MIG Update – April 15, 2024
Demands of Child-birth Pre-Existing Condition?
This week, the Tribunal considers whether childbirth two weeks prior to the subject accident in addition to infant care would constitute a pre-existing condition precluding recovery if subject to the MIG.
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Factor: Contemporaneous Childbirth a Pre-Existing Condition?
In Da Silva v. Wawanesa Mutual Insurance Company (21-015500), Paula Da Silva was involved in a motor vehicle accident on August 4, 2019 and sought IRB and chiropractic services. She claimed that she was unable to make full recovery within the MIG because she suffered a knee injury in 2017 and that she gave birth approximately two weeks before the accident with the resultant demands of infant care.
Da Silva relied on the CNRs of her family physician, as well as the FAE conducted by IE chiropractor Dr. Liu, who commented on the demanding responsibilities she was shouldering in caring for her newborn while simultaneously recovering from her pregnancy and giving birth.
Da Silva also claimed she was unable to return to her job as a self-employed housekeeper submitting that she only has enough strength to complete housekeeping in her own home and care for her newborn and preschool aged son.
Wawanesa submitted the knee injury from 2017 had resolved long ago and did not aggravate or inhibit Da Silva’s recovery. Further that the demands of motherhood cannot be construed as a pre-existing medical condition. They rely on 3 IE’s which concluded that Da Silva’s accident-related injuries were predominantly minor and that she did not suffer a substantial inability to perform the essential tasks of her pre-employment in housekeeping services.
The Tribunal held:
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- Although the treating chiropractor did make reference in relation to the 2017 knee injury in his treatment plan that Da Silva was under direct supervision of her family physician and taking medication, there was no doctor’s notes to support the requirement that the knee injury from 2017 would prevent recovery if held to within the MIG.
- The three IE assessors did not view the knee as a barrier to recovery.
- “I accept the applicant’s submissions that caring for a newborn while simultaneously recovering from the effects of pregnancy and childbirth has impacted her physically and emotionally. However, beyond a brief mention in the disputed OCF-18 that childcare demands, among other factors, represent a barrier to recovery, the applicant has not directed me to evidence that supports her submission that recovery from childbirth is preventing her from achieving maximal recovery within the MIG. I find the applicant has not met her onus to demonstrate removal from the MIG is warranted on the basis of recovering from childbirth and pregnancy.”
- The medical evidence demonstrates her injuries are resolving. Other than the note made by Dr. Lui, chiropractor in the FAE report, the only reference is that Da Silva’s recovery has been muted by her recent pregnancy and raising a new baby but that her injuries are resolving normally.
- “Neither of the other two IE assessments, by orthopaedic surgeon Dr. Fathi Abuzgaya, or psychologist, Dr. David Direnfeld, identified the demands of recovery from childbirth or caring for a newborn as a barrier to recovery from the applicant’s injuries. Dr. Abuzgaya concluded there was no residual musculoskeletal impairment attributable to her accident injuries, and Dr. Direnfeld identified no psychological injury, impairment or condition that would prevent the applicant from returning to work.”
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?
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