MIG Update – April 11, 2022
Insufficient Medical Evidence – No IE Required
This week, a MIG hold case where the Applicant advanced a claim for a concussion and other non-minor injuries suggesting that the scales of justice were in his favor owing to the fact that the insurer did not advance any medical evidence by way of an insurer’s examination to refute his claim. Is an IE required when the medical evidence advanced by the Applicant is not sufficient?
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Factor: Notice Sufficiency
In Orahim v. Allstate (20-005246), a August 2, 2018 accident, Orahim claimed that he should not be subject to the MIG as he sustained a concussion in the accident, and suffers from a psychological impairment and chronic pain.
Orahim relied on a police report, hospital records, and a disability certificate by Dr. R. Tarulli, chiropractor, three treatment plans, the adjuster’s log notes and employment information.
Allstate did not produce any medical reports to support its conclusion that Orahim injuries came within the MIG. Orahim suggests the ‘lack of an IE report tips the scales of justice in his favor”.
In review of Orahim’s evidence the Tribunal found:
The Emergency Medical Services (EMS) records and police report show that Orhaim was treated at the scene for a minor cut near his left eye and refused transport to the hospital. This information contradicted Orhahim’s repeated contention that he was extricated from his vehicle, placed on a stretcher, provided with a cervical collar, and transported to hospital.
Orahim had gone to the hospital on his own complaining of neck pain. The records did not show a diagnosis of a concussion, although concussion care, likely regarding what to do if symptoms develop, was not the equivalent of a concussion diagnosis. There were no further related complaints nor investigations.
The Assessment of Attendant Care Needs -Form 1 dated August 28, 2019 completed by a registered nurse, notes Orahim’s independence with almost all of his self-care and requiring assistance with some cleaning tasks. Some assistance with self-care tasks does not remove Orhamin from the MIG.
The Disability Certificate and Treatment plans completed by Dr. Tarulli DC, lacked credibility because there were no CNRs to determine why or how Dr. Tarulli concluded Orahim suffered a concussion and chronic pain.
The adjuster log notes are a series of notes and records regarding the adjusting of the claim and are not medical evidence.
Although the employment records do show some functional limitations they are not medical evidence. Orahim resumed his full time duties as a machine operator September 28, 2018.
Orahim did not submit credible evidence as such did not discharge his burden of proof that his injuries were non-minor and as such it was not incumbent on Allstate to conduct an IE.
Related Issues:
January 18 2022: Establishing Burden of Proof
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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