm sure, will have a question.
Just in terms of the growth and the need for your profession's services, I see you've been involved since 1991, I gather, with automotive accident victims. Have you found your profession's demands going up in the last three to four years?
Mr Mohring: I've been practicing massage therapy now for two years. In 1991, my experience with the auto insurance industry came through working as a kinesiologist. I've seen in that time massage therapy grow, as well as access to other forms of rehabilitation, because of increasing education, that role coming through the rehab counsellors as well as other health care practitioners gaining a better knowledge of what is out there and what the patient needs.
Mr Phillips: Just in terms of the growth and the demand, do you have any idea in this area of what has been happening over the last three or four years in terms of the needs for your types of services?
Mr Mohring: Massage therapy specifically?
Mr Phillips: Yes.
Mr Mohring: In terms of costs?
Mr Phillips: Well, demand and then I guess costs.
Mr Mohring: I believe the demand is growing.
Mr Phillips: You indicated in your presentation that you had a chance to review the legislation and are supportive of the content. A new element in the plan is to increase the access to the court system for victims. Have you any opinion on that aspect of it, one way or the other, and any advice for the committee on whether that's an aspect of the legislation that's, in your mind, useful or of concern?
Mr Mohring: I'm not very familiar with that aspect of it.
Mr Phillips: We've had some other presenters today expressing at least a reservation about the possibility of a conflict that they find themselves in where they are attempting to assist the individual very quickly to get back to as close to normal as possible, but at the same time when that individual may be attempting to get some redress through the courts, they felt almost a bit of a conflict, that the faster they were able to assist them, there was a concern that the less opportunity they had for access for settlements in the courts. In your experience, do you have any opinion on that one way or the other?
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Mr Mohring: My opinion in that area is, if quick access to rehabilitation is impaired because of tie-ups in the courts, I believe the person physically will not benefit as quickly as they should. Just because things are tied up in the courts doesn't mean they can't have rehabilitation services.
Mr Phillips: Just for my information, how would people get in touch with you? Where would most of your clients be referred to you from? Who would be referring them to you?
Mr Mohring: As a health care practitioner, I am available. I'm in the Yellow Pages. I've done letters of introduction to a variety of health care practitioners, just letting them know that I'm there, whether or not people choose to refer to me. People can call me off the street.
Mr Phillips: But for accident victims, would it be normal that the victim would phone you, or would it be someone who is acting on their behalf phoning you?
Mr Mohring: Whether they have, through their primary practitioner, their family physician, or whether it be the individual initially assessing them, in whatever capacity it might be, whether it be the claims adjuster or the rehab counsellor, they may refer or suggest.
Mr Phillips: What percentage would just sort of find you out as opposed to being referred to you?
Mr Mohring: Pardon me?
Mr Phillips: What per cent of the people, your clients, accident victims, would sort of find you out versus having been referred to you?
Mr Mohring: That's tough to say for myself; probably 20%.
Mr Phillips: That would sort of phone you and say, "I see you do this sort of thing." Fine.
Mr Mohring: Excuse me, are you talking about auto insurance?
Mr Phillips: Yes.
Mr Mohring: Okay, yes, all right.
Mr Kormos: As you know, you're not alone in terms of coming to these hearings and representing your particular profession -- and I'm not being in any way disparaging -- basically saying "me too." Occupational therapists were represented here this morning in two presentations, and they were essentially saying "me too." The Ontario Chiropractic Association, the local area association, is going to be on after you. I want to put this in context. You're aware of -- and I trust it's eroding now -- the long-time almost feud, vendetta between the traditional medical profession -- physicians -- and chiropractic. Far be it from me to pass judgement, but it seems that physicians were very jealous of their bailiwick and there was a lot of resistance to chiropractic, but again, it also seems that's eroding.
So the question is, how should an accident victim be dealt with in terms of who should make the decision that a massage therapist should be a part of the treatment protocol; who should make the decision that an occupational therapist should be part of the treatment protocol; a chiropractor? Obviously, I'm getting down to the issue of case management, of rehab management. What are your views on that? Do you see yourself as part of a team? Do you see yourself as a diagnostic person in the first instance, you and other massage therapists? Put that in context, please.
Mr Mohring: I think you'd have to look at that as an individual case. If someone comes injured in an auto accident, head injury, you're dealing with a whole different rehabilitation compared to just a soft-tissue injury. So each of the 23 regulated health professions, we each have some overlay with others. Some may be more suited to an individual case than others. So individual examination is where's it essential, and whether it be referral to -- I'm not answering your question.
Mr Kormos: Yes, you are.
Mr Mohring: -- referral to a physiotherapist, referral to an occupational therapist, the degree of overlap between them, one deals mainly with physical rehabilitation, another facilitates lifestyle.
Mr Kormos: Okay, but who should be making the decisions about whether or not an injured person sees a massage therapist? Should the insurance company be making that decision? Should the victim herself or himself? Should a doctor be supervising the whole realm of treatment? Should a case manager, like a rehab management operation, be doing it?
Mr Mohring: I don't believe one person should be responsible for that. Who in particular, I'm not sure.
Mr Kormos: How would you see it developing? How do you see yourself interacting? Because we're assuming, and also from what you've said about the different roles that physiotherapists, OTs, what have you, have to play, that we're talking about a team approach, right? There's a whole lot of concern that if the insurance industry monitors that, their goal -- I appreciate not for all because not all insurance companies are equal, not by a long shot and I trust that's your experience as well -- for a whole lot of them their goal is to pay out as little money as possible, right? They're liable to dismiss massage therapy and OT and physiotherapy as irrelevant, redundant, superfluous. Can we trust insurance companies to make those decisions then, in view of the fact that their interest is to pay out as little money as possible?
Mr Mohring: I would say no.
Mr Kormos: In your view then, what would your ideal be? If you were working as part of a team, where would you feel most comfortable working? If your sole goal is to see an injured victim recover as quickly as possible and as much as possible, where does the leadership in that team come from? Then again, I don't know the answer, all right?
Mr Mohring: I don't think one individual can be responsible for that.
Mr Kormos: How do you develop that then if it's more than one individual?
Mr Mohring: The best scenario is to have that team, to have a team responsible for that.
The Chair: Thank you very much, Mr Kormos.
Mr Kormos: Are you sure that was all of my time, Chair?
The Chair: Actually, you got an extra minute. You got six minutes.
Mr Tim Hudak (Niagara South): He owes one.
The Chair: I'll get that one back.
Mr Kormos: I'm sure you will.
The Chair: If we can go over to the government side.
Mr Sampson: Thank you for your presentation. I'm going to pick up on the theme of the questioning from Mr Phillips and Mr Kormos. I think it will be very helpful for this committee if we kind of follow the sequence of events, if I can, that an injured accident victim might go through to use your services. When would you normally see an accident victim come to you in regard to how long after an accident, on average?
Mr Mohring: My experience has been that I'm typically the tail end of treatment.
Mr Sampson: Is that eight weeks or four weeks or 10 months?
Mr Mohring: Actually, for some cases, it's over a year; for some, it's as little as two months.
Mr Sampson: Clearly, in the former category, if it's over a year, somebody is referring them to you, are they not?
Mr Mohring: True, yes.
Mr Sampson: Would that generally be a case manager?
Mr Mohring: No. I've received referrals from many others, like the health care practitioners, other than just the rehab counsellors.
Mr Sampson: What about the situation where -- did you say two months or one month, somebody would see you?
Mr Mohring: Yes.
Mr Sampson: In that particular situation, are they walking in off the street, so to speak, or are they being referred to you in that case?
Mr Mohring: No. Through ongoing education to other health care practitioners -- this is my own practice I'm talking about because I haven't been around that long -- I've gained the confidence of people to refer early when treatment is most effective.
Mr Sampson: But clearly, somebody's not getting involved in an accident and their second thought is, "Gee, I better go to a massage therapist to get some treatment." There is some intervening process, whether that be another practitioner or a trip to a case manager or a visitation to a lawyer's office. Somebody else is sort of in between the time of the accident and the time somebody comes to see you, are they generally not?
