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  MIG Update – July 25, 2022

Obligation to Revisit Prior Denials

Previously denied treatment plans on the basis of ‘no more funding available under the MIG’ ought to be revisited once the Applicant is removed from the MIG and has access to the non-CAT limits of $65,000.

In Yang v Dominion (20-008471) The Tribunal made clear that “The Schedule does not differentiate between the reasons why someone is removed from the MIG and the treatment they could receive. Once the Applicant is removed, all treatment plans are subject to the test of being reasonable and necessary” Thus previously denied treatment plans will be scrutinized based on the medical reasons for denial s 38(8) and subject to the incurred provisions set out in s38 (11).

Failure to continue to adjust comes at various price points ranging from an award at the full value of 50% to less than 5%. Even if the payment for the benefit is eventually made, the delay in payment can still be held to account.

This week we revisit previous issues (both MIG Mondays and LAT inFORMERS) to discuss some cases that are instructive in this regard.

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Factor: Revisiting Previous MIG Denials

In 16-000872 v Certas Home and Auto Insurance Company, the Tribunal held at para 16 – “Firstly, in the spirit of the overall benefit scheme, and at least as of the date the insurer found the applicant’s injuries no longer met the MIG classification, it was obligated to re-consider the submitted treatment plans under the non-MIG regime. To do otherwise, or to maintain its denial of the treatment plans based on its initial belief of the classification of the applicant’s injuries and in light of proof to the contrary, would undermine the purpose of the benefit scheme to allow access to appropriate treatment.”

Related issue > 

Obligation to Revisit Previously Denied Treatment Plans, In Yang v Dominion (20-008471 v Dominion), the Tribunal found the Applicant Yang entitled to three treatment plans for physical therapy as Dominion was ultimately found not to have provided medical and other reasons for the denials of same. Dominion had denied the three plans because there was no more funding left under the MIG limits. However, Dominion had subsequently removed Yang from the MIG based upon psychological injuries.

Dominion contended that as a result it had properly denied the physical plans. The Tribunal noted that once the reason (MIG limits exhausted) was no longer true, they had “an obligation to re-evaluate the reasonableness and necessity of the treatment plans previously denied because now the applicant has access to greater benefit limits.” This was said to entail the providing of medical reasons and other reasons for the denial of the treatment plan as per section 38(8) of the Schedule.

Reducing Our Exposure – In 19-001009 v Aviva, The Applicant was entitled to an award of 30% on the late approved OCF-18’s, as the Respondent “did not approve the treatment plans until the eve of the hearing, without a cogent reason for that delay.” The Tribunal found the “delay particularly unreasonable, as [the Respondent]’s original denials were based solely on the MIG”, having removed the client from the MIG in July 2019. The Tribunal further did not accept that the Respondent was entitled to rely upon the psychological IE’s ultimate conclusion that the MIG applied, as such a conclusion would be outside his expertise. These “mixed psychological/legal conclusions…are decisions for [the Respondent] to make.” Concluding, the Tribunal found “[the Respondent]’s representative’s comment about recent approvals to reduce [the Respondent]’s exposure troubling” but this was “certainly not intentional malice”.

30% Award Despite Late Disclosure of Psych Symptoms – In Padua v. Co-operators General Insurance Company (20-005450) Padua’s family doctor, Dr. Tejan diagnosed her with mild cervical and lumbar sprains and prescribed pain medication and massage therapy. She received treatment from April to July 2018 and stopped on her own, prior to exhausting her funding under the MIG.

In June 2020, Padua submitted a report by Dr. J. Brunshaw, psychologist, and H. Ilios, psychotherapist with a diagnosis of an Adjustment Disorder with Mixed Anxiety and Depressed Mood, noting that Padua suffered from Specific Phobia as a driver, passenger, and pedestrian.

The late disclosure of psychological symptoms and the complete lack of psychological complaints immediately following the accident resulted in the Co-operators questioning causation of Padua’s alleged psychological injuries.

Padua’s failure to clearly report her pre-accident health status does not invalidate the conclusions in the Brunshaw/Ilios report. On the balance of probabilities that Padua sustained a psychological injury, or in the alternative, an exacerbation of pre-existing psychological injuries.

The Co-operators never commissioned a psychological Insurer’s Examination, (“IE”), leaving the conclusions in the Brunshaw/Ilios report uncontested. Padua’s late production of medical records and that she sought treatment and assessments some 18 months after the accident without incurring treatment didn’t discharge The Co-operators ‘obligation to adjust the claim on an ongoing basis’.

The Co-operators ‘exhibited stubborn and inflexible behaviour when it refused to remove the Applicant from the MIG or seek an IE, in light of Dr. Brunshaw’s report’ An award of 30% was granted in recognition of The Co-operators shortcomings, while at the same time acknowledging the untimely productions of medical records.

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.

Inform your position & present persuasive arguments. Include an Outcome Analysis Report (OAR) in your case evaluation complete with For/Against cases. Need an OAR?