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  MIG Update – March 7, 2022

Corroborating Evidence & Payment Obligations on Deficient Notice

This week’s case involves a psych MIG hold where the Applicant’s assessor did not reference CNR’s and medical records that ultimately challenged the veracity of the Applicant’s psych diagnosis.  

Despite being held in the MIG  the insurer’s failure to respond in accordance with the notice requirements set out in the schedule (s38 (8))  resulted in payment consequences. On this point the Tribunal outlines in order of magnitude,  the various sections of the schedule, supporting LAT decisions and references the deficiency in each of the insurers’ responses. A step by step guide if you will, on notice requirements at least according to one Vice Chair. 

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Factor: Corroborating Evidence & Notice Sufficiency Payment Obligations

In Mahhamoud v. Aviva General Insurance (19-010985), a December 11, 2017 accident Mahhamoud sought ongoing chiropractic and massage treatment beyond the MIG limits. As well, a finding that they were out of the MIG, having sustained a psychological impairment.

To establish this, Mahhamoud relied on 2 OCF 3’s completed by her treating chiropractor dated December 21, 2017 and September 11, 2018 which list “other anxiety disorders”. As well as a November 6, 2020 psychological assessment report by Dr. Ricardo Harris who diagnosed Mahhamoud with a major depressive disorder, single episode, severe with anxious distress, and posttraumatic stress disorder, chronic, as a result of the accident.

On the other hand Aviva relied on three assessments by:

• Dr. Arnold Rubenstien, psychologist October 4, 2018 who opined Mahhamoud did not meet the criteria of DSM V diagnosis.
• Dr. Jay Sethi, psychiatrist March 17, 2019 who opined Mahhamoud did not exhibit any evidence of a major mental disorder as a direct result of the accident.
• Dr. Fabio Salerno, psychologist December 21, 2020 who opined Mahhamoud did not exhibit an accident-related psychological impairment and made no psychological diagnoses.

Further, Mahhamoud submitted that Aviva’s failure to comply with the notice requirements set out in s 38 (8) entitles her to the treatment plans in dispute and Aviva is precluded from taking the position that the MIG applies.

The Tribunal followed the notice requirements outlined in T.F. v. Peel Mutual Insurance Company (16-003316) relating to ‘medical reasons’ as a guide when citing the deficiency of Aviva’s notices in response to the treatment plans in dispute.

On the MIG Hold The Tribunal found:

• Dr. Harris’ report, diagnosis and the failure to review the CNR’s was significant as the records show that Mahhamoud made no psychological complaints. In particular an entry August 29, 2018 where the family doctor noted no symptoms of depressed mood.
• The Insurer’s examination reports were more consistent with the CNR’s from Mahhamoud family doctors and medical providers. As such Mahhamoud failed to meet her burden that she sustained a psychological impairment as a result of the accident.
  

On s38 (8) Compliance The Tribunal held:

• The December 12, 2017 and April 24, 2018 OCF 18’s are payable starting on the 11th business day after the day that the respondent received the OCF-18 and upon submission of an invoice for services rendered despite the maximum benefits payable under the MIG being exhausted.
• Aviva’s January 29, 2018, August 28, 2018 and October 10, 2018 request for additional information in response to the December 12, 2017 and April 24, 2018 treatment plans fell short as per T.F. v Peel on the ‘Medical Reasons’. The requests were:
• Confusing and unclear as to what, if any portions, of the treatment plans were approved and or denied
• Not sufficiently clear to allow an unsophisticated person to make an informed decision
• Within Aviva’s right to additional information (CNR’s) but failed to provide specific details about Mahhmouds’s condition as part of their request for further information.
  
• “October 10, 2018 response regarding the IE, simply restated Dr. Louis Weisleder’s general conclusion regarding the treatment plans and failed to provide an explanation as to why the respondent concluded that the April 24, 2018 OCF-18 was not reasonable and necessary”
• The breach of s38 (8) triggered section 38 (11) as such Aviva was precluded from taking the MIG position on the subject treatment plans.
• However Aviva’s submission that no payment is owing under s. 38(11) because Mahhmoundt has not proven that any of the proposed treatment was incurred was found to be incorrect.
• “On a plain reading of s. 38(11)2, there is no requirement for any services to be “incurred” as the section only states “that relate to.” Furthermore, “incurred” is found nowhere in this section, yet it appears in countless other sections of the Schedule. Therefore, when s. 38(11)2 is read harmoniously with the Schedule as a whole, it is readily apparent that the legislature purposefully used the wording “that relate to” in lieu of “incurred” in s. 38(11)2. Moreover, when examining the intention of the Schedule, it would be contrary to its consumer protection purpose to require an injured person to incur an expense prior to a finding by the Tribunal on issues raised over compliance with s.38(8) of the Schedule.”

If you Have Read This Far…

Our MIG Monday series discusses the multitude of factors to consider when evaluating a risk position on MIG cases. The Tribunal has ruled on the MIG in 24% of the decisions so far. Each case is nuanced, but with similar factors.

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