One of the first things that caught my eye was Mr. Marshall’s admission that he consulted with Ministry of Finance officials and Insurance Industry representatives in Ontario and other provinces while doing his research. The obvious glaring omission is that he does not appear to have consulted the organizations representing health care professional who provide treatment for drivers who are involved in accidents, nor does he appear to have consulted you – the citizens and drivers of Ontario - who are paying the highest insurance premiums in the country. Don’t you think that you should have had some input into this report?
Mr. Marshall’s executive summary starts off with the obvious – that the structure of the current insurance system in Ontario is flawed and results in huge amounts of inefficiency and waste due to the many legal disputes that arise from the denial of medical and psychological treatment for injured drivers. He goes on to state that the solution for fixing the system lies not in reducing or denying benefits, but in delivering fair benefits to injured drivers.
When I read Mr. Marshall’s initial observations, they looked great at first glance, and I was ready to jump on his bandwagon. I eagerly moved on to read his proposed 5-step action plan for reform, which recommended:
1. Setting up a new arm’s length regulator of the insurance system with a skill’s based board.
2. Ending the current system of cash settlements from insurance companies to catastrophically injured drivers to resolve claims disputes.
3. Replacing cash settlements with needs-based care for injured drivers.
4. Making contingency fees for lawyers, who are hired by injured drivers, more transparent.
5. Because the insurance system is likely to change significantly over the next ten years, reducing price controls on the insurance industry to encourage competition in the marketplace.
Sounds too good to be true, doesn’t it? It sounds like Mr. Marshall really understands you, gets your concerns, and wants to help you, right? That’s what I thought – until I started reading the fine print later in the report. Once you start reading the details, you realize that the action plan’s five steps are indeed too good to be true!
So, let’s have a look at what these proposed changes really look like, and let’s examine the flawed logic that Mr. Marshall used in showing how the 5-step action plan should be implemented:
1. ESTABLISHING AN ARM’S LENGTH REGULATOR
Mr. Marshall calls for establishing a new arm’s length regulator with a skills-based board. Yet, in creating his report, he apparently did not consult with the Colleges of the health care professions who are all regulated under Ontario’s existing Regulated Health Professions Act. It’s hard to conceive of any entity that regulates the delivery of health care to injured drivers, that does not have substantial representation from all of the Regulated Health Professions and the public at large. This is something we should all demand if Mr. Marshall’s recommendations are translated into new legislation.
2. ENDING CASH COMPENSATION FOR CATASTROPHIC VICTIMS
This is a great idea in theory. I think we would all agree completely that people who are catastrophically injured should receive the medical care they need as their needs change over their lifetime. But, the big question that pops into my mind is this: Who decides what type and how much medical care the catastrophically injured person needs? Who decides what kind of treatment all injured drivers should receive? Read on – Mr. Marshall’s true vision for the future of the Insurance system starts rearing its ugly head in Step #3.
3. ESTABLISHING A “CARE, NOT CASH” APPROACH
On the surface, none of us would disagree that if we’re injured in an auto accident, we would rather have proper medical treatment and regain our health, than receive cash compensation as Mr. Marshall’s report recommends. But here’s where it gets interesting. Out of nowhere, Mr. Marshall jumps in and proposes that his proposed new regulator should create new “Programs of Care” – let’s call them POCs for short – as the solution for most of the problems that exist in the current insurance system in Ontario. It’s as if he already had a solution and couldn’t wait to find a way to justify it before springing it on us. The new POC’s would dictate which so-called “evidence-based” treatments could be provided by the new POCs. In other words, your treatment providers would be told which treatments they can use with you, and which treatments they can’t use. Furthermore, you wouldn’t be able to choose your own health care providers. Is this something you’re willing to accept? And what other options did he consider for insurance reform? I’ll address these questions and the flaws in Mr. Marshall's leaps of logic just a bit later.
4. CONTINGENCY FEES FOR LAWYERS SHOULD BE MORE TRANSPARENT
Once again, I don’t think this is anything that most of us would disagree with. Given recent news reports of some of the shady tactics used by some high-profile law firms in the GTO, this is a subject that obviously needs to be addressed. Mr. Marshall argues that providing injured drivers with the treatment they need through the new POC’s will reduce the need for retaining lawyers in the first place. I agree completely that we need to deliver treatment to injured drivers much more quickly to reduce the need for legal proceedings. But do we really need a new system of new treatment care centres to do that? Why not just change the system to allow speedier approval of the treatment plans that are submitted by the existing Regulated Health Care providers in our communities? Why do we have to re-invent the wheel, when we already have qualified treatment providers? Just wait until you hear Mr. Marshall’s twisted reasoning and his answer.
