June 18, 2020
Via email: firstname.lastname@example.org
Financial and Consumer Services Commission
200-225 King Street
Fredericton, NB E3B 1E1
Dear Mr. Weir:
Re: Response to Consultation Paper Insurance 2020
We appreciate the opportunity to comment on the proposed treatment protocols for automobile accident victims (“the protocols”). We will firstly make remarks with respect to the protocols in general and comment on the questions posed.
Upon review of the Consultation Paper Insurance 2020 (hereinafter the “consultation paper”), we note that you highlight the Financial and Consumer Services Commission’s goal of protecting consumers and enhancing public confidence in our financial and consumer marketplaces through the provision of regulatory and educational services. These are certainly laudable goals.
However, we fear that these goals will be overshadowed by the insurance industry’s main objective of reducing costs and benefits paid. In support of this apprehension, we note that one of the explicit intentions of the proposed protocol is the reduction of long-term costs. The only objective in changing the current accident benefit regime should be improving recovery outcomes.
Every amendment to the current regime must be weighed against the backdrop of a relationship in which insureds are faced with a significant power imbalance and are vulnerable to abuses. This was confirmed by Chief Justice Drapeau, as he then was, in Walsh v. Nicholls and CGU Insurance Company of Canada1:
First, the decision under appeal is problematic for the law in general. At first blush, there appears to be something amiss with the attribution of judicial immunity from suit to someone who may have intentionally, and without legal justification, brought about a violation of another’s legal rights. That observation is especially apropos where, as here, the relationship between the parties gives rise to a power imbalance that favors the alleged wrongdoer. In processing claims for no-fault auto insurance benefits, the insured is particularly at the mercy of the adjuster; indeed, most insured are unfamiliar with the pertinent terms of the Policy and accept at face value the adjuster’s delineation of coverage and determination of entitlement. Moreover, the financial stakes are seldom significant and adjusters know full well that very few insured will go to the expense of retaining a lawyer to challenge the rejection of their claims. In short, the context is fecund ground for abuse by the unscrupulous; in my view, tort law must step into the fray and do its share to discourage abuse of power on the part of adjusters. [Our emphasis.]
To this point, we note that among the barriers to treatment listed in the consultation paper, several comprise unilateral requirements placed on the accident victim by the insurer. Specifically, neither the SPF Standard Automobile Policy for New Brunswick (“the policy”) nor the interpreting caselaw permits an insurer to direct bill preferred clinics and require the victim to pay out of pocket for others or to require pre-approval of treatment prescribed by a physician. The solution to insurer-created barriers is not to place more restrictions on insureds.
We acknowledge that there exists a systemic problem with respect to ensuring accident victims have access to timely diagnosis and treatment of injuries sustained in motor vehicle accidents. The issue, however, begins with the administration of claims at the adjuster level. We regularly see the following systemic issues:
adjusters making onerous or pedantic extra-contractual demands for information and withholding benefits until these demands are fulfilled;
extra-contractual demands for treatment plans prior to payment of treatments;
financial coercion of victims into treatment at “insurer preferred” clinics by allowing direct billing to these clinics and forcing victims to pay out of pocket and wait for reimbursement from others;
“Case managers” hired by insurers when the victim is perfectly compliant with treatment, has a family physician, and generally has a good rehabilitation plan in place. Victims complain regularly that the case managers’ reports conflict with their understanding of the situation.
The protocols as proposed raise a number of potential issues for accident victims, while the Injury Management Consultant (“IMC”) model potentially gives an inordinate amount of power to the insurance company. Our position is that the simpler solution to timely and effective access to treatment would be to allow a fixed number of treatments without a prescription following a motor vehicle accident up to a maximum number of treatments or dollar amount. The accident victim would effectively self-refer. This is commonplace with private health insurance coverage. The protocols would then be unnecessary.
If, however, the protocols are to go ahead, we have a number of suggestions. We stress that more in-depth, in person consultation is required with the various stakeholders before implementation of a new regime.
How the Protocols Work and Key Definitions
1.1 What are your comments on modelling the New Brunswick protocols after the Alberta and Nova Scotia Regulations? Please elaborate on your response.
