sou · GXB396 · 2010-01-01 00:00:00 — In claims adjustment in the expanded system, it is, however, natural for the motor insurance company to compare the cost for any rehabilitation measure with the cost for the traffic incident victims loss of income due to the traffic accident. A comparison of this kind will probably mean that the companies will finance rehabilitation measures to a considerably greater extent than today. As regards the co-ordination of rehabilitation, Försäkringskas- san shall not be responsible for this if the motor insurance company has deemed that the insured persons work capacity has ceased due to the traffic accident. If the insureds work incapacity is only partly caused by traffic, shall co-ordinate rehabilitation, if the work incapacity is at least 50 per cent caused by other causes than the traffic accident. In such cases, shall work together with the motor insurance company. may, if the insured person permits, assign parts of its responsibility for co-ordination to the motor insurance company. The responsibility of motor insurance for co-ordinating the rehabilitation of the traffic accident victim should not be regulated by law but be governed by the financial driving forces. Loss of pension or pension entitlement? The compensation currently paid for loss of income due to a traffic injury does not confer entitlement to pension. It is calculated on the basis of the gross loss between the income base and the co- ordination benefits and paid with a deduction for preliminary withholding tax. The loss of pension incurred by the traffic acci- dent victim arising from the fact that the compensation for the traffic injury is not pensionable is estimated and paid after pension age in the form of an annuity or in the form of a lump sum at the time of claims adjustment for smaller losses. According to the Commissions guidelines, the investigator shall recommend rules, which, within the framework of the pension agreement, mean that compensation for loss of income in an expanded motor insurance will be pensionable as well as consi- dering which additional social security contributions should be paid. There is nothing to indicate that the traffic accident victim is gene- rally over- or under-compensated in general with the current claims adjustment practice with regard to loss of pension. The regulation of loss of pension is, however, both time-consuming and compli- cated. While calculation tools are available, extensive work is still required to obtain all the relevant information for the calculation. A clear benefit in letting traffic injury compensation for loss of income become pensionable is that it will then produce the full correct pension that the income would otherwise have led to. The current calculation methods can entail some risk that the loss of pension will deviate from what should really have been the correct pension. If the traffic injury compensation is not pensionable in a system with expanded responsibility either, a large number of persons with permanent injuries who are at an early stage or in the middle of their working years will only have an extremely limited national basic pension. This may have undesirable consequences. One such is that a larger number of people than today will be refer- red to guarantee pension. Another consequence is that the pension system will not receive contributions to the same extent as at present. A prerequisite for an income being pensionable in the autonomous national pension system is for the old age pension contribution to be paid into the system corresponding to the pension entitlement that the income gives rise to. The circumstance that the motor insurance companies will pay the old age pension contribution means that the companies in certain cases will have to pay more for the injured persons national pension than what they do today in compensation for loss of pension under the rules of the Tort Liability Act. This is due, among other things, to the contribution also being paid on parts of wage that exceed the upper limit for pensionable income. Admi- nistrative and systematic reasons entail, however, that no exemp- tion should be made for the insurance companies as regards payment of contributions above the ceiling. Other social security contributions are the health insurance contribution, the parental insurance contribution, the survivors pension contribution, the labour market contribution and the occupational injury contribution. Since traffic injury compensation according to the proposal of the investigator will not confer entit- lement to sickness benefit and no unemployment injury benefit or unemployment benefit can be calculated on it, the Commission cannot see any acceptable reasons of principle for any other employers contributions besides that proposed being payable on traffic injury compensation. If traffic injury compensation for loss of income is to be pensionable, the benefit will be included in the list of pensionable benefits specified in Chapter 2 of the (1998:674). According to the National Act, contributions shall be paid on those benefits specified in the aforesaid chapters. If traffic injury compensation is made pensionable, the tax reduction applicable for the contribution will provide full compen- sation for the national pension contribution. In the view of the Commission, there is therefore no reason to exempt traffic injury compensation from the obligation to pay the national insurance contribution in the new system. When the motor insurance has full responsibility for compensating for the loss of income of traffic accident victims, the conditions for the motor insurance companies processing of traffic accident claims will change. The task of being responsible for payment from the first krona after the end of any sick pay period differs conside- rably from the current task of motor insurance which is respon- sible only for complementary compensation. When an insurance