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  MIG Update – July 25, 2022



Obligation to Revisit Prior Denials

Previously denied treatment plans on the basis of ‘no more funding available under the MIG’ ought to be revisited once the Applicant is removed from the MIG and has access to the non-CAT limits of $65,000.

In Yang v Dominion (20-008471) The Tribunal made clear that “The Schedule does not differentiate between the reasons why someone is removed from the MIG and the treatment they could receive. Once the Applicant is removed, all treatment plans are subject to the test of being reasonable and necessary” Thus previously denied treatment plans will be scrutinized based on the medical reasons for denial s 38(8) and subject to the incurred provisions set out in s38 (11).

Failure to continue to adjust comes at various price points ranging from an award at the full value of 50% to less than 5%. Even if the payment for the benefit is eventually made, the delay in payment can still be held to account.

This week we revisit previous issues (both MIG Mondays and LAT inFORMERS) to discuss some cases that are instructive in this regard.


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Factor: Revisiting Previous MIG Denials

In 16-000872 v Certas Home and Auto Insurance Company, the Tribunal held at para 16 – “Firstly, in the spirit of the overall benefit scheme, and at least as of the date the insurer found the applicant’s injuries no longer met the MIG classification, it was obligated to re-consider the submitted treatment plans under the non-MIG regime. To do otherwise, or to maintain its denial of the treatment plans based on its initial belief of the classification of the applicant’s injuries and in light of proof to the contrary, would undermine the purpose of the benefit scheme to allow access to appropriate treatment.”

Related issue > 

Obligation to Revisit Previously Denied Treatment Plans, In Yang v Dominion (20-008471 v Dominion), the Tribunal found the Applicant Yang entitled to three treatment plans for physical therapy as Dominion was ultimately found not to have provided medical and other reasons for the denials of same. Dominion had denied the three plans because there was no more funding left under the MIG limits. However, Dominion had subsequently removed Yang from the MIG based upon psychological injuries.

Dominion contended that as a result it had properly denied the physical plans. The Tribunal noted that once the reason (MIG limits exhausted) was no longer true, they had “an obligation to re-evaluate the reasonableness and necessity of the treatment plans previously denied because now the applicant has access to greater benefit limits.” This was said to entail the providing of medical reasons and other reasons for the denial of the treatment plan as per section 38(8) of the Schedule.

Reducing Our ExposureIn 19-001009 v Aviva, The Applicant was entitled to an award of 30% on the late approved OCF-18’s, as the Respondent “did not approve the treatment plans until the eve of the hearing, without a cogent reason for that delay.” The Tribunal found the “delay particularly unreasonable, as [the Respondent]’s original denials were based solely on the MIG”, having removed the client from the MIG in July 2019. The Tribunal further did not accept that the Respondent was entitled to rely upon the psychological IE’s ultimate conclusion that the MIG applied, as such a conclusion would be outside his expertise. These “mixed psychological/legal conclusions…are decisions for [the Respondent] to make.” Concluding, the Tribunal found “[the Respondent]’s representative’s comment about recent approvals to reduce [the Respondent]’s exposure troubling” but this was “certainly not intentional malice”.

30% Award Despite Late Disclosure of Psych SymptomsIn Padua v. Co-operators General Insurance Company (20-005450) Padua’s family doctor, Dr. Tejan diagnosed her with mild cervical and lumbar sprains and prescribed pain medication and massage therapy. She received treatment from April to July 2018 and stopped on her own, prior to exhausting her funding under the MIG.

In June 2020, Padua submitted a report by Dr. J. Brunshaw, psychologist, and H. Ilios, psychotherapist with a diagnosis of an Adjustment Disorder with Mixed Anxiety and Depressed Mood, noting that Padua suffered from Specific Phobia as a driver, passenger, and pedestrian.

The late disclosure of psychological symptoms and the complete lack of psychological complaints immediately following the accident resulted in the Co-operators questioning causation of Padua’s alleged psychological injuries.

Padua’s failure to clearly report her pre-accident health status does not invalidate the conclusions in the Brunshaw/Ilios report. On the balance of probabilities that Padua sustained a psychological injury, or in the alternative, an exacerbation of pre-existing psychological injuries.

The Co-operators never commissioned a psychological Insurer’s Examination, (“IE”), leaving the conclusions in the Brunshaw/Ilios report uncontested. Padua’s late production of medical records and that she sought treatment and assessments some 18 months after the accident without incurring treatment didn’t discharge The Co-operators ‘obligation to adjust the claim on an ongoing basis’.