A stated objective of the protocols is to reduce costs and increase claim-closure. Indeed, time-to-claim-closure is stated as the sole measure of the Alberta protocols’ success2. To conflate claim closure with healed injuries gives a false impression on the benefit of the protocols for insureds. Claim closure is only a measure of success for the insurer. Many other, less positive factors could be influencing claim closure, such as:
- The insured being unaware that further treatments were available after or other than those prescribed by the protocols;
- The insured simply giving up if further treatments were refused by the insurer;
- Lack of a primary care provider to prescribe further treatments;
- Lack of access to a specialist to better understand more complex injuries.
In addition, neither the Alberta nor Nova Scotia protocols include the Injury Management Consultant model. It is untested.
1.2 Do you have any comments on the proposed definition of “health care practitioner” (being physicians, chiropractors and physiotherapists)? Please elaborate on your response and explain if and how the definition should be amended.
The definition of “health care practitioner” should be expanded to include nurse practitioner and physician assistant as both are primary care providers. Dentist should also be included.
The scope of care available through physiotherapists and chiropractors is limited in comparison with the others. For example, while a chiropractor or physiotherapist is trained to evaluate and treat sprains, strains and whiplash, they may not be trained to evaluate other common MVA injuries such as concussions, PTSD, and other psychological diagnoses. If an individual is diagnosed with a protocol injury and treated within that limited scope, there is a risk that other injuries would be missed and go untreated.
The protocols should include a provision advising health care practitioners who are not primary care providers that when there are attendant conditions that fall outside the protocols, a primary care practitioner should be consulted automatically in addition to the protocols, should the individual still wish to pursue the protocols. Doing otherwise would risk downplaying comorbid conditions in order to access timely treatments for sprain, strain, and whiplash.
It is also unclear whether one health care practitioner can prescribe treatment by another, or whether concurrent treatment by multiple health care practitioners is permitted.
1.3 Do you have any comments on the proposed definition of “adjunct therapist (defined to include: massage therapists, acupuncturists, occupational therapist and any person designated by the Superintendent of insurance)? Please elaborate on your response and explain if and how the definition should be amended.
The policy does not prescribe the types services accessible for care, treatment, retraining, or rehabilitation. This is within the purview of the physician. The concept of adjunct therapist limits the type of professional covered, when many others could be applicable, such as osteopath or naturopath.
Rather than defining adjunct therapist, it should be replaced with the New Brunswick Court of Appeal’s wording from paragraph 67 of Axa Insurance v. Rolfe3, which reads “therapeutic services prescribed by a [health care practitioner] and rendered by a duly qualified health professional”.
1.4 Do you have any comments on the proposed definition of “evidence informed practice” and do you believe it is an appropriate standard to apply to those authorized to provide diagnoses and treatment under the protocols?
Treatment providers must be careful to avoid relying too heavily on prescribed diagnostic and treatment criteria to the detriment of the injured person’s subjective reports of pain. The nature of a soft tissue injury and in particular when it develops into chronic pain, is inherently subjective and does not lend well to rigid protocols or expected outcomes.
1.5 Do you have any comments on any of the proposed definitions set out in Appendix “A”?
The definition of physician is restricted to a person regulated in New Brunswick only. When a resident of another province suffers an accident in New Brunswick, they may elect which province’s no-fault regime they wish to access. In this scenario, their physician would be from any other province. We propose this be expanded to include out-of-province physicians as well.
1.6 Please comment on any other matters related to this section.
The health care practitioner for accident victims who do have primary care providers should automatically be the primary care provider.This person is in the best position to dictate treatment and has knowledge of the victim’s pre-accident health or co-morbid conditions.
In the New Brunswick Court of Queen’s Bench decision Webb v. Aviva4, Justice Grant held that the attending physician is the best person to dictate treatment, stating:
[…] In my view the doctor who would be in the best position to provide that opinion would be the attending physician. I therefore find that the test under sub-paragraph (a ) for determining if a medical service is “necessary” is that it be deemed to be so in the opinion of the insured’s attending physician.
In addition, the accident victim should have the ability to opt out of the protocols at any time.
Diagnosis and Treatment of Strains and Sprains
2.1 Do you have any comments on the process set out in Appendix “B” for diagnosing strains and sprains? Please elaborate on your response.
2.2 Do you have any comments on the use of Orthopaedic Physical Assessment by David J. Magee as a resource for diagnosing strains and sprains? Is there a resource that you believe is more appropriate? Please elaborate on why it is more appropriate.
This appears to be a widely used academic text.
2.3 Do you have any comments on the treatment process set out in Appendix “B” for strains and sprains? Please elaborate on your response.
