MIG Update – March 20, 2023

Extreme Length of Delay Results in a 30% Award

This week, the Tribunal provides analysis of award worthy factors in a MIG case where the insurer approved and paid interest on 3 treatment plans in dispute after the case conference, removing the applicant from the MIG leaving the Award component to be determined by the Tribunal.

LAT Update – What Difference Did A Year Make?

The LAT released Performance Stats up to mid-year 7 which is current through to the end of September 2022. Together with the LAT’s last update we can now provide a comparison of year over year, with projections through to the end of year 7 in this annual update. What difference did a year make?

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Factor: Extreme Length of Delay

In Jin v. Certas Home and Auto Insurance Company (20-011392), Wen Hua Jin, involved in an automobile accident on January 16, 2019, sought removal from the MIG due to psychological impairments.

Jin submitted 3 treatment plans, the first in May 2019 that were all initially identified in the Case Conference Report and Order dated August 26, 2021 that set down the disputed items to be heard in a written hearing scheduled for March 31, 2022.

Certas, as a result of IE’s in September 2021 removed Jin from the MIG and approved the treatment plans inclusive of the required interest. Jin agreed to withdraw the treatment plans however, proceeded with their claim for a special award leading evidence that Certas unreasonably withheld payments with regard to the MIG and the three treatment plans originally in dispute totalling $10,372.28.

Jin had provided Certais with the clinical notes and records of her family doctor who indicated in June of 2019 that Jin suffered from an ‘anxious and depressed mood’. The records of her treating chiropractor who in November of 2019 had recommended investigating Jin’s emotional distress and complaints of anxiety. Further Dr. Cook, a psychologist, had recommended a psychological assessment in May 2019 due to Jin’s symptoms of depression.

The Tribunal found:

• Certas did not respond to medical evidence produced by Jin in a responsible or timely fashion, and kept Jin in the MIG well beyond the point where further medical investigation was clearly warranted to properly and efficiently assess her claims that she suffered from psychological impairments.
• Jin directly reported complaints regarding her psychological and physical injuries in a number of conversations during 2019 with Certas adjusters.
• Jin was diagnosed in April 2020 with severe depressive disorder and generalized anxiety disorder, yet Certas did not arrange an Insurer’s Examination until September 2021.
• Certas’ submissions were illogical because while Certas stated the family physician CNRs were illegible, it also claimed it kept Jin the MIG and did not arrange an IE assessment because Psychologist Dr. Cook’s diagnosis was not reflected in Dr. Ho’s CNRs. However, Dr. Cook’s report contained a full analysis and diagnoses of depression and anxiety, therefore Certas did not need to rely on Dr. Ho’s CNRs.
• The award analysis turned on the sizable gap (16 months) between Dr. Cook’s psychological assessment and diagnosis in April 2020 and the insurer’s IE in September 2021.
• Although Jin did not make submissions regarding the quantum of the award sought. “I elect to award a value of 30 per cent. I am awarding this higher value because of the extreme length of the delay caused by the respondent’s refusal to properly examine the applicant following Dr. Cook psychological assessment. In addition, as the CNRs and treatment plans noted, the applicant’s psychological injuries were suspected as early as 2019” The amount of $3,457.43 + interest was awarded.

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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