Insurers Playing a Numbers Game Ahead of Insurance Discussions

Toronto Personal Injury Lawyer Albert Conforzi: The Insurance Bureau of Canada (IBC, the association that represents Canada's insurance carriers), took out a full page ad in the Toronto Star on Saturday, wherein they lined up their major talking points for the next round of insurance discussions.

By law, a 5-year review of the auto insurance system will start this year. The 2008 review resulted in the September 2010 reforms, the effects of which are still not completely understood. I blogged about the ramifications of the 2010 reforms a couple of weeks ago.

Among a number of astounding assertions, the Star ad suggested that Ontario's 2011 accident benefits claim payouts averaged $28,978, while in Alberta they were $3,568. While the figures themselves might be correct, what they do not reveal is that the Ontario figures include payouts made on claims arising from the pre-September 2010 legislative changes.

In my experience, one thing that insurers hate is someone telling them that they might have made  a mistake.

Those legislative changes reduced accident benefits payouts for all minor injuries to a maximum of $3,500, including all assessment costs (my colleague Alex Voudouris provides a good examination of the minor injury issue here). 80-90% of all claims made after September 2010 have been classified as minor injuries by insurers. Therefore, the use of pre-2010 claims payout numbers by the IBC is very misleading.

The ad also alleges that, "Lawyers challenging many cases has led to a backlog of 13,000 claims."

Well.

The flip side of that coin is that insurers, by wrongfully denying legitimate claims, lead victims to ask lawyers to help fight for their rights.

In my experience, one thing that insurers hate is someone telling them that they might have made  a mistake. The harsh truth is that a cavalier denial of a claim by an insurer, and an equally cavalier refusal to reconsider that denial, can ruin someone's life. It is only when lawyers shed light on such cases that victims have a chance at justice.

Insurers are in business to make money. Paying claims costs insurers' money. These types of ads demonstrate that insurers, through their mouthpiece organization, will say or do anything to get to the point that they can collect premiums and not have to pay claims.

Albert Conforzi is a personal injury lawyer with Pace Law Firm in Toronto. His posts generally appear on Mondays.

The Oscar Pistorius Murder Case

Toronto Personal Injury Lawyer Albert Conforzi: The Oscar Pistorius case murder investigation is grabbing headlines around the world. He stands accused of murdering his girlfriend, 29-year-old model and law graduate Reeva Steenkamp. Today, he appeared in court at a bail hearing.

Originally, the reports had Pistorius (famously known as the Blade Runner) mistaking his girlfriend for an intruder and shooting her dead. When heard like that, the story is tragically plausible. Don't think so? Consider the case of another South African athlete, former rugby player Rudi Visagie.

Some years ago, Visagie awoke in the dark hours of the morning and thought his daughter's car was being stolen. He fired a shot out his window and hit the driver. Moments later, he found his daughter dead behind the wheel. She had been on her way to surprise her boyfriend on his birthday, but hadn't told her parents the plan.

So yes, mistaken identity can happen, with lethal results.

Pistorius in court for a bail hearing. Photo by Stephanie de Sakutin/AFP/Getty Image

As the Pistorius investigation has unfolded in the last few days, however, it hasn't looked good for the defense. From the National Post:

Oscar Pistorius told a packed courtroom Tuesday that he shot his girlfriend to death by mistake, thinking she was a robber. The prosecutor called it premeditated murder.

The double amputee said in an affidavit read by his lawyer at his bail hearing that he felt vulnerable because he did not have on his prosthetic legs when he pumped bullets into the locked bathroom door. Then, Pistorius said in the sworn statement, he realized that model Reeva Steenkamp was not in his bed.

“It filled me with horror and fear,” he said.

He put on his prosthetic legs, tried to kick down the door, then bashed it in with a cricket bat to find Steenkamp, 29, shot inside. He said he ran downstairs with her, but “She died in my arms.”

The presumption of innocence and guilt beyond a "reasonable" doubt are fundamental tenets of a modern criminal law system. Still, as I read the stories on this murder, I began to wonder how believable it was that a man could not know whether his girlfriend was beside him in bed, and further, what he thought a thief would be doing in his bathroom in the middle of a break-in?

Will the prosecution's version that this was a premeditated murder be proven? Will Pistorius' celebrity status hurt him or help him in the proceedings? Time will tell. Hopefully the whole truth will come out.

Albert Conforzi is a personal injury lawyer with Pace Law Firm in Toronto. His posts generally appear on Mondays.

Insurance Premiums Continue to Rise While Benefits to Victims are Decimated

Toronto Personal Injury Lawyer Albert Conforzi: Andrea Horwath, leader of the Ontario NDP, is calling for a 15% reduction in auto insurance premiums for motorists in Ontario.