company is solely liable for compensation, it will be an important question how quickly the company can obtain knowledge about the insurance claim so that claims adjustment can be initiated. In the proposed system, it must be ensured that the injured person does not suffer any loss of rights due to the arrangement of the application procedure or due to lack of clarity as to who the claim is to be submitted to. The current claim procedure means that the injury claim is submitted to the motor insurance company which had insured the vehicle in which the injured person was conveyed at the time of the road accident. Injured persons who were outside a vehicle liable to have motor third party motor insurance can report the claim the insurance company of any of the vehicles involved. In the current system, a sickness case is reported to the emplo- yer, if the latter is to pay sick pay, and otherwise to Försäkrings- At the end of the sick pay period, the employer shall notify the sickness case to if the sickness case conti- nues. An employee shall also in the future report to the employer if he or she is affected by illness due to a traffic injury which entails work incapacity. After the end of the sick pay period, it is, how- ever, no longer which is to pay any continued loss of income but the responsible insurance company. The Commission therefore proposes that if a sickness case due to a traffic injury gives entitlement to sick pay, the injured persons employer shall report the sickness case to a motor insurance company instead of to if the case continues after the end of the sick pay period. The employer will however be liable to report the injury to the insurance company only if it is evident from the information provided by the employee or from other circumstances that the sickness case is due to a traffic accident. If receives a sick report and there is reason to believe that the insured has incurred the illness due to traffic, shall send over the documents to a motor insu- rance company unless the insured opposes this. To make it easier for employers and to assess whether a claim should be reported to an insurance company, a box is being added to the form Läkarutlåtande – hälsotillstånd (FKF 3200) (Doctors opinion – state of health) used by doctors for sick notes, which the certifying doctor must tick if it is a traffic acci- dent. With the aid of notes in the acute record, the doctor should in most cases be able to take a position on whether it is a traffic accident which has caused the complaint and any work incapacity. In cases where it is not clear to an employer or Försäkrings- kassan which insurance company is responsible for the injury, a report should be made to the Insurers. The insurance company shall be responsible for compensation only if the loss of income is due to a traffic injury. It may be diffi- cult in particular cases to investigate whether this condition applies. An important task is to ensure that such investigation difficulties do not delay payment of compensation even if it is not clear to what extent there is a causal connection between the traffic accident and the established lack of work capacity per se. The Commission notes that there is overall no reason to anti- cipate that compensation will be paid later to the injured in the new system with regard to injuries with a clear connection between the injury and the traffic accident as well as injuries that do not require more detailed investigation of the financial circumstances. As regards investigation by the insurance companies during the initial phase, a number of the Commissions proposals – including the ability of the insurance companies in certain cases to demand reimbursement of benefit from – aim to elimi- nate the risk of greater restrictiveness in uncertain cases. Insurance medicine issues of various kinds arise both in Försäk- ringskassans processing of sickness insurance and occupational illness cases and with the settlement of personal injuries by insu- rance companies. Criticism has been raised over the years against the system of insurance doctors at and advisors asso- ciated with the insurance companies. A discussion in this issue is whether it would be possible to establish a body of advisors who were independent in rela- tion to the individual insurance companies. The Commission has been informed that work is in process within the insurance industry of establishing a body of the above- mentioned kind. This work is being actively pursued and is far advanced. However, no final proposal has been adopted for this. Bearing in mind the process underway, the Commission considers that no proposal should be made in this context on the forms for insurance assessments. Secrecy-related issues, etc. In the new system where the insurance companies bear the prima- rily responsibility for compensating the loss of income of traffic accident victims, it is particularly important that the companies have access to relevant information on the injured persons and financial circumstances. It is also desirable for information to be provided in an effective way. This also requires exchange of information in the cases when compensation is to be paid at the same time according to the Road Traffic Injuries Act and other systems of compensation, for example when full work incapacity due to illness depends only partly on a traffic accident. The compa- nies must also be able to collaborate with , the health service and also other actors. Limited access to documentation can lead to compensation not being correct or that the companies consider that there is no correlation and there refusing compensation. For the individual, the consequences in such cases can both be a deterioration in insu- rance cover and longer processing times. For this reason, conside- ration should be given to whether the secrecy rules should be amended, for example, by there being introduced a statutory obli- gation for the