MIG Update – October 7, 2024
Continuity of Complaints Confirm Chronic Pain
This week, a MIG escape case wherein the Tribunal considered the AMA Guides for chronic pain in their determination. The key feature to the analysis was the continuity of complaints found within the CNR’s and the findings of the IE assessors.
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Factor: Medical Records
In Demir v. TD Home and Auto Insurance Company (22-005177) Erdi Demir was involved in a motor vehicle accident on June 30, 2021, and sought entitlement to three Treatment Plans for chiropractic treatment, massage therapy, aquatic therapy and a chronic pain assessment totaling $8,801.01. He sought removal from the MIG on the basis of chronic pain. He referenced the fact that it has been 2.5 years since the accident and he continues to complain of physical pain from the accident and his family doctor diagnosed him with chronic pain and indicated that he requires chronic pain management.
Demir relied on the records and reports of the family physician. Dr. Hoca noted his ongoing complaints of back, neck and shoulder pain, for which he prescribed medication and physical treatment. Dr. Hoca diagnosed chronic back pain in January 2022 and again refilled his pain medication prescription. He further relied on the aqua therapy clinic CNRs, which indicated that he complained of ongoing pain that was aggravated by physical activity.
TD conversely argued that Demir’s injuries fell within the minor injury definition, as evidenced by the February 2022 report of IE physiatrist Dr. Ko and psychologist Dr. Syed, who found he suffered only sprain/strain injuries. It submitted that Demir did not provide a copy of his updated prescription summary or updated clinical notes beyond January of 2022. It asserted that there was no evidence of a formal chronic pain diagnosis by any healthcare provider. Nor did he establish that his alleged chronic pain resulted in functional impairment.
The Tribunal found:
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- Demir’s met at least three of the chronic pain criteria set out in the AMA Guides: (i) withdrawal from social milieu, including work, recreation, or other social contracts; (ii) failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and (iii) secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.
- “I find that Dr. Hoca assessed the applicant as having chronic back pain. The CNRs of Dr. Hoca of Oakdale Medical Center, which include:
i. CNRs of November 15, 2021 that the applicant came to the clinic complaining of back pain for the last 4 ½ months, the pain started after the accident, and the pain increases by bending and lifting and decreases by rest and pain meds. Dr. Hoca assessed “mechanical low back pain / neck pain / shoulder pain / motor vehicle accident”, advised the patient to avoid bending and lifting and discussed chronic pain management. Dr. Hoca prescribed that the applicant should continue with physiotherapy and prescribed pain medication.
ii. CNRs of December 22, 2021 that the applicant came in for a refill of his prescription. Dr. Hoca assessed back pain and refilled his pain medication prescriptions
iii. CNRs of January 6, 2022 noting that the applicant complained of chronic back pain, neck pain and shoulder pain that started after a motor vehicle accident, and he is taking his pain medication once daily. At this examination, Dr. Hoca assessed the applicant as having chronic back pain and refilled his pain medication prescription.” - Demir was suffering from secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain. Dr. Ko’s report does not include an assessment of chronic pain or the AMA Guideline criteria; however, Dr. Ko’s physical examination results included that active and passive range of motion was limited and that he had diffuse weakness in his upper and lower extremities.
- Demir had been unable to restore pre-injury function after a period of disability, such that the physical capacity was insufficient to pursue work, family or recreational needs. The IE psychologist Dr. Syed’s February 2022 report stated that prior to the accident he was running a restaurant but he returned to work within 10 days to reduce hours until December 2021 when he stopped working due to increasing pain and reduced productivity. He also stated that his social life, housekeeping tasks and sleep had become disrupted. Also that Dr Ko included in his report that Demir’s self-reports that he was unable to socialize with his friends as long as he used to.
- The continuity of complaints reported to the family doctor were consistent with those reported to the IE doctors. The treatment plans were found reasonable and necessary as was an assessment to provide recommendations for a pain management program to assist in his recovery.
- Demir’s met at least three of the chronic pain criteria set out in the AMA Guides: (i) withdrawal from social milieu, including work, recreation, or other social contracts; (ii) failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and (iii) secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.
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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