MIG Update – January 6, 2025
Corroborative Evidence Not Necessarily Required in Psych Diagnoses
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We begin the new year continuing with a focus on contrasting MIG hold/escapes to assist our readers with their analysis and case management.
This week, two MIG escape cases on the basis of psychological impairment where the Tribunal compared the psych validity test findings and respective conclusions in making its determination. While considering what impact if any, the absence of contemporaneous medical evidence from the family doctor had in the psychological diagnosis.
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1+ Year Gap in Psychological Complaints to a Family Doctor
In Acosta v. Economical Insurance Company (22-012564), Fatima Median Acosta was involved in an accident on May 14, 2021, and sought entitlement to six Treatment Plans for physiotherapy and psychological services, psychological and chronic pain assessments, and a hospital expense for a total of $17,658.10.
Acosta relied on the clinical notes and records (“CNRs”) of physician, Dr. Laura Mitchell, and psychological report of Dr. Sandra Sagrati, dated November 25, 2022 in which she opined as a result of the subject accident, Acosta developed severe psychological injury, such as Major Depressive Disorder, moderate, single episode, Posttraumatic Stress Disorder, with vehicular anxiety, and Somatoform Pain Disorder, persistent, moderate with predominant pain.
Economical argued that Acosta only reported her psychological impairments over a year after the subject accident, that there is limited evidence relied upon, and it is entirely based on Acosta’s self-report; and her level of activity is not congruent with someone suffering from a psychological impairment. It relied on the report of s. 44 psychological assessor, Dr. Douglas Saunders, dated January 25, 2023 who concluded there was no credible evidence of accident-related psychological impairment and that the test results indicated that Acosta tended to portray herself in an especially negative or pathological manner and did not provide an accurate reflection of her objective clinical status.
The Tribunal found:
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- Acosta first presented to physician Dr. Mitchell in June 2022 complaining of mental anxiety, and in July 2022 reported “huge depression” after which she was referred to counselling.
- “I note that the Applicant had recently moved to Canada a few months prior to the subject accident and did not have access to government funded OHIP. As such, I am not persuaded by the Respondent’s argument that the Applicant’s gap in medical attendance, between the date of accident and the first report to Dr. Mitchell, shows a lack of psychological impairment. This would be to disregard the Applicant’s financial constraint with respect to receiving healthcare or the ability to report symptoms.”
- In comparing the psychologist reports, it preferred Dr. Sagrati’s November 2022 report because she completed a more comprehensive investigation, with seven diagnostic testing measures compared to Dr. Saunder’s three.
- Dr. Saunders was vague regarding his psychometric testing, such as his PAI test analysis referred to the “evidence” but did not include an explanation or copy of the evidence constituting the considerable distortion of Acosta’s objective clinical status.
- Economical failed to produce Dr. Saunder’s CNRs as ordered by the CCRO, which could have helped support his findings considering the drastic departure from Dr. Sagrati’s findings.
- Dr. Sagrati noted that although the PAI was attempted during Acosta’s psychological assessment, it was not completed “due to the patient’s difficulty with comprehension of the context of the dictated question.” Dr. Saunders did not discuss whether Acosta was able to comprehend the PAI, despite his review of Dr. Sagrati’s report indicating the restriction.
3+ Year Gap in Psychological Complaints to Family Doctor
In Yaw v. Allstate Insurance Company of Canada (22-009436), Herbert Yaw was involved in a motor vehicle accident on November 11, 2019 and sought entitlement to two Treatment Plans for psychological assessment and treatment totaling $6,994.77 plus a special award for unreasonably withholding payment of the treatment plans.
Yaw relied on psychologist Dr. Singh’s initial psychological screening dated August 2020 and comprehensive assessment and report November 2020 wherein he was diagnosed with an adjustment disorder with mixed anxiety and depressed mood, and specific phobia related to motor vehicle travel. Cognitive-behavioural psychotherapy and a driving evaluation assessment were recommended.
Yaw had further submitted that he complained to family physicians Dr. Abouanaser, and Dr. Ibrahim in April and June 2023 respectively that he was depressed and anxious, had poor sleep, and had poor concentration. Dr. Abouanaser noted that Yaw wanted to initiate medication first and to monitor positive improvements before starting therapy. Dr. Abouanaser subsequently referred Yaw to a psychiatrist and recommended psychotherapy. A June 2023 CNR from Jane Park Doctors Office also noted Yaw’s complaints of anxiety, poor sleep, low mood, depression, and difficulty concentrating.
Allstate relied on a December 2020 psychological assessment report from Dr. Spivak, who noted Yaw reported that he slept 8-9 hours per night, continued to drive, and he did not avoid travelling in a car because of anxiety. Dr. Spivak concluded that Yaw “did not meet the full criterion of DSM-5 Diagnosis.”
The Tribunal found:
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- Yaw’s psychologist, Dr. Singh’s evidence was preferred as he conducted a comprehensive assessment including an initial screening interview, a thorough clinical assessment, and five psychometric tests. Yaw’s complaints to Dr. Singh were consistent with the complaints he made to his family physicians, Dr. Abouanaser and Dr. Ibrahim in April and June of 2023 and is evidence to support this accident-related psychological impairment.
- The IE assessor Dr. Spivak’s December 2020 report also documented Yaw’s psychological complaints such as anxiety, mood disturbance, and poor sleep; and noted that the psychometric results were consistent with his self-report and clinical presentation.
- In comparing the psychologist reports less weight was given to Dr. Spivak’s report because her clinical findings differed from Dr. Singh’s despite the fact that both assessors relied on the same psychological complaints.
- “I also find that the absence of clinical notes and records does not preclude the applicant from establishing that his injuries require treatment beyond the MIG (see: Janaratharajan v. Aviva Insurance Company, 2021 CanLII 76646 (ON LAT)). Further, I do not agree with the respondent’s submissions that the absence of contemporaneous medical evidence suggests that the applicant’s psychological concerns were not significant enough for him to raise them with his family physician until June 2023, three years and eight months after the accident. The lack of complaints between November 11, 2019, and June 3, 2023, is not necessarily evidence of the absence of psychological impairments experienced by the applicant. Moreover, the respondent did not direct me to any evidence to support that the lack of complaints indicates an absence of psychological impairments in the applicant.”
- Yaw was entitled to an award of 30% of the cost of the psychological assessment and treatment since Allstate unreasonably withheld payment. Allstate did not consider Yaw’s documented psychological impairments identified in Dr. Singh’s records; and it overlooked his need for a psychological assessment and psychological treatment when it denied the disputed plans.
If you Have Read This Far…
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