MIG Update – June 10, 2024
Reliability on IE Opinions Challenged
This week we review a MIG escape wherein the Tribunal considers the weight to be given to the conclusions made by the Respondent’s experts in the absence of reviewing available records submitted by the Applicant.
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Factor: Respondent’s Evidence
In Huber vs. Allstate Insurance Company of Canada (22-003147), Tina Huber was involved in a motor vehicle accident on November 6, 2019 and sought entitlement to two Treatment Plans for psychological treatment and assessment and removal from the MIG on the basis of chronic pain and psychological injuries.
Allstate, took the position that Huber’s injuries were minor relying on the findings of the insurer examinations of Dr. Saplys dated June 9, 2021, (orthopaedic) and Dr. Saunders (psychologist) dated June 2021 which both concluded that there was no evidence which supports a functional impairment related to either physical or psychological symptoms that could not be treated under the MIG. They also took the position that Huber had previously refused to comply with requests for medical evidence of her complaints.
Huber submitted that both insurer examinations were completed without the doctors having the records of the ongoing CNR’s of Dr. Mang, the family doctor and of Dr. Langis, psychologist completed in December 2020 and sent to Allstate via email on April 23, 2021 ahead of the IE appointments. Additionally, she had provided Allstate with OCF-5 (Permission to Disclose Health Information) which the adjuster could have utilized to obtain ongoing medical information that would have assured current medical information be available to the insurer examiners.
The Tribunal found:
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- What appeared to be a running battle between the adjuster and Huber regarding the production of records was resolved by the Insurer Ombudsman on April 23, 2021. The records in question were in fact sent to Allstate on April 23, 2021 but were not forwarded to the IE assessors.
- The records provided ahead of the IE appoints included; “(1) Dr. Mang which in the April 21, 2020, entry notes ‘pain which is continuous and now chronic.’; in the July 6, 2020, finding that the applicant was ‘having meltdowns every day-there is pain in both shoulders’ and the opinion that the applicant was suffering a flare-up of her pre-existing osteoarthritis which had been in remission prior to the accident; (2) the referral to Dr. Karasik, a treating rheumatologist; and likely (3) the findings of Dr. Langis wherein he concluded that the psychological impairment the applicant ‘sustained — are significant enough to conclude that she does not fall under the Minor Injury Guidelines”.
- The failure to provide the IE assessor with the medical information from Huber’s doctors resulted in the IE reports not being as comprehensive and reliable.
- “I find that on the evidence of both psychological and chronic pain impairment [s. 18.(1)] as well as the aggravation of a pre-existing condition of osteoarthritis [s. 18(2)]; the applicant requires treatment outside of the MIG”.
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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