Milking the ‘Cash Cow’

It’s so easy to commit fraud under Ontario’s no-fault insurance scheme that we’ve had a stampede of criminals moving to the province, says Dr. Bob Reinhart, currently an SIU investigator with RBC Insurance.

Reinhart, a licensed chiropractor and former DAC assessor, spoke at the Annual Toronto Fraud Forum held on Sept. 30, 2009. The event was organized by the Association of Certified Fraud Examiners and the Canadian Association of Special Investigation Units.

Many people have a vested interest in keeping claimants in the system rather than getting them better — they are choosing “Big Payday” over “Little Payday,” Reinhart said. Those with a vested interest, such as lawyers, paralegals, clinic owners, assessment company owners, treatment providers and assessors, view the Statutory Accident Benefit Schedule (SABS) as a “cash cow,” he added.

Ontario’s Pre-approved Framework (PAF) for the treatment of auto-related injuries was introduced in 2003 to stabilize treatment costs, since soft-tissue injuries make up about 90% of MVA injuries, Reinhart said. About 85% of those soft tissue injuries are related to acceleration or deceleration, he added. But, Reinhart said, claimants are not being treated under the PAF because doctors and other health care practitioners are misdiagnosing them and characterizing trivial injuries as major ones.

Some lawyers are advising their clients to refuse treatment under the PAF, and some lawyers are even directing medical professionals to diagnose a WAD III (Whiplash Associated Disorder that involves neurological symptoms), said Reinhart, who has been a chiropractor since 1983. Reinhart said in his personal experience, he has seen only a handful of true WAD IIIs. And yet the current number of WAD III assessments, which kicks treatment out of the PAF, is “outrageous,” he said.

Most people with real neurological issues will be concerned enough to seek care for themselves from a neurologist or other specialist, outside the rehab clinic setting, he said.

Reinhart said the “recipe” for getting people better consists of reassurance, return to normal activity, mobilization/manipulation, education on self-management and exercise (including range-of-motion stretches). Treatment allowed under the PAF is plenty to get most people better, he said. Back symptoms, shoulder pain, arm pain, dizziness, ringing in the ears, painful swallowing, disturbed sleep, double vision, depression, extremity numbness and many more symptoms can often be treated under the PAF.

Reinhart encouraged claims professionals to understand the natural history of healing to protect themselves against getting bamboozled. About 50% of people are recovered after the acute phase, which is generally the first week. About 60% are recovered after the subacute phase, which is the four-to-six-week period. After 12 weeks, about 80% are recovered. After 52 weeks, about 90% are recovered. This leaves only about 10% of people who are chronic.

Why aren’t people getting better within these expected timelines? Aggressive treatment is prolonging recovery and prolonging disability, Reinhart said. There has to be a special reason to take treatment out of the PAF, but medical practitioners are not following the guidelines, he said.

According to Cecil R. Jaipaul, an insurance consultant and speaker at the fraud forum, the treating chiropractors are recommending that assessments be conducted, and yet many of them do not even read the assessment reports after they are produced. Some assessment reports aren’t sent to the insurer until six months after the request for examination or assessment (OCF 22) is approved, he said. None of this is reasonable, he concluded. Jaipaul questioned whether it is even within a chiropractor’s scope of practice to do in-home assessments (yet many chiropractors are doing them and billing insurers).

Reinhart also believes assessments are a major area of abuse that needs reform. He said “assessment mills” are providing inappropriate or unnecessary assessments; insurers are being “inundated” with multiple applications for approval in minor cases; “assessments are being submitted without the knowledge or consent of the claimant;” claimants are being pressured to sign multiple copies of Part 9 of the OCF 22; some assessor signatures are being forged; “unqualified providers” are performing assessments; and some assessment companies are owned by the treatment facility, which is an undisclosed conflict of interest.

In recommending “a complete overhaul of the SABS,” Reinhart noted that the present SABS are based on the Pollyanna notion that everyone will receive evidence-based care and will be discharged in a timely fashion by honest practitioners.

Insurance fraud is not taken seriously in Canada, Reinhart said. Criminals feel “it’s worth a shot” to take advantage of the accident benefits system, because the chances of getting caught are slim and the consequences, if they get caught, are minimal, he said.

Lawyer Nawaz A. Tahir, a partner at Lerners LLP, gave the audience tips on investigating claims using the Internet. He recommended sites like www.kijiji.ca to locate stolen goods that are being advertised for sale, such as custom car rims.

Tahir also recommended doing quick searches (even on a break during an examination for discovery) that can be done on Google Maps. These searches can help calculate distances and time to travel between cities when these sorts of space and time issues pop up during examinations for discovery. For example, in one instance, by using the satellite view feature on Google Maps, Tahir was able to show that an elderly victim who was struck by a car while jaywalking could have walked 50 metres to cross safely at a controlled intersection. Tahir also recommended checking out the “more” option on Google, and dropping down on the menu to “even more” to do blog searches, Google alerts and much more.

In addition, Tahir suggested using http://www.media4u.com/, a site that has more than 10,000 decoded medical abbreviations for lay people.

If you are putting together raw information about residual income loss issues, Tahir suggested using www.labourmarketinformation.ca,offered by Service Canada. The site takes you to wage and salary information and gives detailed information based on the geographic area you specify.

Meredith Jones, a lawyer at Lerners LLP, explored some of Facebook’s investigative potential.

Jones pointed out that Facebook no longer allows users to grant access to everybody, but it is still possible to see a person’s profile picture and a list of his friends by doing a Facebook or Google search, even without permission. You can view someone’s Facebook site if he has added you as a friend. Some users add privacy restrictions and some allow friends of friends to view their site. A search function on Facebook will show if a person has joined any networks — some networks require invitation and some are open. Networks are organized by, for example, city, workplace, school or region. One of the most popular applications on Facebook allows users to upload albums and photos. People also post videos.

Despite privacy settings associated with Facebook, there are still ways to compel access to a Facebook site, Jones said. She referred to several legal decisions.

In Leduc v. Roman [2009], for example, Ontario Superior Court Justice David M. Brown held that a party who maintains a private or limited-access Facebook profile stands in no different position than one who sets up a publicly available profile. He held that parties are obliged to identify and produce any Facebook postings that relate to any matter at issue in an action, irrespective of whether they are posted on a user’s public or private profile.

In Murphy and Perger [2007], Ontario Superior Court Justice Helen A. Rady reasoned that the plaintiff cou ld not have had a serious expectation of privacy given that 366 people had been granted access to her Facebook profile.

The courts have now accepted that information contained on Facebook can be relevant to issues in civil proceedings. But once a defendant has knowledge of the plaintiff’s Facebook site, an order for the preservation of it is crucial, Jones said. The timing of the motion will have to be carefully considered, knowing that the plaintiff will stop postings.

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Assessments are a major area of abuse that needs reform. Insurers are being “inundated” with multiple applications for approval in minor cases.