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What is required for “medical reasons” in notice of denial?

When the insurance company denies treatment or payment of benefits and sends you to an insurer examination, be sure to check with your lawyer if you are required to attend.  There are many requirements the insurance company must fulfill in order to properly require your attendance.

With the September 2010 changes to the Statutory Accident Benefit Schedule (SABs), if the insurance company does not agree to pay for a treatment or assessment plan, it must give you notice with the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary” within 10 business days after it receives the treatment and assessment plan.

In a recent case, Augustin v. Unifund Assurance Company [FSCO A12-000452], the Arbitrator shed some light on what are proper “medical reasons”.  Arbitrator Sapin held that the notice that Unifund provided indicating “Based on our review of the medical documentation provided to date, we require an assessment by an independent medical assessor, in order to determine if your impairment is predominately a minor injury as described in the Minor Injury Guideline. Please see the Notice of Examination for further details” did not meet the requirements of s. 38(8) of the SABS.

As you can see and as the Arbitrator pointed out, the notice did not include any reason why Unifund was denying the benefit which the SABs requires as set out above.  Arbitrator Sapin noted that the failure for Unifund to state that it “believes” the MIG applies, or why was detrimental to Unifund’s position.   She indicated in explaining why the benefits are not payable and providing medical reasons, the notice must indicate “that it has reviewed the Treatment and Assessment Plan and any medical documentation provided; compare it to the criteria in the MIG; and determine either that there is insufficient compelling evidence (of pre-existing injuries or conditions, for example) or insufficient medical documentation to persuade it that the accident injuries fall outside of the MIG, and therefore, the insurer believes the MIG applies and the treatment claimed is not reasonable or necessary (because the treatment does not conform to the MIG treatment protocols, for example).”

Arbitrator Sapin indicated that Unifund could not simply indicate “a desire ‘to determine if your impairment is predominantly a minor injury as described in the Minor Injury Guideline’”.  This is only fair since “the insured person’s treating practitioner must provide a factually based medical opinion to support a claim for treatment outside the MIG.”  The Arbitrator did not agree with Unifund’s submission that the need for first a medical opinion in the form of an IE is itself sufficient to satisfy the definition of a medical reason.


MIG decision rescinded, new hearing ordered

The first ever decision interpreting the Minor Injury Guideline (MIG), Scarlett v Bel Air, is going to a new hearing with a new arbitrator.  FSCO Director’s Delegate David Evans granted Bel Air’s appeal of the decision finding that Arbitrator Wilson erred in many respects including:

  • – in finding that the burden of proof is on the insurer to prove that the insured falls within the MIG. The Director’s Delegate found that the burden of proof is with the  insured to prove that he or she fits within a scope of coverage
  • – failing to explain why Mr. Scarlett’s psychological disabilities were separate from his soft tissue injuries and therefore not “minor”;
  • – failing to apply the test for MIG by not addressing whether the insured’s injuries were “predominantly” minor injuries;
  • – reading down “compelling evidence” to mean credible evidence.  The Director’s Delegate found it means more than just credible evidence.
  • – indicating that the MIG was not binding because it was only a Guideline. The Director’s Delegate found that the MIG is binding because it is incorporated into the  SABS by reference.
  • – breaching procedural fairness by conducting his own research and relying on cases and statutory provisions he raised after the hearing without giving notice to the  parties and an opportunity to respond.

While claimants’ lawyers await further guidance from the courts and arbitrators, we will have to continue making creative arguments to advocate that our clients’ claims should be taken out of the Minor Injury Guideline so that they can access appropriate funding for their rehabilitation.

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