Mr Mohring: Usually a family physician is one of the people they'll see first.
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Mr Sampson: When somebody comes in your door, how do you deal with the establishment of a treatment plan? What are you doing and what do you advise (a) the insured and (b) the insurance company in regard to your treatments?
Mr Mohring: What I typically do is that because I work by myself, people have to contact me. If it's an insurance case, I will phone the adjuster, the rehab counsellor, first, find out a little background, obtain permission for treatment, just to make sure that I know I'll get paid. The person will come in --
Mr Sampson: Sorry, I'm just going to stop you there. You say you obtain approval from somebody in the insurance industry before you proceed. What are you telling them? What is encouraging them to say, "Yes, proceed with the massage therapy"?
Mr Mohring: I just want to make them aware because so far my experience is that the communication between the adjusters or whoever is handling the case and the massage therapist or whatever health care practitioner it is -- there's no communication link.
Mr Sampson: So somebody may not have informed the insurance company that they've given you a ring, basically.
Mr Mohring: Correct.
Mr Sampson: You're just making sure the insurance company is aware of the fact that there may well be a massage therapist bill coming in the mail.
Mr Mohring: Yes.
Mr Sampson: But are you establishing a treatment? You clearly can't establish a treatment plan.
Mr Mohring: No, that's prior to the person showing up at my office. Once they come to my office, that's when I will begin my assessment and establish a treatment plan.
Mr Sampson: How much time would you require to establish a treatment plan? Can you do that after one visit, two visits, three visits? How will you know?
Mr Mohring: Usually after my first visit, I will know some of the larger areas, more general targets, and then within the first two or three treatments, I typically know.
Mr Sampson: When you establish a treatment plan, do you lay out goal posts --
Mr Mohring: Oh, yes.
Mr Sampson: -- to say: "Listen, this is what I'm going to be doing over the next four weeks. This is what you can expect as an outcome after four weeks"? Do you lay that out to the insured as well as to the adjuster or the insurance company?
Mr Mohring: Yes, I do. I include that in my initial report, and like I said, I use that as a measuring stick.
Mr Sampson: What happens if the recovery falls short of that measuring stick? What do you then do and how soon would you deal with that matter?
Mr Mohring: On those subgoals, smaller goals, if I'm not reaching where I want to go -- if I still see improvement and it's lasting improvement, that's a judgement I make. Maybe my time frame was too short. However, if they've plateaued and they're not recovering at all, then it's time to refer on. I have to refer out. I can't necessarily deal with that situation. Initially, it may have appeared that I could, but if I realize I can't, then that's when it's referred on.
Mr Sampson: Have you ever had any patients DACed, as they say, and gone to the designated assessment centres?
Mr Mohring: No.
The Chair: I think that concludes our time. Thank you very much, Mr Mohring, for your presentation. It's very helpful to have that kind of insight into the committee's deliberations. We appreciate your presence today.
If I can enter a small piece of business, I understand that our 9 o'clock deputant, Smith Brokers Ltd, had some difficulties this morning but will be able to present this afternoon. We need a unanimous motion of the committee to allow that to take place.
Mr Arnott: So moved.
The Chair: Any dissenting votes? Thank you very much. That can take place.
Mrs McLeod: Mr Chair, I might indicate that it would have to be a verbal presentation if that would meet with the concurrence of the committee.
The Chair: We don't mind verbal communications, I'm sure.
There is another small piece of business. I understand we also need a unanimous decision. Apparently the substitution slip for the member of the third party was late in arriving. Would there be a motion for unanimous consent to have it apply from 9 am for this morning?
Mrs Marland: Does that mean that if we don't agree, we can wipe out everything he said this morning?
The Chair: I don't think it has anything to do with input.
Mr Sampson: Mr Chairman, I'd be happy to move that.
The Chair: Is there unanimous consent for the motion? Thank you very much.
Mr Spina: We've accepted you, Peter.
Mr Kormos: I've been building a reputation. I don't want to destroy it in a matter of minutes.
THUNDER BAY AND DISTRICT CHIROPRACTIC SOCIETY
The Chair: We now welcome the Thunder Bay and District Chiropractic Society, a regional society Ontario Chiropractic Association, Dr Stuart Brimmell.
Dr Stuart Brimmell: With me here is our president, Dr Bill McCallum.
The Chair: Welcome to the standing committee on finance and economic affairs. We have 20 minutes together and I understand you have a presentation which is being distributed. We look forward to our time together. Please proceed.
Dr Bill McCallum: I am the president. I'm here to support Stuart today. He's more involved in this type of matter than myself. On behalf of the society, I'd like to thank you for the opportunity to present.
Stuart's credentials, just before you get started: He's a member of our board locally, of the society; in practice seven years now, and he's cared for many motor vehicle accidents over the past seven years on a daily basis. He's also an alternative chiropractic examiner for the local DAC, with our principal assessor being Dr Peter MacDonald locally. He's a member of the ethics and disciplinary committee for the OCA and also an independent chiropractic examiner for insurance claims for the OCA. He's quite qualified and he's going to present this afternoon, and I'll be here to support him.
Dr Brimmell: Today I essentially have two key points that I'd like to address. I'm going to read through most of it, of course, and I'll attempt to make it as interesting and entertaining as possible. However, please, I don't want anybody yelling out, "Hurry, hurry, hard." None of that stuff.
Mrs McLeod: There are no curlers in the audience.
Dr Brimmell: No curlers?
Mrs McLeod: No.
Dr Brimmell: Our society wishes to thank the standing committee for this opportunity to make a presentation. Like I said, I'm going to address two key points that the society feels are not dealt with adequately under the health care benefits section of the draft legislation. Point 1 is the importance of designated assessment centres being required by law to have peer review, and point 2 is the importance of patients having the guarantee of receiving reasonable and necessary acute care without challenge from their insurers and threat of non-payment. These things can cause distress to patients when they least need it, causing much suffering.
Under "Peer Review," locally, the Behavioural Science Centre in Thunder Bay is not only a designated assessment centre under the auto insurance legislation, but it's also the regional evaluation centre for the Workers' Compensation Board. In both capacities there have been cases where chiropractic patients have been assessed by medical specialists and told completely inappropriately, according to chiropractic management goals and principles, that they should not be receiving chiropractic treatment.
The new legislation should make it quite clear that assessments of health care services and treatment plans in designated assessment centres, or DACs as we know them, should be made by a person or a team including a person from the same professional background as the insured's chosen health care practitioner. This is not only important for the individual patient, but also for the wider goal of fostering and establishing interprofessional understanding and cooperation.
The local society supports the submission of the Ontario Chiropractic Association that there should be a new section 60 in the statutory accident benefits schedule as follows, regarding my point 1:
"Who may make assessments for health care benefits
"60. Where an assessment is made for the purposes of determining whether all or any of the health care services given or proposed to be given by a health practitioner are reasonable and necessary and payable by the insurer, then:
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"(a) If the assessment is made by one person, that person shall be a health practitioner from the same health profession as the health practitioner whose services are being assessed; and
"(b) If the assessment is made by more than one person" -- at the DAC -- "one of those persons shall be a health practitioner from the same health profession as the health practitioner whose services are being assessed."
Under point 2 that I'd like to make this afternoon, under acute care, subsection 42(6) of the SABS: This is the provision of the draft legislation that provides a patient with guaranteed acute care chiropractic and physiotherapy services. As drafted presently, it allows 15 treatments or treatment for six weeks after the accident, whichever comes first. After that the insurer can challenge whether the treatment is reasonable and necessary and stop payments. This means interrupting care for some patients until the chiropractic or physiotherapy care has been reviewed by the DAC.
To illustrate why this is unfair to patients, I give this example and comment from my own practice here in Thunder Bay. Assume I am consulted by a typical grade 2 or grade 3 whiplash injury patient as classified by the Quebec task force report, considerable pain and restricted range of motion, but a soft-tissue injury without bone fracture. For example, this is four weeks after the accident, after unsuccessful care from another health care professional.
