<Insurer’s failure to give proper s.38(8) notice and s.38(11)2 remedies under the SABS>

– The Insurer’s Denial Notice or EOB failed to meet the prescribed content requirements of s.38(8) because it failed to provide medical reasons for the insurer’s refusal to pay for a chronic pain assessment.

The following arguments have been established successfully:

i.   The EOB’s stated reason for denial is simply far too vague to constitute a valid “medical reason” for denial;

ii.   The EOB’s stated reason for denial implicitly refers to chronic pain assessment that the applicant never received. A reason must be factually correct to be compliant with the SABS;

iii. There is nothing in the SABS to suggest that simply notifying a claimant that he is required to attend an insurer examination (“IE”) constitutes a “medical reason” or any other reason for denial as required by s.38(8); and,

iv.  There is no legal basis for the Insurer’s position that it can effectively suspend a determination of entitlement, without an express medical reason, “pending the outcome” of an IE.

– The insurer failed to deliver an adequate and compliant EOB to the claimant before he incurred the cost of the chronic pain assessment.

As a result, by operation of s.38(11)2, the insurer is liable to pay the cost of the benefit.