Insurance News - Tuesday, September 30, 2014

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Tuesday, September 30, 2014:

• An engineer has developed a system that uses a small black box, plugged in under a car’s steering column, to block incoming and outgoing texts and prevent phone calls from reaching the driver.
• A Kansas City hospital allegedly didn’t file health insurance claims for some patients injured in auto accidents, which allowed it to avoid the deep discounts typically required by health insurers. It could then seek more money for its medical services, mainly from auto insurance settlements.
• Audi of America became the first company to receive an official California DMV permit to test driver-less vehicles on the state’s public roads, followed by competing automaker Mercedes-Benz and Internet giant Google.
• Is using a smartwatch behind the wheel a ticketable offence under the country's distracted driving laws?  Both MTO and the OPP are unsure.
• Typical insurance policies won't cover people participating in the "sharing economy" by renting out their their car for a driving service, Oregon's insurance commissioner warns.

Owner of Vehicle Not Protected Under the Workplace Safety and Insurance Act

A recent Superior Court decision highlights the interplay of the Workplace Safety and Insurance Act with the Highway Traffic Act.

In Maria-Antony v. Selliah, 2014 ONSC 4264 (S.C.J.), the plaintiff was injured in a motor vehicle accident involving a tractor-trailer owned by FTI.  At the time of the accident both the plaintiff and the defendant driver (Selliah) were employed as transport truck drivers for 1362038 Ontario.  They had been contracted to carry cargo for 1323109 Ontario. 

A right to sue application was brought before the Workplace Safety and Insurance Appeals Tribunal.  The tribunal held that plaintiff's action against Selliah and the numbered companies was barred.  Since FTI was not an employer, the action against it as owner was not barred.

FTI brought a summary judgment motion to have the action against it dismissed, taking the position that the result of the Tribunal decision was to make any liability to the plaintiff several (not joint and several), thereby limiting liability to its own negligence.  There was no evidence of negligence by FTI; the claim was based on its status as owner of the vehicle.

O'Marra J. dismissed the motion.  Section 192 of the Highway Traffic Act which imposes vicarious liability on the owner of a vehicle for the actions of the driver, and so FTI remained liable for the acts of the driver.  Even though the action against Selliah was barred, FTI did not enjoy the statutory protection under the WSIA.

It seems that this decision allows plaintiffs to do indirectly what they cannot do directly: recover damages based on the negligence of a protected worker.

Uber Toronto Battles Regulators Over Its Ride-Sharing Service

Uber, a San Francisco-based company estimated to be worth $17 billion (U.S.) is aiming to shake up the taxi business in Toronto.

Uber is reported to operate in more than 140 cities in 40 countries around the world, offering taxis, limos and car-sharing services, allowing customers to bypass traditional taxi companies and brokerages to request a ride using their smartphones.

When Uber first set up in Toronto in 2012, city of Toronto officials informed the company that it needed to get a brokerage licence. Uber disputed the request and has been insisting that it is not a taxi service, but rather a technology company, and therefore not subject to licensing requirements. The city has since hit Uber with 35 bylaw infractions and the parties are headed to court. Although, there are some indications that parties are holding discussions.

Hailo, a British company, launched a similar service in 2012 but took a much different approach to Uber. It chose to obtain a brokerage licence. The Hailo app connects customers with taxi drivers, without the need to go through a central dispatch system. This allowed Hailo to be onside with regulators but not with traditional taxi companies who typically charge drivers an average fee of about $600 a month for dispatch services. Hailo is reported to have 2,000 drivers signed up which works out to about 20% of all licensed taxi drivers in the city. Some companies have disciplined drivers for using the Hailo or Uber app.

 In London, England, the transport regulator has ruled that Uber be allowed to operate legally until the courts consider a challenge filed by a local taxi drivers’ association. Other jurisdictions are trying to block Uber from operationg. Virginia issued a cease-and-desist order this year and in Pittsburgh, a judge order a halt to operations until the state’s public utility commission has completed a review.

Uber currently operates limo services under UberBLACK and Uber SUV and a taxi service is called UberTAXI. These are traditional services in a sense but use a smartphone app rather than a dispatcher. The drivers carry appropriate auto insurance for a taxi or livery service. The problem arises under UberX which allows ordinary drivers who have been pre-screened to pick up passengers in their own vehicles. Uber claims that drivers undergo criminal background checks and although the vehicles are not mechanically inspected, the do undergo a visual inspection.