My particular management -- and it's probably indicative of most chiropractors -- would typically include an initial consultation and examination and perhaps cervical X-rays, if they haven't already been taken, then treatment over a period of eight weeks on the following treatment frequency: five times weekly for two weeks, three times weekly for two weeks, one visit per week for each of four weeks. This is approximate, of course. My management would include activation as described in the Quebec task force report: use of manual techniques including joint manipulation, postural advice and instruction in exercise and encouragement of the patient to return to daily activities as soon as possible. The Quebec report confirms that there is better evidence for this management approach than any other, and I believe the Quebec recommendations have now been formally accepted by the Ontario Insurance Commission in a February 15, 1996, management guideline.
The cost of my eight weeks' management as specified above -- and this is accurate; you can see it broken down there -- total cost for that eight-week period is $623.75, of which the Ontario health insurance plan pays out $225 and the insurer pays out $495.
Is it right that the insurer should be able to challenge this course of care, which is both necessary and cost-effective, without a doubt, after two weeks, ie, six weeks after the accident?
Some cases will not resolve that easily. The patient may have pre-existing injuries or structural changes in the cervical spine. Partway through his or her recovery under my treatment the patient may aggravate the injuries through some activity. Response may be slower because of particular stresses in the patient's life. These are all factors we have to contend with day in and day out in trying to help a patient achieve their health. For these and other good clinical reasons, it may be necessary for the treatment to be prolonged, unfortunately.
If the insurer challenges this and asks for my care to be reviewed at a DAC, who should carry the cost until the DAC centre reports? Under the law as drafted, it would be the patient. The society believes it should be the insurer, subject to right of recovery from the patient, and I'll clarify this. In other words, it is a right that the insurer should be able to ask for a treatment plan, that's fine and dandy, and have access to a speedy dispute resolution in a designated assessment centre if there is a prospect of unnecessary treatment. However, the insurer should not have the right to simply stop paying when it sends a case for review.
For these reasons, the society supports the following recommended amended subsection 42(6), as already submitted by the OCA. Recommendation 2 then would be: Amend subsection 42(6) dealing with interim expenses for physiotherapy and chiropractic treatment pending approval of a treatment plan or decision by the DAC to read:
"Minimum expense for physiotherapy and chiropractic treatments
"(6) Despite subsections (1) and (5), if the insured person submits a treatment plan for services rendered by a physiotherapist or chiropractor, the insurer shall pay:
"(a) the incurred costs for services rendered during the first eight weeks" -- not six; we're recommending eight weeks -- "of treatment by either or both of a physiotherapist or a chiropractor."
The insured would have potentially eight weeks of chiropractic and eight weeks of physiotherapy, not six weeks including both. There would be more leeway there.
"(b) Where the insurer disputes any of the services and the matter is referred to a designated assessment centre, the incurred costs for the services rendered on visits to a chiropractor or a physiotherapist after eight weeks but before receipt of the determination from the designated assessment centre, provided that these costs shall be recoverable from the insured by the insurer if, in the opinion of the person or persons who conduct the assessment, the services were not reasonable and necessary."
So if the DAC assessor, the chiropractor DAC assessor, determines that the treatment wasn't necessary, then at that time it's the responsibility of the patient to pay back the money.
Finally, in conclusion, health care and rehabilitation benefits all need to have proper controls, no doubt. The society has tried to show in this submission, however, that necessary acute care services are not expensive and are subject to overcontrol in the draft legislation. The real cost concerns for insurers in health care are actually high-tech, multidisciplinary rehab facilities that institute multiple concurrent forms of care at an early stage, and individual practitioners who treat for many months or even years regardless of treatment results or outcomes.
In legislation that creates a fair balance between the rights of insurers and patients, there should be adequate guarantees for necessary acute care services. The provision for these should not be confused with other costs involved.
The Chair: Thank you very much. We have about five minutes each for questions, and we could start with the third party. Mr Kormos, you get four.
Mr Kormos: We'll put that in the bank. We'll just put it on the ledger sheet, okay? Some time next year.
This whole debate can fall into a reductio ad absurdum about who's the gatekeeper. One of the problems with no-fault, as experienced, in my view, from 1968 onward, has been that at the end of the day, if the insurance company shuts off the funds, the victim, the injured party, is left high and dry.
I appreciate your proposal, but what about the fact that we have to give some credence to the legitimacy of the health care professionals who diagnose and then develop treatment programs? Again, most of the health care professions are highly regulated. Others would like to be more regulated so as to be included in the sphere of practitioners.
Why simply this? Why shouldn't it be a requirement that if the insurer disputes the validity of a particular treatment protocol or regimen, the onus is upon them to appeal to the Ontario Insurance Commission for an order that that treatment regimen be terminated? Why should we risk the long-term welfare, health, of an injured victim with what could be very artificial time lines? I appreciate you've expanded it here in your proposal, as I understand it. But surely there must be some cases where even that would not be appropriate. Why do we disregard your qualifications, the qualifications of other people who've appeared here today, like massage therapists, occupational therapists, others, physiotherapists? Why isn't the onus on the insurer to dispute the validity of the health care regimen when it's being provided by any numbers of the people who are recognized? I tend to agree that massage therapists, OTs and the others who have so far been excluded should be recognized as practitioners for the purpose of providing services. Wouldn't that really be a more legitimate and useful way of doing it and protect the interests of the injured victim?
Dr Brimmell: As far as I understand, the insurer is responsible if they see that there might be a case of inappropriate treatment. They are responsible for sending the patient to a DAC. They are responsible for that.
Mr Kormos: But you see, the problem is that the insurer can be appealed from by an appeal to OIC for mediation arbitration. But that can end up being after the fact, after there's been an interruption, and even a DAC in itself need not necessarily be the final word.
Dr Brimmell: It never is, no. But at least it gives some kind of control over whether the treatment's appropriate or it isn't. I see no problem whatsoever with the insurance company calling for a DAC assessment. However, it's the nature of the assessment that's the important issue. It's whether or not the insured is going to get an adequate call by whoever's doing the assessment.
Mr Kormos: I know I've got 30 seconds left, Chair, at least, if not 60. Who should be providing the leadership in terms of coordinating and planning a treatment regimen and considering all the disciplines that are available to an injured person?
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Dr Brimmell: Initially, it should be the job of the first practitioner that the patient has seen. We're trained in school to be able to decide whether or not a patient should be receiving treatment A, treatment B, treatment C, and we can designate an initial treatment plan. And sure enough, nobody's perfect. If that initial treatment plan doesn't fare out for the patient, then it's time to have another party look at that patient's treatment plan.
Mr Kormos: Should it be multidisciplinary? Should there be a requirement that you and the massage therapist and the OT and the physician coordinate your efforts and communicate with each other?
Dr Brimmell: Not initially. I think it's the responsibility of the first person that patient wants to bring his health care services to. Then whoever that be, be it a chiropractor or whoever, should be able to decide what kind of treatment plan to set up for the patient.
Mr Kormos: Okay. Thank you kindly.
Dr Brimmell: Then after that, failing that, then more of a multi -- after. If one part doesn't work out, then refer out and try to get a different opinion from somebody else.
Mr Kormos: Lloyd Taylor would want me to say hello.
Dr Brimmell: Great. Thank you.
The Chair: Can we move to the government side, please.
Mr Sampson: Thank you for your presentation. I just want to get some clarification. Your example on page 3 of your submission shows columns for OHIP and insurer. Does this mean that in this particular situation you'd be billing OHIP $225.75?
Dr Brimmell: Have to, by law.
Mr Sampson: Okay. Second item. Your example of what happens between the time that somebody is allocated or destined to go to a DAC and the time when a DAC assessment comes out: You say it would be the insured who would sort of underwrite that risk. Insurance companies would pay, but if the DAC came against the insured, then it's the insured who would be expected to pay back the insurance company. We've actually had somebody in our Toronto hearings suggest it should be the treatment provider, since it's the treatment provider who determined it was necessary to begin with. How do you feel about that?
Dr Brimmell: I think that's not far off base at all. I think patients trust what the health care provider is telling them, and if the doctor doesn't come through for the patient, maybe there should be some onus on the doctor as well.
