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  MIG Update – July 15, 2024

Chronic Pain Diagnosis Not Enough for MIG Escape

The case in review this week involves a MIG hold where the Tribunal considered both the chronic pain and psychological diagnoses, weighing the competing evidence to determine what if any functional impairment was associated with the chronic pain diagnosis and the depression validity testing scores.

Factor: Chronic Pain

In Bankasingh v. Unifund Assurance Company (21-012206), Christopher Hugh Bankasingh was involved in an automobile accident on July 5, 2019 and claims as a result that he suffered chronic pain and psychological injuries seeking both physical and psychological treatment. In addition, 8 distinct assessments between 2020 and 2022 for psychological, cognitive, chronic pain, neurological, and neuropsychological

Bankasingh relied on the report and opinion of psychologist Dr. Waxer’s diagnoses of somatic symptom disorder, specific phobia, vehicular, and a chronic adjustment disorder with mixed anxiety and depressed mood. As well as the report and opinion of orthopedic surgeon Dr. Getahun’s September 2020 diagnosis of chronic pain syndrome. Bankasingh pointed to the IE report of GP Dr. Silver November 2019 in which he reported that he no longer shared housekeeping and cooking duties with his wife.

Unifund argued that Bankasingh’s injuries were uncomplicated soft tissue injuries that fell within the minor injury definition. They relied on the November 2019 IE report of GP Dr. Silver, that included Bankasingh’s self-reports that the neck pain and headaches were ‘not that bad’. Further the addendum report of Dr. Silver in October 2020 following his review of Dr. Getahun’s report wherein Bankasingh reported that he returned to work one month following the accident at a construction site, and was fully independent in his personal care.

With respect to the psychological injury, Unifund relied on the IE report and opinion of psychologist Dr. Lee in December 2019, of no diagnosable psychological impairments as a result of the subject accident despite Bankasingh reporting some nervousness about driving, and occasionally had dreams about the accident.

The Tribunal found:

• The IE report of Dr. Silver was preferred over the report of orthopedic surgeon Dr. Getahun because it was more consistent with the evidence, specifically that Bankasingh’s pain did not result in functional impairments.
• This was evidenced by the fact that Bankasingh started a new job in construction a month after the accident, was independent in his self-care, and did not renew his prescription for pain medication.
• “ The chronic pain finding of Dr. Getahun is based on the duration of the applicant’s pain, “dysfunction criteria,” and the somatic pain diagnosis of Dr. Waxer. There is no clear indication in Dr. Getahun’s assessment that he is aware that the applicant worked on construction sites after the accident. He describes the applicant’s occupational history as follows:

  At the time of his injuries he was on unemployment insurance. He primarily worked in construction. He however describes himself as being a jeweler by trade. He currently is not working.

• “Dr. Getahun does not explain how he concluded that the applicant meets the “dysfunction criteria.” More significantly, this conclusion does not appear to be consistent with the above noted evidence. As such, I find that the applicant likely does not have chronic pain because there is limited evidence of functional impairment.”
• The only difference between the IE report of Dr. Lee, psychologist and Dr. Waxer is that Dr. Lee noted the depression testing (BDI-II) fell within the “mild” range, and Dr. Waxer in the same test noted that he had “moderately severe depression.” As such gave more weight to the results noted by IE Dr. Lee because there was little evidence beyond those test scores to support the premise that Bankasingh sustained psychological injuries.
• “The applicant has not exhausted the funds available to him for rehabilitation in the MIG. His benefit statement dated September 2, 2022 indicates that $1,610.00 in benefits remain unused. An OCF-23 Treatment Confirmation form shows that $2,200.00 was approved to pay for incurred treatment on August 19, 2019. Four years later, the applicant has still not used these approved funds for treatment. It is reasonable to infer that the applicant would utilize the funding available to him to treat his pain symptoms. This is also inconsistent with a somatic pain diagnosis.”

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