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  MIG Update – December 9, 2024

Pre-Existing Conditions MIG Escapes?

Over the next few issues we will focus on contrasting MIG hold/escapes to assist our readers with their analysis and case management.

This week, we reviewed two MIG cases involving pre-existing conditions, one was kept to the MIG the other was not. In both cases, the medical evidence established pre-existing conditions; however, the Tribunal considered the impact of those conditions on the Applicant’s recovery if they were to be kept to the MIG.

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Factor: Section 38(8)

Violation of s38 (8) MIG Escape?

In Surisetti v. BelairDirect (22-007295), Ramanjaneya Surisetti was involved in an accident on October 17, 2019, and sought entitlement to five Treatment Plans for chiropractic and psychological services, and for psychological and neurological assessments for a total of $10,370.89.

Surisetti made two main arguments, first that Belair’s was not entitled to claim the MIG applies because their notices breached s.38(8) of the Schedule. Specifically, Belair’s denial letters consisted solely of ‘limited, non-specific explanations’ and were not provided within the required 10 day notice period following the receipt of the plans. Second, that Belair’s subsequent denial letters following the s44 IE’s did not cure the s.38(8) breach and the plans were therefore payable pursuant to s.38(11)(2).

Belair’s submitted that there was no evidence that the Treatment Plans in dispute had been incurred and that there was no obligation for it to pay under s.38(11)(2) for any goods or services not incurred between the date of the defective notices, if any, and the date of the proper notice.

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The Tribunal found:

• • Surisetti did not provide any substantive submissions or evidence other than his arguments that the breach under s38 (8) prohibited the Respondent from taking the MIG position. Nor did he provide any authority to support this proposition.
  • “ The Divisional Court in Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707, was clear that even if s. 38(11) is triggered, that only applies to the specific treatment plan in question. It does not impose a permanent prohibition on the insurer with respect to whether the impairment is covered by the MIG. As such, I do not accept the applicant’s argument that a breach of s. 38(8) would remove him from the MIG entirely.”
  • There were ‘shall pay’ periods triggered by s38 (11) across the multitude of treatment plan submissions, each subsequent notice curing the deficiency. However Surisetti failed to submit evidence as to which of the goods and services were incurred during the ‘shall pay’ period.
  • “In Aviva General Insurance Company v. Catic, 2022 ONSC 6000, the Divisional Court stated that s. 38(11)2 compels an insurer who fails to provide the statutory notice called for in s. 38(8) to pay for all of the items listed in the subject treatment plan, but only if they are incurred and only for the period during which any denial notice remains outstanding. I am bound by this decision.”
  • Despite Belair’s submission that none of the plans in question were incurred it had provided a copy of a s25 psychological assessment report in its evidence brief which was proof that it was incurred during the ‘shall pay period’ making it payable.

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Impairments Beyond 12 Weeks Not MIG?

In Vahdati v. Allstate Insurance (22-009954), Ali Vahdati was involved in a motor vehicle accident on March 19, 2020 and sought entitlement to three Treatment Plans for physiotherapy services totalling $4993.45. He argued that the MIG no longer applied to him, pursuant to s. 40(7) and 40(2) of the Schedule, since the 12-week timeframe of the MIG had expired before his OCF-18s were submitted. Further that these sections can be interpreted to mean that the MIG only applied to injuries that occur during the acute or subacute stages of the injury, and since his injuries did not resolve within this period, they were not subject to the confines of the MIG and his was not required to prove that his injuries were non-minor.

Vahdati also argued that he developed a psychological impairment, relying on the letter of psychiatrist Dr. Cardan dated June 2020 which diagnosed him with major depressive disorder and generalized anxiety disorder. Also that he was diagnosed with chronic headaches, neck and shoulder pain relying on the chronic pain assessment report of Dr. Gofeld dated September 2023.

Lastly, Vahdati submitted that Allstate was non-compliant with s.38(8) of the Schedule, as the denial letters improperly referenced the MIG, did not reference particular sections of the Schedule, and failed to provide sufficient medical and any other reasons for the denial.

Allstate argued that Vahadati sustained soft tissue strains/sprains injuries, relying on the IE report of physiatrist Dr. Oshidari and diagnostics imaging. The CNRs of his family doctor from April 2021 included complaints of neck and shoulder pain, however he did not report pain in those areas in the year between April 2020 to April 2021. Moreover, it relied on the report of Dr. Dabidiyan dated February 2022 which recorded that the Applicant had hurt his chest while working out and wrestling.

The Tribunal found:

• • “I am not persuaded by the applicant’s argument. While I agree with the applicant that s. 40(7) of the Schedule states that an OCF-18 should be submitted under s. 38 if it was provided outside of the timelines of the MIG, I do not interpret this provision as stating that the MIG no longer applies to the stated impairments. Rather, Part 3 of the MIG states that an insured person’s impairment comes within the MIG if it is predominantly a minor injury, unless it was an exception specified in Part 4 of the MIG. I interpret these provisions as stating that the insured person must establish a non-minor injury to be removed from the confines of the MIG. I do not find the sections of the Schedule referenced by the applicant establish that impairments identified outside of the 12-week timeframe are automatically outside of the MIG.”
  • The Explanation of Benefits (EOBs) dated September 2020, December 2020, and March 2021 respectively were non-compliant with s.38(8) of the Schedule by failing to provide a sufficient medical or other reason for its denial, and used language that was vague and boilerplate, so it was not sufficient to allow the Applicant to make an informed decision to either accept or dispute the Respondent’s decision.
  • Allstate’s subsequent EOB dated April 19, 2021 was compliant with s.38(14) of the Schedule, as it specifically mentioned the report of Dr. Oshidari, referenced the Schedule, and explained that the OCF-18 was not reasonable and necessary.
  • As per the Divisional Court decision in Aviva General Insurance v. Catic, the Respondent would only be liable to pay for the OCF-18s if the services were incurred during the period of non-compliance, from the dates of the initial EOBs to April 19, 2021.
  • Vahdati had not led any evidence that the proposed physiotherapy services were incurred during this period. As such he has not established that the OCF-18s in dispute are payable pursuant to s. 38(11) of the Schedule.

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 33% 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. Get an OAR !