Star Fighter

Battle stations!” The klaxon call of Captain Kirk’s starship Enterprise commonly rings through insurance defense lawyer Philippa Samworth’s Toronto office.

The sci-fi siren energizes Samworth for the court battle ahead. “I’ve always thought of each courtroom case as a battle – it’s me against the other side, making my arguments on behalf of my clients,” Samworth, a self-proclaimed “Star Trek freak” and a partner at Dutton Brock LLP, says. “When I’m about to enter court, I play my ‘Battle stations’ alarm and consider myself battle-ready.”

Samworth’s warrior approach has paid off: after 26 years of giving command performances in Ontario courtrooms, she is receiving the first-ever Ontario Bar Association (OBA) Award for Excellence in Insurance Law. The OBA’s selection of Samworth as inaugural recipient recognizes the exceptional work she has done to explore Ontario’s new automobile insurance legislation and the Designated Assessment Centres (DACs) Committee, to seek out new definitions of Catastrophic Impairment and to boldly go where no DAC has gone before.

Not to be ignored, Samworth ceaselessly devotes her Sundays to “extra-curricular work” for insurance law. “What sets you apart is work you do that’s not associated to your practice, on your own time,” She says. “At least two to three days a week, I teach insurance law to companies, doctors, insurers.”

Her captain’s log tells a story of one woman’s efforts toward the development of insurance law through advocacy and leadership. The OBA Insurance Law Section will recognize her dedication to these activities on Apr. 27, 2006, at the Insurance Law Award Dinner in Toronto.

LIGHT YEARS OF LEGISLATION

Samworth’s “extra-curricular” insurance law endeavors may have moved her warp speed ahead of her peers, but her entire career has been shaped through her work with government on auto legislation and regulation. Samworth has practiced insurance law since she was called to the Bar of Ontario in 1979, specializing in statutory accident benefits (SAB). Four short years after her call to Bar, Samworth found herself thrown into the world of legislative reform.

In 1983, the OBA asked Samworth to author a paper about potential issues related to optional insurance. From that day forward, Samworth has maintained her association with the insurance committees of both the OBA and The Advocates’ Society. Samworth went on to become president of The Advocates’ Society and recipient of the Canadian Defense Lawyers’ Lee Samis award of excellence. Her work ethic and enthusiasm made her a valuable asset to the government when it worked on auto insurance policy.

“The policies I’m consulting on all deal with the work I do at ground level, so I have a better sense of what policy issues will and won’t work,” Samworth explains. “That’s why (in 1997) I was appointed to the Minister’s Committee on Designated Assessment Centres (DACs).” Samworth soon moved on to sit as chair of the committee from 1998 to 2000 and from 2001 to 2004. While initially not a fan of the DAC system, Samworth’s tune changed after serving as sole lawyer representative on the minister’s committee.

“I became a fan of the DAC neutral-assessment system, and I still think it would have worked if we had a little broader authority to control costs and quality,” Samworth says. “But there were some real problems with costs, so the present Liberal government came in and made a commitment to get rid of DACs.”

Last month, on Mar. 1, 2006, Ontario’s DACs disappeared, bringing Samworth into the bold new world of the Expert Assessor Network (EAN) system. The new regulations address the termination of benefits through mandatory insurer examinations, which are conducted by health care professionals selected by the insurer.

Samworth says it is important to note that while insurers must hold assessments, it is not mandatory for the insured to attend. “The insurers have been deprived of a key right; namely, the right to refuse mediations if the insured does not show up for an insurer’s exam,” Samworth explains. She believes the possibility exists for plaintiffs’ lawyers to exploit this loophole by, for example, advising their clients to avoid the exam, so insurers will attend an arbitration without the insurer report as a basis for their dispute.

Although Samworth takes issue with some aspects of the new regulation, her own fingerprints are all over the EAN file. In 2004, after she stepped down as chair of the DACs Committee, the Minister of Finance retained Samworth to conduct stakeholder consultations and provide advice on proposals to replace the DACs. “Since the Ontario Motorist Protection Plan was initiated, the government built in checks and balances to control alleged bad behavior of insurers,” Samworth says. “So we had to create a system allowing insurers to conduct their exams but also maintained the checks and balances.”

