MIG Update – October 24, 2022
To Be or Not to Be “Reviewed” – Previously Denied MIG’s?
With all apologies to Shakespeare, however consistency does seem a somewhat elusive target at the Tribunal. In the decision discussed this week while the Applicant had been removed from the MIG, a previously denied treatment plan was not revisited with the Tribunal finding the MIG denial was final as section 38(6) of the Schedule prevents insurers from reassessing a denied OCF-18 after an applicant has been removed from the MIG.
This decision was at odds with other Tribunal decisions on the subject previously discussed in two MIG Monday’s ‘Obligation to Revisit Prior Denials‘ and ‘No Obligation to Revisit Previous MIG Denials Post Removal‘.
What exactly was the intent of the legislature in indicating “not subject to review’ under section 38 (6)? Does that negate ever having to revisit or reassess a previously denied treatment plan, an apparent obligation that the Tribunal has made clear on multiple occasions? Related, the Tribunal has made clear that they have no jurisdiction regarding such matters, however does that equally apply to the insurers?
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Factor: Section 38 (5) and (6) ‘not subject to review’
In Manalastas v. Aviva General Insurance Company (20-007000), Fernando Manalastas injured in an accident May 2, 2018 was removed from the MIG due to his chronic low back sprain/strain. Manalastas amongst other issues in dispute was disputing the denial of a chiropractic treatment plan in the amount of $3,867.44 dated May 5, 2022 Manalastas argued that Allstate failed to revisit the previously denied treatment plan in question once he was removed from the MIG.
Allstate disagreed and relied on section 38 (6) that the denial they provided was final.
Allstate further, relied on JP vs Allstate (18-008027), wherein JP had not exhausted the MIG limit and Allstate denied the OCF 18’s on the basis of sections 38 (5) that treatment was available under the MIG and (6) that their decision was final. The Tribunal agreeing with Allstate’s position remarked ‘When subject to the MIG, insureds are required to submit treatment through OCF-23s—otherwise known as a Treatment Confirmation Form—and not OCF-18s, in order to access the initial block of treatment funding. This legislative prohibition is designed to ensure that insureds exhaust the funding in the MIG or are removed from the MIG before receiving treatment beyond the $3,500 limit.” J.P.’s injuries were subject to the MIG due to uncompelling medical evidence, the fact the MIG limit had not been exhausted and he did not submit his claims via an OCF-23.
The Tribunal held:
- 38(6) of the Schedule prevents it from reassessing a denied OCF-18 after an applicant has been removed from the MIG.
- “the matter of J.P. v Allstate Insurance Company to be persuasive, as the matters were very similar with 2 applicants seeking to have denied OCF-18s reassessed, which is not permitted pursuant to section 38(6)”.
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