The problem with UberX is that their drivers’ personal auto insurance policies are likely invalid while carrying a paying passenger. Uber says it has a $5 million insurance policy that will cover any liabilities that arises while transporting passengers.

In California, state regulators threatened to shut down Uber and other rider-sharing companies over the insurance issue. A deal was finally worked out regarding insurance coverage after a bill was introduced in the state legislature dealing with the issue. The problem gained prominence after an Uber driver struck and killed a 6-year-old girl in San Francisco while on his way to pick up a passenger on New Year's Eve. Because no passenger was in the car yet, Uber denied responsibility.

In each jurisdiction they operate in, Uber has confronted and won over regulators through a combination of negotiations, hardball tactics and making use of consumer demand for their service. It is only a matter of time before Toronto falls under the Uber spell.

How do I find a physician willing to bill OWCP for treating me?

Unfortunately, because the federal employees compensation act process makes OWCP's claims actions unreviewable by any court, those running OWCP have created a system that is designed completely for their own convenience, not the convenience of the injured worker. Some years ago, OWCP began to require that medical providers "enroll" in the OWCP system so that they can get a "provider number" from OWCP. Without a provider number, physicians cannot bill OWCP for treating you. Medical providers already need to enroll with and get a number from Medicare. Why OWCP could not use that existing system, and supplement it with their own system for the obscure situation where a provider does not have a medicare number only makes sense if you recall that OWCP is only concerned about making this process convenient for OWCP. The practical effect is that many injured workers have a great deal of trouble finding a medical provider willing to treat them. If you are having difficulty finding someone to treat you, OWCP does have a tool that allows you to search their database for physicians who have provider numbers. If you click on the link below, and click on the "accept" button, then you select that you want to search in the "FECA" program. you can then do a search:

https://owcp.dol.acs-inc.com/portal/providersearch/agreement.do

The search function is fairly straightforward. One limitation is that certain specialties are not broken out. For instance, under specialties, they do not allow you to limit your search to "psychiatrist" or "psychologist". Therefore, to find a specialist who is not categorized, you need to first do a search in the geographic region you are looking in, then, for any physician who does not have a specialty listed, you can google that doctor's name and see whether that doctor is the type of specialist you are looking for.

If you are unable to locate a provider in your region willing to bill OWCP for treating you, you should document that you went through the list and bring this to the attention of your congressman and request a congressional inquiry. This problem is routinely brought to the attention of those running OWCP, they do not seem to be concerned. The only way they will fix this situation is if they receive scrutiny. If a congressman were to conduct hearings on this issue and ask the director of the program to explain why they are unconcerned with this situation, it might get fixed.

Insurance News - Monday, September 15, 2014

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Monday, September 15, 2014:

• Uber and Lyft have been waging an aggressive fight to avoid taking full responsibility for making sure drivers have the right kinds of insurance.
• Google's driverless cars could be disruptive to Uber's current business mode by moving away from car ownership.
• What will self-driving cars mean for your auto insurance?
• Driverless cars move closer to reality as Audi and Cadillac plan to bring driverless features to their cars in 2016.
• California regulators putting the brakes on carpooling services offered by rideshare firms such as Lyft, Uber and Sidecar.

Facebook Usage History Ordered Produced

Social media can be a useful investigative tool for defendants.  In an interesting twist, a Nova Scotia court has ordered the plaintiff's Facebook usage history produced.

In Conrod v. Caverley, 2014 NSSC 35 (S.C.), the plaintiff claimed she sustained injuries in a motor vehicle accident that compromised her ability to work and participate in recreational and social activities.  She complained of problems that limited the time she is able to spend using websites like Facebook.  The Nova Scotia Rules require "relevant" documents be produced.

