MIG Update – November 22, 2021

Still a MIG but Insurer ‘Shall Pay’

In Kyrylenko v. Aviva Insurance Canada the court ruled that there is no requirement to engage in a “reasonable and necessary” analysis when dealing with expenses incurred under a treatment plan during a “shall pay” period following an insurer deficient notice in response to a treatment plan under section 38 (8).

The case reviewed this week is a MIG hold ruling that also involves a non-compliant response to a treatment plan as required under s38(8) of the SABS. The Tribunal follows Kyrylenko to reconcile the ‘shall pay’ period that the insurer is liable to pay as penalty for being outside of the response timeline. This is one example you will want to bookmark as a ‘go to’ guide when dealing with the ‘shall pay’ period to remedy a late response

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Factor: 38 (11) ‘Shall Pay’ Provision

In Sivalingam v Unifund (19-014150), the Tribunal found that Unifund failed to comply with s. 38(8) of the schedule on a particular treatment plan. However, contrary to Sivalingam’s assertion that the non-compliance prohibited Unifund from taking the MIG position on the claim, the Tribunal affirmed the non-compliance only applies to the late denial, not the entire claim following the court in Zheng, Cai v. Aviva.

Therefore Unifund was precluded from taking a MIG position on the one treatment plan. The first step was to establish the period of non-compliance. The treatment plan was submitted through HCAI on January 11, 2018. Unifund’s response was February 9, 2018, a total of 21 days post submission.

The Tribunal held:

    • A denial notice issued more than 10 business days after receipt of a treatment plan is subject to two consequences under s38 (11). The insurer is:
    • 1. Prohibited from taking the Minor Injury Guideline position in respect of the treatment plan.
    • 2. Liable to cover the cost of any goods, services, assessments, or examinations incurred between the 11th business day after the plan was submitted and the date on which the insurer issues a proper denial notice.
    • Sivalingam had incurred a total of $168.00 as evidenced by the OCF 21 invoice submission during the “shall pay” period of 21 days which is the penalty for the late notice.
    • The remainder of the treatment plan was incurred after the ‘shall pay’ period ended. Although the plan is not subject to the MIG, the onus shifts back to the Sivalingam to meet the ‘reasonable and necessary test.

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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