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  MIG Update – October 3, 2022

Untimely Production Does Not Preclude Entitlement

In this weeks’ MIG case, the Tribunal considers whether the failure to produce records in a timely manner in accordance with section 33 should preclude the applicant from receiving any benefits especially when the insurer had in its possession an OCF 5 (“Permission to Disclose Health Information”) authorization.

As a result of the untimely production of medical reports the insurer did not rely on any experts or arrange any s44 assessments.

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Factor: Failure to Produce Requested Medical Documents

In Guttman v. Intact Insurance Company (20-011345), Beverley Guttman was involved in a motor vehicle accident on November 11, 2019. She claimed that due to pre-existing injuries, and a psychological impairment, that she should not be subject to the MIG. Guttman also sought entitlement to psychotherapy treatment in the amount of $4,200.00 that was submitted via an Expenses Claim form on August 13, 2020.

Guttman relied on the records and reports of family physician, Dr. Morson; psychiatrist, Dr. Borins; ophthalmologist, Dr. Lichter; and social worker psychotherapist, Ms. Doulis, in support of her claim.

Intact objected to the medical evidence of Dr. Borins, Dr. Lichter, and Ms. Doulis, arguing that Guttman didn’t produce the pre-accident and post-accident medical documentation it requested, which limited its ability to “verify the accuracy of the letters” in order to assess causation.

Intact had requested the records of Guuttman’s family doctor, psychologist, ophthalmologist and a list of medication from her pharmacy on February 24, 2020. Intact argued that due to the failure to produce the requested medical documentation it is not liable to pay a benefit, pursuant to s.33 of the schedule.

Intact argued that Guttman sustained only minor injuries in the accident, however did not secure nor rely upon expert reports in support of its position.

The Tribunal held:

• The evidence showed that Guttman did produce an OCF 5 (Permission to Disclose).
• Intact used the OCF 5 to request Ms. Doulis’ CNR’s on March 2 2020.
• Guttman requested Dr. Morson’s CNRs on September 3, 2020, but it wasn’t clear if they were provided to Intact. The same is true of Dr. Lichter’s CNRs.
  
• Although it was unclear from the evidence whether Guttman requested, received and produced the records of Dr. Borins that Intact did have the said records.
• The alleged non-production of medical records was not an accurate or persuasive reason for Intact’s failure to consider whether Guttman should be removed from the MIG, or a sufficient reason for Intact not to require Guttman to attend any s.44 assessments.
• Guttman cannot be treated within the MIG limits “Based on the medical evidence, particularly that of Dr. Borins, and in the absence of any contradicting medical evidence, I find that the applicant has sustained a psychological impairment as a result of the accident, specifically that of post-concussion and post-traumatic stress disorder.”
• The psychotherapy though, in the amount of $4200 is not payable as it was incurred before submitting an OCF 18 as per section 38 (2).

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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