Print

 

  MIG Update – May 27, 2024



Differing Opinions on Right Knee Injury Causation

This week differing opinions on the cause of a knee injury are at the center of the MIG dispute. The Tribunal considered the evidence of the Applicant’s pre-existing arthritic knee as well as the new symptoms following the accident in its ruling. What medical evidence was key in the Tribunal’s determination?



SABS Summer Session!

Secure your seat for inHEALTH’s 2024 Summer Virtual Training session.

  • SABS Expedited: June 17th – 21st, 2024

*Eligible Participants receive 9 Substantive – CPD hours upon course completion

Course details & register here +



Factor: CNRS

In Ferrier v. Economical Insurance Company (21-014606), Michael Ferrier was involved in a motor vehicle accident on August 25, 2019 and sought entitlement to four Treatment Plans for chiropractic services,and orthopedic, psychological and chronic pain assessments totaling $8,003.73.

Ferrier submitted that he suffered a right knee injury in the accident that resulted in a meniscal tear requiring surgical repair. He relied on the CNRs of the hospital, his family physician Dr. Gin, the January 9, 2020 examination by orthopedic surgeon, Dr. Sayedi and a February 2020 MRI. Additionally, the surgical intervention by Dr. Bhargava in October 2020 to debride and repair the meniscus. Ferrier also argued that he suffers from chronic pain, psychological symptoms including anxiety, depression, and sleep disorder, and that the accident exacerbated pre-existing arthritis.

Economical on the other hand contended Ferrier did not complain of right knee issues immediately post-accident and that he did not provide sufficient medical evidence to link the right knee injury to the accident. Rather, the medical evidence indicates that Ferrier suffered from pre-existing right knee degeneration and arthritis which led to the meniscus tears and surgery. It relied on two IE reports by orthopedic surgeon, Dr. Weisleder dated February 23, and November 16, 2022, who opined Ferrier sustained right knee strain injuries as a result of the accident and that he had reached maximum recovery from these injuries.




The Tribunal found:

      • In support of Ferrier’s contention he complained of right knee pain following the accident, the hospital records and his family doctor, Dr. Gin’s family records observe and note pain and small laceration on right knee and shin.
      • The family doctor’s referral to Dr. Sayedi, orthopedic surgeon due to ongoing right knee pain examination on January 9, 2020 found Ferrier could not fully extend his right knee and there was severe tenderness on the medial side. Ferrier displayed a severe limp and walked with a cane.
      • The pre-existing arthritis of the right knee was supported by findings from a series of x-rays from November 2019. Dr. Sayedi concluded the “new onset pain after [the] accident may be related to internal derangement of the knee.”
      • Although Economical argued the opinion of Dr. Sayedi did not have a definitive diagnosis that the accident was the cause of the injury, Dr. Sayedi’s report indicates the accident played a significant role in Ferrier’s right knee issues and that the knee pain was newly developed following the accident.
      • It could not accept Economical suggestion that Ferrier would have required the same treatment because of the progressing arthritis.
      • Ferrier was fully functional prior to the subject accident with no indication of mobility problems related to his right need. Furthermore immediately post-accident his right knee worsened, causing him to walk with a limp, the aid of a cane and to seek extensive medical care.
      • The investigation led to an MRI February 2020 which revealed a “horizontal tear [of the medial meniscus] both centrally and peripherally along the posterior horn, and On October 1, 2020, Dr. Bhargava performed a partial medial meniscectomy, debridement of traumatic flap lateral femoral condyle, and right knee arthroscopy.
      • “Although the respondent asserts that neither the reports of Dr. Sayedi and Dr. Bhargava, nor any others, fully make a connection between the meniscus tears and the accident, I reiterate that the applicant’s burden is to demonstrate that his injuries fall outside of the MIG on a balance of probabilities. Absolute certainty is not required. In my opinion, the hospital report from the day of the accident; family doctor CNRs; diagnostic imaging reports; results of the MRI investigation; reports of two orthopedic surgeons; and the resulting surgery combine to more than meet this burden of proof with regard to the applicant’s knee injury being the result of the subject accident.”
      • Dr. Weisleder’s IE report of February 23, 2022 acknowledged that arthroscopic surgery had been performed yet concluded the diagnosis as a right knee strain and did not give an opinion on the cause of the meniscus tear.


      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?

       

Archive of LAT Updates

October 30, 2024: Court Remits “Unsafe” Decision Back for Rehearing

CAT, Divisional Court

October 28, 2024: IE Fails to Explain Lack of Diagnosis

MIG

October 23, 2024: Loose Lid Unexpected "Accident"

Definition Accident

October 21, 2024: Dental Work Required Not Caused by MVA

MIG

October 7, 2024: Continuity of Complaints Confirm Chronic Pain

MIG

October 2, 2024: All Items in Dispute Deemed Incurred

Treatment Plans

September 30, 2024: Ignoring Medical Evidence Proves Award Worthy

MIG

September 25, 2024: Credibility Issues Abound with IE Assessor

IE

September 23, 2024: Reliance on Symptom Magnification Test Proves Fatal

MIG

September 16, 2024: Self Reporting Accepted for Psych MIG Escape

MIG

September 9, 2024: Diagnosis Alone Falls Short in Chronic Pain Case

MIG

September 4, 2024: CAT Finding Upheld on Reconsideration

CAT, Reconsiderations

August 28, 2024: Staged MVA Results in $93K Repayment Order

Definition Accident, Evidence

August 26, 2024: What Exactly Constitutes “Compelling” Evidence?

