MIG Update – September 9, 2024
Diagnosis Alone Falls Short in Chronic Pain Case
This week, the Tribunal considers an Applicant’s reliance on an orthopedic opinion with respect to a chronic pain diagnosis. A MIG hold case, where the Tribunal detailed what the orthopedic specialist did not include in their opinion to make the case for a chronic pain MIG escape.
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Factor: Orthopedic Opinion
In Kim v. Economical Insurance Company (22-008381), Sungrae Kim, was involved in an accident on March 21, 2018 and sought entitlement to a Treatment Plan for an orthopaedic assessment. He submitted that he should be removed from the MIG on the basis of chronic pain and a psychological impairment.
Kim argued that he was suffering from constant back and neck pain that impacted his daily life. He relied on a report dated April 2022 by Dr. Getahun, orthopaedic surgeon, who diagnosed him with chronic myofascial strain of the cervical spine and lumbosacral spine with non verifiable radicular symptomatology. Further an x-ray of his lumbar spine dated May 2018 which showed osteoarthritis. Also, the records from his treatment provider, Dr. Lee, chiropractor, who noted Kim had generalized anxiety disorder.
Economical argued that Dr. Getahun’s report should be given little weight as Kim was not diagnosed with chronic pain syndrome, and any radiculopathy was only suspected but never investigated or proven. Moreover, it argues that Kim has not established significant functional interference with his daily activities. To support its position, it relied upon the clinical notes and records of Dr. D.Y. Choi, Kim’s family physician and the s. 44 physiatry report of Dr. Rajka Soric, physician, dated August 18, 2022.
The Tribunal found:
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- “A chronic pain diagnosis or ongoing pain by itself does not remove the applicant from the MIG. It must be accompanied by some functional impairment, see: 16-000438 v. The Personal Insurance Company, 2017 CanLII 59515. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae of a minor injury. Unless the applicant provides evidence that the pain he experiences contains these elements, the pain is sequelae of a minor injury. I find that the applicant has fallen well short of meeting his onus to establish chronic pain with functional limitations.”
- Kim failed to establish chronic pain, as he only met with his family doctor, Dr. Choi, on three occasions since the accident, and while he noted in March and April 2018 that Kim had neck, shoulder and back pain, there was no discussion as to the effect on his function.
- Likewise, the treatment clinic CNRs referred to pain but did not discuss functional impact.
- With respect to Dr. Getahun’s April 2022 orthopaedic report little weight was afforded because:
- Dr. Getahun does not advise how he arrived at the conclusion that Kim’s injuries resulted in a loss of competitive advantage in the workplace other than just stating it.
- While Dr. Getahun linked the x-ray of Kim’s lumbar spine to the accident, this was not supported by the CNRs of the family doctor.
- Dr. Getahun provided no explanation for how he arrived at his conclusion of non-verifiable radicular symptomatology, which was also unsupported by other evidence.
- Based on the limited medical evidence, there was no reason to disagree with physician Dr. Soric’s August 2022 IE that diagnosed Kim with minor soft tissue trauma with no residual physical impairment.
- The comment regarding generalized anxiety disorder diagnosis by chiropractor Dr. Lee was out of the scope of a chiropractor.
- Kim only complained to Dr. Choi once in May 2018 of fear of driving and insomnia. He did not renew his prescription medication and did not make any additional reports of psychological complaints or any referrals for psychological treatment.
- “A chronic pain diagnosis or ongoing pain by itself does not remove the applicant from the MIG. It must be accompanied by some functional impairment, see: 16-000438 v. The Personal Insurance Company, 2017 CanLII 59515. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae of a minor injury. Unless the applicant provides evidence that the pain he experiences contains these elements, the pain is sequelae of a minor injury. I find that the applicant has fallen well short of meeting his onus to establish chronic pain with functional limitations.”
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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