May 27, 2013

Accident Benefits Update – Carrying the Can for an Overzealous Treatment Provider

ACCIDENT BENEFITS UPDATE

For the week of May 27 to May 30, 2013

Carrying the Can for an Overzealous Treatment Provider

Cecelia Comito and Economical Mutual Insurance Company

Decision date 2013-05002; Adjudicator: John Wilson, regulation: 403/96

Decision: Arbitration, Final Decision FSCO 3975

Carrying the can for an overzealous treatment provider

Issue: Is it incumbent on the insurer to disclose to the insured their concerns relating to particular treatment providers, especially when the treatment provider is not restrained from recovering the cost of treatments from the insured for failed OCF 18 submissions?

In this case, the insured applied for statutory accident benefits (SAB’s) from the insurer, Economical Mutual Insurance Company for a motor vehicle accident sustained on July 12, 2009. The injuries sustained by the insured were relatively minor soft tissue injuries with no immediate consultation to medical services. The insured did not seek a medical consultation until some two weeks after the accident. The insured did however seek the treatment services of Osler Rehabilitation Centre 5 days after the accident by searching the Yellow Pages.

A total of 21 treatment plans were submitted and subsequently denied. Over $24,000 costs where incurred by Osler in providing services to the insured. The arbitrator decided that there was a lack of credible evidence to the reasonableness and necessity of the any of the proposed treatments and denied all treatment plans submitted by Osler.

One of the problems with this case was that the insured was not consistent with her facts and did not appear to have clear supportive medical evidence to the extent of her disabilities and subsequent requirement for specific treatments.  This was further compounded by the fact that the submitted treatment plans were not consistent with Osler’s delivery of those services to the insured. Osler’s approach to treatment was said to be, “relatively loose and informal”.

Implications

The case highlights two problems which counsel need to advise clients about when seeking treatment after an accident. It is important that the insured is directed to treatment providers that maintain a high professional standard on reporting and setting out will be provided to the insured in the appropriate treatment plans.  There is also a wider impact is for treatment providers initiating treatment before the treatment plans have been approved. There is a risk that the treatment providers could run up a treatment bill which the insurer may subsequently decline, resulting in the insured ultimately being liable to pay.

The second implication relates to what is the duty of the insurer to disclose to the insured the knowledge they have relating to specific treatment providers. The insured was not aware that the insurer was already suspicious of Osler for excess treatment and imperfect billing.  In dealing with this superior knowledge is the insurer assuming the position from a contractual stand point or is there a fiduciary relationship to act in the best interest of the injured party and inform the insured of their concerns about a particular treatment provider.

There is a very real risk that the insurer could have denied benefits due to their concerns of Osler and thereby approached the insured applications for treatment subjectively.  If this was found to be the case, this would then give counsel an opportunity to challenge the decision making process of the insurer.

This decision can be found at:

https://www5.fsco.gov.on.ca/AD/3975

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