…a health care practitioner must treat a strain or sprain by doing the following:
Educating patients on an estimate of the probable length of time that symptoms will last, the estimate time for recovery and length of the treatment process.
This is not a treatment. This sets up an unrealistic expectation for swift and uncomplicated rehabilitation. It puts pressure on the accident victim. If their recovery does not follow the expected course, they would feel as though their perception of the injury was inaccurate. While informing the accident victim on the usual duration of symptoms and recovery period could be reassuring in the beginning, it could also have detrimental effects if used as a tool to try to convince the accident victim later in treatment that they “should be” healed and thus are healed when that may not be true.
Furthermore, another listed element of treatment includes “referring the patient for any adjunct therapy that the health care practitioner considers necessary to treat or rehabilitate the injury and is linked to the continued clinical improvement of the patient”. The last element is problematic as it runs contrary to Justice Grant’s explanation in Webb that:
[…] Moreover, considering that the policy contains no parameters stating what the medical service must accomplish, I find that it need only provide some benefit to the insured in the attending physician’s opinion.
It follows then, and I find, that when a medical service has been recommended by the insured’s attending physician, as it has been in this case, it matters not what the insurer’s medical advisor says. The service is “necessary” as that term is used in sub-paragraph 1(a) of Section B of the policy and the insurer is liable to pay for it5.
Thus, it is not necessary that the treatment produce continued clinical improvement to be covered by the insurer; “some benefit” is sufficient. This language is restrictive and may serve to deny treatment to individuals who, thanks to treatment, are able to maintain their employment. We propose that “continued clinical improvement” be changed to “some benefit” to reflect the appropriate coverage of maintenance-related treatments.
In our view, any guidelines intended to be enacted by the Superintendent must be subjected to thorough stake-holder consultation before coming into force.
2.4 Please comment on any other matters related to this section.
Diagnosis and Treatment of Whiplash I and II Injuries
3.1 Do you have any comments on the process set out in Appendix “C” for diagnosing whiplash injuries? Please elaborate on your response.
3.2 Do you have any comments on the process set out in Appendix “C” for treating whiplash injuries? Please elaborate on your response.
…a healthcare practitioner must treat a whiplash I and II injury by doing all of the following:
The probable factors responsible for other symptoms the patient may be experiencing that are temporary in nature and that are not reflective of tissue damage including: disturbance of balance, disturbance or loss of hearing, limb pain or numbness, cognitive dysfunction and jaw pain.
The above specifically and intentionally downplays many potentially serious comorbid conditions such as TMJ, herniated discs, and concussion6, among others, and discourages the injured person from seeking care for them. This should be removed.
We reiterate our comments with respect to “continued clinical improvement” which have been addressed under response 2.3.
3.3 Is the Scientific Monograph of the Quebec Task Force on Whiplash Associated Disorders an appropriate and up-to-date resource for this purpose?
3.4 Do you have any comments on the pre-approved tests for whiplash injuries found in Appendix “C”?
3.5 Please comment on any other matters related to this section.
Administration, Treatment Plans and Limits
4.1 Do you have any comments on the Treatment Plan process? Please elaborate on your response.
If an individual has a primary care provider, that person should act as the health care practitioner with the responsibility of completing the Treatment Plan even if, for example, a physiotherapist provides more frequent care through regular treatments. Again, the primary care provider is in the best position to dictate treatment and is independent from the insurer, which the physiotherapist may or may not be.
We recognize, however, that the physiotherapist or other health care practitioner could be a useful proxy for those who do not have a primary care provider.
Furthermore, it is concerning that when an individual is diagnosed with a sprain, strain or whiplash, and are funneled into the protocols, any comorbid condition such as PTSD or concussion could potentially be missed because they are left out of the evaluation.
4.2 Do you have any comments on the proposed number of medical visits? Please elaborate on your response.
4.3 Do you have any comments on the proposed timeframes for completing the forms and for approval and denial of claims by insurers? Please elaborate on your response.
The 10-day time frame for submission of the form is too short and it is not in keeping with the wording of the Standard Automobile Policy which allows 30 days for Notice of Claim and 90 days for Proof of Claim. It places an unnecessary urgency on the accident victim to have forms completed and submitted.
