MIG Update – November 4, 2024
Submissions Do Not = Evidence
This week, a MIG hold case wherein the Tribunal considers whether the Applicant’s submissions contained any evidence of a diagnosis that would take the Applicant outside of the MIG. A reminder that the burden of proof rests with the Applicant.
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Factor: Submissions
In Burnett v. Certas Home and Auto Insurance (22-008912) Violet Burnett was involved in an automobile accident on May 16, 2020 and sought entitlement to NEBs from June 13, 2020, to May 16, 2022, and seven Treatment Plans for psychological and chronic pain assessments as well as chiropractic services, massage therapy and psychological services.
Burnett submitted that she suffered chronic pain, psychological impairment and exacerbation of her pre-existing psychological conditions as a result of the accident. She relied on the October 2020 report of psychologist Dr. Zakzanis, who diagnosed her with adjustment disorder with depressed mood, and post-traumatic stress disorder, from the subject accident, which were exacerbated by her pre-existing psychological conditions. She also relied on the hospital records, OCF-3 by chiropractor Dr. Shlepakov, the record of nurse practitioner Ms. Pritchard of June 2017, as well as a psychological pre-screen report appended to the disputed Treatment Plan for a psychological assessment.
Certas argued that there was no evidence that Burnett’s pre-existing psychological conditions were exacerbated by the accident, nor did she sustain a psychological impairment and only sustained minor injuries as a result of the accident. To support this position, it relies upon the records of Enhance Care Clinic (Burnett’s current physician’s office) and Dr. Nicole Morfetas, Burnett’s previous family physician. They did not reference any IE’s in their submissions.
The Tribunal found:
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- Dr. Zakzanis’s findings including pre-screen report were not supported by the other contemporaneous medical evidence such as the records of Dr. Morfetas and Enhance Care Clinic. He reviewed two documents, the psychological progress report and OCF 3 and appears as if he was not provided with comprehensive medical records when coming to his conclusion.
- “Second, there is no evidence to support Dr. Zakzanis’s findings, aside from the report itself. As noted above, Dr. Zakzanis did not review the applicant’s pre-accident and post accident records from her family physicians. Significantly, if these records had been reviewed, it would have demonstrated that while the applicant complained and sought medical attention for her pre-existing psychological conditions (both before and after the accident), she did not complain of psychological symptoms from the accident. Indeed, the records from both Dr. Morfetas and Enhance Care Clinic support that the applicant received psychological treatment from CAMH and Ontario Shores for her pre-existing chronic psychological impairments only”.
- The hospital record from Stevenson Memorial dated February 2023 wherein Burnett sought emergency attention for an acute situational crisis did not make reference to the subject accident thereby there was little probative value.
- On Brunett’s submission that she suffered chronic pain there was only one accident-related complaint of right thumb swelling/pain on July 13, 2022 in the family doctor records and absent was a diagnosis or referral for a chronic pain investigation.
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.
Inform your position & present persuasive arguments. Include an Outcome Analysis Report (OAR) in your case evaluation complete with For/Against cases. Need an OAR?