Print

 

  MIG Update – April 25, 2022



Falling Short of Evidentiary Onus

The MIG hold case reviewed this week considers a non-minor injury of concussion and claims of chronic pain and psych, all of which fell short of satisfying the applicants evidentiary onus to exceed the minor injury limits.

Further, there was no need to review the evidence found in the Respondent’s report, and submissions made by the Applicant were noted not to constitute evidence.


 

Advance your best case with an Outcome Analysis Report – Request an OAR through live chat!

Request OAR



Factor: Submissions are Not Evidence

In Hunt v. Aviva (20-004179), John Hunt was injured in a rear end accident on October 5, 2017. Hunt’s claim is that he suffers from post-concussive cervicogenic headaches, post-traumatic insomnia, chronic pain disorder, and adjustment disorder with depressed and anxious mood. He sought removal from the MIG on account of his chronic pain and psychological impairments.

Hunt relied on the evidence of the walk-in clinic physician, his family physician, and the treating physiotherapist to advance the ongoing nature of his neck, back and non-minor concussion complaints. Further Dr. Wong, physiatrist for the chronic pain diagnosis and Dr. Taylor psychiatrist for the psychological diagnosis.

In reviewing Hunt’s submissions the Tribunal determined that Hunt failed to meet his evidentiary onus and as such it was not necessary to review Aviva’s evidence.





The Tribunal held:

Non-Minor injury – Concussion

  • Dr. Goldsmith, family physician, diagnosed Hunt with a flexion extension neck injury noting headaches may have been as a result of analgesic withdrawal.
  • The treating physiotherapist in November 2017 noted 90-100% improvement of cervical spine range of motion and neck pain steadily declined and ultimately resolved but, headache was constant, opining the symptoms were consistent with a concussion.
  • Dr. Goldstein at the request of Hunt, who was worried that something may have been missed ordered a CT scan February 2018 that revealed no intracranial abnormality.
  • Hunt was repeatedly assessed by his family doctor following the accident and at no point was diagnosed with concussion. The concussion was diagnosed by the physiotherapist who “may be qualified to treat concussion-related symptoms, but he is not qualified to diagnose the condition.” Thus, no weight was given to the opinion of the physiotherapist.

Dr. J. Wong, physiatrist December 6, 2019, – Chronic Pain

  • The weight afforded the diagnosis of chronic pain was undermined by the failure to distinguish between pain related and unrelated to the accident. Hunt had back surgery in his 30’s. Dr. Wong attributed Hunt’s difficulty with frequent bending and lifting and limited range of motion in the thoracic and lumbar spine to back surgery
  • The complaints from the subject loss involved the neck and there is no objective post-accident medical evidence to suggest back pain related to the accident
  • “Dr. Wong’s assessment of Hunt’s accident-related impairments does not align with the nature and severity of symptoms documented in the objective medical record before me.”

Dr. L. Taylor, psychiatrist November 28, 2019 – Psychological

  • Dr. Taylor diagnosed adjustment disorder with depressed and anxious mood in partial remission, along with chronic pain disorder and ongoing post-concussive headaches.
  • Dr. Taylor’s relied on Hunt’s self report that in the six weeks after the accident, he felt “irritable, down, depressed and low” but that this had since improved. She notes that he continues to feel “discouraged” if he wakes up with a headache and that he has a diminished appetite, but that he has lost no weight. This does not establish psych impairment beyond clinically associated sequelae of soft tissue injury.
  • The family doctor’s records do not reference psychological complaints, referrals or prescriptions rendering Dr. Taylor’s opinion even less persuasive.


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?

 

Archive of LAT Updates

March 27, 2024: Supreme Court Takes Issue with Tribunal, Divisional Court & Court of Appeal

Limitation Period, Reconsideration, Supreme Court

March 25, 2024: Expert’s Conclusory Statement Insufficient on Pre-existing Condition

MIG

March 20, 2024: Non-Compliance by Both Parties Impacts IRB and Medical Claims

IRB

March 18, 2024: No Weight Afforded to Handwritten Illegible CNR’s

MIG

March 13, 2024: Denials Deficient and Pain Relief Validates Treatment Plans

Treatment Plans

March 11, 2024: “Radicular Irritation” & MRI Findings Not MVA Related

MIG

March 6, 2024: Tribunal Upholds Decision Excluding Improperly Secured IEs From the Evidence