5. LESS REGULATION AND PRICE CONTROLS IN THE INSURANCE INDUSTRY
Mr. Marshall argues that this will allow Auto Insurers to introduce new products and compete more freely on prices and services. Does this sound to you like something the insurance companies asked Mr. Marshall to recommend? Does it sound like a lot more of what your insurer has been doing to you lately – reducing your premiums minimally to make you feel good about reduced premiums, but reducing your insurance benefits by up to 50%? I don’t buy it, and neither should you. Does anybody else out there, besides the insurance companies, really believe that we want LESS regulation of the auto insurance industry?
THE FATAL FLAWS IN MARSHALL’S LOGIC
To see the fatal flaws in Mr. Marshall’s logic, we need to have a look at the details later in his report, where he lays out his plan for the new POCs – the so-called Programs of Care. He bases his conclusion that we need new POCs on opinions from one review of the rehabilitation literature by Drs. Coté and Skolaridis (references provided in the Marshall Report) which I took the time to examine. In doing so, I noted some major flaws in that literature review, including a basic assumption that all whiplash injuries are the same, and an exclusion of whiplash severity as a significant factor in the researchers’ statistical analyses and conclusions. Why on earth would anybody exclude whiplash severity as a significant factor in treating whiplash? That’s like ignoring the effect of number of cigarettes smoked per day if you’re studying the effectiveness of smoking cessation programs!
Mr. Marshall provides a quote from Drs. Coté and Skolaridis regarding treatment of whiplash, which I find totally unjustified after reading their research:
“It is an unsettling fact that most interventions used in clinical practice are not supported by scientific evidence … It is highly likely that a high proportion of patients are treated every day with ineffective or unproven clinical interventions. These findings emphasize that clinicians need to be educated on the use of evidence-based interventions.”
In other words, Mr. Marshall is basing his entire premise of the need for POC’s on the assumptions that Regulated Health Care providers in Ontario are either uneducated or incompetent (or both), despite being legally regulated and allowed to practice under existing Ontario legislation. He is proposing that duly qualified professionals need to be told how to practice their professions when treating whiplash. I don’t know about you, but as a Regulated Psychologist who provides psychological treatment to whiplash victims, I find his premise to be absurd. Not only that, I find his implications to be repugnant and professionally insulting, especially when I read the flimsy research upon which his premise is based.
So, essentially, Mr. Marshall is blaming the current system and resulting legal disputes over treatment denial, on our community’s existing Regulated Health Care providers. He is using us as the scapegoats and the reason for needing to set up a new model of treatment for injured drivers. Are you going to let Mr. Marshall and the Wynne government do that to your physiotherapist, massage therapist, chiropractor, or psychologist? In doing so, Mr. Marshall has been the master illusionist. He has skillfully deflected attention, in true Donald Trump fashion, from the real issue that has precipitated all of the legal disputes surrounding the current insurance system in Ontario – the Insurance Companies themselves.
And if you think you’re already skeptical of the idea of creating POCs, here’s the real kicker. Once you’ve been referred to a POC for assessment, and once they’ve dictated the type of evidence-based treatment they see fit, the POC’s word is final! That’s right folks, under Mr. Marshall’s plan, you will have absolutely no recourse or right to appeal the POC’s decision. This is the most frightening aspect of all in Mr. Marshall’s entire report.
The proposed POC’s resemble the type of draconian treatment program that the Wynne government has developed in the current WSIB system for injured workers in Ontario over the past few years. When referred to WSIB treatment programs, WSIB’s word is final and workers have little recourse, apart from trying to seek an appeal through an overburdened Office of the Worker Advisor or engaging a lawyer. If your Health Care provider gives an opinion that WSIB doesn’t like, WSIB simply ignores it. The situation has become so bad that Health Care providers in the province have banded together to lobby WSIB and the government to reform their practices and to respect the opinions of duly qualified professionals. So, if Mr. Marshall gets his way, injured drivers will have even less recourse than injured workers in Ontario. And if any of you have friends, family, or neighbors who have been involved with the WSIB system in Ontario lately, just ask them about their experiences with the treatment provided by WSIB. Need I say more?
WHAT’S THE HIDDEN AGENDA
So, why the need to mislead the public by using existing Regulated Health Care providers as the scapegoats for the current system’s problems? As much as Mr. Marshall says it’s not about money, and that it’s all about providing evidence-based treatment to injured drivers, the fact is - IT’S ALL ABOUT THE MONEY!