She commented on the nearly $2 billion in savings achieved by the industry as a result of the amendments that decimated benefits to victims in September, 2010. In spite of the savings, premiums have continued to rise. She cited that, for example, in 2011 premiums went up by 5%. From the CBC:

Major changes to auto insurance regulations in 2010 "dramatically" reduced benefits for drivers and turned out to be a huge "bonus" for companies, Horwath said. In 2011, the value of statutory accident payouts dropped by 50 per cent from the year before, to just under $2 billion, she said.

"Ontarians are tired of waiting," Horwath said. "Changes have been made to the Ontario insurance system that have allowed the companies to have far, far less in their payouts. And yet, that's not being realized in savings, in rates, to Ontarians."

Her proposal was part of the NDP wish list that is being thrown at the Liberal minority government as the price for continued NDP political support.

The immediate response from the insurance industry was twofold, and didn't surprise me in the least. One, that 77,000 jobs would be lost if premiums were reduced. Two, that what is really needed are anti-fraud measures recommended last fall by an anti-fraud task force.

Since 1990, Ontario motorists have had a succession of insurance regimes foisted upon it by an insurance industry that is truly gifted at finding someone to blame as a means to extract concessions from the government.

Insurers are masters of misdirection: lawyers, rehab facilities, doctors, fraudsters. I wonder who they'll blame next?

Originally, it was lawyers who were to blame for high insurance premiums. The government responded by giving insurers a no-fault system, combined with a tort threshold designed to eliminate the vast majority of bodily injury claims.

When premiums continued to rise, the insurers blamed the rehabilitation industry, who were claiming too many of the benefits that were available. The government amended the policy again at insurers' behest, but premiums continued to rise.

Then insurers blamed doctors, whom insurers thought were claiming too much money for the costs of medical assessments. The government again gave the industry what they wanted. And yet again, the premiums continued to rise.

The September 2010 amendments were demanded by insurers because there were just too many benefits available to victims. Therefore, what was needed was more choice. Optional benefits were introduced to give people more than basic coverages. Of course, very few people know about the options and even fewer can afford them. And yes, premiums still rise.

The latest bogeyman for the industry is fraud. According to the insurance industry, the system (which was created and repeatedly changed at their behest) has too much fraud in it. If only the fraud could be curtailed, they say, then premiums would come down.

Right.

I have previously blogged about insurance fraud. Fact is, the cost of fraud to the system has long been present and has long been built into the premiums.

Insurers are masters of misdirection: lawyers, rehab facilities, doctors, fraudsters. I wonder who they'll blame next?

Caught in the middle of all this, of course, are victims. For more than 20 years, we have seen an erosion of the rights of victims, while insurers have continued to amass profits. So when they respond to Andrea Horwath's call for a reduction in premiums, forgive me if I don't believe a word that the industry says in response.

I have long said that insurers in Ontario will not be happy until they can collect premiums without having to pay benefits. I still feel that way.

Albert Conforzi is a personal injury lawyer with Pace Law Firm in Toronto. His posts generally appear on Mondays.

So What Does "Economic Loss" Mean, Anyway?

Toronto Personal Injury Lawyer Albert Conforzi Back in the fall, I reviewed a decision regarding the meaning of the word "incurred" as used in the Statutory Accident Benefits Schedule (SABS). That decision, Henry v. Gore Mutual, held that once the threshold decision of finding an economic loss had been made, there was no necessary correlation between the economic loss sustained and the amount of attendant care benefit to be paid.

An arbitration decision was recently released, Simser v Aviva Canada, which reviewed whether individuals had sustained an economic loss as a result of providing attendant care, housekeeping and home maintenance services to the injured applicant. Under the SABS, certain conditions must be fulfilled before an expense can be considered as "incurred."

In this case, the examination revolved around whether the persons had sustained "an economic loss as a result of providing those goods or services to the insured person." The applicant submitted an expert opinion from a professor of economics, who opined that there are various types of economic loss, with a loss of income being just one of them. Loss of time devoted to labour or leisure is another type of economic loss, in the nature of a loss of opportunity.

The insurer argued that the words "economic loss" must be given their ordinary everyday meaning by applying the modern principle of statutory interpretation. That is, reading the words in their grammatical and ordinary senses. They also referred to a law dictionary definition of economic loss as "a monetary loss such as lost wages or lost profits…" The arbitrator found that the insurers' suggested interpretation was closer to the ordinary everyday meaning of the words.

From a factual standpoint, there were two individuals who provided attendant care, housekeeping, and home maintenance services to the applicant. The first one, JS, alleged that while continuing to work at her normal job, she would go home from work early or leave at various hours to provide services to the injured person. As a result, she said she sustained economic loss. Unfortunately, she provided no detail in terms of documentation to prove the number of hours and overtime lost and was found by the arbitrator to be a vague historian. She produced no documentation to prove any losses whatsoever.

The second individual, KS, did not attend to testify. The only evidence offered was that she lost time from her schooling. Again, no evidence was provided that any loss had been sustained.