The Co-operators ‘exhibited stubborn and inflexible behaviour when it refused to remove the Applicant from the MIG or seek an IE, in light of Dr. Brunshaw’s report’ An award of 30% was granted in recognition of The Co-operators shortcomings, while at the same time acknowledging the untimely productions of medical records.



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?

 

Archive of LAT Updates

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March 18, 2024: No Weight Afforded to Handwritten Illegible CNR’s

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March 13, 2024: Denials Deficient and Pain Relief Validates Treatment Plans

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March 11, 2024: “Radicular Irritation” & MRI Findings Not MVA Related

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March 6, 2024: Tribunal Upholds Decision Excluding Improperly Secured IEs From the Evidence

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March 4, 2024: Concussion and Chronic Pain Diagnoses Require Expertise

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February 28, 2024: Prior Health Concerns Complicate Claim for CAT

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February 26, 2024: Unchallenged Virtual Chronic Pain Assessment Accepted

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February 21, 2024: Consent by Parties for Adjournment Not Determinative

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February 14, 2024: Tribunal Does Not Accept the CAT Findings of Either Party

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February 12, 2024: MIG Escape on Concussion Diagnosis Despite Resolution of Symptoms

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February 7, 2024: Financial Hardship Not A Defense for Repayment Responsibility

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February 5, 2024: CT Scan of Wrist Fracture Contradicts Medical Opinion

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January 29, 2024: Concussion Despite No Head Injury?

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January 24, 2024: One Assessment Process Produces Two Discrete Reports

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January 22, 2024: Defective Notices Do Not Trigger Limitation

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January 17, 2024: Election Not Required, LAT Act Invoked & Limits Exhausted?

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January 15, 2024: Chronic Pain Diagnosis Contradicted by Self-Reports

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January 10, 2024: NEB Reinstated After Six Years Generates Award

Award, NEB

January 8, 2024: Undisputed Psychological Diagnosis Prevails

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January 3, 2024: Significant & Competing Price of Non-Compliance for Both Parties

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December 20, 2023 (Throwback Edition): Statutory Relief Within Tribunal’s Jurisdiction

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December 18, 2023: ‘Incident’ of Viewing Video Not Use and Operation

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December 13, 2023 (Throwback Edition): Employed Applicant Remains Entitled to Post 104 IRB

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December 11, 2023: Chronic Pain Diagnosis In Absence of Physical Exam?

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December 6, 2023: Four Marked Impairments for 2010 MVA

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December 4, 2023: No Adverse Inference Drawn Despite Lack of pre MVA CNRs

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November 29, 2023 (THROWBACK EDITION): 18 Month Delayed Notice Reasonable, However 7 Month Delay is Not

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November 27, 2023: Confirmed High Bar to Escape MIG on Pre-Existing

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November 22, 2023: Multiple IEs Excluded From Evidence

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November 20, 2023: Radiculopathy Complaint Requires a Diagnosis

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November 15, 2023: Court Applies Tomec & CAT Decision Varied

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November 13, 2023: Insurer Expert Conclusion Inconsistent with Findings

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November 8, 2023: Maximum Award in Excess of $60K on CAT Case

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November 6, 2023: Medical Evidence Overrides Legal Referrals

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November 1, 2023: Eighteen Month Delayed Notice Reasonable However Seven Month Delay is Not

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October 30, 2023: Which MVA Exacerbated Injuries?

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October 25, 2023: Application Seeking CAT Determination an Abuse of Process

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October 23, 2023: Functional Disability Despite 50 Hour Work Week

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October 18, 2023: Statutory Relief Renders Equitable Remedy Moot

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October 16, 2023: Injuries Not Static - MIG Determined Again

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October 11, 2023: CERB is Income However Not “Gross Employment Income”

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October 4, 2023: Employed Applicant Remains Entitled to Post 104 IRB

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October 2, 2023: ‘IE’ Does Not Establish Causation

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September 27, 2023: Post June 1 CAT Criterion 8 Satisfied

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September 25, 2023: Chronic Pain Distinct from Recurring Pain

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September 20, 2023: Expert Opinion Not Required for IRB Entitlement

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September 18, 2023: Inconsistency Argument Not Accepted

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September 13, 2023: IRB Payment Delayed Four Years – 20% Award

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September 11, 2023: MIG Determined Absent Applicants Written Submissions

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August 30, 2023: Pain Determinative in Successful Post June 1 CAT Case

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August 28, 2023: Knee Injury from MVA Caused Slip and Fall & ACL Tear?

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August 23, 2023: WSIB Placement Qualifies for IRB

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August 21, 2023: Absence of Applicant’s Medicals A Difference Maker

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