Although Justice McDougall was not prepared to order production of the plaintiff's private portion of her Facebook account, he was satisfied the usage records were relevant and ordered they be produced:

[55]         I am satisfied that the Facebook usage data requested by the Defendants is relevant to whether Ms. Conrod's injuries have affected her ability to concentrate and the information should be produced.   The privacy interests implicated in this case are far less significant than in Laushway and Bishop where production of a party's entire hard drive was ordered so that evidence could be extracted by a third party.  The usage records sought by the Defendants can be easily obtained by Ms. Conrod and the contents will not reveal any potentially sensitive personal information about her internet activity such as websites she visits or private conversations she participates in on the internet.

OWCP and travel reimbursements

Many OWCP claimants have great difficulty with getting their travel reimbursements processed correctly. In particular, OWCP makes this process particularly onerous on injured workers who are seeking specialized medical care that is not available in their own community as OWCP routinely refuses to reimburse for travel beyond fifty miles each way unless there are unique circumstances. Unique circumstances include that you live in a remote location and the care you need is not available locally or you have an unusual medical condition that cannot be treated locally. You will likely need a letter from a local doctor explaining why you need to travel more than 50 miles to get the type of care you need. The people writing these rules live in Washington, DC, a region spilling over with specialized medical care. While most claimants live in areas with far fewer doctors. Always keep in mind that OWCP's rules are written from OWCP's perspective, the design and operation of this program is to make things as convenient for those running this process, not for the needs of the injured workers. Following is a recent document that discusses this process: FECA BULLETIN NO. 14-02 Issue Date: January 29, 2014

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Subject: Reimbursement of Travel Expenses for Claimants and Providers Providing Transportation Services
References:
5 U.S.C. §8103 of the Federal Employees' Compensation Act (FECA) provides that an injured employee is entitled to receive medical services, appliances or supplies which a qualified physician prescribes or recommends and which OWCP considers necessary to treat the work-related injury. This section further provides that an employee may be furnished necessary and reasonable transportation and expenses incident to the securing of such services, appliances and supplies when authorized. See 5 U.S.C. 8103. This circular briefly describes the circumstances and limitations on authorizing and paying for transportation services.
Effective August 29, 2011, 20 CFR §10.315, provides in pertinent part as follows with regard to payment for transportation to obtain medical treatment:

(a) The employee is entitled to reimbursement of reasonable and necessary expenses, including transportation needed to obtain authorized medical services, appliances or supplies. To determine what is a reasonable distance to travel, OWCP will consider the availability of services, the employee's condition, and the means of transportation. Generally, a roundtrip distance of up to 100 miles is considered a reasonable distance to travel. Travel should be undertaken by the shortest route, and if practical, by public conveyance. If the medical evidence shows that the employee is unable to use these means of transportation, OWCP may authorize travel by taxi or special conveyance.

(b) For non-emergency medical treatment, if roundtrip travel of more than 100 miles is contemplated, or air transportation or overnight accommodations will be needed, the employee must submit a written request to OWCP for prior authorization with information describing the circumstances and necessity for such travel expenses. OWCP will approve the request if it determines that the travel expenses are reasonable and necessary, and are incident to obtaining authorized medical services, appliances or supplies. Requests for travel expenses that are often approved include those resulting from referrals to a specialist for further medical treatment, and those involving air transportation of an employee who lives in a remote geographical area with limited local medical services.

Background: The change to requiring suspension of the reimbursement request and referring the request for claims examiner review whenever the request involves more than 100 miles per day of mileage reimbursement (Section A below) was effective January 17, 2013. The additional procedures outlined in this Bulletin were effective July 17, 2013.
Purpose: The purpose of this Bulletin is to address the manner in which travel procedure codes will be processed and paid by the Central Bill Processing (CBP) system when submitted for authorized examinations/treatments.
Applicability: Appropriate National Office and District Office personnel and FECA medical billing contractor.
Action:
A. Mileage Reimbursement for Examinations/Treatment. Periodically and in certain situations, travel to authorized examinations and/or treatment could exceed the allowable 100 mile distance outlined in 20 CFR 10.315(a) as noted above. When a claimant submits a reimbursement request (on Form OWCP-957, Medical Travel Refund Request) in excess of 100 miles for a single date of service, the bill will be automatically suspended and the CBP provider will send notification to the claims examiner seeking authorization. The notification sent by CBP will include the applicable date(s) of service, as well as the miles being claimed.

