I recently wrote paper for my business law course. In this, I talked about the auto insurance industry and demonstrated through case law examples of insurer negligence, failed fiduciary duty, professional and assessment issues, and how some insurer behavior even seems to violate the Charter of Rights and Freedoms. Once I know I passed my assignment, I will post some of the findings here.
But what I realized in writing my paper is that third party assessors are immune in law. These are the assessors insurers hire when they want a second opinion. While I believe in the need for a “check and balance”, the quality of these opinions is deteriorating. Now, we are seeing completely unsupported benefit denials, issues with assessor behavior (questionable comments made to the claimant, very short exams costing thousands), errors in reporting (sometimes the client’s name is even wrong in parts), and even some fudging of professional credentials and experience (no Dr. Grant is not an Orthopedic Surgeon). As a treating OT, I see the aftermath of this – clients feel victimized, some even abused, some angry, and some sink deeper into a depression from the comments they read that have so wrongly captured the problems they have. People are trying to go to the Colleges to complain, but are saying this is ineffective.
I also discovered with my paper that third party assessors do not owe a claimant a “duty of care” and as such cannot be negligent. They can breach professional standards, and for that be held accountable by a College (if they have one), but cannot be sued for negligence or failed fiduciary duties. Does knowing this make these assessors more ruthless? Or, perhaps they don’t know this as I too used to be one of these assessors and always felt that I did owe a duty of care and ensured I provided a level of professional courteousness and respect for the client, even if the intent was not to form a treating relationship. I never saw a line between me as an “OT” and me as an “assessor”. They were always one and the same. But maybe that is why I never had a college complaint, or a client or other therapist call me after an assessment and tell me I was out to lunch.
I feel an uprising coming. A time where the people of Ontario, who rely on their insurer to fulfill a contract after an accident, get sick of the way they are being treated by some adjusters and assessors and demand a solution. One such solution has presented itself in Colorado. With this, Colorado’s uprising resulted in new Independent Medical Examination Legislation that is working to solve the problems that bad assessments were creating. Here are some highlights:
The legislation requires that independent assessors be in the same specialty as the treating practitioner (including chiropractors, psychologists, or orthopedic surgeons), and earn less than half their income from disability assessments. Most important, their process ensures that the assessor is acceptable to both the insurer and the patient. Assessors are held to a higher standard than treating providers, considering their position of power. In the new system, 75% of assessments have concluded that the initial diagnosis and treatment was appropriate, 20% partly appropriate, and only 5% inappropriate or unrelated to the accident. Further, dispute times have been greatly reduced, saving significant dollars (www.colorado.gov).
How about we try something like that FSCO, IBC and friends? But I know that before you can do this, you first need to recognize how the behavior and actions of some insurers are driving up costs, that bad assessments are ultimately resources wasted, and that costly disputes in court are resulting from both. Could it be that maybe, just maybe, fraud is only one of your problems?