MIG Update – December 20, 2021

Delay in Removal From MIG – Award Worthy

In the case reviewed this week, the Tribunal followed the standard for conduct set out in the FSCO case Plowright v. Wellington Insurance Co. The conduct in Plowright was found to be “immoderate, imprudent, inflexible, and excessive” What constitutes an unreasonable delay in removing the applicant from the MIG?

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Factor: Award – Unreasonable Delay in Removal from MIG

In Blas v Aviva (19-009266), Janet Blas was injured in an automobile accident on August 24, 2017 and suffered chronic cervical, thoracic, shoulder and lumbar sprain/strains, headaches, contusions and psychological injuries.

Having submitted several treatment plans both for physical and psychological treatment, Blas failed to direct the Tribunal to any objective evidence in support of the treatment plans for physical treatment beyond the treatment plans themselves. In contrast, Aviva provided uncontroverted opinions that facility-based therapy would not be of any significant benefit.

This was not the case with Blas’ submissions regarding her psychological injuries, submitting a psychological assessment request in January 2018 and subsequent requests for treatment in November/December 2018. Blas relied on the screening report from Dr. Shaul and psychotherapist, Helen Ilios, who diagnosed Blas with adjustment disorder with mixed anxiety and depressed mood and specific phobia of travelling in and around a vehicle.

Aviva made several assertions. First, that Dr. Shaul did not conduct the assessment but rather the psychotherapist Helen Ilios did, therefore the report submitted was not an expert report. Second, the fees for the assessment ought to be at the psychotherapist rate not the psychological rate. Third, the s44 August 2019 report by Dr. Koepfler, confirmed J.B. having symptoms of driving anxiety but no formal diagnosis. Dr. Koepfler opined that the OCF-18 is not reasonable and necessary as Blas does not experience significant psychological problems directly related to the accident.

In disagreeing and finding Blas was entitled to an award the Tribunal held:

• • “it is well-settled that the standard is set out in the FSCO case Plowright v. Wellington Insurance Co. The conduct in Plowright was found to be an “immoderate, imprudent, inflexible, and excessive” approach, as the arbitrator found the insurer’s decision-making to be “disturbing” and “puzzling.” The award was less than 10% of the total benefits.”
  • There was evidence that Aviva was inflexible and unyielding when it waited 16 months to remove Blas from the MIG, despite Dr. Koepfler’s report.
    
  • Aviva’s own assessor clearly indicated in her August 19, 2019 report that Blas’s injuries fall outside the MIG. Despite this, it was not until December 4, 2020 that Aviva notified Blas that it was approving the treatment plan for a driver reintegration assessment.
  • Aviva’s actions amount to an unreasonable delay of approving and paying the benefit.
  • An award of $200.00, plus interest, was appropriate, representing approximately 10 percent of the cost of the OCF-18 submitted November 13, 2018.

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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