MIG Update – March 1, 2021
S.38(5) Denial Not Subject to Review by LAT
When responding to an OCF-18 Treatment and Assessment Plan, an insurer can rely on s.38(5) which specifies that an insurer may refuse to accept a Treatment and Assessment Plan for any period where an insured person is entitled to receive goods and services under the Minor Injury Guideline. When an insurer relies on this provision, is the decision considered final?
Factor: Interplay Between Accessing Initial MIG Treatment & S.38(5)
In J.P. v Allstate (18-008027), the Respondent denied all OCF-18s in dispute based on the provision in s.38(5) of the Schedule that “an insurer may refuse to accept a treatment and assessment plan if the plan describes goods or services to be received or an assessment or examination to be conducted in respect of any period during which the insured person is entitled to receive goods or services under the Minor Injury Guideline (“MIG”) in respect of the impairment.”
The Respondent argued that at the time the OCF-18s were proposed between July 2017 and February 2018, it had determined that J.P. was in the MIG based upon a paucity of evidence. J.P. was subsequently removed from the MIG in January 2019.
The Tribunal held:
- It is not disputed that J.P. was in the MIG when he submitted all the disputed OCF-18s
- “When subject to the MIG, insureds are required to submit treatment through a Treatment Confirmation Form (OCF-23) — 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. did not submit his treatment via OCF-23s as requested by the Respondent
- Citing s.38(6), the Tribunal agreed with the Respondent that the denials under s.38(5) are not subject to review by the Tribunal
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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