Mr Sampson: Or the chiropractor who said it's necessary treatment. You go to the DAC and the DAC says, "No, I'm sorry, it's not necessary treatment." Do you think the chiropractor should be obligated to refund that money to the insurance company?
Dr Brimmell: I think we should consider that. I'm not saying yes or no, but we should look into that, because, yes, if I were a patient, I'd be pretty ticked off -- pardon my use of language, but --
Mr Kormos: I know what you were thinking when you said that.
Dr Brimmell: I would be upset. I put faith and trust in that chiropractor to give me advice, and I'd be upset if I were a patient and I'd go back to the chiropractor and I'd say, "Hey, look, you told me this was necessary treatment and they're coming back and saying it's not." But it doesn't always necessarily mean that the DAC is right. The DAC might have made an incorrect evaluation of the patient too. So there's grey area, but there is validity to raising that issue, for sure, and the onus could also be placed on the treating practitioner for recovery of some of that cost. If I were a patient, I'd go back and say: "Look, Doc, this is your fault too. Let's split the difference."
Mr Sampson: Yes, although I think the suggestions from the Toronto hearings were that there'd be no splitting the difference, it would be basically a receivable that would be carried by the practitioner until the DAC results were determined and therein would determine whether or not the receivable was paid or written off.
Mrs Marland: I'd like to turn to page 3, at the top, where you have the list of fees. I guess when I first glanced at it, I was following you through the rest of your brief and I glanced at it quickly and I thought that the total fee was $623 and the OHIP portion of it was $225, but that's not correct, is it?
Dr Brimmell: Is that not adding up?
Mrs Marland: No, I haven't added it up. But is the OHIP a portion of the total?
Dr Brimmell: Yes, it is.
Mrs Marland: And the $495 is the balance.
Dr Brimmell: Maybe that's not totalling up, is it? No. Okay, it's not totalling up. Yes, there's a typo there, of course. Thank you for bringing that to our attention. The OHIP portion plus the insurer portion should be a total of, it looks like, over $700 probably.
Mrs Marland: The OHIP column and the insurer column should total your reimbursement in this case. I realize this is only an example, but OHIP and the insurer pay your fee totally.
Dr Brimmell: Yes, from two different sources under this situation.
Mrs Marland: Just to really put the cat among the pigeons, how did OHIP ever get involved in paying this? Do you know the history of that?
Dr Brimmell: I think the year was 1970, if I'm correct --
Mrs Marland: No, not in paying chiropractic fees. I should tell you that I'm one of those people who felt the chiropractic approach to medicine should have been covered long before it was. I know that originally OHIP only covered a portion of the fee. My question in this instance is about the fact that OHIP is paying any of it when it's a claim for a motor vehicle accident.
Dr Brimmell: As far as I know, in terms of how the law is written, every possible payment other than insurance has to be used first. Once all that is exhausted, those portions are transferred over to the insurance companies. It's written by law that we have to bill the other health plan first before we can start to bill the insurance company. A patient has $220 of OHIP coverage in a year, less the social contract. Once that $220 is used up, the balance of that money is transferred over to the insurance companies afterwards. As far as I know, it's law that it has to be done that way.
Dr McCallum: I know where you're getting it. I've had patients, actually, who complain about that, especially if they're under regular care and they have that OHIP to use on their own, outside the accident time. They're saying: "Why am I using up my OHIP, why am I using up my extended health care, when it's supposed to be covered by an insurance policy for the accident? This is no-fault insurance." They'll use up all of that and then, say, for the next eight months of the year, if they want to come in and get adjusted on a regular basis, they're paying out of their own pocket. They have no OHIP coverage.
Mrs Marland: That sounds unfair to me, from the standpoint that I may already have been a patient because I have a precondition, and then afterwards I'm going to have to pay for it all myself.
Dr McCallum: Exactly. There was a time, I think before the no-fault came in, when patients actually would go to the insurance company and say, "Listen, I want to be paid the whole thing." And they were. I believe they were paid the whole insurance cost for the care so that their OHIP would be left after the acute care for the motor vehicle accident was covered.
Mr Phillips: I'm very intrigued by the top of page 3 too. "The report fee to insurers, say, $100": Just for my own information, what is that?
Dr Brimmell: The initial motor vehicle accident report we have to fill out is normally $50, and then on average, once a month usually, we'll send in a $15 report just as a progress report to the insurance company letting them know how the outcome of the treatment is going for the patient. So we threw in the initial $50 report plus four others.
Mr Phillips: So around $100 for reporting, and that gets to your $720 or so. I think the proposal is to stop OHIP from paying here and it'll all be on the insurance premium, I gather.
Dr Brimmell: We have heard that.
Mr Phillips: I think that is part of the proposal, and I gather that's another 2% or so increase in the premiums, but I gather from listening to you that you would support having OHIP removed from this schedule and having it all come from the insurance premiums.
Dr Brimmell: We support that, yes.
Mr Phillips: Okay. Just as an indication of other health professions with a similar little chart, would they have a similar OHIP number in here? It looks to me like a little more than a third of your fee comes from OHIP. Would that be similar for other health professions?
Dr McCallum: For the medical people, it's totally covered, isn't it?
Dr Brimmell: Yes. As far as physiotherapy is concerned, I don't know, but for medicine, it's totally covered. I can only speak for the chiropractic profession. We are different in the fact that our fee comes from two different sources under most situations, and I think that is unique to our profession.
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Dr McCallum: Are you aware of the Manga report that came out that talked --
Mr Phillips: I probably am. I'm not sure I've read it, though.
Dr McCallum: Basically, it was the cost-effectiveness of the care and the fact that --
Mr Phillips: So you normally would charge OHIP how much per visit?
Dr Brimmell: It's $9.65 for a regular treatment.
Mr Phillips: And when you're dealing with a case like this, you charge $25.65, is that right?
Dr Brimmell: It's the total fee: $9.65 from OHIP and $16 from the patient totals $25.65.
Mr Phillips: I mean if you were normally dealing with a non-accident, it would be the $25.65 they would pay.
Dr Brimmell: It's the same fee. We don't have two-tier billing, and that's something we should discuss too. In our profession, and I'm sure in others, there have been known instances of two-tier billing. A chiropractor might see it's an insurance claim and might increase his fees because of that. That's illegal in our profession. We do have peer review to handle situations like that. Of course it happens on occasion; it's rare, but it does happen. Our fee for treating a person who comes in after hurting themselves shovelling snow is the same fee for treating the patient who's been involved in a motor vehicle accident.
Mr Crozier: Thank you, gentlemen. Just to clarify this a little more, because there seems to be some confusion around it, prior to 1990 -- you were correct -- OHIP paid for any medical costs whether it be an accident, sickness or anything else. And then in 1990, the then government of the day chose to take that off the table and have the insurers -- or excuse me -- have OHIP -- now I'm not going to be able to clarify it -- have OHIP accept these costs but not be reimbursed for them, is what it was, as of 1990. And now the government is suggesting in this plan that those costs, at least to some extent, be reimbursed, about $100 million. Part of our concern is that the exercise we're going through is to reduce or stabilize insurance rates, yet in the plan we're looking at, in the draft legislation, there still may be an additional cost of about 2% for that.
Dr Brimmell: If I could just refer back to the Manga report, that report showed that using chiropractic services can save hundreds of millions of dollars annually. Even though utilizing the services is seen as increased costs -- your example was $100 million -- the ancillary cost savings in fewer sick days, with a quicker return to work, and fewer high-tech, higher-cost examinations, would be seen down the road.
Mr Crozier: And that was conducted by?
Dr Brimmell: Pran Manga, from the university of -- it was a report sanctioned by the Ontario government, the health -- I'm at a loss for words, but the Ontario health government sanctioned this report in 1993 or 1994, just a year or two back, and the results were tabled two years ago showing that chiropractic services greatly reduce costs to the overall system.
The Chair: Thank you very much. We appreciate you two gentlemen joining us today on behalf of the Thunder Bay and District Chiropractic Association for your input into our deliberations.