1. If the request is for a single trip and the mileage claimed is allowable, such as for a scheduled Second Opinion (SECOP) or Independent Medical Examination (IME), the Claims Examiner (CE) will simply authorize the reimbursement.

2. In limited circumstances it may be necessary for a claimant to travel more than 100 miles on a regular basis, such as to be seen by his/her treating physician or therapist if the claimant lives in a remote area. Upon receipt of notification from CBP in these instances, the CE should provide a range for this ongoing authorization, including both total miles and period that the authorization covers. This range should be calibrated to the claimant's treatment location and can extend up to 900 miles and up to six (6) months in length, using Procedure Code A0080.

3. Should the claimant exceed the miles authorized within this period, the CE will again be notified by CBP. If such travel is medically necessary for the work-related conditions, the CE has the authority to authorize an extension of the mileage, but can only do so after writing a memo to the case file to justify the increased number of miles allowable.

4. If the need for increased mileage continues past the initial six month authorization period, another authorization and memo to the file is also required for an additional 6 month period. Such authorization and documentation is required every 6 months.

5. If the proper authorization is on file, or the requested mileage does not exceed 100 miles for a single date of service, the bill will simply be processed by CBP. There will be no need for a notification to be sent to the CE.

B. Incidental Charges. Periodically, a claimant could incur incidental charges that may exceed $75.00 while travelling to authorized examinations.

1. If the claimant requests reimbursement for any of the following procedure codes (including those that require prior authorization), and the charge exceeds $75.00, the system will post Edit 501 (Service exceeds Allowable amount, Original Receipt/Invoice of the charge is required).

A0110 – Taxi
A0120 – Mini Bus
A0130 – Wheel Chair Van
A0140 – Air Travel
A0170 – Tolls/Parking
A0180 – Lodging
A0190 – Meals
A0200 – Lodging Escort
A0210 – Meals Escort

2. If the receipt/invoice is present, a notification will be sent to the CE to obtain authorization for the amount. However if the receipt/invoice is not present, the service will be denied for Edit 501. CBP will not send a notification to the CE if there are no receipts attached; it will simply deny the charge.

3. If the claimant submits a request for reimbursement of "TRANS," and there is no description present for using this code or the description is equal to "GAS," the system will post Edit 520 (A description of the service is required. Please provide the description and resubmit. Gas is not covered.) and deny the charge since charges for gasoline are not permitted in addition to mileage reimbursement.

Note: Where a claimant has been denied authorization for treatment or reimbursement for expenses related to transportation, a formal decision with appeal rights will be issued upon claimant request. Amounts paid (including amounts paid under the OWCP fee schedule) for medical services are not appealable to ECAB. See 20 C.F.R. § 10.625.]

C. Payment to Transportation Providers. The OWCP-1500 Form is to be used by those providing authorized transportation to claimants for medical treatment/appointments.

1. If the charge for these services exceeds $75.00, prior authorization is required and the bill must be accompanied with an invoice justifying the charge.

2. A provider must have prior authorization for any of the following transportation procedure codes if the charge billed exceeds $75.00:

A0100 - Taxi
A0110 – Bus
A0120 – Mini Bus
A0130 – Wheel Chair Van
A0140 – Air Travel
A0170 – Tolls/Parking

If there is not an authorization on file or the provider fails to submit an invoice, the system will post Edit 501 and deny the bill. In those instances where the amount being billed exceeds the amount authorized, CBP will send a notification to the CE requesting direction to extend the dollar amount of the authorization, to pay only the authorized amount, or deny the service.

3. If the billed charge is less than $75.00, no edit will post and the bill will be processed through the system, even without a receipt or invoice.

4. Providers who bill using mileage codes A0080 and/or A0090 will be paid based on the current GSA mileage rate, and prior authorization is required if the miles/units billed is for more than 100 miles/units for a single date of service. If an authorization is not on file, the CBP will deny the bill.

D. Mileage Reimbursement for Pharmacy Pick up

A claimant may claim mileage for pharmacy pick up to his or her local pharmacy; reimbursement is generally limited to the closest pharmacy by the shortest route.

