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 MIG Update – August 30, 2021



No CNRs Submitted, No Problem

Last week we reported on a chronic pain escape case where the gap in family doctor records was found not determinative. This week we report on another MIG escape involving a psychological impairment where the absence of CNRs did not preclude the Applicant from meeting their burden of proof.

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Factor: Absence of CNRs Not Determinative

In Janaratharajan v Aviva (20-007920), a September 2018 loss, Janaratharajan relied upon a December 2019 report where his physician (whose practice focuses on pain management) diagnosed her with depression, anxiety and moderate post traumatic stress disorder (PTSD).

‘The Respondent took issue with the diagnoses as they fell outside of the physician’s expertise. The Respondent argued that no clinical notes and records (CNRs) had been submitted as part of the evidence for the hearing. It relied on a January 2021 psychological IE which concluded that while Janaratharajan currently presented with mild to possible low-moderate “distress,” she did not meet the criteria for any mental health diagnosis.

‘MIG escape’ – The Tribunal’s findings:

  • “It is well settled that chronic pain syndrome includes a psychological component.”
  • No evidence that Janaratharajan’s s.25 assessor, as a physician, cannot make psychological diagnoses
  • The IE also supports a finding that Janaratharajan suffered a psychological impairment
  • Both s.25 and s.44 assessments administered testing which both revealed mild depression and anxiety; however, the IE disregarded the valid test results without providing any analysis as to why Janaratharajan did not meet any diagnostic criteria
  • The pre-screen report is further supporting evidence of psychological impairment
  • The absence of CNRs does not preclude an applicant from being found to have proven on a balance of probabilities that their injuries require treatment beyond the MIG

 

 


Related MIG Monday Issue:

Family Doctor Records Not Determinative

Corroborating Evidence



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

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

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

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

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

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

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January 29, 2024: Concussion Despite No Head Injury?

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

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January 22, 2024: Defective Notices Do Not Trigger Limitation

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

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

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

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January 8, 2024: Undisputed Psychological Diagnosis Prevails

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

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

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

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

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

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December 6, 2023: Four Marked Impairments for 2010 MVA

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

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

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

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November 22, 2023: Multiple IEs Excluded From Evidence

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

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November 13, 2023: Insurer Expert Conclusion Inconsistent with Findings

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

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November 6, 2023: Medical Evidence Overrides Legal Referrals

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

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October 30, 2023: Which MVA Exacerbated Injuries?

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

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October 18, 2023: Statutory Relief Renders Equitable Remedy Moot

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

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

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

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

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