Volume. 3 Issue. 43 – December 4, 2019

Adjudicator Finds Their Error Upon Reconsideration

The adjudicator, upon reconsidering their own decision, amended the decision regarding the duration of the IRB entitlement, finding that the period allowed beyond the 104 weeks was a significant error.

Reverse Onus Reversed – In 17-008969 v Allstate, upon reconsideration, the adjudicator found, “my decision to grant an income replacement benefit from March 16, 2017 to June 3, 2017 was unreasonable.” Neither party was contesting this specific finding, however the Tribunal nonetheless considered same. The Respondent for its part contended that the Tribunal’s decision was “well reasoned, reasonable, and well within the range of acceptable outcomes”.

In the original decision, the Tribunal had concluded that the Applicant did not have a “complete inability” to pursue any reasonable form of employment or self-employment as of June 4, 2017. However, the 104 week mark began March 16, 2017 and there had not been “a specific finding made about the brief period from the 104-week mark to June 4, 2017”. This amounted to a reversal of the Applicant’s onus, having “effectively found that the respondent had failed to prove she should not be entitled to the benefit. This reversal is a significant error of law that must be addressed.” Upon reconsideration, the Tribunal found there to be no entitlement to IRB beyond the 104 week mark, as “the brief gap in time between the 104-week mark and this return to work is strong evidence that she never met the ‘complete inability’ standard”.

This is the first own reconsideration where a substantive matter has been overturned. Interestingly, neither party had contested this specific item.

Insurer Obligated to Pay as Insured Could Have Incurred the Treatment

Does “could have” incurred suffice to require payment for non-compliance with s.38(8) of the Schedule?

“Could Have” Incurred a New Standard? – In 18-003436 v RSA, the Respondent was found to have corrected a deficient notice in February 2019, almost three years after its first denial of one Treatment Plan and 7 to 9 months after the denials of three other Plans. Therefore, pursuant to s.38(11)2, the Respondent was liable to pay for the treatment that is “related to the period” starting on the 11th business day after it received the OCF-18 until February 8, 2019 when it corrected its deficient notice.

The Tribunal found that the expected duration of all four Plans would have expired prior to the Respondent’s corrected denial. The Tribunal then reasoned, “In my view, and absent any evidence to the contrary, the [treatment funds]…could have been used for treatment at any time…until the corrected notice was delivered.” As a result, it was found that the Respondent was liable to pay for all four Treatment Plans, in their entirety, despite there being no evidence that any of the disputed items had been incurred, in whole or in part.

This may well not be the last word on a novel take on the meaning of
“incurred” in accordance with s.15(1) that confirms the obligation to pay for all reasonable and necessary expenses incurred by or on behalf of the insured person.

In Trending – Sufficiency of Notice

Sufficiency of notice continues as a recurring theme. Despite the fact that the Court has ruled that “boilerplate” statement provides no reason at all, this remains a most vexing issue for both Respondents and Applicants in understanding whether appropriate notice has been provided in accordance with the Schedule.

In the cases below, we consider two decidedly different takes on the same notice, and cases where a notice that reflects “not an ideal practice” or is “somewhat underwhelming” was found sufficient.

In 18-006820 v Aviva the Applicant was found entitled to a 25% award for both NEB and a psychological assessment. The denial notice for NEB was found to have “failed to give [the Applicant] any explanation of the medical and any other reasons why [the Respondent] did not believe that [the Applicant] was entitled to NEBs”. Similarly, the denial notice for the psychological assessment “did not clearly state that it reviewed the MIG and made a comparison of it with [the Applicant]’s treating health practitioner’s opinion”.

The Tribunal found, “The notice simply states, in very generic terms, that the MIG was reviewed, the treating practitioners (with no indication who this was) medical opinion was reviewed and [the Respondent]’s conclusion that the health practitioner (with no specifics as to who this was) has not provided compelling medical evidence the impairment sustained is not predominantly a minor injury. [The Respondent] failed to provide an analysis or any critique of whichever treating health practitioner’s opinion it was referring to. I find that Aviva’s correspondence dated March 21, 2017 was boilerplate and did not specifically address the unique merits of [the Applicant]’s claim…”.

The Tribunal further referenced the Applicant’s prior schizophrenia and multiple hospitalizations such that “it is obvious that [the Respondent] was aware of the unique vulnerability of [the Applicant] and its actions in failing to comply with its obligations under the Schedule call for a need for deterrence”.

Interestingly, in 18-008128 v Aviva the exact same notice was found sufficient. The medical reason provided indicated, “Upon review of the minor injury guideline and the treating practitioner’s medical opinion, we have concluded that the health practitioner has not provided compelling evidence the impairment sustained is not predominantly a minor injury.” The Tribunal found that “a medical reason was provided explaining why the insurer considered the treatment not to be reasonable and necessary. The respondent determined that a review of the applicant’s evidence resulted in a determination that his injury was minor and the MIG applied.”

Find the Reasons Yourself – In 18-008965 v TD, the Applicant contested the notice provided for an August 2011 denial. The explanation provided by the Respondent indicated, “Please see the enclosed Physiatry and Occupational Therapy reports.” The reports were included in the correspondence and the Applicant was “encouraged to review and discuss this report with your treating health practitioner”. The Applicant contended that “it is not reasonable to be required to review 29 pages of medical reports in order to attempt to understand the findings, conclusion and why a termination of benefits was made”.

The Tribunal disagreed, noting that the manner in which the denial “may not have been ideal but do not fall below the requisite standards.” “A cursory review of the reports will find each of the two has a summary of the results of the assessments, a section labelled ‘Conclusions & Recommendations’…” Finally, while “not an ideal practice”, there is “no provision in the Schedule or in the caselaw provided by the parties that provides the respondent must include the reasons for the denial in the covering letter and not in the enclosed reports”.

Somewhat in a similar vein, in 19-000666 v Unifund the Respondent’s denial indicated that further assessment was required to determine if the chronic pain programme was reasonable and necessary based on that report and all of the medical information and treatment made available to date. The Tribunal found this to be “compliant with s. 38(8), albeit somewhat underwhelming…(and) perfectly valid”.

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