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  MIG Update – July 29, 2024

No Specific Reference to Evidence Precludes MIG Escape

This week, a MIG hold case, where the Applicant failed to make specific reference to evidence in support of their claim. The Tribunal made a point of asserting their role of a neutral arbiter and not an advocate for any party.

Factor: Evidence

In Barlow v. Wawanesa Mutual Insurance Company (22-003506), Bryan Barlow was involved in an accident on September 9, 2020 and sought entitlement to IRBs in the amount of $400 per week from September 9, 2020 to August 9, 2022 and to four Treatment Plans for psychological assessment, chronic pain assessment, and physiotherapy.

Barlow submitted he should be removed from the MIG due to psychological issues caused by the accident, chronic pain, and a right knee tear. He relied on a CNR of August 2023 by walk-in clinic physician, Dr. Shwe, where he reported that in the prior two weeks his anxious symptoms and nightmares from the accident came back and he requested a referral to a psychologist. He further submitted he suffered from a right knee tear as evidenced by a September 2022 MRI.

Wawanesa submitted the August 2023 visit to Dr. Shwe was the only reference to psychological symptoms in the three years since the accident. It submitted that the MRI indicated the cause of Barlow’s right knee tear as a ruptured Baker’s cyst and that other than a referral to an orthopedic surgeon, no further clinical evidence was submitted as to the cause of the knee impairment.

The Tribunal found:

• Barlow had not established removal from the MIG on psychological grounds. While he attended a walk-in clinic regularly from 2020-2023 for non-accident related medical conditions Barlow did not direct the Tribunal to any entries where psychological symptoms were reported other than the single entry in August 2023.
• Barlow only provided a vague statement that the medical evidence of his treatment providers and supporting documents supported his significant impairments.
• “The CCRO expressly specified that the parties’ submissions must make “specific reference to the evidence and law by tab and page number.” The applicant has not made any specific reference to evidence supporting his claim of accident-related chronic pain. The Tribunal’s role is that of a neutral arbiter, not an advocate for any party. The Tribunal cannot presume to know which evidence or portion thereof, if any, that a party intends to rely on in advancing his case. The applicant’s failure to specifically refer to medical evidence means that he has been unable to meet his burden of proof.”
• The review of the walk-in clinic CNRs did not refer to any chronic pain diagnosis, referral to a pain specialist or ongoing prescriptions for pain medication and the Applicant did not provide submissions on the six AMA Guides criteria for chronic pain.
• Barlow’s right knee tear was not caused by the accident. In the period after the accident, Dr. Shwe diagnosed him with only back, neck and rib strain. The OCF-3 referenced only back, neck, abdomen and pelvis injuries. Neither did the OCF-18s mention a knee injury.
• Barlow reported to Dr. Shwe in April 2022 that he had right knee pain off and on for three months and Dr. Shwe noted “no trauma or injury”. While in later CNRs Barlow attributed the knee pain to the accident, this was not reflected from 2020/2021. As such, the Applicant was held within the MIG and not entitled to the Treatment Plans in dispute.

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