Print
 

  MIG Update – November 4, 2024



Submissions Do Not = Evidence

This week, a MIG hold case wherein the Tribunal considers whether the Applicant’s submissions contained any evidence of a diagnosis that would take the Applicant outside of the MIG. A reminder that the burden of proof rests with the Applicant.



Virtual Training – New – Upcoming Sessions!

Secure your seat for inHEALTH’s 2024 Fall Virtual Training session!

  • BI Fundamentals: January 20th – 24th, 2024
  • SABS Expedited: February 10th – 14th, 2024

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

Course details & register here +



Factor: Submissions

In Burnett v. Certas Home and Auto Insurance (22-008912) Violet Burnett was involved in an automobile accident on May 16, 2020 and sought entitlement to NEBs from June 13, 2020, to May 16, 2022, and seven Treatment Plans for psychological and chronic pain assessments as well as chiropractic services, massage therapy and psychological services.

Burnett submitted that she suffered chronic pain, psychological impairment and exacerbation of her pre-existing psychological conditions as a result of the accident. She relied on the October 2020 report of psychologist Dr. Zakzanis, who diagnosed her with adjustment disorder with depressed mood, and post-traumatic stress disorder, from the subject accident, which were exacerbated by her pre-existing psychological conditions. She also relied on the hospital records, OCF-3 by chiropractor Dr. Shlepakov, the record of nurse practitioner Ms. Pritchard of June 2017, as well as a psychological pre-screen report appended to the disputed Treatment Plan for a psychological assessment.

Certas argued that there was no evidence that Burnett’s pre-existing psychological conditions were exacerbated by the accident, nor did she sustain a psychological impairment and only sustained minor injuries as a result of the accident. To support this position, it relies upon the records of Enhance Care Clinic (Burnett’s current physician’s office) and Dr. Nicole Morfetas, Burnett’s previous family physician. They did not reference any IE’s in their submissions.




The Tribunal found:

    • Dr. Zakzanis’s findings including pre-screen report were not supported by the other contemporaneous medical evidence such as the records of Dr. Morfetas and Enhance Care Clinic. He reviewed two documents, the psychological progress report and OCF 3 and appears as if he was not provided with comprehensive medical records when coming to his conclusion.
    • “Second, there is no evidence to support Dr. Zakzanis’s findings, aside from the report itself. As noted above, Dr. Zakzanis did not review the applicant’s pre-accident and post accident records from her family physicians. Significantly, if these records had been reviewed, it would have demonstrated that while the applicant complained and sought medical attention for her pre-existing psychological conditions (both before and after the accident), she did not complain of psychological symptoms from the accident. Indeed, the records from both Dr. Morfetas and Enhance Care Clinic support that the applicant received psychological treatment from CAMH and Ontario Shores for her pre-existing chronic psychological impairments only”.
    • The hospital record from Stevenson Memorial dated February 2023 wherein Burnett sought emergency attention for an acute situational crisis did not make reference to the subject accident thereby there was little probative value.
    • On Brunett’s submission that she suffered chronic pain there was only one accident-related complaint of right thumb swelling/pain on July 13, 2022 in the family doctor records and absent was a diagnosis or referral for a chronic pain investigation.


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

December 18, 2024: Applicant Successful in CAT Case Where Respondent’s Expert Unavailable

CAT

December 16, 2024: Applicants Lose on Flawed Interpretation of the Schedule

MIG

December 11, 2024: Court Sends Paraplegic Matter Back to Tribunal re “Accident”

Definition Accident, Divisional Court, Reconsiderations

December 9, 2024: Pre-Existing Conditions MIG Escapes?

MIG

December 4, 2024: Court Remits $770K Award Worthy Matter Back to Tribunal

Award, Divisional Court, IRB

December 2, 2024: GP Questionnaire Does Not Trigger MIG Escape on Pre Existing

MIG

November 27, 2024: Court Remits $200K Award Worthy Matters Back to Tribunal

Award, Divisional Court, IRB

November 25, 2024: Pre-Screen Not Psychological Diagnosis

MIG

November 20, 2024: IE Not Reasonable or Necessary – No to CAT & IRB

CAT, IRB, Procedure

November 18, 2024: No Evidence Pre-Existing Conditions Prevent MMR

MIG

November 13, 2024: Applicant’s Explanation for Delayed Application Found Reasonable

Procedure

November 11, 2024: GP Concussion Diagnosis Accepted as Legitimate

MIG

November 6, 2024: Court Remits “Unsafe” Decision Back for Rehearing

CAT

November 4, 2024: Submissions Do Not = Evidence

MIG

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