By creating in-house programs within systems like WSIB and the Auto Insurance System, the Wynne government has found a way to provide treatment within programs that have a defined budget, effectively capping expenses. It effectively makes treatment providers employees of the treatment programs, subject to the whims of the programs and the government (or insurance companies) that control(s) them. In this case, health care providers would essentially become employees of the Insurance Industry. In the process, you would lose the right to choose the treatment providers you trust if you are an injured driver. Is that what you really want?
THE REAL PROBLEM WITH ONTARIO’S CURRENT INSURANCE SYSTEM
When Regulated Health Care providers currently submit treatment plans to insurance companies under the existing system, our treatment plans are judged by insurance adjustors who have little or no medical experience for determining if our treatment plans are reasonable or necessary.
It’s hard to believe that this has been allowed to happen. Furthermore, to help adjustors make easy decisions, the insurance industry came up with a solution called the Minor Injury Guideline, which assumes that ALL whiplash injuries are minor. Along with that assumption comes a cap on the total amount that your insurance company will pay for medical and rehabilitation expenses. In other words, did you know that even if you paid premiums that would theoretically give you up to $50,000 or $100,000 of benefits, your insurer can arbitrarily limit that to $3500 if you have a whiplash injury? Hard to believe, isn’t it! But it’s true!
Since whiplash injuries represent the bulk of accident-related injuries, this means that the Insurance Industry has been allowed to become the gatekeepers of access to the current medical-rehabilitation system. It has become the primary tool used by the auto insurers to limit claims and increase profit. The system has created a gigantic bottleneck that denies or delays treatment for a huge number of injured drivers, whose only recourse is to either be sent by their insurer for numerous costly assessments for second opinions, or to seek a lawyer and to start the arduous process of going to court to get the benefits to which you are entitled under your insurance contract.
The current system is a constant source of frustration for Regulated Health Providers, who continually find ourselves handcuffed in our ability to provide early treatment to injured drivers when their treatment plans are regularly and arbitrarily denied. And yet, Mr. Marshall wants to blame us, the Regulated Health Care providers for the delays and disputes, instead of focusing on finding the real problem and reforming the existing system.
THE REAL SOLUTION
The real solution is simple - fix the existing bottleneck in the current system. Remove the barriers that have been constructed by the Insurance Industry to allow them to be the gatekeepers for entrance into the system. Get rid of the Minor Injury Guideline that limits your benefits to $3500. Trust that the existing Regulated Health Professions Act in Ontario works well, by ensuring that your Health Care providers are educated and competent to provide evidence-based therapies to you. Give Health Care providers the chance to provide early treatment to injured drivers without arbitrary restrictions imposed by the insurance industry.
Should our Regulated Health Care providers be accountable for ensuring that you are improving with their treatment? Absolutely. In that regard, I agree completely with Mr. Marshall. But that doesn’t mean we have to reinvent the treatment system in Ontario, when we already have a base of educated, competent treatment providers in place. We simply need to ensure that providers are accountable for documenting that their treatment is producing results.
In my own practice, I evaluate patients at every treatment session to rate their progress. If asked, I can generate a graph within minutes that shows how many sessions any given client has had, and whether or not he or she is making progress. That’s what I call evidence-based treatment. Ironically, I have never been asked by an auto insurer to present that evidence.
CAN THE EXISTING SYSTEM STILL WORK?
Yes, I believe a system outside of POC’s can still work, because I've seen it work in an entirely different setting. In my private practice, I have done work for many years with a large provider of disability insurance. That insurance company initially contracted me to provide some psychological service for people who had significant psychological issues, but who could not afford the treatment that would help them return to work. The insurer trusted that I was competent to do my work and they paid me a fair fee for doing so. In return, over the years, I have demonstrated that I have a toolbox of different evidence-based skills that have been successful in helping people return to their work and to their former daily activities. In the inevitable cases where treatment is complicated or may be extensive, the disability insurer has the option of making referrals for second opinions, or they may decide that the patient has plateaued and may be at maximum medical recovery. This is the type of situation where Mr. Marshall’s proposed Programs of Care (POCs) can play an important role as a secondary referral source, and as a convenient access point for obtaining opinions from specialists.
WHAT WILL IT TAKE TO FIX THE CURRENT SYSTEM?
