MIG Update – April 10, 2023
Pre-Accident Health Both Determinative and Not
This week, a MIG hold, where the Tribunal considers a chronic pain case where causation was the central issue in the determination. The applicant had an extensive medical history, specifically gender transition and related surgery that could be the cause of her impairments.
The Tribunal made two significant points in their determination. First, the submission of extensive medical records did not reference the specific evidence being relied upon. Second, the reliability of the applicant’s expert reports given the failure to mention the seriousness of the applicant’s medical history.
The LAT released Performance Stats up to mid-year 7 which is current through to the end of September 2022. Together with the LAT’s last update we can now provide a comparison of year over year, with projections through to the end of year 7 in this annual update. What difference did a year make?
In Bruni v. Wawanesa Insurance, (20-015446), Abbie Bruni was injured in an accident on August 18, 2018, and sought entitlement to physiotherapy treatment beyond the MIG limit and removal from the MIG because she suffers from accident-related chronic pain and psychological impairment.
Bruni submitted almost 600 pages of medical information with her initial submissions but did not reference any specific entries in same. After Wawanesa pointed out the deficiencies in their submissions, Bruni in reply, pointed to 3 entries in the CNR’s in support of her claim for chronic pain.
Two of the referenced entries were made by Dr. Chan Bruni’s family doctor, regarding physiotherapy following the accident and the second entry in September 2020, a phone consultation mentioned chronic pain. The third, dated August 21, 2021, from Painless Medicine and Therapeutics, which states that Bruni has been experiencing back pain since the accident in August of 2018.
Wawanesa argued further that Bruni’s significant pre-accident medical history, specifically her gender transition and related surgery, could be the cause of her impairments.
Bruni had also submitted two reports in July 2021 one regarding chronic pain from Dr. Yim and the other a psychological report from Mila Popova. Wawanesa pointed out that neither mentions the significant pre-accident medical history.
In this regard Wawanesa relies on Tribunal decision LVD v. Aviva (18-001286) in which the adjudicator remarked that he was “concerned by the failure of the applicant’s experts to mention his serious, pre-accident health condition.
The Tribunal found:
- The CNR’s of Dr. Chan noted many visits in the 2 year period following the accident and the first mention of chronic pain was September 2020, following a phone consult. No physical examination took place.
- The August 2021 referral from Dr. Chan to Painless Medicine and Therapeutics was related to “a back sprain last January.” This seems to suggest that Bruni sprained her back on an occasion after the accident. Bruni did not explain this discrepancy.
- Dr. Vlaocic, urologist’s March 2018 consultation note indicated that a risk of the gender transition surgical procedure is chronic pain. While Dr. Vlaocic does not state where the chronic pain would be localized, the surgery had taken place three months before the accident.
- With respect to Dr Yim’s July 2021 report, “The report cannot be relied on as the assessor did not review and consider the applicant’s full medical history. At a minimum, Dr. Yim should have been made aware of the fact the applicant had the surgery and how that may have also impacted her ongoing pain.”
- The reasoning in LVD v. Aviva (18-001286) to be applicable in this case as there were concerns regarding the reliability of the chronic pain report and conclusions that Bruni suffers from accident-related chronic pain where there is medical documentation stating that she may experience chronic pain as a result of her unrelated surgery.” Likewise regarding the psychological report.
- “Again, it is unclear why the applicant did not address her pre- and post-accident health history. Without an explanation or any medical evidence tying the applicant’s pain specifically to the accident, I cannot reconcile the facts with the conclusions reached in the reports, as I find that the assessors did not have a full appreciation of the applicant’s pre- and post-accident medical condition in order to overcome the causation hurdles identified by the respondent.”
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?
inHEALTH Keeps you LAT inFORMED With Access To:
1. LAT Compendium Database – a relational database of LAT and Divisional Court Decisions equipped with multiple search options, Smart Filters, and concise case summaries
2. Notifications: – weekly LAT inFORMER delivered to your inbox Wednesdays; Newly Added Decisions on Fridays and Breaking News as and when it happens
3. Research Support: – inHEALTH’s Live Chat Experts for guided searches and technical inquiries.
Sign up for a 14 day free trial below to experience the service and see how it can help guide your decision making.