MIG Update – April 25, 2022
Falling Short of Evidentiary Onus
The MIG hold case reviewed this week considers a non-minor injury of concussion and claims of chronic pain and psych, all of which fell short of satisfying the applicants evidentiary onus to exceed the minor injury limits.
Further, there was no need to review the evidence found in the Respondent’s report, and submissions made by the Applicant were noted not to constitute evidence.
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Factor: Submissions are Not Evidence
In Hunt v. Aviva (20-004179), John Hunt was injured in a rear end accident on October 5, 2017. Hunt’s claim is that he suffers from post-concussive cervicogenic headaches, post-traumatic insomnia, chronic pain disorder, and adjustment disorder with depressed and anxious mood. He sought removal from the MIG on account of his chronic pain and psychological impairments.
Hunt relied on the evidence of the walk-in clinic physician, his family physician, and the treating physiotherapist to advance the ongoing nature of his neck, back and non-minor concussion complaints. Further Dr. Wong, physiatrist for the chronic pain diagnosis and Dr. Taylor psychiatrist for the psychological diagnosis.
In reviewing Hunt’s submissions the Tribunal determined that Hunt failed to meet his evidentiary onus and as such it was not necessary to review Aviva’s evidence.
The Tribunal held:
Non-Minor injury – Concussion
- Dr. Goldsmith, family physician, diagnosed Hunt with a flexion extension neck injury noting headaches may have been as a result of analgesic withdrawal.
- The treating physiotherapist in November 2017 noted 90-100% improvement of cervical spine range of motion and neck pain steadily declined and ultimately resolved but, headache was constant, opining the symptoms were consistent with a concussion.
- Dr. Goldstein at the request of Hunt, who was worried that something may have been missed ordered a CT scan February 2018 that revealed no intracranial abnormality.
- Hunt was repeatedly assessed by his family doctor following the accident and at no point was diagnosed with concussion. The concussion was diagnosed by the physiotherapist who “may be qualified to treat concussion-related symptoms, but he is not qualified to diagnose the condition.” Thus, no weight was given to the opinion of the physiotherapist.
Dr. J. Wong, physiatrist December 6, 2019, – Chronic Pain
- The weight afforded the diagnosis of chronic pain was undermined by the failure to distinguish between pain related and unrelated to the accident. Hunt had back surgery in his 30’s. Dr. Wong attributed Hunt’s difficulty with frequent bending and lifting and limited range of motion in the thoracic and lumbar spine to back surgery
- The complaints from the subject loss involved the neck and there is no objective post-accident medical evidence to suggest back pain related to the accident
- “Dr. Wong’s assessment of Hunt’s accident-related impairments does not align with the nature and severity of symptoms documented in the objective medical record before me.”
Dr. L. Taylor, psychiatrist November 28, 2019 – Psychological
- Dr. Taylor diagnosed adjustment disorder with depressed and anxious mood in partial remission, along with chronic pain disorder and ongoing post-concussive headaches.
- Dr. Taylor’s relied on Hunt’s self report that in the six weeks after the accident, he felt “irritable, down, depressed and low” but that this had since improved. She notes that he continues to feel “discouraged” if he wakes up with a headache and that he has a diminished appetite, but that he has lost no weight. This does not establish psych impairment beyond clinically associated sequelae of soft tissue injury.
- The family doctor’s records do not reference psychological complaints, referrals or prescriptions rendering Dr. Taylor’s opinion even less persuasive.
If you Have Read This Far…
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