Evidence, IE, Reconsideration

March 4, 2024: Concussion and Chronic Pain Diagnoses Require Expertise

MIG

February 28, 2024: Prior Health Concerns Complicate Claim for CAT

CAT

February 26, 2024: Unchallenged Virtual Chronic Pain Assessment Accepted

MIG

February 21, 2024: Consent by Parties for Adjournment Not Determinative

Adjournment, Procedure

February 14, 2024: Tribunal Does Not Accept the CAT Findings of Either Party

CAT

February 12, 2024: MIG Escape on Concussion Diagnosis Despite Resolution of Symptoms

MIG

February 7, 2024: Financial Hardship Not A Defense for Repayment Responsibility

IRB

February 5, 2024: CT Scan of Wrist Fracture Contradicts Medical Opinion

MIG

January 29, 2024: Concussion Despite No Head Injury?

MIG

January 24, 2024: One Assessment Process Produces Two Discrete Reports

CAT, Productions

January 22, 2024: Defective Notices Do Not Trigger Limitation

MIG

January 17, 2024: Election Not Required, LAT Act Invoked & Limits Exhausted?

Award, Limitation Period

January 15, 2024: Chronic Pain Diagnosis Contradicted by Self-Reports

MIG

January 10, 2024: NEB Reinstated After Six Years Generates Award

Award, NEB

January 8, 2024: Undisputed Psychological Diagnosis Prevails

MIG

January 3, 2024: Significant & Competing Price of Non-Compliance for Both Parties

Non-Compliance

December 20, 2023 (Throwback Edition): Statutory Relief Within Tribunal’s Jurisdiction

Jurisdiction

December 18, 2023: ‘Incident’ of Viewing Video Not Use and Operation

MIG

December 13, 2023 (Throwback Edition): Employed Applicant Remains Entitled to Post 104 IRB

IRB

December 11, 2023: Chronic Pain Diagnosis In Absence of Physical Exam?

MIG

December 6, 2023: Four Marked Impairments for 2010 MVA

CAT

December 4, 2023: No Adverse Inference Drawn Despite Lack of pre MVA CNRs

MIG

November 29, 2023 (THROWBACK EDITION): 18 Month Delayed Notice Reasonable, However 7 Month Delay is Not

Limitation Period

November 27, 2023: Confirmed High Bar to Escape MIG on Pre-Existing

MIG

November 22, 2023: Multiple IEs Excluded From Evidence

IE, Evidence

November 20, 2023: Radiculopathy Complaint Requires a Diagnosis

MIG

November 15, 2023: Court Applies Tomec & CAT Decision Varied

CAT, Limitation Period

November 13, 2023: Insurer Expert Conclusion Inconsistent with Findings

MIG

November 8, 2023: Maximum Award in Excess of $60K on CAT Case

CAT

November 6, 2023: Medical Evidence Overrides Legal Referrals

MIG

November 1, 2023: Eighteen Month Delayed Notice Reasonable However Seven Month Delay is Not

Limitation Period

October 30, 2023: Which MVA Exacerbated Injuries?

MIG

October 25, 2023: Application Seeking CAT Determination an Abuse of Process

CAT

October 23, 2023: Functional Disability Despite 50 Hour Work Week

MIG

October 18, 2023: Statutory Relief Renders Equitable Remedy Moot

Div Court

October 16, 2023: Injuries Not Static - MIG Determined Again

MIG

October 11, 2023: CERB is Income However Not “Gross Employment Income”

IRB

October 4, 2023: Employed Applicant Remains Entitled to Post 104 IRB

IRB

October 2, 2023: ‘IE’ Does Not Establish Causation

MIG

September 27, 2023: Post June 1 CAT Criterion 8 Satisfied

CAT

September 25, 2023: Chronic Pain Distinct from Recurring Pain

MIG

September 20, 2023: Expert Opinion Not Required for IRB Entitlement

IRB

September 18, 2023: Inconsistency Argument Not Accepted

MIG

September 13, 2023: IRB Payment Delayed Four Years – 20% Award

Award, IRB

September 11, 2023: MIG Determined Absent Applicants Written Submissions

MIG

August 30, 2023: Pain Determinative in Successful Post June 1 CAT Case

CAT

August 28, 2023: Knee Injury from MVA Caused Slip and Fall & ACL Tear?

MIG

August 23, 2023: WSIB Placement Qualifies for IRB

IRB

August 21, 2023: Absence of Applicant’s Medicals A Difference Maker

MIG

Contact Sales

416.364.6688

Contact Support

Contact Us

InHealth

11 Allstate Parkway Suite 203
Markham, Ontario
L3R 9T8

Follow Us On