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  MIG Update – March 27, 2023

Is The Need for CNR’s Itself Not A Medical Reason?

This week, the Tribunal addresses the applicant’s claim that the insurer unreasonably withheld payment of benefits by not providing medical reasons for the denial of treatment plans and not revisiting the MIG position once additional information was provided. The insurer had requested CNR’s under s33 (1) in their notice and argued that they did not violate any notice provision.

LAT Update – What Difference Did A Year Make?

The LAT released Performance Stats up to mid-year 7 which is current through to the end of September 2022. Together with the LAT’s last update we can now provide a comparison of year over year, with projections through to the end of year 7 in this annual update. What difference did a year make?

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Factor: S33 (1) Request for CNR’s Not a Medical Reason?

In Krzweski v. CUMIS General Insurance Company (20-013665), Colleen Krzweski was injured in an accident on October 7, 2019. She claimed that her injuries were not minor based on an aggravation of her pre-accident conditions of chronic pain, depression and anxiety. She sought payment of a psych and chronic pain assessment.

Krzweski also submitted that Cumis unreasonably withheld payment of benefits, denying the treatment plans in dispute without stating the medical reason for the denial and without requesting further medical documentation. That once Cumis did receive the documentation, they failed to readjust the claim and state their medical reason for keeping Krzweski in the MIG. The violation of notice provision prohibited them from taking the MIG position.

Cumis submitted that the notice criteria in the Schedule was satisfied as their denial of the OCF 18 under the MIG pending the receipt of the requested production of the family doctors CNR’s was sufficient. If found otherwise by the Tribunal they would only be required to pay any incurred portion of the treatment plan during the non-compliance period as $3300 of the MIG limit remained available.

Cumis also took the position that Krzweski was required pursuant to s33 to provide Dr. Brooymans’ CNR’s within a specific period upon their request in order to assist them in determining entitlement and the reasonableness and necessity of the treatment plans. Krzweski did ultimately provide the CNR of her family doctor, but not until a year after the denials.

The Tribunal held:

• Cumis was entitled to refuse to accept a treatment and assessment plan during a period when the Krzweski was entitled to receive goods and services under the MIG in accordance with s38 (5) and as per s38 (6) this is a final decision, not subject to review.
• In this case Krzwesky provided the requested records outside of the time frame set out in s33 (6) and she had only consumed $200 of her MIG limits.
• At para 11 “According to the recent Ontario Court of Appeal decision, Varriano v. Allstate Ins. Company of Canada, 2023 ONCA 78 and the principles established in Smith v Co-operators a medical reason for a denial does not have to be provided if there was no medical basis for the denial at issue…”.
• Cumis did not violate s. 38(8) or 38(11) of the Schedule since Krzweski was required by virtue of s. 33(1) to provide the CNR’s of Dr. Brooymans as requested. The s38(8) notice provision, s33(1) request and the failure of Krzewski to provide requested documentation all served to satisfy the notice provisions set out in the Schedule.
• With respect to pre-existing psych condition, Krzweski had a documented history of mental illness and was prescribed Zoloft in December 2018 and Lorazepam in February 2020 and she reported in August and September 2019 that her symptoms of depression and anxiety were improving and stabilizing while continuing her antidepressant, Zoloft.
• Post-accident, on March 3, 2020, Krzewski reported being anxious and avoiding driving whenever possible. On September 28, 2020, Krzweski increased her antidepressant dosage.
• Based on the chronology of the increase in antidepressant medication following the accident and prior to Krzweski’s husband’s death Krzweski psychological impairments were exacerbated by the accident and not by the death of her husband as claimed by Cumis.
• The CNR’s from her family physician Dr. Brooymans of a pre-existing psychological impairment is compelling evidence under s. 18(2) which removes the Krzweski from the MIG.

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?