Contact Us

  MIG Update – July 22, 2024

No Evidence Tendered to Rebut Concussion Diagnosis

This week we review a MIG escape case on the basis of a concussion diagnosis. The Tribunal first contended with a preliminary issue raised by the Respondent for the first time during written submissions that the Applicant had an election under WSIA barring them from AB. The Tribunal then considered the diagnosis of concussion to rule injuries are not MIG.

Factor: Concussion

In Stavely v. Western Assurance Company (22-005293), Wendy Stavely was involved in an accident on January 4, 2018 and sought entitlement to a psychological assessment, She also sought removal from the MIG on the basis that she sustained a concussion, chronic pain, psychological injuries and that her pre-existing conditions would prevent recovery within the MIG.

Stavely submitted the CNRs of Dr. Hove, ophthalmologist, who in May 2018 diagnosed her with “Concussion Without Loss of Consciousness (Jan 2018)”. Further, she submitted that the denial to the disputed Treatment Plan was in violation of s.38(8) of the Schedule, as it did not provide any medical reasons or other applicable rationale for denying the Plan. She argued the denial letter was vague and opaque.

In turn, while Aviva did not address the MIG it submitted that when the disputed Treatment Plan was denied, it only had the denied Plan and an OCF-1 in its possession, and denied it on this basis, as Stavely’s injuries were in the MIG. It argued it made a request of updated records. Aviva also, raised for the first time, in its submissions a new preliminary issue of whether Stavely was barred from pursuing her claim pursuant to s.61 of the Schedule, an election under the Workers Safety and Insurance Act. This was not an issue indicated in the February 2023 CCRO.

The Tribunal found:

• The February 2023 CCRO did not indicate that Aviva intended to raise a preliminary issue under s.61 of the Schedule. Thus, it would be procedurally unfair to Stavely if the issue was to be added. Thereby, it was disallowed.
• “The applicant was diagnosed with a concussion, which is clearly established in the record of Dr. Hove, dated May 7, 2018. Indeed, on May 7, 2018, Dr. Hove noted in his records that the applicant had been involved in the subject accident which resulted in ongoing headaches. As such, under the impression section of his record, he wrote “Concussion Without Loss of Consciousness (Jan 2018). In my interpretation, Dr. Hove diagnosed the applicant with a concussion and attributed it to the accident, as “Jan 2018” is the month the subject accident took place, and there is no reference to any other cause for the concussion in this record. Significantly, the entry only discusses that the applicant has been having ongoing headaches since this accident”
• “Notably, the respondent also did not refer me to evidence that rebuts the diagnosis of a concussion made by Dr. Hove, nor did it make any submissions that undermine this diagnosis.”
• Stavely was also entitled to the psychological assessment Treatment Plan finding that the August 2021 denial letter was non-compliant with s.38(8) of the Schedule, as it failed to provide adequate medical reasons to deny the Treatment Plan.
• The denial notice advised Stavely that the treatment claimed was not reasonable and necessary for the following reasons:

  “We have reviewed and compared all medical documentation that has been provided, and compared it further to the Minor Injury Guideline (“MIG”), and determined that there is insufficient compelling evidence of a documented pre-existing injury or condition and insufficient medical documentation to persuade us that your accident-related injuries fall outside of the Minor Injury Definition.”

• Absent were specific details about the Applicant’s diagnosis, prognosis, or the details of the Plan. Nor did Aviva identify what information it reviewed in making its decision or what information it required from Stavely.

If you Have Read This Far…

Inform your position & present persuasive arguments. Include an Outcome Analysis Report (OAR) in your case evaluation complete with For/Against cases. Get an OAR – Available as a fee for service.