MIG Update – May 31, 2021

Pre-Existing Condition Test of “Compelling” & ‘Prevents Achieving Maximal Recovery’

In this week’s edition we examine the two step threshold that must be met in order for a pre-existing medical condition to escape the MIG. The test is found under section 18(2) of the Schedule – “Monetary limits re medical and rehabilitation benefits”.

1. Compelling evidence of the pre-existing medical condition documented prior to the accident and;
2. Prevents achieving maximal recovery from the minor injury if subject to the limit or is limited to the goods and services under the Minor Injury Guideline
   

Factor: “Compelling” Evidence That Prevents Achieving Maximal Recovery

In DiGiacomo v Aviva (20-001923), DiGiacomo’s pre-existing conditions included seasonal migraines and pain in elbow, back, pelvic and abdomen. She submitted that as a result of the accident she experienced increased pelvic and abdominal pain and the therapy following the accident was initially focused on her hip and back, leaving no funds for other injuries involving the neck, upper extremities and headaches.

While recognizing DiGiacomo’s serious pre-existing conditions, the Tribunal found DiGiacomo had not met her evidentiary burden to show that her pre-existing medical conditions would prevent maximal recovery from her minor accident-related injuries, if subject to the MIG.

‘MIG hold’ – The Tribunal’s finding turned on:

• The accident-related diagnoses were whiplash and lumbar strain and sprain which fell within the MIG
  
• The first notations of pre-existing elbow pain and migraines were not until five and seven months post-accident
  
• Pre-accident treatment notes do note hip and groin pain shortly before the accident but it’s unclear as to what areas were being treated immediately after the accident
  
• Treating physiotherapist did not identify pre-existing conditions as a barrier to recovery in the initial assessment and OCF-23; it was not commented on until almost 2 years post-accident
• The evidence with respect to the re-aggravation of pain in her pelvic area and hip is not as persuasive as the therapist failed to provide an opinion that DiGiacomo’s pre-accident condition prevented maximum recovery from her accident-related injuries

In F.C. v Aviva (19-003936), F.C. had been recovering from pain in her tailbone caused by an old, partial subluxation of the coccyx from 2010. As a result of the subject March 2017 accident, she sustained injuries to her neck, shoulders, back and her coccyx region. She submitted that the accident exacerbated her pre-existing condition.

The Respondent took the position that F.C. had failed to submit evidence from a health practitioner regarding her prospects for recovery, given her pre-existing injury. Further, it submitted that subluxation is defined under the MIG.

‘MIG escape’ – The Tribunal’s finding turned on:

• F.C.’s family doctor noted her complaints of lower back or tailbone pain at every visit from 2012 to 2017 and her symptoms were worsened the day after the accident
  
• Three OCF-18s identified posterior subluxation of coccyx as a barrier to recovery
• Chiropractic clinic indicated that the Applicant’s treatment was limited as a result of the pain she was experiencing
  
• The Respondent has not provided evidence to contradict F.C’s evidence
• Subluxation if caused by an accident is a minor injury; but since the subluxation is pre-existing, the analysis is focused on whether its existence prevents maximal recovery
• While none of the evidence explicitly states that F.C.’s pre-existing coccygeal injury would prevent her from maximal recovery if held with the MIG, “it is the Tribunal’s job to weigh the evidence available and determine if such a conclusion can be made.”
  

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?