MIG Update – January 18, 2021
Establishing Burden of Proof
Scarlett v. Belair is the seminal case setting out that the onus of establishing entitlement beyond the MIG cap rests with the insured person. This has long been established and relied upon in the adjudication of MIG determinations.
In this week’s edition, we report on two differing results and rationale provided by the Tribunal in reasoning whether or not the Applicant met their “Burden of Proof”. In both instances, the Respondent did not secure an IE.
Factor: Burden of Proof
In Chowdhury v Allstate (19-010428), a MIG hold’ ruling, Chowdhury failed to meet her burden of proof in asserting removal from the MIG on a psychological basis. She presented the clinical notes from three counselling sessions and a pre-screen report, all of which were within one month of the accident. Chowdhury’s psychologist provided a provisional diagnosis of “post-traumatic stress, anxiety, depression, irritability, pain, fatigue and sleep disturbances”.
The Tribunal held that Chowdhury did not meet her burden of proof:
- Limited continuous or contemporaneous reference to any psychological or emotional symptoms in the CNRs of her family physicians in the three years post-accident
- Chowdhury reported feeling better by the third sessions and no further intervention was sought
- Recommendations for mindfulness-based meditation at home, practicing thought-recording sheets and return to swimming are “not a particularly strong indication that psychological intervention was required”
- While the Respondent did not offer a competing psychological report, the burden of proof ultimately lies with Chowdhury
In L.D. v Certas (19-001472), a MIG ‘escape’ ruling, L.D. relied on a chronic pain assessment report which included a diagnosis of chronic pain syndrome, with supporting CNRs of the family doctor and treating clinic of ongoing pain.
The Tribunal held that L.D. did meet their burden of proof:
- L.D.’s assessor is qualified to make a diagnosis of chronic pain. He is director of a clinic, which is described as a multidisciplinary pain management practice
- Although the Respondent’s critique of the s.25 report had merit, it provided no medical opinion to refute the diagnosis and recommendation, failing to exercise the right to conduct an IE
- An award of 40% was warranted which “sufficiently recognizes that the respondent disregarded the applicant’s medical evidence in light of no competing opinion”
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.
Include an Outcome Analysis Report (OAR) in your case evaluation complete with For/Against cases similar to your fact situation to inform your position & present persuasive arguments. Need an OAR?