MIG Update – February 8, 2021
Insurer’s Entitlement to an IE on MIG
In this edition we explore whether the insurer is entitled to an IE after taking the position that the insured’s injuries fall within the MIG. In one case the Applicant was found barred from proceeding while in another, the Applicant was not precluded from proceeding despite their non-attendance.
Factor: Insurer’s Entitlement to an IE on MIG
In Gordon v Royal & Sun Alliance (19-012000), Gordon submitted OCF-18s exceeding the MIG monetary limit of $3,500. In response, the Respondent denied the plans and requested in-person IEs and a concurrent paper review to determine if Gordon’s injuries were minor.
Gordon argued:
- The MIG issue could be determined by a paper review;
- His attendance was not reasonable and necessary; and
- Because the Respondent had determined his injuries to fall within the MIG, it may not request an IE in relation to a benefit payable within the MIG as per s.44(3)(a) of the Schedule.
The Tribunal held Gordon could not proceed:
- S.44(3)(a) does not state that an IE cannot address the issue of a MIG determination
- The benefits in dispute were not payable within the MIG, as they would exceed the MIG funding limit
- The Notice of Examinations (“NOE”) satisfied the requirements of s.44(5) by providing valid “medical and any other reasons”
- The NOEs clearly stated that the IEs are to determine whether Gordon’s injuries were predominantly minor, which is a clear explanation to allow Gordon to make an informed decision regarding the denials
In 16-004092 v Certas, the Respondent provided a Notice of Examination (“NOE”) requesting an IE to determine the reasonableness and necessity of the proposed psychological assessment. The Applicant advised the Respondent that they would not attend the IE and proceeded with an assessment by their own psychologist.
The Applicant argued:
- The Respondent is not entitled to conduct an IE for a benefit payable in accordance with the MIG as per s.44(3)(a)
- The Respondent failed to exercise a duty of good faith to review and consider the medical evidence presented
- The NOE did not meet the notice requirement under s.44(5)
- It was amenable to the Respondent conducting a paper review after reviewing the medical evidence submitted
The Tribunal held the Applicant could proceed:
- s.44(3) does not support the Applicant’s position, as they in fact were seeking benefits beyond the MIG via the proposed psychological assessment
- No medical reason was provided in the NOE stating that the purpose of the IE was to assess whether the proposed psychological assessment was reasonable
- As established in Augustin v Unifund, the NOE must be made “in accordance with” the Schedule before the insurer can rely on this section to preclude an applicant from the dispute resolution process
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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