MIG Update – March 24, 2025
30% Award for Failure to Review CNRs Overturned on Reconsideration
This week’s MIG case involves an Applicant with a long standing and documented pre-existing condition of the lower back and both knees. The Tribunal considered the records provided by the Applicant and the medical evidence relied on by the Respondent to determine the MIG and the special award. Does the Respondent’s obligation to review medical evidence rest solely with their assessors?
The award component of the MIG case we reported on this week has already been overturned! That was exceedingly quick! Click HERE to jump to the update.
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Factor: CNRs
In AL-Rahami v. Aviva (23-001231), Qahtan AL-Rahami was injured in an accident on February 1, 2021 and sought entitlement to five Treatment Plans for chiropractic services, medical devices, psychological assessment, FAE and attendant care assessment totaling $10,359.21. He submitted that he should be removed from the MIG on the basis of his pre-existing history of low back and bilateral knee pain that was exacerbated by the accident and that given his longstanding history since age 27 he was vulnerable to reinjury and that his medical records confirm the same.
Al-Rahami relied on the CNRs of Dr. Shasha, family physician, CNRs and two Treatment Plans dated February and September 2021 from Dr. Asgry, where he received physical therapy, the reports of Dr. Di Pasquale, orthopaedic surgeon dated November 2020 and March 2021, as well as MRI and radiograph reports, documenting his pre-existing back and knee condition. He submitted that Dr. Asgary, chiropractor, noted the prior condition that could affect recovery. As well, the report of Dr. Bruni, chiropractor dated April 2022 noted the pre-accident MRI, radiographs, a November 2018 MVA and spinal stenosis which were aggravated by the subject accident that could affect recovery from the subject accident. Al-Rahami argued he was entitled to a special award given that Aviva failed to properly consider his pre-existing conditions.
Aviva argued that Al-Rahami did not advance any medical opinion or compelling evidence to demonstrate he had a pre-existing condition that would prevent recovery if he was kept to the MIG. It relied on IE physiatry reports of Dr. Marchuk, physiatrist, dated April 2021, and September 2021 paper review, which concluded that the Applicant’s injuries were minor. Also the IE physiatry report of Dr. Heitzner, physiatrist, dated October 2023, which concluded that there was no compelling medical evidence of a pre-existing condition that would take the Applicant outside of the MIG or that would prevent maximal medical recovery under the MIG.
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The Tribunal found:
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- The records provided by Al-Rahami proved sufficient medical evidence that documented his pre-existing lower back and bilateral knee conditions.
- The Treatment Plans submitted by Dr. Asgary in February and September 2021 both note the prior conditions which could have an impact on Al-Rahami’s post accident recovery and his pre-accident knee pain was a further barrier to recovery due to his inability to perform regular activities.
- The report of Dr. Bruni, chiropractor, April 6, 2022 concluded that Al-Rahami’s medical history of a prior motor vehicle accident on November 26, 2018 and spinal stenosis, which were aggravated by the subject accident, would be a condition that would impact his response to treatment, and that the prognosis was guarded.
- Both IE assessors’ opinions relied upon by Aviva were unpersuasive and afforded little weight. Firstly, from Dr. Marchuk, physiatrist, who conducted an in-person examination in April 2021 and a paper review in September 2021 and concluded Al-Rahami’s injuries were minor. When asked if documentation was provided about a pre-existing condition that will prevent recovery under the MIG, he replied ‘not applicable’.
- Secondly, Dr. Heitzner, physiatrist in October 2023 was provided the pre-accident medical documentation and yet provided no analysis of the pre-existing medical evidence nor any rationale for reaching his conclusion that there was no compelling evidence of pre-existing conditions that would take the Applicant out of the MIG.
- Aviva ignored the pre-accident medical evidence it had been provided. While it is entitled to rely on its medical assessor it still has the obligation to review the medical evidence before it and adjust the claim fairly and did not do that here and unreasonably withheld benefits to Al-Rahami. Further to the CCRO order in September 2023, it has not provided the adjuster log notes nor an explanation as to why.
- “In this case, not considering the applicant’s documented pre-existing conditions when determining his status under the MIG, provided a monetary advantage to the respondent. The conduct of ignoring medical evidence should be deterred. I have considered the amount of benefits withheld from the applicant, and the length of time that payment has been withheld. Without further information, I cannot comment on the applicant’s vulnerability or harm directed at him. I do not believe that the respondent’s behaviour attracts the full 50% maximum award allowable under Reg. 664. As I have found that the two treatment plans for chiropractic services and medical devices, dated February 24, 2021 and August 30, 2021 should have been approved based on the applicant’s injuries being outside of the MIG, the total of these treatment plans is $5,714.53. I find that $1,714.36 (30%) is an appropriate quantum for the award, plus interest pursuant to Reg. 664.”
Reconsideration Update
In AL-Rahami v. Aviva (23-001231) Aviva claimed that the Tribunal erred:
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- In applying the incorrect test for determining a pre-existing condition.
- Failed to identify any medical evidence that would support removal from the MIG.
- Shifted the burden of proof to Aviva to demonstrate that the AL-Rahimi’s pre-existing condition would not impede maximal medical recovery, and failed to acknowledge or address the decisions filed by Aviva.
- In law, by granting a special award, as it incorrectly stated that Aviva ignored evidence and granted an award when it had provided Al-Rahimi’s medical file to its assessors and followed their recommendations.
The Tribunal found that there was no error in the MIG finding and upheld its original decisions and reasons. However, it found that Aviva’s reliance on their IE reports did not meet the standard of unreasonable conduct necessary to justify an award. Although it did not address its finding that Aviva still had an obligation to review the medical evidence before it despite referring it to its assessors for an IE.
The Adjudicator, the same as in the initial decision, found, “upon reflection”, that she had erred in law and overturned the award on the following basis:
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- “I find that the respondent was entitled to rely on its expert reports and to follow the recommendations in these reports. I find that, despite giving less weight to these reports in reaching my decision, the respondent’s reliance on these reports does not meet the standard of unreasonable conduct necessary to justify an award. I find the decisions cited by the respondent in its reply reconsideration submissions, in 18-002994 v. Aviva Insurance Canada, 2019 CanLII 76837 (ON LAT) and Williams v. Pembridge Insurance, 2022 CarswellOnt 16190, persuasive, in so far as an insurer is entitled to rely on the opinions of its independent experts, and, in doing so, does not meet the threshold for an award. Put another way, the insurer is not held to a standard of perfection.”
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 33% of the decisions so far. Each case is nuanced, but with similar factors.
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