MATTHEWS AND ASSOCIATES
The Chair: We now welcome Matthews and Associates insurance, Mr David Leskowski. Welcome to the committee, sir.
Mr David Leskowski: Committee members, thank you for including public input in this process. This is a refreshing change from the style of the previous government.
I am sure that by now you have heard many varied opinions of how auto insurance in Ontario should work. I am also sure that most vocal have been the special-interest groups. My first request of this committee is for you to be diligent in your efforts to achieve a balance between all the special-interest groups and the interests of the majority of Ontario citizens, who may remain silent except for their comments in brokers' offices and on election day. I admit that insurance brokers do fall into the category of a special-interest group. Our income is derived from insurance premium commissions, and we obviously benefit financially from premium rate increases. I would like you to appreciate, however, that Ontario insurance brokers are encouraging you to take actions which will stabilize or reduce insurance rates.
Today I am hoping to relay to you the opinions and needs of Ontario's citizens. Brokers are on the front lines delivering insurance products and services, and we hear daily from consumers. We are also in continual contact with insurance companies, adjusters, appraisers, lawyers etc.
Finally, as you are aware, auto insurance affects not only those who drive vehicles; it affects the health care system, businesses and all taxpayers. Our client lists include corporations, municipalities and property owners. Auto insurance seems to affect almost everyone in one way or another.
The first general comment I would like to make is that there are always two views of insurance products and services: the before and the after. And here is where the challenge for the future of your plan will arise. At the same time that you hear from those who have had to draw upon the benefits of insurance coverages and now want insurance policies to take care of every problem in every situation, you will hear from those who have not had to use their insurance and whose only concerns are about the product's accessibility and cost. Generally, after an accident, the premium originally charged is an insignificant detail, but before an accident, it is everything.
It is no secret that although auto insurance benefits and coverages are of great concern to all Ontario citizens, it is the escalating cost of the premiums that consumers are presently focusing on. You have already been presented with the views of the IBAO, and I would to endorse the four points our association made: Auto insurance in Ontario must be fair, available, affordable and understandable. I would like to give you some of my thoughts on these topics.
First, regarding affordability, the draft legislation appears to be on the right track. Your proposals solve many of the problems caused by the ill-conceived Bill 164. While there are reductions in some basic benefits, additional coverages can be purchased. If there is any advice I can offer, it is to promote more public awareness of how auto insurance works and then to allow consumers more freedom of choice. Many of my clients carry other insurance policies that duplicate benefits which the present auto insurance requires them to buy as mandatory coverages. They would be happier if they did not have to buy these coverages twice. Perhaps in your search for premium reductions, you will discover additional areas to allow for more consumer choice. Why not make income replacement and death benefit areas more subject to the policyholder's needs? Many carry these coverages through other forms of insurance, and some have a difficult time understanding why the unemployed must purchase income replacement.
I encourage your efforts to improve and monitor the delivery of rehabilitation and medical services, and to combat fraud, which increases premiums for honest citizens. You must continue to work with the insurance companies and cause them to increase their effectiveness in handling claims. Inefficiencies greatly inconvenience those who need the benefits they claim and they serve to increase premiums without any added benefit.
Next I would like to address a major concern that brokers have about the affordability of the auto insurance product, which is the return of tort into the system. It was widely believed that the escalation of costs of the pre-OMPP system was due to numerous, lengthy and costly litigation activity. The introduction of the no-fault system appeared to actually reduce the cost of auto insurance. Then it was believed that the partial return to tort brought about by Bill 164 was again responsible for steady premium increases. While the IBAO and most brokers are on record as saying they are not concerned in principle whether the insurance is pure no-fault, pure tort or a combination of the two, it is this recent history which makes many uncomfortable with the reintroduction of tort into the system.
My suggestion in this area is for you to watch with great care the costs caused by allowing the right to sue for both economic loss and for pain and suffering. It could be that the problems caused by the previous tort systems lay not with the activity per se but with the excesses in many cases. This will mean that for your new system to succeed, you will have to monitor the awards that judges make and the effects these rewards have on the insurance companies. Also, you will have to watch for the length of time that it takes for victims to have their complaints resolved by the court system and you will have to compare the costs of litigation against the benefits received by the claimants.
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If those who must resort to the courts are well served by the new system and the consumer is able to pay for all of the associated costs, including the additional legal fees, nobody will be happier than the insurance brokers of Ontario. Again I remind you that your duty here is not to provide for insurance brokers, for lawyers or for insurance companies but for the citizens of Ontario who gave you your present mandate. I would also remind you that you have a duty to care for those who may not be able to afford to hire legal counsel at the same time as allowing for those who are able to and demand the right to do so.
Also affecting costs are those who find it less expensive to pay a $1,000 fine for driving with no insurance than to pay their appropriate premiums. Why should good drivers continually subsidize the bad ones? Perhaps violations while operating snow machines, ATVs and other licensed vehicles which are now covered by insurance policies should appear on a driver's motor vehicle record. A review of our road safety regulations could reap big benefits in the area of reducing claims and insurance premiums. Brokers are also concerned that not all insurance companies subscribe to electronic systems which track insurance claims, so bad drivers are continually charged insufficient premiums. In these cases, there is room to improve both the affordability and the fairness of auto insurance.
I have two final comments on the costs of auto insurance. Could you please review the 5% PST that the brokers must now charge when a policy is purchased? Surely, if we can't do without the revenue this brings into the province, it could be harmonized with the existing 3% premium tax paid by the insurance companies. Again, here is a huge inefficiency that someone must pay for without accompanying benefit, and ultimately all costs are passed on to the consumer.
Regarding the proposed offloading of health care costs back on to auto insurance policies, if this is necessary, it must be done with extensive public education. We are all learning, with cutbacks from federal, provincial and municipal governments, that there is only one taxpayer. Additionally, the public may be becoming more receptive to additional user-pay situations as long as basic services continue for all, including the least fortunate among us. Purchasers of auto insurance may accept rate increases which end up going into the health care system if they know that it is only an alternative to increasing their provincial taxes by the same amount. If the policyholder-taxpayer does not know this, the increase in auto insurance will be perceived to be just another cash grab by greedy insurance companies with the permission of the provincial government.
This leads to my final points, regarding the new product being understandable. Even after six years of no-fault and modified no-fault insurance in Ontario, great numbers of the insurance-buying public still do not understand how the system works. The few brochures distributed did not do the job. The recently introduced new Ontario auto policy clear language wording was a step forward, the errors it contained and all, but I encourage you to continue on with the process of public education. You will find brokers anxious to cooperate with these efforts, and there is room for improvement at the OIC.
Someone needs to review the fine print contained in our insurance policies. Hopefully, it is someone with a little common sense, a lot of authority and a degree of compassion. Every day, a broker tries to explain why some accident benefits that the purchaser does not require are mandatory but that the optional number 44 endorsement should be considered mandatory. Then we have to explain why a motorist who chose to hit a snow bank instead of a child will suffer a reduction in his driving record and premium increases. Next we explain how hitting a moose doesn't affect a driving record but hitting a cow does. Then we explain how, although a newly acquired vehicle used to be covered by their Ontario insurance policy, now it's not during the winter because they have a sports car stored in the garage without full coverages until spring. We explain that when the tent trailer they did not insure with the towing vehicle came loose while towing and did extensive damage to someone else's property, the damage cannot be covered by the auto insurance because someone can sleep in it, but if it was a boat trailer it would have been covered.
So insurance brokers look forward to the implementation of new legislation. We would like to continue to work with you in the ongoing process of improving it.
Mr Wettlaufer: Mr Leskowski, I really thank you for your submission today, especially that second-last paragraph. It makes me remember why I'm glad to be doing this rather than being in the insurance business again. How would you view the IBC's projection of trends of 7% or 8% increases in premiums over the next five years?
Mr Leskowski: How in the world did they arrive at that? What actuarial firm did they advise? Who provided those statistics? Can anybody answer that?
Mr Wettlaufer: Miller, who is supposedly the IBC's actuary.
