MIG Update – February 7, 2022
Causation Test Material Contribution?
In this week’s edition an applicant advances ‘material contribution’ as the appropriate causation test in accident benefit cases asserting both physical and pre-existing psychological injury. The Tribunal re-affirms that Sabadash v. State Farm, is the leading case where the court established that the test for determining causation in accident benefits cases is the “but for” test.
Sabadash confirms that an accident need not be the sole cause but rather a “necessary cause” of an individual’s impairment. In other words an applicant must prove that ‘but for’ the accident they would not suffer the impairment(s) which cause the complaints put forward as the basis of the claim.
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Factor: Causation Test
In Bottoni-Luciente v Economical (20-006812), a February 26, 2018 accident, Bottoni-Luciente advances a previous mva in 2016 and depression and anxiety as pre-existing conditions to remove him from the MIG.
Bottoni-Luciente submitted that the accident materially contributed to his psychological issues mainly headaches, fatigue, nervousness, anxiety, depression, nightmares, diminished motivation, forgetfulness, and sleeping difficulties.
The Tribunal found:
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- In the absence of the clinical notes and records from prior to the subject accident, unable to verify that Bottoni-Luciente had depression and anxiety prior to the accident.
- The June 28, 2018 CNRs of family physician Dr. Ames made reference to anxiety and sleep disturbance, but no diagnosis was made, and Bottoni-Luciente was not referred to a psychiatrist or psychologist, nor was he prescribed medication to address any psychological issues.
- Bottoni-Luciente advised Dr. Kahled, medical practitioner (IE) that he did not have a history of depression or anxiety before the accident.
- Bottoni-Luciente reported to Dr. Prendergast, psychologist (IE) opined that he did not have any substantive mental health problems.
- Dr. Prendegrast opined Bottoni-Luciente diagnosis of Attention Deficit Hyperactivity Disorders was not preventing him achieving recovery within the MIG. Further that:
‘It is conceivable that this disorder complicated his reaction to the accident resulting in some initial stress and reduced function. However, he reports 75% improvement. He also self-described as having returned to most areas of function including full time employment. He also is optimistic about returning to his college studies in September of 2019.”
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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