MIG Update – April 26, 2021

AMA Guides – To Use or Not to Use?

There are many navigational zigs and zags when dealing with Chronic Pain cases and MIG limits.

In a continuation from last week’s edition on the AMA Guide 6th Edition, the cases reviewed this week confirm the need for “objective criteria” in evaluating chronic pain, with the Tribunal in one case noting that the AMA Guides though are not binding.

Factor: AMA Guides

In Vasconcelos v TD (19-013800), Vasconcelos sought removal from the MIG on the basis of persistent neck and upper back pain that impairs his ability to function at work. He asserted that he suffers from chronic pain syndrome based on comments in the OCF-18 that he had “chronicity, chronic pain and multiple site injuries that were barriers to optimal recovery”.

‘MIG hold’ – The Tribunal’s finding:

• The OCF-18 and comments do not diagnose Vasconcelos with chronic pain based on any objective criteria
  
• Vasconcelos’ family doctor did not discuss his level of pain or its effects on his function
  
• His functionality is inconsistent with chronic pain, as he returned to work within days post-accident and does not rely on prescription medication
  
• No medical evidence to counter the IE conducted nine months post-accident that concluded Vasconcelos’s injuries fall within the MIG from a musculoskeletal perspective

Of note, the Tribunal’s analysis appears to be based on select criteria found in the AMA Guides without specifically referencing same.

In Kar v Aviva (19-006570), Kar submitted that he has a history of back pain that was exacerbated by the accident, causing functional impairment. To this end, he submitted that he suffers from chronic pain and psychological impairments as result of the accident.

The Respondent submitted that Kar has not been specifically diagnosed with chronic pain syndrome and does not meet any of the criteria for chronic pain outlined by the AMA Guides.

‘MIG escape’ – The Tribunal’s finding:

• “The criteria in the AMA Guides provide a helpful analytical tool for assessing chronic pain claims”
• A diagnosis of chronic pain syndrome (as opposed to just chronic pain) is not strictly required for removal from the MIG
  
• Even though the AMA Guides criteria are not binding, Kar’s chronic pain meets at least three of the six criteria required:
  • • His dependence on pain relieving injections long after the accident
    • His short-term disability absences from work, inability to stand or sit for long periods of time
    • His alleged development of psychosocial sequelae from the accident
  • Kar has in fact been diagnosed with chronic pain by his family doctor and in a report over two years post-accident

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  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?