Mr Leskowski: I think it's difficult. It's like standing on two bars of soap. On the one hand, you're doing tremendous things with reducing the cost of the accident benefits schedule and monitoring fraud. I see tremendous savings there. On the other hand, I really don't know the details of how the tort system will work. I don't know how that's going to pile up one against another. I think there are too many variables in this case. One thing for sure, you are going to be reducing costs significantly with this system compared to what we have now. So, regardless of what the IBC may say, go ahead with at least this. If nothing else, repeal Bill 164.
Mr Wettlaufer: I have two more short questions. What would you suggest would be a good minimum fine for no insurance? You suggest here, obviously, that $1,000 is too low.
Mr Leskowski: I don't know if anyone is worried these days about something unless it's $10,000 to $20,000. It has to compare with the cost of insurance. Although, as you know, the fees are capped in the Facility Association, people are charged at times as much as $10,000 for a year of insurance. There's no reason why they wouldn't be acceptable of a fine of the same amount as the insurance that they would have to pay. The fine has to exceed the insurance premium. It's got to be a better deal to be a law-abiding citizen than to be a criminal.
Mr Wettlaufer: In Thunder Bay, you have a limited number of companies which are willing to provide automobile insurance. Do you foresee any problems with the availability after this product is introduced?
Mr Leskowski: I don't; I really don't. I know that some companies are now pressing for balanced portfolios. They're still pressing for more policy sales, encouraging us into almost a tied selling situation simply because of the reluctance to provide auto insurance. I don't know if this package will reduce the availability of it. Every company that I have talked to seems to be looking forward to the new legislation and is developing a more open-for-business attitude.
Mr Wettlaufer: So this would help the brokers help their clients?
Mr Leskowski: This definitely will help the brokers to help their clients, yes.
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Mr Crozier: You've said in your outline here that if there's any advice you could offer -- that seems to be kind of exclusive of everything else -- it's to promote more public awareness of how auto insurance works. Do you expect the government to do this?
Mr Leskowski: No, I believe that it's our job. That's what we get paid for but we can't do it all on our own. I can contact only the people I have access to in my office. If other brokers are busy doing something else, they're not going to do it with the clients that affect them.
There has to be some kind of initiative that reaches into every insurance broker's office, and on top of that, don't forget there are the direct writers, there are the program writers, there are the captive agents, there are the banks, there are the telephone lines; the brokers access a certain segment of the marketplace.
It's another one of the major complaints about the way insurance is distributed in Ontario. As an insurance broker I have to have a licence to give someone advice about travel insurance, but you can walk into a bank and you can buy it over the counter from someone who knows absolutely nothing about it. This is how life insurance is sold at a bank.
I can do the best job that I can and reach my limited clientele as a broker but I have absolutely no control over what happens in the Allstate office, the Co-operators office, the CIBC insurance line. The government has to take some kind of a proactive step in this. It has to be.
Mr Crozier: I know this is just kind of opinions between you and me and those of us here, but don't you think it would be better if it came from the broker, the agent, the distributor, whoever it is that the person buys the insurance from? There's kind of the front line who can sit down, who can explain this to an insured because, as you I think have said, when they have an accident, you're certainly the one the insured's going to come to if they thought they should be covered more --
Mr Leskowski: I can assure you, we are at full speed on this right now. I am amazed. We hand out OMPP brochures. We get the information from the insurance commission. Every person I talk to about auto insurance, I discuss with them how the system works. Every time there's a claim you discuss it with people, which company pays which, and there are policemen driving around on the streets of Thunder Bay who don't know how no-fault works. There are policemen in the city who believe that because we have a no-fault system, you can cause an accident and not suffer on your driving record because you didn't get charged with a violation, a moving traffic violation.
Mr Crozier: But policemen, albeit, have to know the Highway Traffic Act and the Criminal Code, so you're kind of suggesting the Insurance Act would be helpful, right?
Mr Leskowski: It would be helpful, yes. There is a job to be done and it's amazing how much of it is still left to be done. People do not know how the system works.
Mr Kormos: One of the problems brokers are having, I'm not sure about up here but certainly in the Toronto area and down through southern Ontario, is that brokers are being cut loose by insurers. We've got some brokers down there who have but one insurer left that they're selling product for. Do you think brokers should be obliged to, by way of full disclosure, identify how many insurers they represent and who they are?
Ms Leskowski: That's the case as it is.
Mr Kormos: I'm talking about full disclosure. I'm talking about in terms of providing quotes to a person seeking to buy insurance and identifying the name of the companies.
Mr Leskowski: I think that's a terrific idea. It is actually the case in our office. It is our procedure to tell people which markets we access, and if they request it, we tell them where else they can go to find alternate markets. It would not be a bad move for that to be mandatory.
Mr Kormos: Why not have a broker required to provide a broader cross-section, even if she or he does not represent those particular insurers?
Mr Leskowski: I don't think that's a bad idea. Our insurance brokerage is part of a group known as the INS, Insurance Network Solutions, and very shortly we'll be starting a direct phone line on auto insurance comparisons. When consumers phone that line, they will get a listing of the rates of all of the companies in their area and then they will be told which are INS-broker-represented, but we will not represent all of those markets.
Mr Kormos: Do you ever advise your insureds not to report a claim because it's going to have an impact on their premiums down the road, or on availability?
Mr Leskowski: No, we can't do that. We can advise them if they call. Sometimes people call and say, "What if?" and you can't put the words in their mouths. You know that it's happening. You can do neither. I'm obligated, when somebody calls, to tell them what the situation is, that I am obligated if they give me advice of a claim to report it.
Mr Kormos: Do you know that there's a brokerage here in Thunder Bay that has a pamphlet published that says, "We as your broker may advise against making a small claim even if you have never claimed before"? Is that consistent with the standards that you expect as a broker?
Mr Leskowski: I wasn't aware of that, no. Is that property or is that auto?
Mr Kormos: Property and auto.
Mr Leskowski: Property and auto. I'm not sure. We have one company, Kemper insurance, that actually has a clause in the book known as a waiver of small losses. There are some companies that have the availability of waiving small losses, which I would be in favour of, but currently that's not the case with most brokers.
Mr Kormos: You could only do that if it's given to you as a hypothetical. In other words: "I'm not calling for myself. I'm calling for my neighbour who suspects that he might have had a fender bender in a parking lot. If he were to and he reported it, would that result in an increase in premiums?"
Mr Leskowski: I'd be forced to treat it that way. If I didn't even recognize the voice, I would have no other option.
Mr Kormos: So a wink is as good as a nod to a blind man.
Mr Leskowski: Over the telephone he can wink as much as he wants.
The Vice-Chair (Mr Tim Hudak): Thank you very much on behalf of the committee for your presentation today. Have a good day.
DOUGLAS SMITH
The Vice-Chair: The next delegation I believe is Mr Douglas Smith from Smith Brokers Ltd. Good afternoon and welcome to the finance and economic affairs committee.
Mr Doug Smith: I apologize to the committee for not being here this morning at 9 o'clock. Unfortunately, my other responsibilities -- I'm president of the Thunder Bay Chamber of Commerce and other things sort of -- there are many issues ahead of us today, and I apologize for not being here earlier.
The Vice-Chair: We're glad that you could make it. Would you mind introducing yourself for Hansard, please, and then begin.
Mr Smith: Unfortunately I don't have a written presentation to leave with you, but I will be summarizing my remarks and forwarding them down in a letter. I appreciate the opportunity of coming here and addressing you.
My name is Doug Smith. I am presently the owner of our family business, which was started here in 1946, celebrating our 50th anniversary this year. More important, since 1986, I have been the regional chairman for the IBC ICAN network and have followed this issue very closely since 1986 and have watched the evolution of it. Recently I was asked to be the northern spokesperson and I continue in that regard.
I have very much a verbal presentation to you and perhaps a question period -- an expanded question period might be beneficial to wrap up your day today -- but I would just say that from my perspective and just to qualify my educational status, I have my fellowship with the Insurance Institute of Canada and my commerce degree from Lakehead University.
From my overall observations of what's been going on from the very beginning, I truly respect your challenge, collectively, to define automobile insurance. I think the previous speaker has touched on the fact that it has politically spiralled to almost an out-of-control type of situation premium-wise.
