This update is designed to provide information on the activities of the Minister's Committee on the Designated Assessment Centre System (DAC Committee). This issue provides an update on DAC Committee membership; a change to the DAC Assessor Practice Summary Form; reminds DACs of their responsibility to ensure that their facilities are wheelchair accessible; addresses location of assessment and DAC ownership issues; highlights recent roster activity; speaks to Post-104 assessment reporting; reviews recent arbitration decisions; and responds to inquiries about General Guideline 4, conflict of interest concerns and who receives a copy of Medical/Rehabilitation DAC reports.
DAC Committee Membership Update
The DAC Committee members would like to express their thanks to Judy Maddocks for her dedicated service and commitment to the Committee as she concludes her two-year appointment. Judy's leadership as the Committee's first Chair and the head of the Communications Subcommittee has been instrumental in establishing both the DAC Committee's structure and effectiveness.
The remaining members of the DAC Committee have recently accepted an offer by the Minister of Finance to extend their appointments for one year.
DAC Assessor Practice Summary Form
Please be advised that there has been an amendment to the DAC Assessor Practice Summary Form. Effective immediately, the form will contain a clause which states that, in signing the form, the health care professional "acknowledges that all information is true and correct" and that they "agree to conduct DAC assessments in accordance with the Statutory Accident Benefits Schedule and the guidelines set out by the Financial Services Commission of Ontario and the Minister's Committee on the Designated Assessment Centre System".
DACs should ensure that they use this new form which is now available on the Financial Services Commission of Ontario's (FSCO) website at <www.fsco.gov.on.ca>.
The Accident Benefit Analysis Unit (ABAU) continues to ask that all DACs ensure that a completed DAC Assessor Practice Summary Form has been submitted for each health care professional who is listed on their roster to conduct DAC assessments for their facility.
Since 1995, FSCO has operated with the understanding that all DAC facilities would be or would make efforts to become wheelchair accessible. If your facility is not currently wheelchair accessible, please notify the ABAU to advise them of the steps being taken to comply with this requirement.
Location of DAC Assessments
The DAC Committee wishes to remind DACs that when a referral is made to a DAC facility for an assessment, the entire assessment must be completed at the facility listed on the DAC roster. Unless an exception is required (e.g. Attendant Care assessments, MRIs, dental examinations), or has been agreed upon by both parties, claimants are not required to travel to other facilities/ sites for the assessment(s). This practice undermines the intention of the SABS provision that the claimant attend at the nearest DAC.
If a facility is unable to comply with this rule, then the referral should be returned to the insurer. The ABAU should be informed of any exceptions prior to the assessment taking place.
Ownership of DACs
DACs are reminded that Operating Procedure #1 states that DACs must notify the ABAU of any change in ownership. It should be noted that the DAC status is not necessarily transferable to new owners and existing DAC operators must contact the ABAU prior to the transfer of any interest in a DAC operation.
Recent Roster Activity
DAC#1037 & DAC#2005
These DACs moved their locations without providing notice to the ABAU and are temporarily suspended from the roster. Pursuant to Operating Procedure #1: Moving a DAC Facility, DACs are required to notify the ABAU in advance of any change in location. The ABAU has requested that these facilities comply with Operating Procedure #1 before their status will be reviewed.
DAC #2018 has recently confirmed its withdrawal from the DAC roster. The DAC Committee wishes to thank them for their contribution to the DAC system since 1994.
DAC #2026 has been removed from the roster as it is no longer in operation.
DAC#2000 was temporarily suspended in April/ May 1999 pending an investigation into the use of a health care professional who was conducting assessments outside of their area of expertise.
The DAC Disciplinary Panel and DAC#2000 met regarding this matter. After a full review pursuant to the Complaint Management and Discipline Protocol, the DAC Committee is satisfied that the DAC has taken appropriate action to rectify the Committee's concerns and to ensure that assessors only conduct assessments within their scope of practice. Active status on the roster was restored as of May 21, 1999.
Post 104-Week Assessment Reporting
The ABAU has completed its pilot project on the electronic reporting of Special thanks to Assessment Niagara for their assistance in this project.
Tony Toy of the ABAU will be in contact with Post-104 DACs in the near future to bring them on line for reporting. These DACs should also be aware that Post-104 assessments should not be reported as Disability assessments.