A system of mandatory assessments evolved, in which insureds were required to have an exam before an insurer could terminate benefits. Also, new provisions were included in the Unfair and Deceptive Practices Act, making it an unfair and deceptive practice for an insurer to terminate benefits without an assessment or to misrepresent the assessment in such a way that it points towards termination.

In order to further protect the plaintiff, the new regulations make it a requirement that the insured is entitled a rebuttal to the insurer exam. Under specific circumstances, Samworth says the insurer will provide the insured limited funds so they can rebut the insurer report using a health provider of their choice.

“I think insurers are going to run into some problems because of cost for these rebuttal assessments,” Samworth predicts. “If the insured is non-catastrophic, the fee for a rebuttal assessor is fixed. But if the individual is catastrophically impaired, there is no limit on the cost or number of rebuttal assessments the insurer must fund.”

Albeit potentially costly, a rebuttal is necessary because it maintains neutrality by allowing the insured an opportunity to review the insurer exam with a professional.

REGULATORY WEAKNESSES

The rebuttal may offer the insured a voice and a sense of control, but it does not affect the insurer’s decision. “Under the amendment, the rebuttal is for dispute resolution purposes only, and so the insurance industry does not have to change their opinion about benefits based on insured’s rebuttal,” Samworth says.

Technically, an insurer could interpret this as the legal right to ignore a significant rebuttal. But Samworth says it is imperative to the integrity of the industry that insurers use common sense when a rebuttal is introduced. “I tell my clients: ‘If the rebuttal comes back and says you’re (the insurer is) wrong, and you agree with their findings, you must review your decision to terminate,” She says.

Under the new system, the onus will be on adjusters to ensure the insurer’s exam is fair; also, adjusters must account for any significant rebuttal findings. Samworth says the Unfair and Deceptive Practices Act mandates the insurer’s assessor is qualified, properly trained and neutral. “Now adjusters have to make their decision to terminate based on the rebuttal, even though the policy says technically you don’t have to.” Samworth expects complying with the new regulations will require adjusters to work harder and become more actively involved in making decisions based on complex medical problems.

Achieving proper training in the new procedures will take time, however, and Samworth cautions that plaintiffs will notice any mistakes insurers make in regards to legislative process. “You’re going to increasingly find insurers who have not followed the process, because it’s a huge learning curve to understand and adhere to the new timelines,” Samworth explains.

Timing, under the new system, is essential. Samworth warns that if the defence does not deliver a report within timeframes required by legislation, or if the assessment itself is not performed within required time limits, plaintiffs will argue a decision to terminate benefits cannot be maintained even if the insured’s injury is not significant. “The only thing an insurer can do to protect themselves is make sure they follow timelines,” Samworth says. “With this new system, the insurer controls timelines because they are hiring the health practitioner. Insurers can say [to health practitioners]: ‘If the time guidelines can’t be met, you’re not working for me.'”

The problem with this scenario is that it necessitates a relationship between the assessor and insurer, which might, in turn, be misconstrued as a conflict of interest. Samworth predicts this could result in even more litigation.

In order to eradicate the perception of bias, insurers might access their professional practitioners through what Samworth dubs “insurance exam brokers.” Under this arrangement, the broker will facilitate the selection of specialists to perform assessments. This keeps the insurer out of the selection process, providing an air of neutrality. But the picture is still not perfect: “Where the insurer has a duty under the Unfair and Deceptive Practices Act to ensure that the assessor is qualified and trained, the broker doesn’t, so the insurer is still going to have to be involved,” Samworth explains.

WARP SPEED AHEAD

Samworth believes the growth and change in accident benefits is a boon for injured victims, as well as a motivator for the increasing corporate responsibility that she sees insurance companies cultivating.

“I’m looking forward to the future,” she says. “As a lawyer, I probably won’t see much of what’s happening with these new regulations until they filter through in about a year or so.”

Sometime within this “year or so,” when Samworth’s practice starts to alter in response to the new system, government will begin reviewing the system to determine if it works as intended. She anticipates a review of the timelines and assessor availability.

But if a new government happens to be voted in with a mission to boldly address AB in a way no government has before, Samworth might not see much change at all. “I find that with each new government, we seem to always have a change of approach and policy to AB,” Samworth says.