I would echo the previous speaker who said that the consumer is totally frustrated and very much confused with the product. I would also say that the brokers are confused and the adjusters are confused. I think what has to happen is that there has to be some stability put into this product. This'll be the fourth change to the system in the past six years, since 1986. We go back to tort and what drove it to the OMPP, and all three parties now have had an opportunity to address it.
I appreciate that you are listening to a myriad of groups and what not. Somehow you have to take all that information and you have to balance it out and you have to get to a product that you can put a price on that has some stability to it in the marketplace. I think that the premiums, as they are being calculated now with the changes -- the IBC and I think the entire insurance community acknowledges the need and the importance of stabilizing the product, because Bill 164 has spiralled the premiums out of sight again, and if it continues on, the rate increases are going to be up to 15% over the next five years.
The present system is talking about trying to put a handle upon some of those costs, but it's going to be 7% to 8%. The current premium level now is extremely high for the consumer, and the higher it goes the more fraud there's going to be into the system, the more abuse there's going be in the system, the more waste there's going to be in the system, and the more people are going to be driving without insurance.
So I think it is very important for you to try and get to a product and balance economic loss and pain and suffering and accident benefits and collision and comprehensive in the whole situation, but get to a product that puts automobile insurance to bed basically, so that it doesn't keep coming around for other changes and escalating premiums.
I would just like to also touch on a couple of points. The auto insurance has failed to be profitable for the insurance industry in five of the past nine years, and I think that, unless you can get back to a profitable industry -- and in 1986, going into OMPP, I believe that profit was defined reasonably as being about a 12% return -- if you can get back to a product that offers some stability in terms of profitability for the insurance companies, you will get the forces of the marketplace coming back to better care for the consumer.
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I think that right now what is occurring, with escalating premiums and all the confusion that goes around automobile insurance, is that you are slowly creating the situation which is going to allow the banks to come into the business and public insurance to be debated again. With all due respect, we've gone through that, and I do not believe that is in the best long-term interests of the consumer, either one of those. But I think as long as this product stays out of control and you don't try to rein it in with the coverages and the premiums, you are driving it to that competition. So I think it's very important that some sort of stability be brought back into the product.
I commend you for all your deliberations and for travelling the province and for coming to Thunder Bay and listening to the north, because northwestern Ontario is different. We have distant concerns here, we have health care concerns, we have rehabilitation concerns. If the OIC is going to be looked at, perhaps we can have some sort of a branch office of the OIC up here or some sort of representation up here, because I think our needs are unique from southern Ontario.
It might be beneficial to get into some questions, but I thank you for the opportunity of addressing you and I would again encourage you to bring some stability to the product. Thank you.
The Chair: Thank you very much, Mr Smith. We'll do as you suggest and get into some questions. If we could start with the opposition, I think we can have five minutes of questions.
Mrs McLeod: I'll just lead off then, Mr Chairman. Doug, you have been a spokesperson on this issue in our community for some time and we've had opportunities to discuss it in the past. I know that as OMPP was beginning to have an effect, it was beginning to stabilize and to start to bring about some decrease in rates, although clearly nobody thought that it was a perfect package. It was going to need to be examined in some respects, in terms of access to tort and particularly, as we've heard this morning, around some of the brain injury situations. We also saw the destabilizing of rates under Bill 164 and anticipated that coming.
I wonder if you would now comment on the combination that we have here, from the perspective of what you think it will do to premium increases as well as to stability. I'm thinking about the fact of the reduction in benefits which, on the one hand, may bring about some control over the costs; on the other hand, it's combined with a much more open access to tort, both on economic loss and on pain and suffering. Do the reduced benefits, along with that increased access to tort, almost force people into court, and what does that do to both stabilization and potential premium increases?
Mr Smith: I believe the benefits have to be defined in a more concrete manner and then allow people to buy up in their policies, if they so require. I think that is one way to look at it. In regard to the tort, again pain and suffering is very difficult to quantify. Economic loss is more quantifiable but the consumer -- it's affordability and availability of the system, I believe. The affordability now has gone too high for people.
I don't think any system can be all things to all people. I believe, if you are going to open it up to tort, we must remember that what initially took it from a third-party adversarial system to the OMPP system was what was going on with the adversarial tort system in 1986, when bodily injuries were $1.6 billion and $800 million of that was going to settle the claims, which were typically taking four years to get to the claimants, and that system wasn't working either.
I guess it's that balance of, if you have to reduce and quantify benefits, I believe people are looking for a stable automobile premium, however you can define that with a product. I think, just as in OMPP, it has to have time to evolve and it has to have time to find itself, but there has to be some sort of a plan that is not changing every time the government changes.
Mr Crozier: The previous presenter made a suggestion when it came to the 5% retail sales tax and, as we all know, in the province of Ontario if you're going to abide by the law and you own an automobile, you have to buy insurance. It's legislated. Do you have any opinion -- I perhaps know what the answer is, but I'd like a little justification for it --
Mr Smith: These are all opinions I have.
Mr Crozier: -- if the 5% was removed, and I point out that it would then touch some six million to seven million people in the province of Ontario, how helpful that would be?
Mr Smith: I know when the 5% came in, people were very frustrated with the fact that they had to pay tax upon protection. I think they accept it now, but they look at the bottom line. I think if that can be taken off, that brings your stabilization of the premium and it brings the bottom line of the premium down. People are very much confused with why they have to pay a 5% tax on automobile insurance. It does add significantly to their bottom line of what they're paying for insurance.
Mr Crozier: As a front-line person, do you think the perception out there in the public is that this time around we're going to get auto insurance at a reduced rate in fact?
Mr Smith: I think they've heard that so many times, I think they are very, very overly frustrated with insurance, and I don't think they believe anything is going down and I don't think they understand that any more. Very learned, professional people don't understand automobile insurance in terms of how the policy responds, in terms of what it means. There's a great deal of education that has to occur once you try and stabilize the product because it's changing so much. It's very difficult for the consumer and it's difficult for a lot of the professional people in the insurance business.
Mr Crozier: Then if the perception isn't that it will go down, and by stabilization we mean if you could get through a year or so where you didn't have to constantly tell your insureds that the price was going up, that would at least be satisfactory.
Mr Smith: I think people would be relieved to see some stabilization. Once the product comes together and the more players in it, the more competitiveness in it, some companies will be more successful than others and the natural forces of the marketplace will work to drive the rates down or stabilize the rates even further.
The Chair: Mr Gravelle, do you have a brief question?
Mr Michael Gravelle (Port Arthur): A quick question, thank you, Mr Chair. Just from the northern Ontario perspective, my understanding is that there's approximately somewhere over 200 companies or insurers who were chartered to give insurance across the province and about 15 or so actually provide that service in Thunder Bay. I don't understand the business terribly well myself, but that strikes me as odd and it strikes me as meaning there's a less competitive atmosphere and that to some degree might affect rates. Is that more or less true? Are there 15 insurers out of the more than 200 that provide services in northwestern Ontario and, if so, does that have an impact on the process and on competition and rates?
Mr Smith: There's no question that the number of players reflects the types of premiums that are offered out there. The insurance bureau, I understand, represents about 125 insurers. The exact number that are operating in northwestern Ontario have been here for a while. I think the majority of them make money here and that is why they stay here, but as the product gets more unstable, as soon as they're not making money they will look at the area and then they will start to pull out.
What you're finding now is a lot of group plans coming into play, where people can buy through Toronto groups or different areas. I think the number of markets in northwestern Ontario are stable. They have been here for many, many years and they know what they're doing, but it's difficult to get new markets here.
Mr Gravelle: I would agree with that.
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The Chair: The third party.
Mr Kormos: Mr Smith, I believe you were here when Mr Leskowski implored this government to produce a system that was going to indeed stabilize rates.
Mr Smith: Yes.
Mr Kormos: And I trust you agree with him in that regard -- who couldn't?
Mr Smith: Absolutely.
Mr Kormos: Because one of the things Mr Leskowski, in the course of imploring the government to do that, said was, failing which -- that is to say, failing to achieve that goal -- this government might be forced to look at public auto insurance. Do you agree with that?
