Toronto Injury Lawyer Blog
For those unfamiliar with personal injury law, and more specifically, the law surrounding motor vehicle accidents (car crashes, motorcycle accidents, pedestrian-car accidents, bike-car accidents), the idea of what the law should be and how it works is perceived to be rather straight forward.
Car accident. Innocent accident victim not at fault. They were in the wrong place, and the wrong time and sustained injuries. Those injuries ought to be compensated by the car insurer for the at fault driver. Case closed.
Unfortunately, that’s not the way things work in Ontario.
We have take an easy to understand event (a car accident) and complicated that event tremendously. The complexities have been created by the government at the behest of the insurance industry in order to keep the number of car accident claims down; and to limit the compensation available to innocent accident victims.
For car accident cases in Ontario, there are several concepts which most people are unfamiliar with because they don’t correspond with natural law. These concepts are entirely based on statute, meaning that they are man made laws, which are tinkered with, changed, and updated. These changes to the law, more often than not, go in favour of deep pocketed insurance companies instead of siding with innocent accident victims.
One would not be wrong to think that because they’ve been in a car accident which is entirely not their fault, that they would seek compensation and benefits from the at fault party’s insurance company. This makes perfect sense. The at fault party is responsible for the car accident. It would only be fair if that party’s insurer paid the corresponding bills associated with the claim itself.
But, this sort of logic does not apply to car accident cases in Ontario. You see, Ontario has a no fault system of accident benefits for car accident cases. This means that the first payor for accident benefits is not the at fault party’s insurer. It’s your own insurance company. This means that the Defendant could have been drunk driving, while texting, and ran a red light. Regardless of fault, the first payor for the claim is your own insurance company.
This creates a unique situation which is often overlooked and not discussed more. It creates a situation whereby an insured innocent accident victim, brings a claim for benefits with his own car insurance company. That car insurance company then gets to act as Judge, Jury, and Executioner when it comes to delivering benefits. The car insurer will only pay benefits which they deem to be “reasonable and necessary“. Insurers and their insureds will have differing views on what’s “reasonable and necessary“. If an insurer doesn’t pay a specified benefit, it will create conflict between an insured and his/her insurance company. It’s this conflict of an insurer fighting against his or her OWN INSURANCE COMPANY, often that’s an insurance company who they have been using over multiple products for many years (home insurance, auto insurance, rental insurance, disability insurance, commercial insurance) which is overlooked and not discussed more. The system is designed to create conflict between an innocent accident victim and his/her own insurance company. At the end of the conflict (after the case settles or beforehand), you have turned a once amicable relationship into a toxic one. I don’t have the studies in front of me, nor do I know if any studies have been done on this, but I would be curious to know of the retention/break up rates between insureds and their insurers following a car accident involving no injuries, minor injuries, more serious injuries and catastrophic injuries. My guess is that the more serious the injuries, the greater the break up rates between insureds and their insurance companies.
Here is something a bit more shocking. Benefits can be deemed to be reasonable and necessary based on the assessment of an insurance adjuster, which is a person who has been hired to administer the claim on behalf of the insurance company. The adjuster can be an employee of the insurance company, or they can be an outside adjuster who is not an employee of the company. The adjuster has a lot of leeway to approve, or to deny benefits. They can approve benefits because they like the sound of your last name. They can deny benefits based on your postal code. The point is, the insurance adjuster has a lot of power and can approve or deny something on a whim which they will later try to substantiate as insufficient evidence and request more and more information and documentation. This is a standard practice.
The adjuster can also refer the decision for an “Independent Medical Examination” or IME. The car insurer hand picks their own “independent” experts to examine their insureds and to determine whether or not the desired benefit is “reasonable and necessary“. Let’s just imagine for a moment that you’re a doctor, and that 80-90% of your work comes from insurance companies. In essence, the insurer pays your bills. Would you really bite the hand that feeds you? Would you side against your master? Likely not.
This creates another set of illusions for car accident cases. Innocent accident victims believe that they are seeing a neutral doctor or health care professional. Little do they know that the assessor has been hand picked by the insurer to conduct the assessment; that the assessor is being paid by the insurance company (or by an assessment company who is being paid by the insurance company per assessment/report); and that the primary goal of the assessment is not to rehabilitate. Rather, it’s to determine whether or not a benefit is reasonable and necessary. People go to see doctors and health care professionals thinking that they are the client/patient. But, this is not the case for Independent Medical Assessments after a car accident. The client is the insurance company. The person being examined has no say in terms of who they see, where they see them or what’s being done. The person being examined is simply the insured, with limited rights and power.