health service and other authorities to provide information to the motor insurance companies on the state of health or other personal circumstances of an individual. A balance must then be struck between two justified interests, namely on the one hand the requirement for smooth processing and a correct basis for decisions and on the other hand protection for the perso- nal data of the individual. strong reasons are required to deviate from the basic systematic approach and the underlying objectives in the sphere of secrecy and to introduce a statutory obligation for the health service and other authorities to provide information to civil law bodies such as motor insurance companies. The reasons for this obligation to provide information are, in the view of the Commis- sion, not sufficiently strong. The companies moreover have the possibility of obtaining corresponding confidential information with the aid of a power of attorney from the individual. If the indi- vidual refuses to provide the power of attorney, the consequence may be that he or she is deprived of compensation with reference to the general tort law principle that the injured has the burden of proof for his or her claims. According to information from the motor insurance companies, it is no great problem for the companies to obtain a power of attorney, which is often unlimited, from the traffic accident victim. This procedure is used regularly to obtain information from the health service, other authorities and the employer. The Commis- sion thus considers that the ability of the companies to obtain the necessary information will not be worse in the new system, even without these statutory changes. The procedure with the power of attorney may possibly entail that claims adjustment takes longer in some cases but this disadvantage shall be viewed in relation to the individuals protection for his or her personal integrity. The Commission considers in the light of this that the motor insurance companies should not have access to information about the indivi- duals state of health or other personal circumstances through a statutory obligation for the health service and other authorities. Another important issue in this context is how information can be obtained and processed. An authority is not obliged to provide a recording for automatic processing in another form than a print-out to a greater extent than legally provided for. This provision does not prohibit authorities from making available public documents in an electronic form. Other provisions, for example, register statutes, can, however, prevent such disclosure. The possibility of direct access to authorities registers which contain sensitive information is greatly restricted. There are no examples of such possibilities for other than authorities and the registered person. Obtaining information on a medium for automated processing is possible through statutory regulation. It is then rather a matter of whether the purpose of the processing of the data is acceptable. There are currently major differences between social insurance and motor insurance as regards administration and dispute resolution. The issue of the right to benefit from social insurance is determi- ned by the decision of an authority, . Court consideration of the right to benefit takes place through such a decision to the disadvantage of the insured being appealed against to a general administrative court. While claim adjustment at an insurance company in conjunction with a traffic injury takes place in accordance with the rules on compensation in the Road Traffic Injuries Act and the Tort Liability Act, it constitutes a private acti- vity which lacks the formal legal security protection that the actions of an authority are subject to. The possibility of court consideration in the event of disagreement with the insurance company is considerably less accessible, not least for reasons of cost, than that offered in administrative cases. The Commission has investigated whether the dispute resolu- tion institution in motor insurance disputes needs to be improved in order for the ability of the individual to have a dispute on compensation in the event of work capacity considered in an acceptable not being deteriorating in relation to the current situation. It can be noted that it is difficult to compare the corrective functions of the administrative procedure with the dispute resolu- tion mechanisms of motor insurance. The Commission none the less draws the conclusion that the there will not be any deteriora- tion for the individual in any real sense due to maintaining the present arrangement for dispute resolution in the new compensa- tion system. The Road Traffic Injuries Commission The Commission does not consider that the taking over of the social insurance systems costs for the loss of income of traffic accident victims by the motor insurance per se motivates a changed principal for the Road Traffic Injuries Commission. If this is notwithstanding this considered as important, a proposal to this effect should be preceded by a special investigation. The Commission does not wish to recommend any changes in the composition of the Road Traffic Injuries Commission. The Road Traffic Injuries Commission seems in all essentials to have a composition that serves its purpose. Neither is a different role proposed for the Road Traffic Injuries Commission. However, one change that would seem to be neces- sary to avoid an increase in the number of cases due to the reform is to increase the threshold amount for when the Road Traffic Inju- ries Commissions opinion shall be obtained. It is not possible to foresee whether the new arrangement may lead to an increased burden on the Road Traffic Injuries Commis- sion due to traffic accident victims requesting consideration by this Commission to a greater extent than at present of matters during ongoing claims adjustment. However, there may be reason to