MIG Update – February 1, 2021
Consequence of Notice Sufficiency
In an earlier MIG Monday edition, we noted insurers are prohibited from relying on the MIG when the Treatment and Assessment Plan in question is not responded to in accordance with the notice requirement – also known as Notice Insufficiency (NSF). In this edition we discuss the payment obligations. The Tribunal as you will see appears conflicted in this regard.
We explore payment consequences found under s.38(11)2 when the notice requirements are not met. The Applicant may still need to prove that the plan was incurred in order to trigger the payment obligation.
Factor: Notice Sufficiency
In N.P. v Wawanesa (18-010628), the Respondent conceded their MIG position after receipt of N.P.’s submissions however, the Treatment and Assessment Plan in dispute had failed to include reference to the MIG, a notice requirement under s.38(9). Despite this, the Treatment and Assessment Plan in question was found not payable, as there was no evidence that N.P. incurred any goods or services on the 11th business day or any day thereafter.
N.P. argued on reconsideration that the consequence of the failure was to pay the plan in full.
The Tribunal held that no error was made in its finding:
- While s.38(11)2 does not expressly state that the goods and services must be incurred, the reference in the section to a time period implies so
- Otherwise, there would be no need to refer to a time period – the legislation would state that the entirety of the treatment plan is payable starting on the 11th business day
- S.38(11)2 is “punitive to insurers in that it permits the insured to incur unapproved, and possibly not reasonable and necessary, medical benefits as a result of the insurer’s untimely response”
In Mattina v Federated Insurance (19-011267), the Respondent failed to provide any details regarding Mattina’s condition that formed the basis of their denial, thereby lacking a medical reason. “Moreover, the January 29, 2018 OCF-9 failed to identify information about Ms. Mattina’s condition that it did not have but required by way of an IE.”
The Tribunal held that:
- The Treatment Plan does not need to be incurred in order for the consequences in s.38(11)2 to apply
- 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.”
- It would be contrary to the SABS’ consumer protection purpose to require an insured to incur an expense prior to a finding by the Tribunal on insufficient notice, because there would be little, if any, incentive for an insurer to comply with its obligations under s.38 otherwise
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.
Include an Outcome Analysis Report (OAR) in your case evaluation complete with For/Against cases similar to your fact situation to inform your position & present persuasive arguments. Need an OAR?