MIG Update – April 4, 2022

Conflating Limitations and Requirements between s.33 s.38 and s.44

This week we review a MIG hold case where a subsequent IE was arranged following the receipt of additional medical information by the insurer. The applicant raised several sufficiency of notice arguments as to why the IE was improper.

The sufficiency of notice arguments were raised subsequent to the filing of the LAT application in the submissions several months after the fact.:

In a retrospective review of dates and the content of the notice letters the Tribunal finds the applicant is conflating limitations and requirements between s.33 s.38 and s.44.

Advance your best case with an Outcome Analysis Report – First one is free! Request an OAR through live chat!

Request OAR

Factor: Notice Sufficiency

In Fernandez v. Economical (20-008811), Fernandez was injured in an accident on January 1, 2018 and was disputing a treatment plan dated November 26, 2019 for physiotherapy and massage submitted to Economical on December 17, 2019.

Econcomial denied the treatment plan December 24, 2019 referencing the IE by Dr. H Hossieni who opined Fernandez injuries were minor. Economical also advised Fernandez that if further medical records were provided it would review the treatment plan and/or refer the applicant to a s. 44 IE.

Upon receipt of the LAT application in July 2020. Economical requested that Fernandez provide additional medical records. Following receipt in January 2021, Economical arranged an in person IE to determine if the newly disclosed medical records changed Dr. Hosseini’s opinion about the MIG and the OCF-18.

Fernandez did not attend the IE. In her submissions Fernandez raised the following explanations for her non-attendance:

1. The denial letter December 24, 2019 was not clear and unequivocal as it suggested that the treatment plan could be approved in the future based on a future IE.
2. The January 2021 IE notice was made 13 months after initial response to the OCF-18, more than 10 business days after it was submitted and that Economical was not compliant with s. 38 (8) and the consequences of s. 38(11) apply.
3. The January 2021 s. 44 IE notice was non-compliant “as it was not requested to determine whether [she] continued to be entitled to a benefit for which an application was made,” that there was no explanation for why the applicant’s attendance was required and there is no option in s. 38 to request updated clinical notes or reserve the right for an IE.

The Tribunal held that Fernandez was statute-barred from proceeding with her application under s. 55, as she failed to attend a properly scheduled s. 44 IE for the following reasons:

1. Fernandez “appears to be conflating the limitations and requirements of s. 33, s. 38 and s. 44 of the Schedule”
2. Fernandez’s argument about the 13 month delay in responding to the initial treatment plan is misleading as the December 24, 2019 denial letter was provided within five days of receipt of the OCF-18 in the HCAI system, The denial letter was clear and unequivocal. As such this does not trigger the consequences of s38 (11).
3. The s44 notice January 2021 was in compliance with the requirements for proper notice of an IE. The letter states the medical reasons ‘that new medical information had been received and it required an opinion on the impact of this new information’. “To be frank Economical’s letter is about as clear as an IE notice can get”. This was in line with Economical’s duty to continually adjust the file.
4. ‘There is no requirement in s. 44 of the Schedule that the IE notice must explain why the applicant’s attendance was required’. Fernandez failed to provide supporting jurisprudence in this regard. “In conclusion, it remains unclear why the applicant refused to attend the IE.”

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.

Inform your position & present persuasive arguments. Include an Outcome Analysis Report (OAR) in your case evaluation complete with For/Against cases. Need an OAR?