MIG Update – April 5, 2021
MIG Monday – Complaint of Pain
This week’s discussion came about as a result of an Outcome Analysis Report request looking for cases to make or anticipate their case on causation involving a right elbow injury being held in the MIG.
The two cases forming the OAR response each dealt with injuries to the elbow and evidence on causation (‘Sabadash’ & ‘necessary cause’ test) and duration of the pain complaint as two factors that the Tribunal considered in their MIG decisions.
The duration of complaints was found to be a relevant factor in one case, with this factor alone not satisfying the Applicant’s burden in the second.
Factor: Duration of the Complaint of Pain
In C.G. v. Guarantee (17-007300), C.G. had pre-existing RSD (Reflex Sympathetic Dystrophy), also known as CRPS (Complex Regional Pain Syndrome), in her right arm, as a result of previous accidents in 2004 and 2009, for which she was deemed CAT.
In the subject accident in 2015, C.G. sought removal from the MIG on the basis of chronic pain in her right elbow. She claimed to have hit her right elbow on the passenger door of the vehicle in the accident. The Tribunal was satisfied that C.G. would not have suffered the elbow injuries “but for” the subject accident.
‘MIG escape’ – The Tribunal’s finding turned on:
- C.G.’s described her right elbow pain like constantly “hitting your funny bone” that was not there prior to the subject accident
- IE assessors noted exacerbation of symptoms after the accident
- C.G. had visited her family doctor and other medical practitioners regarding her elbow pain repeatedly between February 2015 and April 2016
- OCF-3 dated November 2017, more than 2.5 years post accident, noted the anticipated duration of pain to be more than 12 weeks due to severity and chronicity of injuries, and poor prognosis
In Bortus v Aviva (20-003442), Bortus sought removal from the MIG on the basis of severe, persistent, and constant pain in his right elbow, identified by his family doctor as a ‘tennis elbow’ injury. Botrus submitted that a “reasonable person can conclude the applicant’s medial ligament in his elbow stretched to the point it was partially torn, leading to a diagnosis of ‘Medial Epicondylitis’”.
While the duration of pain is one factor, the Tribunal found this alone does not satisfy Bortus’ burden.
‘MIG hold’ – The Tribunal’s finding turned on:
- While not strictly required, Bortus did not direct the Tribunal to a clear diagnosis of chronic pain
- No evidence of functional impairment, as Bortus continued to work as a machine operator and provide care for his mother
- Diagnostic imaging revealed mild degenerative changes and insertional tendonitis in the elbow, which are clearly-age related conditions
- The Tribunal agreed with the Respondent that Bortus sustained soft-tissue injuries, falling squarely within the MIG definition
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