MIG Update – July 26, 2021
Pre-Existing Condition Not Enough
In this edition, we highlight two decisions where the Applicants established they had been receiving treatment at the time of the accident to manage their pre-existing conditions. However, the evidence on the impact of same on the injuries resulting from the MVA led to two differing conclusions.
In both cases, the Tribunal was instructive in how they reached their decision, specifically on the evidence as to whether there was any increase in treatment needs and/or impact on functionality.
Did you know that only 12 decisions, less than 10% of all MIG escapes, thus far have been successful in escaping the MIG solely on the basis of a pre-existing condition preventing maximal recovery?
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Factor: Impact of Pre-Existing Condition
In DiGiacomo v. Aviva (20-001986), DiGiacomo sought removal from the MIG on the basis that his pre-existing chronic pain in his shoulder, neck and lower back left him vulnerable to further injury, thereby requiring more treatment. He submitted that he was able to complete some household tasks prior to the accident and that his functionality has been lost following the accident.
‘MIG hold’ – The Tribunal’s findings:
- Although DiGiacomo has provided plentiful evidence of pre-existing conditions, his claim fell short on providing compelling evidence that said conditions will prevent achieving maximal recovery from the minor injury
- No evidence of an increase in lidocaine injections post-MVA, as argued by DiGiacomo
- DiGiacomo continued to receive the injection 10-12 weeks apart, the same frequency as pre-accident
- No evidence of any difference in DiGiacomo’s functionality with respect to household chores and snow shoveling
In P.J. v. Continental (16-004272), P.J. submitted that he had pre-existing back pain and osteoarthritis in both knees which were exacerbated by the accident and impacted her ability to recover.
‘MIG escape’ – The Tribunal’s findings:
- The increase in the number of cortisone injections for P.J.’s knees is a direct result of his injuries as a result of the accident
- P.J.’s need for medication increased post-accident, specifically for neck spasms
- IE evidence was discounted as the assessors did not explain why they think that P.J.’s pre-existing injuries do not affect her ability to recover
Related MIG Monday Issue:
“Compelling” Evidence That Prevents Achieving Maximal Recovery
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.
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