This update is designed to provide information on the activities of the Minister's Committee on the Designated Assessment Centre (DAC) System. This issue: announces the new DAC Committee executive; the creation of the Financial Services Commission of Ontario; reviews recent arbitration decisions; updates progress on the assessment protocols for Residual Earning Capacity (REC) DACs, Disability DACs, and Attendant Care DACs; and, reports on the first Catastrophic Impairment DAC Rounds. A new feature, Readers' Corner, responds to feedback on General Guideline - 2: Production Requests.
The Committee would like to thank Ms. Judy Maddocks, CEO of Kemper Canada, for her valuable contribution to the Committee as the Chair over the past 15 months. Due to other professional obligations Ms. Maddocks decided to step down at the end of her term. The Committee looks forward to her ongoing support as Chair of the Communications Sub-Committee and as an active Committee member.
The DAC Committee has selected a new Chair, Miss Philippa Samworth. Miss Samworth is a partner at the law firm, Fireman, Regan. She has been an active member of the Committee since May 1997. Dr. Ron Kaplan was selected to continue as Vice-Chair of the Committee for another term. Dr. Kaplan is a psychologist with Kaplan and Kaplan Assessment Centre and has been Vice-Chair of the Committee since May, 1997.
Financial Services Commission of Ontario
The Financial Services Commission of Ontario (FSCO) was created on July 1, 1998 as an arm's length agency of the Ministry of Finance. FSCO integrates the operations of the Ontario Insurance Commission, the Pension Commission of Ontario and the Deposit Institutions Division of the Ministry of Finance.
The DAC Committee believes that DACs will 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.
OIC File A97-001916
Insurer requests a further DAC assessment without notifying the claimant
The insurer referred the claimant to a Disability DAC. Although the claimant was paid as an employed person, the insurer requested an assessment as to the claimant's ability to perform household tasks. The DAC concluded that the claimant should be able to perform most of the listed tasks within the next four to six months. The insurer continued to pay based on the report. Three months after the assessment, the insurer wrote to the DAC and requested a further assessment to take the claimant's essential tasks of her job (mailroom clerk) into account. Neither the insurer nor the DAC told the claimant about the reassessment, nor was she provided with a copy of the job description (essential tasks). Based on the paper review, the DAC advised the insurer that the claimant could do the job.
The arbitrator found that the DAC did not comply with the Guidelines in preparing a written, final report, or in involving the claimant in the process. The arbitrator found that the insurer should have requested a new assessment, with all relevant information, and included the claimant in the process.
The arbitrator awarded interim benefits until a Disability DAC was scheduled and a final report received.
OIC File A97-000378
DAC applied the wrong test and must refer to Statutory Accident Benefits Schedule (SABS)
A functional abilities evaluation conducted prior to the Disability DAC was reviewed and the DAC concluded that the test results were not reliable due to a lack of consistent effort and inappropriate pain behaviour. The DAC also found that there was no impairment in muscle function and therefore, by the World Health Organization definition, there was no disability. Similarly, the DAC found that the claimant did not suffer a disability since pain is not considered an impairment under American Medical Association guidelines. As part of the assessment, a nurse prepared a detailed job description of the claimant's job as "installer." This description was then heavily relied upon by the arbitrator.
The arbitrator found that the DAC applied the wrong test and should refer to SABS--is the pain disabling the claimant from specific job demands? The arbitrator also found that the DAC disregarded relevant portions of the FAE and the nurse's job analysis, which led to an understating of the claimant's job demands and an overstating of his abilities.
FSCO File A97-000341
Arbitrator prefers evidence of the DAC over the family physician
The Medical/Rehabilitation DAC assessment was multi-disciplinary and performed by an orthopaedic surgeon in conjunction with an occupational therapist, physiotherapist and chiropractor. The orthopaedic surgeon, after reviewing the claimant's treatment history, performing a medical examination, and consulting with the occupational therapist and physiotherapist, concluded that all passive modality treatment should stop, including physiotherapy and chiropractic treatment. He recommended two to three sessions with a physiotherapist for instruction in a home-exercise program. The chiropractor conducted a separate examination and confirmed that all forms of passive therapy should be discontinued, and the claimant should be instructed about a home-exercise program.
In comparison, the arbitrator noted that the family physician's approach was to recommend treatment as long as the patient expressed pain or a desire for further treatment. The evidence also established that the clinics where the family physician referred the claimant were owned by his mother and father, so he had no incentive to recommend against continuing treatment.
OIC File A96-001590
Arbitrator finds Disability DAC assessment more important than insurer examination
In considering whether the insurer acted unreasonably in arranging an insurer's examination following the DAC assessment, the arbitrator found that an assessment for the purposes of determining whether or not a claimant continues to receive weekly benefits (Disability DAC) to be more important than an assessment for the purposes of an arbitration (insurer's examination).
