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  MIG Update – November 13, 2023

Insurer Expert Conclusion Inconsistent with Findings

This week, a MIG escape on the basis of pre-existing injuries where the Tribunal considered whether the applicant’s injuries were exacerbated by the subject accident. The insurer’s experts findings were at odds with their concluding opinions.

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Factor: Expert Findings

In Fayoda v. Economical Insurance Company (21-001616), Fayoda was involved in an mva on October 23, 2018. On May 10, 2018, he suffered a head injury, in an attack, also hit on the left arm and left leg. As a result, he claims to suffer from pre-existing headaches, neck pain, shoulder pain and psychological impairments exacerbated by the subject mva. In addition, he claims to have suffered chronic pain and a psychological injury, claiming entitlement to 5 physio treatment plans totalling approximately $10,000 and a request for a social work assessment.

Fayoda relies on the CNR’s of his family doctor, Dr. Dwosh that confirmed Fayoda had ongoing concussion symptoms from the attack in Nigeria, and two adjuster log notes that confirm Economical was aware of his pre-existing conditions:

i. March 27, 2019 : – chronic headache, cervical spine sprain/strain, and bilateral shoulder pain – objective; further, all noted injuries are pre-existing conditions exacerbated as a result of the subject accident;

ii. November 16, 2020 – physiatry assessment completed with Dr. Hosseini who documented a 30% improvement since the accident. All the conditions were pre-existing but exacerbated in the subject accident.

Economical submitted that Fayoda had not provided any medical evidence to support that his pre-existing condition will prevent maximal recovery if he is kept within the MIG limits. They relied on two physiatry IE reports first, a March 20, 2019 report from Dr. Hosseini who noted Fayoda presented with pre-existing injuries that were exacerbated by the subject accident and diagnosed Fayoda with chronic headaches, cervical spine sprain/strain and bilateral shoulder complaint with no objective finding. The report dated August 1, 2019 from Dr.Oshidari concluded Fayoda sustained a sprain/strain injury to the shoulder, and that further physical intervention will not have any rehabilitative benefit. Also noting the family doctor had not made any referrals.

The Tribunal found:

• “In his March 20, 2019 report, Dr. Hosseini diagnosed T.F. with chronic headaches, cervical spine sprain/strain and bilateral shoulder complaint with no objective finding. Dr. Hosseini noted that T.F. presented with pre-existing injuries that were exacerbated by the subject accident. Despite this, Dr. Hosseini opined that the full range of movement and no significant, objective, neuromuscular impairments identified, meant that no pre-existing medical conditions or other factors would prevent maximum medical recovery.”
• Fayoda’s pre-existing injuries were documented and consistently noted to be exacerbated including comments by Economical’s IE assessor Dr. Hosseini.
• Dr. Hosseini’s opinion on Fayoda’s prognosis for recovery as a result of the exacerbated pre-existing injuries was guarded, supporting that the pre-existing injuries were made worse as a result of the subject accident and would prevent Fayoda from reaching maximum medical recovery if held within MIG limits.
• The reference in Dr. Dwosh’s records recommended physio on August 14, 2019, September 26, 2019, October 20, 2019, and February 5, 2020 and a referral to a specialist; Fayoda’s self-report of difficulty playing with his children, heavy household tasks establish the ongoing need for the OCF 18’s. The goals of pain reduction across the treatment plans were reasonable and necessary.

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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