MIG Update – April 29, 2024

Credibility of Assessment Favored Over Psych Validity Testing

This week, a MIG escape wherein the Tribunal considered the denied psychological assessment of the Applicant’s assessors, and the resultant IE findings in reaching its determination.

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Factor: Credibility

In Shalaby v. Economical Insurance Company (22-003083), Faoud Shalably, involved in a July 8, 2021 MVA sought removal from the MIG on the basis of psychological impairments, claiming entitlement to the cost of a psychological assessment proposed in February 17, 2022 and a special award.

Shalaby submitted that the disputed psychological assessment was reasonable and necessary, as its objective was to ascertain whether psychological intervention would help him manage his psychological impairments and offer recommendations to prevent his psychological condition from deteriorating, and possible treatments to improve his functioning over time.

Economical on the other hand had denied the disputed treatment plan on the basis the MIG limit has been reached, and in the alternative, that it is neither reasonable nor necessary since it contends that Shalaby had not established he suffered a psychological impairment.

Economical proceeded to an IE, and then also relied on the April 2022 report psychologist of Dr. Saunders, who concluded Shalaby’s psychological condition was consistent with mild level of symptoms that did not meet clinical criteria (DSM-5) for psychological impairment.

Shalaby proceeded with the assessment despite the denial and in the August 2022 report Dr. Pilowsky concluded that Shalaby suffered from Chronic Adjustment Disorder with Depressed Mood, and Symptoms of Post-traumatic Stress Disorder.

Economical asked the Tribunal to dismiss the application on the basis that Dr. Pilowsky’s report is unreliable and should carry little weight because it heavily relies on OCF form reports authored by chiropractors not qualified to opine on psychological injuries, it is not corroborated by other medical evidence such as GP CNR’s and the conclusion are based on Shalaby’s self-reports.

The Tribunal found:

      • Dr. Pilowsky’s report is supported by extensive psychometric testing,Shalaby’s self-reports are reinforced by validity testing, and he underwent a lengthy in-person interview, all giving weight to Dr. Pilowsky’s opinions.
      • “I disagree with the respondent and find Dr. Pilowsky’s report to be credible and compelling. I give little weight to the respondent’s contention that Dr. Pilowsky’s assessment heavily relied on OCF forms authored by unqualified assessors. Its claim is not supported by the evidence. The respondent does not direct me to any of the offending OCF forms.”
      • “From my vantage point, Dr. Pilowsky’s report relies on the results of her in-person interview with the applicant and the clinical testing results in reaching her diagnosis of psychological injury. She makes only passing references to the review of several OCF forms, forms that have not been submitted for this hearing, save the one OCF-18 exception noted above, by either party”.
      • Dr. Saunders’ IE was not as thorough as Dr. Pilowsky as it was completed in 1 hour and 40 minutes including 3 psychometric tests. “The conclusion, that the applicant’s psychological symptoms did not meet clinical criteria for a psychological impairment, was repeated at least four times with no explanation as to how or why his symptoms did not reach that level.”
      • While Dr. Pilowsky’s report did not exist at the time of Dr. Saunders opinion, Economical had eight months after receiving Pilowsky and since Dr. Saunders reported accident-related psychological symptoms “it would have been prudent of the respondent to share Dr. Pilowsky’s findings with its IE assessor”.

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