The SABS Experience: One Year Later
It has now been nearly a year since the Ontario government revised the statutory accident benefits regime by passing Statutory Accident Benefits Schedule – Effective September 1, 2010. O. Reg. 34/10 (SABS). This new regulation dramatically reduced the benefits available to Ontario motor vehicle accident victims from their auto insurance companies.
While it is too soon to comment on the long-term effects this regulation will have on accident victims and health professionals in Ontario, this article will review some concerns that our office has heard from health professionals.
HCAI and OCF-18s
Health Claims for Auto Insurance is an electronic system for transmitting auto insurance health claim forms between insurers and health care facilities in Ontario. Health professionals have expressed concern that insurers are not reviewing OCF-18 Treatment and Assessment Plans submitted on HCAI for weeks or months after submission. Section 38(8) of the SABS provides that an insurer must respond to an OCF-18 within 10 days of receiving it. However, the insurers are treating that timeframe as only commencing on the date they review the OCF-18 on HCAI. Health professionals that this happens to should contact the claimant’s lawyer as well as FSCO to lodge a complaint.
In too many cases insurers are now denying OCF-18s and setting up numerous Insurer Examinations to respond to that OCF-18. The new $2,000 cap on assessment costs in the SABS has resulted in insurers dramatically increasing the number of IE assessments undertaken. Under the new SABS there is no deadline for the insurer to complete all the IEs. The only deadline is s.36 (7), which provides that the IE reports must be produced to the claimant within 10 days of the insurer receiving the reports. While insurers are not violating the SABS with this behaviour, it often means that claimants go without treatment for long periods at critical times. In egregious cases practitioners should document the treatment need of the client and the detriment the delay in treatment is causing the client in a letter to the insurance adjuster.
Section 36(7)(b) of the SABS specifies that insurers are required to provide a medical and any other reason for denying a benefit. Our experience is that this is not occurring and that insurers are simply serving an IE report and denying the benefit. If this occurs in one of your cases you should speak with the insurance adjuster or ask the lawyer representing the client to do so.
Assessment Limit Remains at $2,000
Another issue arising is insurers taking the position that the $200 maximum fee for an OCF-18 referred to in section 25 (1) (3) of the SABS means that health care providers can only charge $200 for an assessment or examination done as part of an OCF-18. FSCO has now clarified that the $200 cost only applies to the cost incurred by a health practitioner in reviewing and approving an OCF-18 form. The $200 maximum does not apply to assessments or examinations proposed in an OCF-18. $2,000 is still the financial limit on assessments or examinations proposed in an OCF-18. These clarifications have been incorporated into Professional Services Guideline No. 01/11.
Limits on Attendant Care
In some cases a client requires a great deal of attendant care. Some insurers are taking the position that the maximum benefit payable to a loved one for providing that care is the amount of economic loss the loved one has incurred to provide the care. For example, if the loved one has given up a job that paid $100 per week to care for their injured family member, the insurer is claiming that the maximum attendant care payable is $100 per week. Our law firm has been successful on several occasions in fighting this interpretation because there is no support for it in the SABS.
We are all struggling to adapt to the new SABS and the difficulties it has created in providing adequate care and rehabilitation to clients. We will have to redouble our efforts to ensure that our clients receive all the available benefits under the SABS so they can reach maximum medical recovery.
Ryan A. Murray is a lawyer with Oatley Vigmond Personal Injury Lawyers LLP. In his practice he represents plaintiffs in major personal injury litigation, including motor vehicle accidents, accident benefits, occupiers’ liability and medical malpractice cases.
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