From a practical standpoint, accident victims may not seek treatment immediately after an accident, preferring to “wait and see” if the pain dissipates with time. They may have difficulty with transportation in the days following an accident if their vehicle is out of commission. There are innumerable reasonable factors that would lead a person to defer treatment beyond 10 days post-accident. If the grounds on which the insurer may refuse a claim do not include the 10-day timeframe, it serves no purpose and is irrelevant.
4.4 Do you have any comments on the proposed possible grounds for refusing a claim? Please elaborate on your response.
One of the proposed grounds includes “there is no existing contract between the insurer and the person injured”. There are various scenarios in which a person other than the named insured would seek Section B benefits, including a passenger, pedestrian, cyclist, or a driver with consent. The coverage follows the vehicle. These individuals would all be entitled to benefits but would have no existing contract with the insurer. This line is misleading and should be removed or amended to “there is no valid/enforceable insurance contract”.
4.5 Please comment on any other matters related to this section.
An identified barrier to access to treatment is the inability of victims to pay out of pocket for treatment and wait for reimbursement. It is unclear in the protocols whether all insurers will be required to pay all treatment providers directly. Insurers cherry picking “preferred clinics” should stop. Unless there is a valid, insurmountable administrative reason for not allowing direct billing from a particular clinic, all treatments should be paid directly by the insurer.
It is likewise unclear who will pay for the treatment plan or progress reports. If the plan is a requirement of the insurer, the insurer should pay each time it is required. If the victim changes treatment providers or sees a secondary person, they should not be responsible for the cost of a new treatment plan.
Injury Management Consultants
5.1 Do you have any comments on the use of IMCs? Please elaborate on your response.
This model is untested in other jurisdictions that have implemented treatment protocols. We have significant reservations about IMCs and would prefer to see this section removed.
Assuming the IMC is chosen by the insurer, this model could bring about an antithetical result to the decision by the NBQB in Aviva v. Webb7 that states that the insured’s attending physician is in the best position to determine what treatment is necessary. The insured’s physician brings balance to an unbalanced power dynamic wherein the insurer ultimately seeks to pay out less and the accident victim seeks to be adequately treated and indemnified pursuant to the policy.
Consider a scenario in which an accident victim has no primary care provider. She is forced to go to a “preferred clinic” because she cannot pay up front and wait for reimbursement. At this clinic, after 10 treatments, she still has reduced range of motion in her neck, numbness in her arm, tingling in her fingers, jaw pain, headaches, and has not been able to return to work. She is discharged from treatment. She advocates for herself, asking for more treatments. The physiotherapist, chosen and paid by the insurer, disagrees. The IMC, chosen and paid by the insurer, disagrees. The deck is stacked against her. The entire treatment plan is controlled by the insurer and the insured has no recourse. Ultimately, the IMC model raises more potential problems than benefits for the accident victim.
Clarification is required on how IMCs are selected in a given file. To be effective, an IMC would need to be independent from the insurer. They would need to have the accident victim’s best interests in mind and avoid recommending a stoppage of treatment or a return to work in order to keep costs low. Insurers should not have “preferred” IMCs who could place the insurer’s best interests above the accident victim’s. There should be a list of available IMCs; it should not be chosen by the insurer.
If an individual has a primary care provider, that person should have the last word on treatment.
5.2 What should be the qualifications of an IMC? Please elaborate on your response.
There is a lack of clarity here. It is not logical that the opinion of a physiotherapist IMC would supersede that of an attending physician for those victims who have one. This amounts essentially to an inexpensive independent medical evaluation which, depending on the links between the IMC and insurer, could be anything but independent.
5.3 What are the appropriate roles and duties of an IMC? Please elaborate on your response.
An IMC should take pains to faithfully record the accident victim’s subjective reports and avoid putting undue emphasis on pre-existing physical or psychological issues or downplaying their current status.
The biopsychosocial model could be a useful tool in understanding the accident victim’s unique situation and response to pain in order to treat it most effectively. It must not, however, be used to frame the accident victim’s socioeconomic and psychological status as pre-existing issues which justify denial of benefits.
The IMC should only be used where there is no primary care provider.
5.4 Please comment on any other matters related to this section.
In conclusion, we support the effort to improve access to timely treatment and improve outcomes, however we believe this is more efficiently addressed by removing barriers rather than creating new hurdles and implementing new forms. In our view, a much more thorough consultation is necessary before embarking on the proposed protocols.
We respectfully submit the foregoing and appreciate your thoughtful consideration of our comments.
Yours very truly,
FIDELIS LAW DROIT