MIG

August 21, 2024: Extreme Impairment Confirmed in CAT Decision

CAT

August 19, 2024: Post Concussive Syndrome Diagnosed in Telephone Interview

MIG

August 14, 2024: Reconsideration Varies Decision Regarding “Accident”

Definition Accident, Divisional Court

August 12, 2024: Adverse Inference Considered in MIG Determination

MIG

August 7, 2024: Re-Training Not A Viable Option - Post 104 IRB Confirmed

IRB

July 31, 2024: Applicants Allowed to Proceed to Hearing Despite Alleged Non – Compliance

Insurer’s Examinations, Procedure

July 29, 2024: No Specific Reference to Evidence Precludes MIG Escape

MIG

July 24, 2024: When is a Spouse Not a “Spouse”?

Death Benefit

July 22, 2024: No Evidence Tendered to Rebut Concussion Diagnosis

MIG

July 17, 2024: 196K Grievance Award Factored into IRB Calculation

IRB

July 15, 2024: Chronic Pain Diagnosis Does Not Warrant MIG Escape

MIG

July 10, 2024: Court Allows Applicant to Submit Judicial Review After the Fact

Divisional Court

July 8, 2024: MIG Escape Despite Unrelated Psych Issues

MIG

July 3, 2024:Application Premature On Benefits Claimed in Excess of Limits

Award, CAT, Jurisdiction

June 26, 2024: Multiple Wilful Misrepresentations Claimed but Only One Established

IRB

June 24, 2024: Chronic Pain Diagnosis 4 Years Later Uncontroverted

MIG

June 19, 2024: Court Sets Aside Tribunal Decision and Makes Decision that Ought to Have Been Made

Definition Accident, Divisional Court

June 17, 2024: Cause of ‘Remote’ Finger Fracture Questioned

MIG

June 10, 2024: Reliability on IE Opinions Challenged

MIG

June 5, 2024: IE 'Highly Intrusive' - Not Acceptable Reason For Failure To Attend

Insurer's Examinations

June 3, 2024: MVA Necessary Cause of Subluxation of Shoulder Joint

MIG

May 29, 2024: Practicing Lawyer Seeks CAT Determination

CAT

May 27, 2024: Differing Opinions on Right Knee Injury Causation

MIG

May 22, 2024: Four Marked Impairments CAT and Post 104 IRB Confirmed

CAT, IRB

May 15, 2024: Court Confirms Three Breaches of Procedural Fairness by Tribunal

Div Court

May 13, 2024: Little Weight Given to Illegible Doctor's Notes

MIG

May 8, 2024: Reasonable Perception of Bias Involving Former Adjudicator Requires Rehearing

Reconsideration

May 6, 2024: Potential Causation Does Not Support MIG Escape

MIG

May 1, 2024: Tribunal Varies Three Decisions on Reconsideration

Reconsideration, Treatment Plans

April 29, 2024: Credibility of Assessment Favored Over Psych Validity Testing

MIG

April 24, 2024: Wilful Misrepresentation Abounds on IRB Repayments

IRB

April 22, 2024: Records Alone Do Not Warrant MIG Removal on Pre-Existing

MIG

April 15, 2024: Demands of Child-birth Pre-Existing Condition?

MIG

April 10, 2024: Court Upholds Tribunal Decision That a MIG Removal is a Complete MIG Removal

Divisional Court, MIG

April 8, 2024: Psychiatric Diagnosis Prevails over Psychological Opinion

MIG

April 3, 2024: Court Sends Matter Back to Tribunal Concerning “Accident”

Definition Accident, Divisional Court

April 1, 2024: Ortho Opinion Prevails on Origins of a Fracture

MIG

March 27, 2024: Supreme Court Takes Issue with Tribunal, Divisional Court & Court of Appeal

Limitation Period, Reconsideration, Supreme Court

March 25, 2024: Expert’s Conclusory Statement Insufficient on Pre-existing Condition

MIG

March 20, 2024: Non-Compliance by Both Parties Impacts IRB and Medical Claims

IRB

March 18, 2024: No Weight Afforded to Handwritten Illegible CNR’s

MIG

March 13, 2024: Denials Deficient and Pain Relief Validates Treatment Plans

Treatment Plans

March 11, 2024: “Radicular Irritation” & MRI Findings Not MVA Related

MIG

March 6, 2024: Tribunal Upholds Decision Excluding Improperly Secured IEs From the Evidence

Evidence, IE, Reconsideration

March 4, 2024: Concussion and Chronic Pain Diagnoses Require Expertise

MIG

February 28, 2024: Prior Health Concerns Complicate Claim for CAT

CAT

February 26, 2024: Unchallenged Virtual Chronic Pain Assessment Accepted

MIG

February 21, 2024: Consent by Parties for Adjournment Not Determinative

Adjournment, Procedure

February 14, 2024: Tribunal Does Not Accept the CAT Findings of Either Party

CAT

February 12, 2024: MIG Escape on Concussion Diagnosis Despite Resolution of Symptoms

MIG