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A backlog within the accident benefits regime is getting worse, resulting in more than a year’s wait for mediation in some cases and leaving many victims to pay for their own treatment, says Toronto personal injury lawyer Kevin Marshall.
At the moment, disputes with an insurer involving accident benefits can only be resolved by applying for mediation to the Financial Services Commission of Ontario (FSCO), a tribunal set up to resolve accident benefits disputes, says Marshall.
“The backlog is due to increasing number of persons applying for mediation to FSCO. This, in turn, is due to insurers increasingly denying accident benefits claims,” he says. Marshall adds that the system has not worked efficiently for many years, and recent changes have added to the problem by lengthening the backlog.
While he says FSCO has tried to contact applicants and insurers prior to booking a mediation to see if the matter can be resolved, Marshall adds that this has simply not worked since there is no incentive to resolve matters at that early stage. Often, he says, this is not even done until half a year or more after the mediation has been filed.
As a result, he says, car accident victims have been left in an impossible situation.
“For example, an insurer has the right to deny a treatment plan that recommends 15 physiotherapy treatments on the mere basis of a paper review: The physiotherapist’s recommendation, based on an in-person assessment, will be trumped by an assessor who only reviews documents,” he says.
”The only option is to apply for mediation – and wait. Some 16 months later, mediation will likely not resolve this dispute since the insurer will typically continue to rely on the paper review. The matter will then proceed to arbitration or a lawsuit will be commenced,” he adds.
Even if the car accident victim eventually “wins” his or her case against the insurer, Marshall says the treatment will be received much too late to be effective.
“The only real option to receive treatment in a timely manner is for the accident benefits victim to pay for treatment out of their own pocket. But how many accident benefits victims who haven’t returned to work can afford to pay for these treatments? Didn’t they purchase auto insurance for just such emergencies?” asks Marshall.