DAC required to release information
The claimant's counsel requested that the DAC release the assessment file. The DAC replied that, as the insurer is the "owner" of the file, the DAC could not release the file unless authorized by the "owner." The insurer had allegedly refused the file's release.
(The DAC Committee has recently released General Guideline - 2: Production Requests which will assist parties in similar matters.)
OIC File No. A97-000318
SABS prevail over DAC Guidelines
The arbitrator found that the REC DAC Assessment Guidelines do not conform with the SABS in that they direct the DAC not to consider a claimant's failure to participate in rehabilitation or treatment unless the insurer has taken steps to reduce the benefit amount. Where there is an inconsistency between the Guidelines and the SABS, the SABS must prevail.
As part of its mandate, the DAC Committee has undertaken the task of reviewing, revising and developing a cohesive and comprehensive DAC manual with input from DACs and other sources.
The assessment protocol for REC DACs is nearing completion. The assessment protocol frameworks for Disability DACs and Medical and Rehabilitation DACs are also progressing well, with a release date scheduled for later this year. Disability DAC discussion groups will take place in late September with a cross-section of DACs. This is part of the Committee's ongoing consultation process.
CAT DAC Rounds
The inaugural CAT DAC rounds were held on June 17 at 5160 Yonge Street, 17th floor. Six of the seven CAT DACs participated. Discussion topics included the types of cases seen and the difficulties they have encountered. Of the 23 assessments completed, two involved claimants under the age of 16. The next set of rounds are planned for later this autumn.
The Minister's Committee has received feedback concerning General Guideline - 2: Production Requests, and the DAC Assessor Practice Summary Form. We appreciate our readers taking the time to provide us with their written comments and concerns.
A) Why would a DAC have to assume responsibility for collecting information on its own?
Although the current DAC Guidelines state that the insurer or the claimant must provide all necessary information, the Guidelines also state:
In rare instances, with the consent of the insurance company and the claimant, the assessment centre may assume responsibility for gathering information directly.
It is in these instances that other materials will be appended to the DAC Report.
It was the intention of this part of the Guideline to relieve the DAC of any responsibility for providing documentation that was readily available from either the insurer or the claimant, and to discourage parties from making production requests to DACs.
DAC Assessor Practice Summary Form
A) What is the purpose of a DAC Assessor Practice Summary Form?
The DAC Assessor Practice Summary Form serves two purposes:
1) It allows the Accident Benefits Analysis Unit (ABAU) staff to quickly ascertain whether a proposed assessor meets the minimum requirements to conduct assessments; and,
2) it removes the need for the parties involved to request the curriculum vitae(s) prior to the assessment since the DAC will send the Practice Summary Form at the time an assessment is scheduled.
In cases where a party insists on a full curriculum vitae, the requesting party is required to pay at the established rate. This rate is set out in the Guideline.
In the past, DACs have received requests for all types of information which has led to inconsistencies across the system. Also, curriculum vitae submitted to the ABAU often contain information of an extremely personal nature, such as home addresses and telephone numbers, which is not required to determine whether a person is qualified to conduct assessments.
B) Is there an electronic version of the form available?
Yes. The ABAU is in the process of posting the form on the website. If you require the electronic format immediately, please contact the ABAU at 1-800-517-2332, extension 7137 to receive the file by electronic mail.
C) What if I need more than one page?
Assessors should try to summarize their information on one page. For those who require more than one page to list their qualifications, the electronic format is expandable.
D) Who should complete the form?
Any professional who wishes to be approved to conduct DAC assessments must submit a completed DAC Assessor Practice Summary Form (not a curriculum vitae) to the ABAU. It is not necessary for DACs to re-file practice summaries for assessors who have already been approved by the ABAU. If your DAC proposes to add a new assessor to its team, an Assessor Practice Summary Form must be completed, signed by the assessor and submitted (not a curriculum vitae) to the ABAU. The ABAU staff will complete the section of the form marked "For office use only" and return a signed copy to the DAC.
E) Why would the clinical co-ordinator need to complete the form?
The clinical co-ordinator at many DACs is a vital, integral member of the DAC assessment team. As such, it was felt that the claimant and insurer should understand who all of the DAC team members are in an effort to make the process as transparent as possible. So long as the co-ordinator is not conducting an assessment, there is no requirement that the person be approved by the ABAU for the purposes of conducting an assessment.
F) When and to whom are the forms sent?
A copy of the form for each assessor on a claimant's assessment team will be sent to the claimant and copied to the insurer (without charge) at the time the notice of the assessment date is sent.
G) Will sending the form increase costs?
No. While concerns were raised that the inclusion of an Assessor Practice Summary Form(s) would increase mailing costs, it is predicted that these costs will decrease since the mailing of a one-page summary should be less costly than a multi-paged curriculum vitae(s).
We welcome your feedback. Please write to us at:
The Minister's Committee on the Designated Assessment Centre System
Financial Services Commission of Ontario
c/o The Accident Benefits Analysis Unit 5160 Yonge Street
North York ON M2N 6L9