MIG Update – June 14, 2021

IE’s on MIG and Price of Non Compliance (PONC)

This week’s edition is a remedial review of the notice provisions and requirements when an OCF-18 Treatment Plan is submitted and the insurer takes a MIG position. Does the insurer have a right to an IE?

The insurer’s notice requirements are set out under section 38(8) of the Schedule, together with sections 38(9) and (10). An insurer may notify the insured person that the insurer requires the insured person to undergo an IE and must follow the notice provisions set out under section 44(5). In both OCF-18 response notice and IE notice, “the medical reasons and all of the other reasons” is required.

The case reviewed provides an example of how the notice provisions apply in practice. It involves an OCF-18 where the health provider answers ‘No’ under Part 4 of the OCF-18 – indicating that the MIG does not apply. The Applicant also argued that the Respondent could not secure an IE.

There is a Price of Non-Compliance for an insurer’s failure to provide adequate notice.

Factor: S.38 & S.44 Notice Requirements

In Strickland v Economical (20-001811), the Respondent raised a preliminary issue requesting Strickland be barred from proceeding with her appeal for medical benefits due to her failure to attend a scheduled IE. Strickland argued that the IE was improper as s.44(3) prohibits the Respondent, who had taken a MIG position, from scheduling an IE. Strickland also argued that the notices provided were insufficient.

The Tribunal’s findings on the applicability and interpretation of s.44(3):

• Strickland was seeking treatment outside of the MIG as evidenced in the OCF-18 submission
• S.44(3) makes it clear that an insurer cannot perform an IE to determine a benefit payable in accordance with the MIG, which is not the case here
  
• Strickland’s position failed to consider s.38(10), which states,
  • “If the insurer has not agreed to pay for all goods, services, assessments and examinations described in the treatment and assessment plan or believes that the Minor Injury Guideline applies to the insured person’s impairment, the notice under subsection (8) may notify the insured person that the insurer requires the insured person to undergo an examination under section 44.”

The Tribunal’s findings on the sufficiency of notice:

• The notice denying the OCF-18 and the notice setting up the IE were both deficient under s.38(8) and s.44(5) respectively.
• While the Respondent fulfilled s.38(9) by indicating that it believes that the MIG applies, both the response notice and the notice for the IE require “medical and any other reasons” for the denial or the IE
  
• No reasons were given at all as to why the OCF-18 was not reasonable and necessary and why the Respondent believes the MIG applies
• Citing M.B. v Aviva (16-002325) as the jurisprudence of the LAT, insurers should explain its decision “with reference to the insured’s medical condition and any other applicable rationale…an insurer’s ‘medical and any other reasons’ should be clear and sufficient enough to allow an unsophisticated person to make an informed decision”

Related MIG Monday Issue:

MIG and Notice Requirements
Consequence of Notice Sufficiency
Insurer’s Entitlement to an IE on 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.

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