Arbitration & Appeal Decisions
The DAC Committee believes that DACs will better understand the important role they play in the dispute resolution process by providing examples of how arbitrators have used DAC reports in the decision-making process. DAC assessors should be aware of these decisions and follow best practices as outlined in the DAC Guidelines in conducting and completing their assessments.
Copies of FSCO's arbitration and appeal decisions are available on the FSCO website at:<https://www.fsco.gov.on.ca> To access these decisions, users are required to obtain a user name and password from the Arbitrations Unit at (416) 590-7202. There is no cost to access these decisions.
Arbitration Decision A98-000552
No provisions in the SABS for a REC DAC to issue a "no finding" report
Arbitrator McMahon addresses a situation where a REC DAC failed to fulfill its statutory obligation under s.30 of the SABS (Bill 164).
The SABS require REC DACs to make a determination of the gross annual income that the person could earn from a type of employment that best satisfies the criteria set out in s.30(2) of the SABS (Bill 164).
In this case, the REC DAC issued a no-finding report but did not clarify in the report whether this was as a result of the claimant's functional limitations or their failure to cooperate with the assessment.
The Arbitrator decided that s.23(6) of the SABS (Bill 164) contemplates that the REC DAC should withhold its report and instead deliver a notice to the insurer advising that it cannot complete its mandate due to the claimant's non-compliance. In all other cases, the DAC must make a REC determination.
Arbitration Decision A97-00318
DACs are required to address issues of failure to comply with treatment/ rehabilitation in REC DAC Assessments
In this case, Arbitrator Renahan addresses the failure of a REC DAC to comply with the provisions of s. 30 of the SABS (Bill 164). Section 30(2)(1.ii) of the SABS (Bill 164) requires a DAC to determine if the claimant would have been able to satisfy the criteria of s.30(1) of the SABS (Bill 164) if they had not refused to obtain treatment or participate in rehabilitation that was reasonable, available and necessary to permit the person to engage in that employment.
Arbitrator Renahan stated that the REC DAC is required to determine what rehabilitation was proposed, whether the claimant refused to participate in that rehabilitation and whether the claimant would have been able to perform the essential tasks of the specified employment if they had participated in the proposed rehabilitation. Failure to make these determinations results in a DAC report which fails to comply with the SABS and is of little use to the parties in the resolution of the dispute.
Appeal Decision A98-00035
One-sided communication undermines the neutrality of the DAC
In this case, Director's Delegate Draper identified a number of difficulties with the assessment process which undermined the DAC's neutrality. Specifically, the DAC engaged in one-sided communication with the insurer and subsequently changed its opinion of the case. Director's Delegate Draper found that "even if this type of contact is sincere, it undermines the neutrality of the DAC". (See General Guideline 4).
DAC records are not the property of either party (General Guidelines 2: Production Requests)
In this case, Director's Delegate Draper found that there was some confusion regarding the parties' perceptions of the ownership of the DAC records. Pursuant to General Guidelines 2: Production Requests, DAC records are not the property of either party and should be made available to all parties.
We've Had Questions:
General Guidelines 4: Ensuring Neutrality in the Designated Assessment Centre System
The DAC Committee and the Accident Benefit Analysis Unit have had a number of questions regarding whether the prohibition of one-sided communication extends to parties preparing for trial or arbitration.
The decision to meet with either party is left to the discretion of a DAC. However, DAC assessors should be aware that any meeting must not be used, or be perceived as being used, to tailor their DAC testimony.
As outlined in General Guideline #4, it is critical to the dispute resolution process that DACs and their assessors to maintain their actual and perceived neutrality. In keeping with this fundamental principle, DACs are required to notify the other party if they choose to meet with either parties' council.
Conflict Of Interest Concerns Within DAC Teams
The ABAU continues to receive conflict of interest inquiries regarding DAC assessors who are included on a DAC's roster and have seen a claimant for a prior treatment and/or examination but are not part of the assessment team scheduled to see the claimant. In order to ensure their neutrality, DACs should continue to declare these situations as a conflict of interest. Nothing precludes the parties from agreeing to use the DAC facility despite this perceived conflict of interest.
Distribution of the Medical/ Rehabilitation DAC Report?
Pursuant to s.43(4) of the SABS (Bill 59), copies of the Medical/ Rehabilitation DAC report should be sent to the insurer, the insured person, and the insured person's health practitioner who has completed and signed sections 2 and 3 of the OCF 18/59 Treatment Plan.