I'm not sure whether this is a case of bad facts making bad law or not. Clearly, the arbitrator did not find the two service providers had made credible claims.

A further argument was made by the applicant. He argued that the insurer had explicitly recognized an economic loss by paying for some out-of-pocket expenses accompanied by receipts. The receipts were comprised of miscellaneous fuel charges, parking fees and restaurant bills incurred while apparently traveling from her home to the hospital where Mr. Simser was initially convalescing. The applicant argued that pursuant to the Henry decision, because some out-of-pocket expenses had been incurred and recognized by Aviva, the threshold for economic loss had been met and therefore the totality of the economic loss claim was payable.

The arbitrator found that if he were to accept this argument "every service provider would be able to circumvent the amended regulations by purchasing a single meal in a restaurant, a tank of gas or, as suggested by counsel, by paying one cent on a bus ticket...The Legislature would then have spoken needlessly and repetitively...Therefore I do not find that the mere payment of approximately $50 for gas, parking and restaurant invoices is sufficient to trigger the full payment of the attendant care."

I'm not sure whether this is a case of bad facts making bad law or not. Clearly, the arbitrator did not find the two service providers had made credible claims. On the other hand, the regulation does provide that an attendant care benefit would be payable if the individual providing the benefit had sustained "an economic loss." It doesn't say "an income loss." Why shouldn't gas, parking receipts, restaurant invoices or bus tokens be considered an economic loss?

This "incurred expense" requirement was a new concept introduced in the September 2010 amendments. It just might be that the drafters did not adequately define what was intended by "economic loss." If they meant income losses only, then they should have said so. 

The case has been appealed, and we will have to wait to see whether the original arbitration decision is upheld.

Albert Conforzi is a personal injury lawyer with Pace Law Firm in Toronto. His posts generally appear on Mondays.

Thoughts on the Rob Ford Conflict of Interest Decision

Toronto Personal Injury Lawyer Albert Conforzi: The Divisional Court of Ontario recently ruled on Rob Ford's appeal of his conflict of interest case. They found that the mayor could not be ousted from office.

The Court ruled that City Counsel did not have the power to compel the Mayor to return the funds that he had collected for his football fund. Accordingly, he could not be found to be in a conflict of interest for taking part in a vote to return the funds in the first place.

The decision itself is quite dry but it is always better to read these things for yourself. There's a good postmortem of the decision's key points here.

The next chapter in the saga will be the cost disposition. Should Paul Magder - the man who brought the suit forward - be hit with the Mayor's legal costs, which will no doubt be exorbitant? It could be argued that this was really a public interest lawsuit, and that the complainant should not be dealt with punitively. On the other hand, it should not be either easy or cheap to challenge a public figure who then must defend themselves and rack up legal bills.

Perhaps if a case such as this has merit, it is something that should be pursued by the Crown Attorney, and not necessarily proceed as a privately driven matter.

In any event, we'll see what happens next. According to Magder's lawyer, Clay Ruby, they will seek leave to appeal to the Supreme Court of Canada. Time will tell if the Supreme Court will have a listen, or if the case will finally be put to rest.

Albert Conforzi is a personal injury lawyer with Pace Law Firm in Toronto. His posts generally appear on Mondays.

More Money For Politics, But Not For Victims?

Toronto Personal Injury Lawyer Albert Conforzi: In the past year, there have been several important decisions from the Ontario Court of Appeal dealing with the issue of catastrophic impairments that arise from automobile accidents.

In both the Kuszniers and Pastore decisions, the highest court in the province declined to follow the interpretations urged by insurance companies. If they had been accepted, those interpretations would have narrowed who could be considered "catastrophically impaired." This would have significantly restricted a victim's access to benefits.

This latest attempt by the insurance companies to limit a victim's benefits is disturbing, but not surprising. There are a number of factors that already hinder a catastropohically impaired victim's access to care. They include: 1) a convoluted definition system which mandates using an American Medical Association Guides to the Evaluation of Permanent Impairment (4th edition), which is hopelessly out of date, and 2) a lack of therapies that used to be funded through OHIP, but are no longer available for car accident victims in most circumstances.

I suppose it isn't enough that some statistics indicate that catastrophic impairment cases amount to only 1% of all accidents. No, insurers are definitely not happy that victims who are catastrophically impaired might actually get benefits. So when the courts are consistently telling them that their approach is wrong in law, there is only one thing to do - change the law to align it with their parsimonious viewpoint.

I noted with interest a recent piece from Alan Shanoff. It relates to campaign contributions made to leadership candidates in the Ontario Liberal Leadership campaign. The Insurance Bureau of Canada (IBC) has taken it upon themselves to make a campaign contribution to a number of front-running candidates in the race. As Shanoff states:

It's puzzling why every aspect of the auto insurance industry is up for review save for insurance industry practices. Perhaps the next premier of Ontario will remedy this omission. It would sure generate a lot of votes. But I wouldn't bet on an inquiry, not with reports of $60,000 contributions by the Insurance Bureau of Canada to the leading candidates in the Ontario Liberal leadership race.

