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  MIG Update – February 27, 2023

Lack of Candor Regarding Medical History Draws An Adverse Inference

This week an Interesting read as the Tribunal sets out what an Applicant should have submitted in response to an insurer’s section 33 request.

In keeping with the educational theme, the Tribunal further rules on the MIG hold where they drew an adverse inference over the Applicant’s lack of candor in providing his chronic pain history and producing his medical records.

LAT Update – What Difference Did A Year Make?

The LAT released Performance Stats up to mid-year 7 which is current through to the end of September 2022. Together with the LAT’s last update we can now provide a comparison of year over year, with projections through to the end of year 7 in this annual update. What difference did a year make?

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Factor: Causation

In Shaikh v. Economical Insurance Company (20-009837), Mohammed Shaikh was involved in a motor vehicle accident on June 16, 2019 claiming that he should not be subject to the MIG due to chronic pain. He sought entitlement to physiotherapy along with a claim for NEB.

Shaikh’s injuries listed in the first of 3 OCF 3’s indicated a diagnosis of strains and sprains to the cervical, thoracic, and lumbar spine and the sacroiliac joint, wrist, and knee, and headaches, depression and stress.

Shaikh was diagnosed with seronegative rheumatoid arthritis, an autoimmune disease not related to the accident, 6 months before.

As a precursor to the determination on the MIG in this case the Tribunal provided at paras 26 to 28 a view of the interpretation of sections 18 (1) & (2) of the Schedule….

[26] I would venture to guess that the question of whether an applicant falls within the $3,500 coverage limitation in s. 18(1) of the Schedule for persons who have suffered predominantly minor injuries has spawned more decisions from the Tribunal than any other section of the Schedule. A superficial search on CanLii for the term “MIG,” the abbreviation of the Minor Injury Guideline, results in approximately 1,400 cases that have considered the term. Having read many, if not most, of those decisions, it appears that they can be divided into two broad categories: those cases that treat the definition of a minor injury in s. 3(1) of the Schedule as a list and find people with diagnoses not on the list not to be subject to the $3,500 coverage limitation, and those cases that introduce a second analytical step considering the degree of impairment the non-listed condition causes. With respect to my colleagues who disagree, in my opinion s. 18(1) requires a two step analysis.

[27] The two step analysis mandated by s. 18(1) arises out of the somewhat confused wording of the section. The basis for entitlement to benefits under the Schedule is impairment. Starting with the definition of accident in s. 3(1) of the Schedule, which states: “accident” means an incident in which the use or operation of an automobile directly causes an impairment,” through the various benefit provisions in Part II, III and IV, an insured must have sustained an impairment. For example, s. 5(1) requires payment of an income replacement benefit “to an insured person who sustains an impairment as a result of an accident.” The other entitlement sections in the Schedule use the same or similar wording.

[28] Section 18 of the Schedule sets the coverage limits depending on the severity of impairment. Section 18(1) muddies the waters somewhat by conflating an impairment with an injury. The $3,500 coverage limit is applicable where the insured “sustains an impairment that is predominantly a minor injury.” It is the use of the word “predominantly” in this section that makes it clear that the Legislature did not intend the Tribunal to simply determine if an insured had an injury that falls within the listed injuries in the definition of a minor injury in s. 3(1) without then considering the extent to which the non-minor injury impairs. Thus, a finding of a psychological condition simpliciter does not warrant removal of the $3,500 coverage limit. It requires a further examination to determine the extent to which that diagnosed condition impairs function.

Shaikh’s injuries as a result of the accident were then considered in the context of the resulting impairment both for his minor (pre-existing) and non-minor injuries where Shaikh failed to establish his accident related injuries resulted in an impairment.

The Tribunal held:

• To the extent the CNRs were produced, they show that virtually all of Shaikh’s complaints predate the accident, with the possible exception of aggravation of pain in his knees; he suffered pre-accident back, neck and shoulder pain.
• The family doctors notes indicate Shaikh was also diagnosed with pre-accident fibromyalgia, defined as a chronic pain syndrome. There was no evidence that the accident made that condition worse.
• With respect to Shaikh’s pre-existing condition only Dr. Wilderman addressed this issue in his report by concluding “ that Mr. Shaikh’s injuries fall outside the Minor Injury Guidelines, as he has developed a chronic pain condition with a psychological component, which cannot be treated within the allotted $3,500.”
• “Based on Dr. Wilderman’s statement, it is the chronic pain condition that would justify treatment beyond the $3,500 limit. To the extent that we have them, Mr. Shaikh’s family doctor’s records show his pain and depression improving from July to November 2019. I have drawn an adverse inference from Mr. Shaikh’s failure to produce further family doctor records and conclude that they would have shown steady improvement.”
• The evidence establishes that the chronic pain condition is not an impairment sustained in the accident, that it has steadily improved and s. 18(2) does not apply.
  

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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