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  MIG Update – August 12, 2024

Adverse Inference Considered in MIG Determination

In this week’s MIG hold case, the Applicant was attempting to establish injuries sustained in a 2015 motor vehicle accident developed into chronic pain and psychological injuries warranting removal from the MIG. Having failed to meet the evidentiary burden for records ordered at the case conference the Tribunal was left to consider the limited information advanced by the Applicant in their determination.

Factor: Evidence

In Wilson v. Travelers Insurance (22-006085), Jonathan Wilson was involved in an accident on August 9, 2015 and sought entitlement to two Treatment Plans for chronic pain and a psychological assessment for a total amount of $4,315. He submitted his injuries did not fall under the MIG.

Wilson relied on a pre-screening assessment dated December 2020 by Dr. Steiner, psychologist, which noted his reports of neck, shoulder and back pain, that he had difficulty sleeping, had low energy and experienced a change in his social life post-accident and that diagnosed him with Adjustment Disorder and Mixed Anxiety and Depression. He further submitted Travelers did not adduce any medical evidence contradicting his chronic pain or psychological condition.

Travelers on the other hand submitted that Wilson suffered sprain/strain-type injuries as a result of the accident as noted by the August 2015 diagnoses by Wilson’s treating chiropractor Dr. Morano and family physician Dr. Lehsteiner. It noted there were no further visits to Dr. Lehsteiner prior to a subsequent motor vehicle accident in February 2020, which they asserted was the cause of the injuries which were the subject of the disputed Treatment Plans that were being advanced to escape the MIG in the 2015 accident.

Travelers also submitted that an adverse inference should be drawn against Wilson for failure to produce records after August 2015 by the treating clinic, or records after February 2020 from Dr. Lahnsteiner, or any other family doctor or walk-in clinic as listed in the Case Conference Report and Order (CCRO).

Wilson did not file reply submissions in rebuttal of Travelers position.

The Tribunal found:

• Based on the records produced, the physical examination by chiropractor Dr. Morano and family physician Dr. Lahnsteiner in August 2015, Wilson’s injuries were soft tissue which fell under the MI definition.
• That in this case, where there was a subsequent accident, it was appropriate to draw an adverse inference against Wilson because of his failure to produce documents as ordered in the CCRO to have a full appreciation of the case.
• “Even without drawing the adverse inference, I find that the applicant has not met his burden of establishing that he suffers from chronic pain such that he has sustained accident-related injuries that fall outside of the definition of minor injury. Further, no evidence, explanation or submission was given by the applicant to address the common sense assumption that his self-reports of pain set out in the pre-screening assessment were the result of the subsequent accident and not the accident.”
• While the Applicant had not exhausted the $3,500 MIG limits, the Tribunal did not approve the disputed Treatment Plans for a chronic pain and psychological assessment in the amount of $4,315 up to the limit because he had not established they were as a result of the subject accident, as per s.40(1)(a) of the Schedule.

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