Why would an insurance lobby group want to position themselves with the leading contenders through campaign contributions? There is one answer that is obvious to me: insurers will be looking for further restrictions in the definition of catastrophic impairment in the 5-year review of the insurance regulations. This review is mandated to commence in 2013. What the courts won't allow them to get away with through the front door, they will try to get through the back door with amendments to the regulation.

I guess the IBC is betting that some well-placed contributions at this stage will gain them access to the ears of legislators in the future. Only time will tell whether it will be money well spent. Good thing that insurers are apparently awash with profits from the last legislative amendments that came into effect in 2010 following the 2008 five-year review. They apparently have plenty of money to throw around now.

Albert Conforzi is a personal injury lawyer with Pace Law Firm in Toronto. His posts generally appear on Mondays.

Law Times Looks at FSCO Backlog

I'm pleased to say that I was quoted in the Law Times regarding the backlog at the Financial Services Commission of Ontario:

Albert Conforzi of Pace Law Firm thinks the challenging aspect of the arrangement will be in the quality of the assistance given. “The mediators at FSCO have great training and experience and a knowledge base that they bring to mediation. My concern is whether or not the ADR Chambers mediators, although no doubt properly trained mediators, have a sufficient knowledge base to deal with the nuances of the accident-benefits regulations.

“We who use the FSCO system regularly go for the specialized knowledge versus the trials and tribulations of going to court where you may get a judge with very little experience with accident benefits. If you end up with an ADR mediator or arbitrator, it may lead to a result that you wouldn’t otherwise have got. The jury is still out.”

You can read a couple of my posts that deal with the FSCO backlog here and here, too.

A Legal Perspective on Chronic Pain

Toronto Personal Injury Lawyer Albert Conforzi: The greatest challenge in the personal injury field regarding the resolution of chronic pain cases is that most of them fall under the heading of a subjective complaint. That is, the client is telling you about the pain they are experiencing, but there is no clear cut medical evidence - an X-ray or MRI scan, for instance - to objectively support the claim.

It is rare for there to be an “objective” topology for reported pain and limitation of function. In those rare cases where objective evidence is present, the resolution of compensation issues isn't usually a problem.

The challenge in chronic pain cases stems, in large part, from the inherent skepticism of the insurance industry. Insurance personnel are institutionally-motivated and rewarded for their skepticism. Their primary focus is to limit claim amounts, as opposed to separating meritorious claims from frivolous ones.

We also have a legal system which is oriented to "cause and effect" questions. While chronic pain has been recognized at the highest court levels as a legitimate claim for damages, claimants face the hurdle that self reporting is the only way to know if they are suffering from chronic pain.

Insurance adjusters and insurers' counsel pore over every word of medical documentation for the slightest hint of skepticism about the veracity of the complaint. The goal is to undermine the credibility the claimant.

Despite significant advances in diagnostic technologies, it is presumptuous and naive to assume that diagnosis has achieved a level of certainty from which flows the legitimate conclusion that an absence of “objective” findings means that either the pain is not “real” or  is purely psychosomatic in origin.

Dry, “observational” language in recording self-reported symptoms for assessments and treatment recommendations can have a powerful impact on legal outcomes. While it is essential for assessors to maintain their professional integrity by objectively assessing and reporting on chronic pain scenarios, it is equally important for them to avoid relegating the self-report aspects of a case to “second class” evidentiary status.

Insurance adjusters and insurers' counsel pore over every word of medical documentation for the slightest hint of skepticism about the veracity of the complaint. The goal is to undermine the credibility the claimant, thereby limiting their exposure or forcing a minimal settlement. A medical assessor, concerned primarily with the therapeutic welfare of the patient, might well be unaware that their words, if poorly chosen, can seriously impair the patient's efforts for legitimate legal recovery.

Individuals experiencing chronic pain typically have been subjected to multiple diagnoses, various unsuccessful therapeutic interventions, and overt skepticism. They can understandably feel demoralized and frustrated. Nonetheless, unless there are clear reasons for discounting their self reported symptoms, it is essential that medical assessors be alert to the wider implications of their reports so as to avoid victimizing the chronic pain victim a second time.

Albert Conforzi is a personal injury lawyer with Pace Law Firm in Toronto. His posts generally appear on Mondays.

Maybe The Decision Makers Will Learn This Time?

Toronto Personal Injury Lawyer Albert Conforzi: It is hard to conceive of someone not having heard about the deadly rampage that led to 26 deaths in Newtown, Connecticut. These were children and teachers who were completely innocent, but who were nevertheless victims of senseless gun violence.

All of the guns were obtained legally by the shooter's mother who was herself murdered by her son. She was described in news reports as a gun enthusiast.

