MIG Update – March 25, 2024
Expert’s Conclusory Statement Insufficient on Pre-existing Condition
This week, the Applicant’s expert contended that low back pathology prevented the applicant’s recovery if held to the MIG monetary limit. The Tribunal ruling affirms that MIG escapes on the basis of pre-existing conditions continue to be a high threshold.
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Factor: Low Back Pathology
In Kang v. Dominion of Canada General Insurance Company (Travelers) 21-015857, Susanna Kang was involved in a motor vehicle accident on August 1, 2020 and sought removal from the MIG on the basis of a pre-existing medical condition, being pathology of the lumbosacral spine, that precludes maximal recovery within the MIG funding limit. She was seeking entitlement to two treatment plans for chiropractic services and an orthopedic assessment.
Kang relied on Dr. Getahun’s orthopedic assessment report of November 2021 that concluded she “has significant pre-existing pathology of the lumbosacral spine that was aggravated by the mechanism of the motor vehicle collision.” Kang had spinal surgery 20 years prior to the subject accident. Kang also relied on a report, dated March 28, 2023, of a CT scan that was dated March 25, 2023.
Travelers conversely argued that Kang did not provide any documented evidence from prior to the motor vehicle accident of said pathology. Travelers also relied on both a physiatry assessment by Dr. Saad Naaman in October 2020 and an in-home assessment with Angela Bertolo, occupational therapist November 2020 wherein Kang gave self-reported accounts about her prior conditions.
The Tribunal found:
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- Firstly, Kang could not rely on the CT Scan report of March 2023 as it was obtained after the Case Conference Report and Order as well as it did not comply with the production deadlines the parties agreed to. There was no motion filed to admit the late evidence either. As such the CT Scan report was excluded and not considered in the decision.
- Kang’s submissions on the issue of the pre-existing condition and surgery were brief and largely relied on the orthopedic medical examination by Dr. Tajedin Getahun, on November 4, 2021.
- “In conducting this examination, Dr. Getahun was only provided with medical records that post-dated the accident and the applicant’s statement that she underwent spinal surgery 20 years ago and has not recovered.” Dr. Getahun opined that the applicant’s injuries “do not fall within the Minor Injury Guidelines [sic] as she has significant pre-existing pathology of the lumbosacral spine that was aggravated by the mechanism of the motor vehicle collision”.
- Dr. Getahun’s statements regarding her spinal surgery and lack of recovery were at odds with Kang’s statements during her s.44 occupational therapy assessment in which she reported having fully recovered following back surgery for a “disc problem” in 2005. During s.44 physiatry assessment she denied having any medical history or pre-existing injuries.
- “Dr. Getahun’s conclusory statement is insufficient to discharge the applicant’s burden even if there was documented evidence of pre-existing condition that pre-dated the accident because it does not explain how the pre-existing pathology of the lumbosacral spine precludes maximal recovery under the MIG limit.”
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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- Firstly, Kang could not rely on the CT Scan report of March 2023 as it was obtained after the Case Conference Report and Order as well as it did not comply with the production deadlines the parties agreed to. There was no motion filed to admit the late evidence either. As such the CT Scan report was excluded and not considered in the decision.