Mr Smith: I think that view has been looked at in its entirety, so I would trust that option is off the table. I don't believe in that.
Mr Kormos: I don't know by which government. It certainly wasn't by the last government. Do you agree that it remains a consideration?
Mr Smith: I don't think that's as much a consideration as playing into the opportunity for the banks to get involved.
Mr Kormos: Which, as I understand it, scares the daylights out of the mainstream auto insurance industry.
Mr Smith: How many banks do you have? It's definitely a big item.
Mr Kormos: It would be a real test for free enterprise, wouldn't it?
Mr Smith: Is the consumer being best served that way?
Mr Kormos: One further, sir. IBC, the Insurance Bureau of Canada, embraces -- I'm not as concerned about the return to tort here, because in my view basically it's the Saskatchewan model of tort, which is the revised full tort system there. It's only benefits in excess of your no-fault benefits if you're an innocent victim, as compared to an at-fault.
IBC talks about premium increases of 7.6% a year, give or take. Ms Maddocks from Zurich insurance -- that's the second-largest insurer in Ontario, and surely Zurich has got enough experience -- you've got the chart there.
Mr Smith: I do.
Mr Kormos: Surely Zurich's got enough experience in the area to understand what's going on. She talks about premium increases twice, almost three times of what the IBC says. Who's right?
Mr Smith: I would say the IBC has more of a balance of the industry than one insurance company.
Mr Kormos: So is Zurich simply out to lunch, or are they trying to whipsaw the issue so that the government will reduce the benefit levels even further?
Mr Smith: My own personal opinion is that Zurich is going upon their experience and I know they've had a couple of tough years. That's why it's a competitive marketplace. But IBC represents 125 companies and they get a much broader view of what everybody's experience is. That is why under the government plan, by July the average premium will be $1,140 in this province, and under Bill 164 it would be almost $1,400.
Mr Kormos: The interesting thing, though, is that OMPP, the introduction of no-fault, did exactly what Kruger, what Osborne and others said it would do. That is to say it was a one-time-only reduction in price, that the increases annually after its introduction were going to be consistent with the increases in the tort system and when you look at 1991, 1992, 1993, you see an initial reduction in costs paid out or benefits paid out under bodily injury and accident benefits, but you see an incline at the same rate that existed previously prior to Bill 68.
Mr Smith: When did Bill 164 come in?
Mr Kormos: In 1994, was the first year for 164. Again, you see a similar rate of increase for 164, with far enhanced benefits. The fact is, do you adopt the proposition that no-fault and tort, both are going to grow at the same rate, as Osborne said and as Kruger said?
Mr Smith: I think they both reflect what's going on in society in a big way, the cost of health care, the cost of rehabilitation services. Unless you can put parameters around those to control those costs and find scales of economy in those operations, then --
Mr Kormos: Fair enough. One issue about fraud, because we're all concerned about it. We know there's a whole lot of counterfeit pink slips out there, huh? Blank ones that you buy in the hotel for $50 or $100? Where do those pink slips come from, the ones that are forged? Where do they come from?
Mr Smith: Forged pink slips?
Mr Kormos: The genuine pink slips that are forged. Where do those blank pink slips come from that you buy in hotels and taverns?
Mr Smith: Are you going to tell me that?
Mr Kormos: No, I'm asking you.
Mr Smith: Am I to know that?
Mr Kormos: The only people I know who have big stocks of them are brokers. Where do they come from?
Thank you, sir.
The Chair: It is not normal for us to badger a witness.
Mr Smith: Thank you, Mr Chairman. I think I asked for it, though, in all fairness.
The Chair: Everyone feels compelled to defend Peter.
Mrs Marland: Do you want to take a vote on that?
The Chair: We'll move to the government.
Mr Wettlaufer: Peter, I can tell you where they come from. They come from the odd broker who might be a little bit less than conscientious or perhaps may be a guilty broker, guilty of fraud. Do you know, there's probably the same number of brokers who are like that as there are lawyers or doctors or anybody else.
Mr Kormos: Yes, but there's at least one of those brokers in every small town in Ontario.
Mr Wettlaufer: You're on my time.
Hi, Doug, how are you?
Mr Smith: Good, Wayne. Good to see you. So this is what you're doing now.
Mr Wettlaufer: Yes, I love it.
Mr Smith: Good for you. Bring some sense to it.
Mr Wettlaufer: You heard David talk about a minimum fine for no insurance. Do you have an opinion on that?
Mr Smith: Again, my opinion on that is whatever the fine might be, I don't think that's the answer. I think rather than fining people you've got to get it to a point where it's affordable for people. Once you get it beyond that affordable level, it doesn't matter how much the fine is going to be, people are still going to be driving without insurance. I think that's the key, to try and stabilize it so that people can afford the product.
Mr Wettlaufer: Just for the record, do you happen to have any figures there that would indicate what percentage of the total automobile insurance market Zurich has? Is it around 8% or something like that?
Mr Smith: I don't have that handy.
Mr Wettlaufer: You don't have that, eh? I was hoping you would. I'll have to check that myself, I guess.
Mr Smith: I could get that information for you, though.
Mr Wettlaufer: Could you? And send it to us?
Mr Smith: Sure, yes.
Mr Wettlaufer: Okay, great, thanks.
Would it be of assistance to insurance brokers in providing service to their clients if they were able to obtain immediate access to the driving records when the client comes into your office?
Mr Smith: It certainly would. No question about that. Because we get into a lot of confusion. Quite often, people have memory lapses of what actually has occurred in terms of accidents or speeding tickets and violations and what not. If we had that at the point of discussion, yes, it would save a lot of confusion.
Mr Wettlaufer: You know what we're trying to do here is achieve a balance of needs against price. If I could read something to you, I wonder if you could give us a little information on it.
"Restore tort for economic loss instead of pain and suffering. Reduce weekly accident benefits to average wage. Cap health and rehab benefits, except in the most serious cases. Provide for the optional consumer purchase of additional coverage. Streamline the Ontario Insurance Commission arbitration process -- stress mediation. Scrap the 5% retail sales tax on insurance premiums."
Other than that last one, would you say that what we have attempted to do with this draft legislation meets those other criteria?
Mr Smith: It does, yes. Again, if it's going to result in 7% to 8% rate increases, perhaps there is still more that can be done.
Mr Wettlaufer: What I have just read was the Liberal Party platform in the last election. They said they would reduce automobile insurance rates by as much as 15% or 20%. Do you think that was achievable?
Mrs McLeod: It's not in fact the Liberal platform from the last election, just as a matter of record.
Mr Smith: I think over time, if the product is given a chance to come to fruition, that competitive forces will prevail, but I don't think the product has had any chance to come to fruition with all three political parties now amending it in the last six years. I think whatever you do here has to have a chance to evolve.
Mr Wettlaufer: That's a good point. Thank you.
The Chair: Thank you very much and thank you, Mr Smith for appearing before us today.
Mr Smith: Thank you.
The Chair: I appreciate your input.
Mr Phillips: Mr Chair, I'd appreciate it if -- one of the members just indicated he had a document there that might be helpful for the rest of the committee, so I thought it may be useful to share that. I think you've said you got a page from the Liberal party platform, and I think it would be useful to just get a photocopy and circulate it.
Mr Wettlaufer: You don't have the red book?
Mr Phillips: No, but you indicated that's from the red book, so I'd like to see it.
Mrs McLeod: It's memorized and imprinted on my brain.
Mr Phillips: I'm asking that, Mr Chair, as a formal request.
Mr Wettlaufer: We might be able to provide that for you.
Mrs McLeod: As you have presented it.
Mr Phillips: Yes.
Mrs McLeod: And the source?
Mr Phillips: And the source. Well, I just assume it's from our book.
Mr Wettlaufer: It doesn't take long to photocopy.
Mrs McLeod: That's certainly not the format of the red book.
The Chair: There being no further business to bring before the committee, we will stand adjourned until 9:20 tomorrow morning in Sault Ste. Marie.
The committee adjourned at 1511