Disposition: This bulletin is to be retained until the FECA PM has been updated.
DOUGLAS C. FITZGERALD
Director, Federal Employees' Compensation

Insurance News - Monday, September 8, 2014

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Monday, September 8, 2014:

• Japanese property and casualty insurance companies plan to let crime syndicate members buy auto insurance so that victims can be compensated in the event a gangster causes an accident.
• Usage-based insurance (UBI) policies are slowly gaining traction with Canadian drivers, but experts say uptake will remain slow until privacy concerns are allayed.
• However, a Towers Watson survey shows the number of consumers in the U.S. with a UBI policy has nearly doubled.
• According to a new research report, shipments of OEM embedded telematics systems worldwide are forecasted to grow from 8.4 million units in 2013 at a compound annual growth rate (CAGR) of 30.6 percent to reach 54.5 million units in 2020.
• Toyota is not planning on developing a driverless car but instead will focus on improved safety systems including monitoring for distracted driving.

Insurance News - Friday, September 5, 2014

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Friday, September 5, 2014:

• Ontario plans to reintroduce their road safety bill (formerly Bill 173) with $1,000 fines and 3 demerit points for texting while driving.
• ICBC wants to base auto insurance rates to cover the rising cost of injury claims due to distracted driving.
• One of the issues of self-driving vehicles is legal liability for death or injury in the event of an accident. If the car maker programs the car so the driver has no choice, is it likely the company could be sued over the car's actions?
• Florida’s third-party bad-faith lawsuit environment may have resulted in more than $800 million in additional auto liability claim payments in 2013.
• The economic cost of motor vehicle crashes in the U.S. is the equivalent of 1.9 percent of the $14.96 trillion Gross Domestic Product which is nearly $900 billion.
• New era of self-driving cars will transform cities.

Last week, we blogged about a summary judgment decision dismissing an occupier's liability claim.  This week, our focus is on a slip and fall action that was dismissed at trial.  Once again, the Court confirms that occupiers are not held to standards of protection and what is reasonable depends on the circumstances.

In Souliere v. Casino Niagara, 2014 ONSC 1915 (S.C.J.), the plaintiff slipped and fell in a buffet restaurant.  A staff member saw another patron drop a brown liquid substance, then seconds later the plaintiff fell in that approximate area.

There was no one employee responsible for cleaning floors or inspection, but rather all employees were trained to be on the lookout.  There was no policy of regular cleaning although floors were cleaned at night after the restaurant closed.

Justice Henderson held that the Casino met its duty of care.  The liability analysis in occupier's liability cases is fact driven and varies from case to case.  It revolves around issues of whether the occupier had reasonable policies and procedures in place for the inspection and maintenance of the premises, and whether those policies and procedures were actually followed.  Although there was no evidence the policy was being followed, the evidence was the floor was clean so the policy was working reasonably well.

HCAI Data: Assessments Continue to Be a Significant Proportion of Medical and Rehabilitation Expenses

The IBC has now published the standard HCAI reports for the first half of 2014. The document provides over 75 pages of aggregate data collected by HCAI going back to 2011. HCAI was made mandatory on February 1, 2011. 

 The standard reports are published on an “accident half year” basis. In accident half year statistics, the experience of all claims with accident dates in the same accident half year is grouped together. The accident half years are defined as calendar half years, with January to June being the first half and July to December being the second half for each of the stated years.

Assessment costs continue to be a significant portion of medical and rehabilitation expenses following the 2010 reforms.  Those reforms introduced a $2,000 per assessment cap on both insurer examinations and assessments conducted by healthcare providers.  As well, provider assessments now fall under the overall medical and rehabilitation cap.

Based on data from the General Insurance Statistical Agency (GISA), the total cost of all assessments in 2010 was approximately $ 1 billion.  In 2010, assessments represented approximately 40% of all medical and rehabilitation expenses.

The chart below sets out insurer exams and provider assessments per accident half year as a percentage of all medical and rehabilitation expenses using available HCAI data. Note that the cost of assessment is not really falling as suggested by the chart.  The data is not fully developed and since assessments continue to be a significant cost in older claims, the numbers will continue to grow over time.  What is significant is that assessments continue to be close to 40% of all medical and rehabilitation expenses once the data is fully developed.  

What has changed is the cost of medical and rehabilitation under the SABS with the reduction in the standard medical and rehabilitation cap and the introduction of the minor injury treatment cap.