I’ve always believed that if I’m going to criticize somebody else’s suggestions, I’d better be prepared to offer an alternative solution. Thus, I’m offering up my own suggestions for an alternative 7-Step process for repairing the current Ontario Auto Insurance System:
1. First and foremost, Mr. Marshall’s recommendations amount to throwing out the baby with the bathwater. Contrary to his assertions, we don’t need to be in a rush to completely abandon the old system, and reinvent it for delivering treatment to injured drivers. We simply need to take time to properly repair the major faults in the existing system.
2. We need more consultation between all stakeholders in the Auto Insurance System before rushing into an ill-conceived plan to reinvent the system for delivering treatment to injured drivers. This means including meaningful representation and decision-making authority from the existing Regulated Health Professions and the general public at large, in addition to representation from government and the Insurance Industry.
3. We need to eliminate insurance adjustors as the adjudicators of medical treatment plans, and as the gatekeepers to medical rehabilitation treatment. We need to trust that existing Regulated Health Care providers are educated, competent, and qualified to submit treatment plans that are reasonable and necessary, and require that adjustors approve reasonable treatment plans from qualified Health Care providers.
4. We must eliminate the current Minor Injury Guideline. Together with Step #3 above, this will eliminate the bottleneck that currently restricts injured drivers from accessing treatment immediately after their accidents, when they need it the most. Contrary to the flimsy research that Mr. Marshall has quoted, this will not affect the quality of treatment provided to injured drivers, and it will eliminate many of the legal disputes that arise in the current system.
5. We should create Programs of Care (POCs) that serve as secondary assessment and treatment centres for injured drivers whose cases are complicated, where treatment has plateaued, or where quick access to specialist opinions are needed. Thus, instead of serving as the central hub of a completely redesigned system, POC’s would serve as an adjunct to the existing system of service by Health Care providers in the community. This approach would also reduce the number of POC’s that need to be created.
6. We should keep POC’s out of overburdened hospitals. There are already existing industries of Assessment Providers and Multidisciplinary Treatment Clinics in the province that are already in place. The government and Insurance Industry should form partnerships with these companies, who already have rosters of qualified experts and specialists, who can be put in place to serve as POCs.
7. We must ensure that injured drivers have the right to some form of recourse to appeal POC decisions. However, since the POCs are put in place by the insurers to expedite the decision-making process for themselves, the decisions of POC’s should be binding on the insurers. This would ensure that insurers cannot delay access to POC-approved treatment for injured drivers in complex cases.
WHY THE RUSH TO REFORM AUTO INSURANCE?
Just as the Wynne government and the Insurance Industry tried to fool you into believing that they had saved you money by making token decreases to your insurance premiums with one hand, while they reduced the medical and rehabilitation benefits you receive with their other hand, they are trying to do more of the same with the Marshall report. Premier Wynne and the insurance industry will likely be using the faulty logic of the Marshall report to fool you into thinking that you aren’t already receiving quality medical care from existing treatment providers, and that you need a brand-new system that will give you better care
Don’t be fooled – it’s all an illusion.
The Wynne government has shown themselves to be as adept as the best illusionists in Las Vegas when it comes to Health Care. They took an already broken WSIB system and destroyed it to the point where workers are afraid to be injured because they don’t want to be involved with WSIB system. The government has regulated your doctors to the point where they are frustrated and burnt out by the government’s control over how they practice medicine. And now Premier Wynne and the Insurance Industry want to do the same to your automobile insurance.
Premier Wynne would like the Marshall Report to become legislation so she can use it as an election platform to show you how she is saving you money. She has proven to be a master illusionist over the past four years.
Remember the hit song by The Who – I Won’t Get Fooled Again? I’m appealing to all Ontario drivers. Don’t let yourself be fooled again! Reject the recommendations of the Marshall Report and lobby your MPPs, the Minister of Finance, and Premier Wynne for a slow, careful multi-party, multi-interest review of the report and the Ontario Auto Insurance System.
There’s an election coming up in Ontario this fall. Get involved and find out what the opposition party leaders and your local candidates think about the Marshall Report and its recommendations.
Let’s work together for insurance reform that works and provides the medical rehabilitation benefits you need at affordable prices. Remember, with the increasing rate of distracted drivers on the roads these days, it could be you or a friend or family member who gets rear-ended and ends up with a whiplash injury tomorrow. What kind of medical treatment do you want and expect if it happens to you?
David A. Jones, DMD, Ph.D., C.Psych.
Tell your MPP, the Minister of Finance, and Premier Wynne what you think of the Marshall Report today!
Kathleen Wynne, Premier
Toronto ON M7A 1A1
Hon. Charles Sousa, M.P.P.
Minister of Finance
7th Floor, Frost Building South
7 Queen's Park Crescent
Toronto, Ontario M7A 1Y7