MIG Update – November 16, 2020
Factor: MIG and Notice Requirements
Once the $3,500 monetary limit is exhausted, the pathway to access further medical benefits is to establish that injuries are non-minor hence not within the MIG. When an insurer holds that injuries are in fact within the MIG, there is an obligation for them to reference this explicit fact in their denial. The failure to do so comes with significant consequences. Is the insurer prohibited from holding the MIG position for all future claims or only the Plan in question?
In 19-002717 v Aviva, the Respondent partially approved a Treatment Plan noting that “the policy limit for treatment on [the Applicant’s] policy is $3,500.00”, with a reference to s.18 of the Schedule.
The Applicant submitted that the Respondent failed to advise her that it believed that the MIG applied to her impairments. Therefore, the Applicant submitted that the Respondent is prohibited from taking the position that the MIG applies to all of her future claims for medical benefits pursuant to s.38(11)1.
The Tribunal ruled:
- The Respondent’s failure to state that it believes that the MIG applies to the Applicant’s impairments falls short of its obligations under s.38(9)
- Simply enclosing portions of the Schedule concerning the MIG is also not sufficient to discharge the requirements of s.38(9)
- As a result of the non-compliance with s.38(8) & (9), the consequences contained in s.38(11)1 are triggered such that the Respondent is prohibited from taking the position that the insured person has an impairment to which the MIG applies
- Citing the Court’s decision Zheng, Cai v. Aviva, the Tribunal noted that the language used in s.38 refers only to the specific Treatment Plan in question
- S.38(11)1 does not impose a permanent prohibition on an insurer with respect to holding an insured person’s impairment within the MIG
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