How many more people have to die in these killing sprees before the gun lobby in the United States loses its voice? The usual mantra aside from the Constitutional right to bear arms, is to say that "guns don't kill people, people kill people." The truth is that people with guns kill people. In this case, guns were within the grasp of someone with mental health issues and 26 people are now dead.

The American decision makers never seem to learn anything from these senseless tragedies. Maybe this time?

In this season of advent, we celebrate hope, joy, love and peace. For 26 families there will only be horror and loss.

In this season of advent, we celebrate hope, joy, love and peace. For 26 families there will only be horror and loss. For them, this season will always mark the anniversary of this nightmare and how their lives were changed forever.

Life sometimes spins out of control and there seems to be no reason why. In cases like this, the reason for it itself defies reason. Add access to guns to the mix and this is the result.

I hope that all my relatives, friends and colleagues will spend as much time as they can with those who matter most to them in this Christmas season.

Please have a safe, happy and healthy New Year. Please don't drink and drive.

My blog will be back on the first Monday of 2013.

Albert Conforzi is a personal injury lawyer with Pace Law Firm in Toronto. His posts generally appear on Mondays.

Successful Resolution of a Motor Vehicle Accident Case

Toronto Personal Injury Lawyer Albert Conforzi: I have been asked a few times in the past week about my successful resolution of a recent case.

The case arose out of a serious motor vehicle accident, which is typical in my practice area. It was an intersection accident between a pickup truck and a tractor-trailer. As a result, my client - whom we'll call Mary - sustained serious orthopedic injuries to her legs, pelvis and arm.

As is typical, Mary had a good recovery from those multiple fractures, but there were still physical limitations she would carry with her forever. When clients realize that their physical limitations will be permanent, they can spiral downwards emotionally. In Mary's case, the  emotional scars became as important as the physical limitations.

When I was a defense lawyer for insurers, I learned firsthand the power of creating exposures to both sides.

The key in a case like this is early psychological intervention and support once the signs of the spiral begin to appear. For Mary, the psychological impairments became the basis of a Catastrophic Impairment designation.

Careful evaluation of Mary's situation led us to get a future care cost analysis for her needs. After that was done, we evaluated what could be obtained from the tort defendant and what could be obtained from the accident benefits carrier. By creating exposures to each side, we were able to put them both in a position where they wanted to discuss a resolution with us.

When I was a defense lawyer for insurers, I learned firsthand the power of creating exposures to both sides. Few lawyers use both tort and accident benefits exposures effectively. While the accident benefits regimes have changed multiple times over the years, the theory remains the same: use the accident benefits to build the tort and then use both sides against each other to maximize compensation for the client's injuries.

As in this case, the theory works when its implemented skillfully. It's what we do for our clients.

Albert Conforzi is a personal injury lawyer with Pace Law Firm in Toronto. His posts generally appear on Mondays.

A Busy Year for Accident Benefits Decisions

Toronto Personal Injury Lawyer Albert Conforzi: 2012 has been a very active year at the Ontario Court of Appeal in the area of accident benefits decisions.

Last Wednesday, the Court of Appeal released its reasons in Cornie, which dealt with the mediation backlog at the Financial Services Commission of Ontario (FSCO).

The Insurance Act requires all disputes for benefits to be mediated at FSCO before an applicant can proceed to Arbitrate or Litigate such disputes. The backlog of mediations currently sits at around 31,000 files, and from the time that you file your papers to when your mediation is heard, the wait can be approximately one year. That is an eternity when you are waiting for benefits. The Insurance Act and regulations actually require that the mediation be held within 60 days after the mediation application is filed. So what gives?

Thankfully, the Court confirmed that "60 days" means "60 days" and "filing" means "filing."

In Cornie and 3 other cases that were heard at the same time, the issue was whether a party could proceed to arbitrate or litigate a matter if the mediation was not held within the 60 days. FSCO itself took the position that the 60 days did not run from the filing of the mediation application - as in the regulation - but rather the 60 days ran from when a mediator was appointed to hear the case. The injured parties took the position that 60 days from filing meant 60 days from filing. The insurers opposed the injured parties as well. In my view, their self interest was in seeing the delay extend as long as possible (here's another post of mine which mentions how insurers view the backlog issue).

Thankfully, the Court confirmed that "60 days" means "60 days" and "filing" means "filing." Accordingly, a party may ask for a failed mediator's report 60 days after filing an Application for Mediation if a mediation has not been held.

The danger now is that the backlog in mediations is simply going to be pushed to the Arbitrations unit at FSCO. Time will tell whether that fear materializes and to what extent it happens.

Trials Aren't Tea Parties

Toronto Personal Injury Lawyer Albert Conforzi: A leading Canadian corporate lawyer is before a discipline panel of the Law Society of Upper Canada for being "uncivil."

The case arises from the lawyer's successful defence of his client in the now famous securities fraud case which followed the Bre-X financial disaster. The lawyer, Joe Groia, successfully defended the Chief Geologist of the company, in a case that lasted a number of years.

