MIG Update – June 21, 2021

MIG Monday – What is a ‘Sufficient’ Denial Reason?

Last week, we reviewed the notice provisions and requirements when an OCF-18 Treatment Plan is submitted and the insurer takes a MIG position, and the resulting price of non compliance. In the MIG decisions recently released, there has been an uptick in the use of notice sufficiency as a MIG challenge. So what language and descriptions should be included in a notice to render it sufficient?

In the first instance, the Tribunal is instructive as to how the Applicant should properly make submissions regarding s.38(8) non-compliance by specifically putting into evidence the deficient notice and stating its deficiency.

In two other examples, the Tribunal details what is acceptable as straightforward language that an unsophisticated person would understand, thereby rendering the notice sufficient.

Factor: Acceptable Medical and Other Reasons

In Shpati v. Travelers (19-008988, Shpati focused her submissions exclusively on the Respondent’s failure to comply with s.38(8), however failed to point the Tribunal to the specific denial and what aspect of the notice failed on sufficiency.

The Tribunal’s finding:

• Shpati made a broad claim that all the denials are insufficient but made no direct reference to any letter in an over 300-page document
• “At a minimum, the Applicant must identify the deficient denial. This is best done by referring to the letter conveying the denial and including the document in a document brief.”
  
• Shpati only submitted into evidence some of the invoices from the treatment facility for all the allegedly incurred goods and services

In Rosemund v. Co-operators (19-012914) and Gomes v. Economical (20-003216) , both Applicants submitted that the Respondent failed to give adequate medical and other reasons in denying the plans in accordance with s.38(8) of the Schedule.

The Tribunal found the following reasons as sufficient:

• Advising that the Respondent believed that the Applicant’s impairments met the minor injury definition and that the MIG applied upon review of medical information on file.”
• Advising that the family doctor’s records were indicative of minor soft-tissue injuries/made no referral for the disputed assessment
• Outlining that the psychological impairments listed on the Treatment Plan were identified by a chiropractor who is not qualified to provide a psychological diagnosis
• Noting that it received no medical evidence of a pre-existing injury which would preclude recovery, and asking for further records
  

In Gomes, the Tribunal further opined, “While the legislation and caselaw requires medical and other reasons for the denial, it does not require a comprehensive analysis of all the information on file.”

In both instances, the Tribunal noted that some of the Respondent’s denials were based on s.38(5) which permits the Respondent to refuse to accept a non-MIG Treatment Plan if the plan describes goods or services to be received in respect of any period during which the Applicant is entitled to receive goods and services pursuant to the MIG. Pursuant to s.38(6), a denial under s.38(5) is final and is not subject to review.

Not certain? Include your Explanation of Benefits (EOB) with your OAR request to get for/against cases to assess your risk.

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?