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  MIG Update – October 17, 2022

Mandatory Citing of “MIG” Required in Notice

This week a MIG hold case where the Tribunal considered the sufficiency of notice under s38(8) for 3 treatment and assessment plans and the consequences of the insurer not following the notice provisions set out in the Schedule.

The Tribunal provides a rudimentary analysis of the legislature’s requirement for the insurer to comply strictly with the Schedule and the significant consequences on the insurer for noncompliance.

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Factor: Citing “MIG” Required

In Garcia v. Co-operators General Insurance Company (20-002871), the Tribunal found Julian Garcia had failed to demonstrate that his accident-related injuries and impairments justified removal from the MIG on the basis of the severity of injuries, chronic pain or psychological impairment.

However the Tribunal considered the applicability of section 38 (8) and (11) notice provisions and consequences with respect to the disputed Treatment Plans for a psychiatric assessment ($4,946.00), chronic pain assessment ($2,260.00) and chronic pain treatment ($7,463.89).

Garcia submitted that Cooperators did not specifically indicate that the MIG applied in the denial letters dated June 24, 2020, October 6, 2020, and February 24, 2021 respectively, and the consequence was that the benefits were payable under s. 38(11) of SABS.

Conversely, Cooperators argued that the denial letters were compliant with the SABS. Specifically, its February 24, 2021 letter with respect to the chronic pain treatment plan (&7463.89), clearly notes that there is no compelling evidence that Garcia sustained an injury outside the definition of a minor injury. It further notes that Garcia is approved up to the MIG limit.

Regarding the June 24, 2020 (psychiatric assessment) and October 6, 2020 (chronic pain assessment) denial letters, Co-operators do not deny that those letters did not specifically note whether the MIG applies.

The Tribunal held:

• The February 24, 2021 denial did meet the requirements under s38 (8) as the notice identified the goods and services Cooperators did not agree to pay for and the medical and other reasons why they find the goods and services are not reasonable.
• “Where an insurer believes the MIG applies, it must always comply with s. 38(9) in order to comply with s. 38(8).”
  
• The SABS is a consumer protection legislation which is to be interpreted liberally while restrictions are to be interpreted narrowly.
  
• Sections 38(9) adds to the notice requirement “in s. 38(8) where the insurer believes the MIG applies, therefore a compliant s. 38(8) notice must always include mention of the MIG in such circumstances.”
  
• “In terms of s. 38(10), I read that to mean along with (my emphasis) the mandatory citing of the MIG, the insurer can (my emphasis) include in their s. 38(8) notice that they require the insured person to be examined under s. 44. In other words, as part of its good faith obligation to adjust the claim, the insurer can take the initial position that it thinks they are minor injuries.
• Where the health practitioner who signed the disputed OCF-18 has the opinion that the injuries aren’t minor (see s. 38(3)(c)(i)) and any other information in the OCF-18 or accompanying it, the insurer can (and should) be open-minded about the possibility that the insured person’s injuries are not (or are no longer) minor injuries. The ability of the insurer to request a s. 44 examination as part of a s. 38(10) does not relieve the insurer from citing the MIG as required by ss. 38(8) and (9)”.
• The consequences for failing to cite the MIG in compliance with ss. 38(8) and (9) are outlined in section 38 (11) such that the insurer cannot take the position that the MIG applies to the treatment plan in question.
• Co-operators’ June and October 2020 denials fail to comply with s. 38(8), therefore, triggering the “shall pay” provision for those OCF-18s.

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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