The presiding judge did not sanction any of the lawyers at any point in the proceedings. A judge who later reviewed the case concluded "neither side in this case has any monopoly over incivility or rhetorical excess."

One can conclude from this comment that the trial was pitched battle. Neither side was interested in taking prisoners. Just so, as trials are not tea parties. Both sides should expect that quarter is neither asked for nor given. In this case, however, the Law Society decided to prosecute Mr. Groia for professional misconduct arising from his alleged "incivility."

While lawyers must remain mindful of the line between being aggressive and being rude, they are still duty bound to fearlessly advocate for their clients. The Law Society has for a number of years been trying the promote civility in the legal profession, but to my mind there is no actual definition of what constitutes "incivility."

The Law Society seems to be making an example of Mr. Groia. In a case where both sides were apparently behaving in a similar manner, and where the trial judge made not one comment to either Counsel, one must wonder why Mr. Groia is being singled out. One could also speculate whether this case would have been brought at all if he had lost the original case.

It will be worth keeping an eye on this one.

Albert Conforzi is a personal injury lawyer with Pace Law Firm in Toronto. His posts generally appear on Mondays.

New Techniques to Help People With Brain Injury

Toronto Personal Injury Lawyer Albert Conforzi: My father once said to me that the mark of a truly smart person is the understanding not of what they know, but rather the understanding of how much they don't know.

When we talk about medicine, and the findings that are constantly being explored and found, it really brings that expression into focus.

It was not that long ago that X-rays were the most advanced form of medical imaging available. Since that time, of course, CT scans, EMG studies, MRI and fMRI are among the medical imaging advances that make plain old X-ray seem like the dark ages.

All of this leads to a fascinating article and video that I came across last week. Doctors and researchers are using brain activity as a communication tool to show that some persons who are in a profoundly vegetative state can still understand and respond through that brain activity:

A Canadian man who was believed to have been in a vegetative state for more than a decade, has been able to tell scientists that he is not in any pain.

It's the first time an uncommunicative, severely brain-injured patient has been able to give answers clinically relevant to their care.

Scott Routley, 39, was asked questions while having his brain activity scanned in an fMRI machine.

His doctor says the discovery means medical textbooks will need rewriting.

While statistically the number of people who suffer this level of catastrophic injury are very few, this cutting edge interface between imaging and injury is being utilized to improve the recovery from other forms of serious injury. I am pleased to be able to help my clients in accessing these additional types of diagnostic tools. They simply lead to better results.

While it is indeed a marvel at what is being done, it is even more profound to consider the secrets that are left to be unlocked.

Albert Conforzi is a personal injury lawyer with Pace Law Firm in Toronto. His posts generally appear on Mondays.

File Referrals and File Brokering

Toronto Personal Injury Lawyer Albert Conforzi: An eyebrow raising piece of litigation is unfolding in the Toronto courts. It brings squarely into focus the practice of file referrals.

There are two types of file referrals amongst lawyers. One happens when a client with a problem comes to see you about a problem that you don't cover. For example, if someone came to me with a matrimonial dispute, I would refer them to an expert in family law. I do not ask for, nor do I receive, a fee of any sort for referring the client to the family lawyer. My only desire is that the lawyer take good care of the client. Similarly, I am frequently asked by other lawyers to represent their clients in a personal injury matter, and those lawyers expect the same from me: to serve the client's best interests and to treat the client well.

Paying a referral fee for a file referral is not illegal, but the issue may be whether the public is being misled into believing that they are retaining experts, when they are really hiring a broker.

The second type of file referral could be called "file brokering." This happens when a firm advertises heavily that they handle certain kinds of cases, for example personal injury. The file broker then "sells" incoming files to a law firm that actually practices law in that field. In return, the file broker gets a percentage of the fee upon settlement of the case.

This is exactly the practice that is described in the article here. Note that this lawsuit is ongoing and any and all allegations are unproven until adjudicated upon, but it does give some insight into how some of these arrangements work.

Paying a referral fee for a file referral is not illegal, but the issue may be whether the public is being misled into believing that they are retaining experts, when they are really hiring a broker.

The Law Society of Upper Canada is the regulatory organization for lawyers, and I expect they will be following the proceedings very closely. Our firm and many others do advertise as part of a marketing plan, but the difference is we are also the people who provide the legal services you need.

Albert Conforzi is a personal injury lawyer with Pace Law Firm in Toronto. His posts generally appear on Mondays.

Insurer Sleight of Hand

Toronto Personal Injury Lawyer Albert Conforzi: Last week, yet another shady trend in insurer behaviour came to light.

Under the standard automobile policy, insurers provide accident benefit coverage for such things as attendant care, income replacement benefits, and medical/rehabilitation benefits. The specific items that qualify as a medical/rehabilitation benefit are set out in s.14 of the Statutory Accident Benefits Schedule (SABS). They include "medical, dental, optometric, hospital, nursing, ambulance, audiometric and speech language pathology service[s]," as well as "other goods and services of a medical nature that the insured person requires." Emphasis mine.

