Volume. 8 Issue. 16 – May 1, 2024
This week the Tribunal, on reconsideration, varied the original decision on three treatment plans that were denied based upon a finding of MIG. Ultimately, the implications of s.38(11) ‘shall pay’ provisions were invoked for all three of the earlier denied items.
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Tribunal Varies Three Decisions on Reconsideration
Deficient Notices Prove Costly – The Applicant Jacob sought reconsideration of an earlier Tribunal decision where he was found to be within the Minor Injury Guideline (“MIG”) and was not entitled to the disputed treatment plans. In 21-006450 v Intact, hearing its own reconsideration, the Tribunal decided to vary the original decision with respect to plans for an attendant care/in-home assessment, functional ability evaluation assessment and psychological assessment finding they are payable pursuant to s. 38(11), once Jacob has incurred the cost of the plans following this decision, together with interest. The fourth discrete item, an orthopaedic assessment denial remained properly denied.
With respect to the orthopaedic assessment, the Tribunal noted “that I did not make any findings relating to the denial letter for the subject plan… the applicant did not advance any submissions and therefore, I found the applicant failed to meet his burden and is not entitled to payment of the plan for an orthopedic assessment.” Accordingly, there were no grounds for a successful reconsideration in accordance with Rule 18.2(b), given the lack of a significant error of law or fact such that the Tribunal would likely have reached a different decision.
With respect to the remaining three items, Jacob contended that the Tribunal “failed to properly apply the test as set out in T.F. v. Peel Mutual Insurance Company…in my analysis of s. 38(8) and consider the consequences of s. 38(11) of the Schedule; and Improperly considering the respondent’s insurer’s examination (“IE”) reports, as they have been inappropriately obtained on the basis of deficient Notice of Examinations (“NOE”).” The Tribunal agreed with Jacob “that I made an error of law in not properly applying the test in T. F., and I would likely have reached a different result had the error not been made.”
Tribunal Error
Interestingly, the Tribunal noted that it had found that while not bound by past Tribunal decisions,
“I considered T.F. in my initial decision and found it to be persuasive.” That test citing that “an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires…“[the medical reasons] should also be adequate enough to allow an unsophisticated person to understand them and make an informed decision in response. Those entitled to accident benefits should not have to wonder why they are denied treatment.”
Jacob submitted that the Tribunal “made an error of law by applying only part of the test, not the complete test, as set out in T.F. and that I did not consider whether the respondent’s denial letters dated March 3, March 10 and March 19, 2020 (“March letters”), “…at the very least, include specific details about the insured’s condition…”. Consequently, due to this error of law, I did not consider the consequences of s. 38(11) of the Schedule.” The Tribunal agreed with Jacob that there was a failure to “consider whether the March letters contained specific details about the insured’s condition or identify information about the insured’s condition that the insurer does not have but requires. I find that the reasons provided by the respondent in the March letters were inadequate and did not enable an unsophisticated person to understand and make an informed decision in response.”
Tribunal Varies Decision
The Tribunal found that it was likely there would have been a different decision had this error not been made, as “due to the error of law, I did not consider the consequences of s. 38(11) of the Schedule.” It was confirmed that “Pursuant to s. 38(11)1, the respondent is prohibited from taking the position that the applicant has an impairment to which the MIG applies. Section 38(11)2 provides that the insurer shall pay for all goods, services, assessments and examination in the treatment plan that relate to the period starting on the 11th business day after the day the respondent received the plan and ending on the day the respondent gives a notice in accordance with s. 38(8).”
With respect to the plans for attendant care/in-home assessment, functional ability evaluation assessment and psychological assessment, “I find that the respondent did not issue compliant notices that rectified the defects to “close the window” of the non-compliance period before this case was heard by the Tribunal. Since I find the subsequent letters to be insufficient to cure the defects, following Catic, the respondent can no longer cure the defects. The consequences of s. 38(11)2 are triggered.”
Accordingly, given the foregoing, “ I vary the decision on this issue and find that the respondent is liable to pay for the plans for an attendant care/in-home assessment, functional ability evaluation assessment and psychological assessment, once the applicant has incurred the cost of the plans following this decision, including interest in accordance with s. 51 of the Schedule.” Given this finding, “it is not necessary for me to consider the applicant’s submissions on whether the respondent’s IE reports were obtained by deficient NOEs.” This would be an opportunity lost in understanding whether the Tribunal would adhere to the principles as detailed in Taksali.
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