COMPLIMENTARY ISSUE: Volume. 6 Issue. 44 – November 9, 2022

This week’s edition follows on the heels of the Court ruling in Catic v Aviva discussed in our Special Edition MIG Monday, in which the court clarified the ‘shall pay’ period that flows from deficient notices under s38 (8), wherein the deficiency was ultimately cured by the insurer.

The cases discussed this week are two examples of the ‘shall pay’ period where the deficient notice had not been ‘cured for two applicants involved in the same accident. While holding both claimants within the MIG, the Tribunal nonetheless found that the insurer was obliged to pay in excess of $26,000.

In ‘MIG Hold Still Entitled to $12,500’ while the Applicant failed to satisfy the onus of proving the injuries ought to be outside the confines of the MIG, he was still entitled to payment for all eight treatment plans in dispute, given the insurer’s deficient denials.

In ‘MIG Hold Entitled to $14,000” a markedly similar fact scenario, the applicant, while maintained within the MIG, was entitled to payment for eight of nine disputed treatment plans, given deficient denial notices, in this case totalling in excess of $14,000.

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MIG Hold Entitled to $12,500

MIG Hold Still Entitled to $12,500 – In 20-013201 v Certas, the Tribunal was tasked with determining whether the Applicant Sahil was limited to treatment within the MIG, as well as whether he was entitled to eight treatment plans for treatment and assessments. The Tribunal found that Sahil had not met his onus of proving that his accident-related impairments warrant removal from the MIG.

Sahil highlighted the failure of Certas to secure an IE, however “the absence of an IE report in this case is not determinative because the applicant has not provided sufficient medical evidence of a non-minor injury, and thus, it is not incumbent on the respondent to conduct an IE to defend its position.” However at this point, things turned decidedly worse from Certas’ perspective.

The Tribunal considered the sufficiency of Certas’ denials for six treatment plans, finding that, while indicating that Sahil’s injuries were minor, nonetheless they had “fail(ed) to include any specific details about the applicant’s condition or even mention what his minor injuries were. The language in the correspondence is boilerplate and provides no information about the applicant’s impairments.” Further, Certas used essentially the same language across all six denials, “despite the fact that the OCF-18s referenced different injuries and requested markedly different benefits.” The denials “would not provide the reader with any clarification of the details of the applicant’s condition and is not clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.”

The remaining two treatment plan denials met the same fate. One was found not to have “provided the applicant with information about the respondent’s understanding of his medical condition – there are no medical reasons provided or any discussion about what documents were reviewed by the respondent in coming to its decision.”

The final denial did “reference specific medical conditions namely the assertion that the applicant did not sustain any fractures or tears. However, the OCF-18 did not reference fractures or tears but discussed radiculopathy symptoms”. Certas had not provided “any clarification as to what documentation it still required from the applicant or in the alternative, what medical information it had reviewed in coming to its decision.”

All told, despite being confined within the MIG, Sahil was entitled to over $12,500 in treatment/assessments upon the incurring of same.

MIG Hold Entitled to $14,000

Not To Be Outdone – In 20-013208 v Certas, the Applicant Jamily, injured in the same accident, also sought removal from the MIG, further claiming entitlement to nine treatment plans for treatment and assessments. Once again in this matter, Jamily was found not to have discharged the onus to prove that her injuries warranted removal from the MIG. However, the Tribunal found that eight of the nine denials were deficient. Six of the denials used substantially similar language, “stating that the respondent reviewed the list of injuries and compared them to the criteria in the Minor Injury Guideline and concluded that the injuries fall within the Guidelines. The respondent further states that recommendations “must address your diagnosis” and that it has not received “any compelling medical documentation” to support the applicant claims that her injuries are not minor.”

The Tribunal found that these six denials, while referencing the MIG, and the fact of the injuries being minor, did “not include specific details about the applicant’s medical condition or even mention what her injuries were. There are no references made to what documents the respondent reviewed in coming to its determination or what documents the respondent further required from the applicant.”

A seventh denial contained the same issues as in the above case regarding “fractures and tears”, rather than “radiculopathy”. The final deficient denial failed largely due to a failure on Certas’ part to proceed with an IE that they purported to require. Certas was found obliged to pay in excess of $14,000 for treatments and assessments following the incurring of same.

The Tribunal however did not agree with Jamily that she ought to be removed permanently from the MIG. Therefore it was open to Certas to take the position that the MIG applied to any future submissions.

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