Volume. 8 Issue. 1 – January 3, 2024 – Complimentary Issue!

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This week we review a claim where noncompliance on the part of both parties was front and center. Ultimately the deficient notice provided by the Respondent rendered both items in dispute payable, save for a period of noncompliance on the part of the Applicant. The Tribunal however, did leave open the prospect of the Respondent curing their defective notice following the decision, which does not appear to align with Tribunal jurisprudence.

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Significant & Competing Price of Non-Compliance for Both Parties

Medical Reasons Not Provided as Required – Injured in a February 2020 MVA, the Applicant Du, in 21-015816 v Economical, sought removal from the MIG based upon a diagnosis of concussion. At the outset, Economical asked for a preliminary issue to be added, namely that Du ought to be barred from proceeding given the failure to attend a s.44 IE. Economical alleged that it was significantly prejudiced by this failure, however the Tribunal found it difficult to reconcile the November 2022 failure to attend with the lack of any steps having been taken earlier to add this issue. Accordingly, “any prejudice to the respondent is due to the respondent’s own actions, or in this case inaction.” Were the Tribunal to add this issue now, “would amount to an abuse of process and set the tone for a complete disregard of the Tribunal’s Rules of Practice and Procedure and the Common Rules.”

Economical took the position that Du had not provided sufficient evidence of a concussion or post-concussion syndrome. They relied upon a comment in the records from Du indicating “no head injury”, however the Tribunal relied upon the hospital discharge of head injury/concussion diagnosis of the attending physician, over Du’s subjective comment. Economical further suggested that a diagnosis of concussion without a review of the property damage file and the MVA report should have no weight, relying upon Du’s statement that he was going 5KM/hour at impact. The Tribunal though noted that there was sufficient force to result in multiple impacts, that Du’s vehicle was rendered a total loss, and that there was no evidence that Du’s doctor “had training in biomechanics such that having the MVA report or the property damage file would have affected his diagnosis.”

Further, if Economical “suspected that the Delta V (change in velocity) forces in the applicant’s vehicle were not strong enough to cause a concussion, I would have expected it would have arranged for a biomechanical expert to conduct a paper review or a biomechanical IE assessment shortly after receiving the OCF-3 April 2020”. Given that Economical “did not see fit to request an IE when it might have been reasonable to do so, I am unable to accept that little weight should be given to (Du’s doctors’) diagnoses.

The Tribunal then considered and agreed with Du’s position that the denials relied upon by Economical failed to provide any medical reasons for the denial of the claim. Du relied upon the reconsideration decision 16-003316/AABS v. Peel Mutual Insurance Company, which stood in part for the proposition that “if s. 38(8) is to achieve its purpose, it must require insurers to accompany any denial of benefits with meaningful and accurate reasons based on an insured’s medical condition as described in the file at hand.”

In the within matter, the denial based upon “MIG” by its very nature is a conclusion based upon medical reasons, therefore the denial must include a medical reason. Absent same, “the purpose of adding the medical or other reason requirement to s. 38(8) of the Schedule to allow an unsophisticated person to know why the benefits were denied is defeated. To simply say “your injury is minor” without describing what the applicant’s injuries are does not comply with s. 38(8) of the Schedule.” Therefore, Economical was obliged, upon proof of expenses being incurred, to pay for treatment commencing the 11th day following submission of both treatment plans, until proper notice is provided.

However, no payments were required for any treatment incurred from July 12, 2022 until July 23, 2023. This represents the period during which Du failed to comply with a s.33 request for medical evidence. Economical contended that they had in fact requested medical evidence in accordance with s.33 of the Schedule as early as April 2020. The Tribunal though found that in this request, “there was no mention of s. 33(2) of the Schedule and the applicant’s obligation to provide information reasonably required to adjust the claim. Nor was there any mention in the April 20, 2020 letter of s. 33(6) or of the consequences to the applicant if he failed to provide the information within ten business days”.

Du sought an award given the unreasonable denials, and the Tribunal did note there was “some concern that the respondent denied the treatment plans on the basis of the MIG knowing that the applicant had been diagnosed with concussion but recorded that it would deal with it if the applicant submitted another treatment plan outside of the MIG. The reasoning was clearly faulty as the denied portion of the physiotherapy plan and the entire massage plan were submitted outside of the MIG.”

In addition, the “finding that the respondent is required to pay the disputed benefits is based on a faulty denial and not because the applicant established they were reasonable and necessary as a result of his injuries. It was not an easy decision to determine whether the denial complied with s. 38(8) given that the subsequent requests for IEs did provide medical reasons. Further, I have no evidence of what the applicant has incurred under the disputed treatment plans. Accordingly, as I also have no evidence of the quantum in dispute, I am unable to find that the failure of the respondent to provide medical reasons to the applicant for why benefits were being denied merits an award.”

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