It has come to my attention that some, but not all, insurers are paying for medical records obtained by them by making the payments from the med/rehab benefit entitlements.

What this does is effectively short-change the insured in accessing their limits of coverage under this provision. It takes money that is supposed to be used for therapies to assist with recovery, and uses that money to pay for items that are not covered by the section. Worse yet, the insurers are not telling their insured clients about it. They are not sending out explanation of benefit forms, as they would be required to do when paying out a benefit, and when they are called to task on this corrupt behaviour, they simply ignore the complaint.

Insurers these days are secure in the knowledge that the backlog of processing mediations of accident benefits disputes at the Financial Services Commission gives them a year-long delay in having to face the reality of their actions. They seem to have it in their heads that they can act with impunity.

They are dealing from the bottom of the deck. Now that is a real world example of insurance fraud.

Albert Conforzi is a personal injury lawyer with Pace Law Firm in Toronto. His posts generally appear on Mondays.

When "One Size Fits All" Doesn't

Toronto Personal Injury Lawyer Albert Conforzi: When we look at our health care system, we Canadians can be smug at times, especially when we compare ourselves to our neighbours to the south.

Universal health care most definitely has its benefits. As the saying goes, "the measure of a great society is the manner in which it treats the least of its members." Canada does very well on that side of the ledger sheet.

The other side, however, is that our vast geographic size, combined with our relatively small population, reduces economies of scale on such things as research and development. Further, the size of the population means that any complex medical problem that arises here has usually been seen ten times more frequently down south.

I have always understood that there were instances when OHIP would fund necessary surgery in the U.S. In order for this to happen, your family physician would have to submit a request for out of province surgery.

I was surprised to hear that this is no longer the case:

As of April 1, 2011, patients had to find a specialist to request out-of-country care. Prior to that, family physicians could do so. And if a specialist in this province says they can perform the procedure, then OHIP coverage outside the country will automatically be denied.

How many specialists here do you think will say that they can't do something that is being done in the US?

By shifting the request away from the family doctor to the specialist, the government has no doubt seen a significant drop in out-of-country surgery requests. But is such a change aimed at helping people, or is the government more concerned about the bottom line?

As a lawyer, it does not surprise me that such a regulatory change could be quietly made by Order-in-Council. It is frequently done. But as a parent and a taxpayer, I am appalled that this could be done with such little discussion. If you had to choose between a local doctor here who might be learning their techniques at your child's expense, or seeing a foreign doctor who has a proven track record of success, I'm sure your choice would be the same as mine.

Perhaps rather than subjecting Ontarians to this dilemma, OHIP should consider having an Ontario surgeon attend the surgery in the US to help them gain experience for the future.

Whatever the case, if you feel you need foreign medical assistance, it is very important to consult a legal professional before seeking treatment.

Albert Conforzi is a personal injury lawyer with Pace Law Firm in Toronto. His posts generally appear on Mondays.

Structured Settlements and Dispute Resolutions

Toronto Personal Injury Lawyer Albert Conforzi: I was honoured to be asked to take part in a discussion last week on the subject of structured settlements at a Canadian Defence Lawyers (CDL) conference.

CDL focuses on the education of its members who work on behalf of insurers. As a lawyer for accident victims, I was asked to bring my own unique perspective to them on the use of structured settlements in the resolution of accident benefits disputes. In my nearly thirty years of practice - which includes several years as an insurance defence lawyer - I have made regular use of structured settlements for my clients in the resolution of disputes.

A structured settlement is a tax-free annuity purchased with the proceeds of a dispute settlement. It is purchased from one of 5 of the life insurance companies that offer them, and as a result, must be purchased through licensed brokers. The goal of the annuity is to produce a tax-free stream of payments for the rest of a victim's life, or as appropriate. This allows them access to the funds necessary to live without having to deal with their insurer any longer.

Ultimately, to make good use of structured settlements, a lawyer must be prepared with all the background information necessary to predict as best they can the clients' needs going forward.

Insurance companies are not obliged to settle claims in a lump sum, but will often do so. The advantage to them to go this route is that they no longer have to administer the file. The advantage to the claimant is the freedom to exercise their judgment as to how they will use their money, without intrusive meddling by an insurer. Note that structures may only be used by consent of the parties, or by a Court Order.

There are some insurers who deal with only a particular broker. Why, you ask? It's a very good question, and one can only speculate, but I am sure you can probably come up with a good reason or two. For my part, I always have my quotes done through my own sources, and never just accept what the insurer's broker says so.

Ultimately, to make good use of structured settlements, a lawyer must be prepared with all the background information necessary to predict as best they can the clients' needs going forward.