return to this issue at a later date and possibly to propose measures if the burden on the Road Traffic Injuries Commission becomes too great. A view has been expressed that certain insurance companies have become more restrictive in providing compensation for the attor- ney costs for traffic injury victims during claims adjustment. The insurance industry has in different contexts denied that this is the case. Demands have been made for the right to compensation for attorney costs during claims adjustment to be regulated by statute. In the view of the Commission, it is difficult to have any clear picture of whether the insurance companies in general or particular companies have actually changed their practice to becoming more restrictive with regard to compensating attorney costs during claims adjustment. The Commission does not consider that it is appropriate to regulate the right to compensation for attorney costs by statute since this is in the first place to be regarded as an issue relating to terms of insurance. The government and its authorities own a large number of vehicles although the state is not obliged to have motor insurance. Instead, the state defrays the cost of the traffic injury compensation which would have been paid had the insurance existed. When compensation for loss of income due to traffic injuries is to be compensated for in its entirety from a motor insurance, the question arises of whether the state should compensate the whole loss of income in a corresponding way in those cases when the state meets the cost of traffic injury compensation. The Commission considers that government-owned vehicles should be covered by the new system with an expanded liability for the loss of income of traffic accident victims. If this does not happen, it would entail consequences that can be called into ques- tion. An arrangement where the states responsibility for traffic injury compensation does not cover the whole compensation for loss of income, while, on the other hand, private motor insurance does, can be questioned from the point of view of competition. Government authorities that engage in activity involving the use of vehicles would namely then have lower costs for their vehicles than any competing private businesses. Distortions can also occur in regress situations. When the Legal, Financial and has paid traffic injury compensation and the Agency is going to demand the amount paid back from an insurance company which shall finally defray the compensation, the demand only covers a small part of the total loss of income. However, a private insurance company, in the corresponding situation, where the state shall finally defray the compensation, can demand the total loss of income from the Legal, Financial and , which the company has paid in compensation. This distortion does not arise if the traf- fic injury compensation that the state is to pay also covers the total loss of income. Act (1977:265) contains rules on a guaranteed annuity basis for conscripts and others. The Commission considers that these groups should continue to be entitled to compensation in accordance with the Road Traffic Inju- ries Act. According to its terms of reference, the Commission shall clarify the situation, in particular for uninsured vehicle owners and propose the changes considered necessary to avoid an increase in the number of uninsured vehicle owners. The background may reasonably be assumed to be the following. If the loss of income of the traffic accident victim shall be paid for in its entirety by motor insurance, the costs of the insurance will increase. This in turn may be assumed to mean that the premiums for the insurance will be increased and that certain car owners will try to avoid such an increase in costs. It can be feared that an increase in premium will be an incentive for certain car owners to avoid their vehicle insured but none the less use it in traffic. As regards deregistered vehicles, the Insurers has already noted in its cases that the uninsured vehicles that cause injuries are to an increasing extent deregistered. For a person who wishes to use an uninsured vehicle on the road, the current rules work rather as an incentive to keep the vehicle deregistered rather than registered. If an uninsured vehicle is registered when it is involved in a traffic accident, the owner will have to pay the motor insurance charge for the period that the vehicle has been uninsured. However, if the vehicle is deregistered, the motor insurance charge cannot be charged to the owner and he will thus be treated more leniently. The risk of a deregistered vehicle being detected on the road is not great. It cannot be seen from the road traffic register that a vehicle is used despite being deregistered. However, it can be seen in the road traffic register that a registered vehicle is uninsu- red and a demand can be made on the owner to pay the motor insu- rance charge. There are mainly two approaches if it is wished to counteract that vehicle owners use deregistered vehicles on the road. The possibility of deregistration can be restricted or removed. Good possibilities can also be created of detecting vehicles that are driven despite being deregistered, which should be combined with effec- tive sanctions against breaches. The Commission does not consider that the possibility of deregistering vehicles should be restricted. The Commission does not regard it as a viable approach – alongside the investigation work that is taking place elsewhere – to try to find other practical usable methods to detect deregistered vehicles than those that already exist. In the view of the Commission, it is unfortunate that the current regulation of the motor insurance charge leads to the person using a deregistered vehicle on the road not only having great possibilities of avoiding detection but also not risking to have to pay the charge for the period that the vehicle has been deregiste- red.