MIG Update – January 31, 2022
Pre-existing Condition – Still A MIG
In this week’s case, The Applicant established the first two prongs of the pre-existing condition test as set out under the minor injury monetary limit. However, a pre-existing condition will not automatically exclude a person’s impairment from the MIG. The third part of the pre-existing test must be met. Where did the Applicant fail?
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Factor: Three-Prong Pre-Existing Injury Test
In Hartman-Stolk vs Co-operators (20-002758), Hartman-Stolk injured in a June 2, 2016 accident sought removal from the MIG due to a pre-existing condition In order to be successful Hartman-Stolk had the burden to prove, if subject to the MIG limit, that her pre-existing condition would prevent her accident related impairment from achieving maximal medical recovery within the cap imposed by the MIG.
Hartman-Stolk had a history of radicular symptomatology resulting in tingling in her arm dating back to 2007 for which she had been referred to a neurologist. The clinical notes and records from her family doctor prior to the subject accident had established that Hartman-Stolk was having neck pain with right arm radiation, paresthesia, muscle spasm, and musculoskeletal neck pain with right side radicular symptoms for which opiates were prescribed to the address the pain. The diagnosis was that neck and right arm pain and tingling were due to Degenerative Disk Disease (‘DDD’) and osteoarthritis of the cervical spine with nerve root involvement.
The family doctor had initially opined that the subject accident had significantly contributed to Hartman-Stolk’s ongoing pain and that it was difficult to determine to which degree. Further that ongoing issues were as a direct result of the accident and are causing significant disabilities.
Investigation by the neurologist concluded that Hartman-Stolk had bilateral radicular symptoms although remained functional, and that this change occurred due to the accident and therefore made a referral for trigger point injections for relief of her cervical pain.
Hartman Stolk submitted she was treated with physiotherapy, steroidal injections, Cannabidiol (‘CBD’) and prescription medication, and a cervical cone. However her symptoms persist and she sought compensation for her medical expenses beyond the MIG.
Co-operators acknowledged Hartman-Stolk’s pre-existing history of DDD in her cervical spine and arm numbness however she had not shown how her pre-existing condition was impacted by the accident therefore, failing to discharge her onus of proof.
The Tribunal found:
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- Hartman-Stolk had not demonstrated how this pre-existing injury will prevent her maximal recovery from the minor injury if subjected to the limits of the MIG
- Although there was significant medical evidence regarding Hartman-Stolk’s pre-existing condition and her on-going treatment, her submissions and evidence relating to requiring treatment beyond the MIG were limited
- Medications prescribed prior to her accident had changed little post accident
- There was no opinion from a medical professional that Hartman-Stolk’s injuries require treatment beyond 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.
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