It is very nice to be recognized by your peers as a preeminent practitioner in your field. In this case, it was my opponents recognizing what it is they wanted to learn from me. Have no fear though; I didn't tell them everything I know. I held some things back from which only my clients will benefit.

Albert Conforzi is a personal injury lawyer with Pace Law Firm in Toronto. His posts generally appear on Mondays.

Client Service and Building Upon Success

Toronto Personal Injury Lawyer Albert Conforzi: I spent this past Saturday with my colleagues at Pace Law Firm in a service standards retreat.

How refreshing it is to be part of an organization brave enough to look critically in the mirror. As I enter my 30th year working in litigation and in law firms, I have met many lawyers and observed many different firms. The one common thread is that the lawyers and their firms generally regard what they do as beyond  reproach and beyond review.

One thing that I have observed since joining Pace Law Firm is that our organization is not only dedicated to excellent service, but is constantly trying to find ways to build upon excellence.

Our firm already enjoys an extremely high level of client satisfaction.This results in a high rate of referrals back from former clients if their family and friends suffer an injury and need help to recover their dignity following that injury. That being the case, why would we bother asking our 130 lawyers and staff to devote their weekend to talk about something we already do well? The answer is simple: complacency is the enemy.

We live in an incredibly competitive world. There are no end of competitors who use the media to boast that they are the best at what they do. At Pace, building upon our achievements will continue to motivate us to push the envelope of client service and satisfaction.

Our culture of service has been incredibly important to our success so far, yet I am proud to be part of an organization that is able to say, "We provide exceptional service to our clients, but we can always find ways to improve."

Albert Conforzi is a personal injury lawyer with Pace Law Firm in Toronto. His posts generally appear on Mondays.

Doctor's Orders

Toronto Personal Injury Lawyer Albert Conforzi: Did you know that since 1968, doctors have been obligated to report unfit drivers to the Ministry of Transportation? Indeed, since 2006, your doctor has been paid to do so:

Since 1968, Ontario doctors have been required by law to report unfit drivers, but studies have shown that actual reporting of affected patients falls far below the prevalence of chronic diseases like dementia, alcoholism and diabetes in the population.

In 2006, physicians in the province began receiving a small fee — $36.25 — for counselling a patient that he or she should not be driving, and reporting them to the Ministry of Transportation.

The good news is that the identification of these drivers resulted in an immediate 45 percent drop in trauma from motor vehicle crashes.

The bad news is that 20 percent of those identified did not return to their doctor following the doctor having issued the warning. It's likely that these people simply changed doctors.

Let's face the facts -- if I am not fit to drive, I want my doctor to say so. Every member of the motoring public should feel the same way.

Something Good For Claimants - For Now

Toronto Personal Injury Lawyer Albert Conforzi: On September 27, the Ontario Court of Appeal issued a long awaited ruling dealing with the case of Pastore v. Aviva Insurance Company.

The case dealt with the interpretation of the definition of catastrophic impairment in the Statutory Accident Benefits Schedule (SABS). A catastrophic impairment designation opens up an extended range of benefits for people injured in an accident. These benefits include medical, rehabilitation, attendant care, and housekeeping benefits.

Unless you work in the legal or insurance industry, or know someone who has been involved in a catastrophic injury case, you may be surprised to learn that being declared "catastrophically impaired" does not result in an automatic payment of ANY sort. The only thing that it does is open the door to qualify for further benefits beyond the non-catastrophic limits.

In Mrs. Pastore's case, she had suffered an ankle fracture when she was struck by a car. The injury later resulted in knee problems due to altered gait, and led to disabling chronic pain. In turn, the chronic pain resulted in psychological impairments. She was declared by physicians to have suffered a marked catastrophic impairment due to her mental and behavioural disorder in the realm of the activities of her daily life.

The question was, could only one area of marked impairment be enough to be catastrophically impaired, or do you need two, three or four?

The insurer Aviva disputed the designation at every level possible, resulting in three separate decisions before the Court of Appeal. The thrust of their argument was that the AMA guides identify 4 areas of behavioural disorders. Mrs. Pastore was found to have a marked impairment in one area only. The question was, could only one area of marked impairment be enough to be catastrophically impaired, or do you need two, three or four? The insurance company argued that a finding of marked impairment in only 1 area was simply not enough.

In its unanimous decision, The Court of Appeal found that the legislation supported Mrs. Pastore's version, that "a marked mental and behavioral impairment" does indeed mean that one is enough.

Now that the insurance industry has lost this important case, I fully expect the insurers to lobby the government for a change to the SABS to reflect their own interpretation. Historically, the government has caved to insurer demands. Though it is difficult to understand why the government would enter the debate when the courts have commented, in my opinion the insurance industry lobby is very strong and very intent on eliminating benefits payable to claimants to the greatest extent possible.

We shall see whether history will repeat itself.

Albert Conforzi is a personal injury lawyer with Pace Law Firm in Toronto. His posts generally appear on Mondays.