MIG Update – August 15, 2022

Perils or Not of No Insurer’s Examination

In this week’s case, the Tribunal makes it clear that the insurer does not require an insurer’s examination, however the applicant still has to make its case.

The Applicant fell short in establishing that their physical injuries were chronic. As for the psychological impairment, a diagnosis and report was neither challenged nor addressed in the handling of the file or in response to the LAT application resulting in access to the non-cat medical benefits.

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Factor: Uncontroverted Medical Evidence

In Lin v. Certas Direct Insurance Company (20-009071), Jing Lin was involved in an automobile accident on February 27, 2019 and advanced her claim on the basis of chronic pain and psychological impairments. Jing Lin sought physiotherapy and chiropractic treatment and a psychological assessment outside of the MIG limits.

Jing Lin relied on the records of Dr. Sun, her family doctor, an assessment by Dr. Sharleen McDowell dated March 5, 2021 and treatment forms submitted by her therapists to establish that her physical injuries were chronic and persisted for greater than 3 to 6 months. Further an Activities of Normal Living (OCF 12) form was submitted to establish her functional limitations.

In support of her psychological impairment she relies on the records of Dr. Sun, a pre-screen interview with Dr. McDowell July 18, 2018, various self-reports to her treatment providers asserting difficulties with sleep, nightmares, anxiety and driving phobia.

Dr. McDowell diagnosed Jing Lin with Major Depressive Disorder with Anxious Distress and Specific PHobia (travel) and recommended 14 sessions of psychological treatment in March 2021.

Certas submitted that Jing Lin did not receive a diagnosis of chronic pain nor any non-minor injuries related to the accident that would warrant her removal from the MIG. Nor did Jing Lin advance any medical evidence to demonstrate she met any of the criteria set out in the AMA Guides. Further Jing Lin did not seek any treatment from her family doctor for a period of two years between July 2019 to July 2021.

As for the psychological impairment, Certas submitted that a psychological pre-screen interview and self-report are insufficient evidence of a psychological impairment to warrant removal from the MIG. Further the family doctor did not make any referrals to a psychologist.

The Tribunal held:

• The psychological report by Dr. McDowall doesn’t establish a diagnosis of chronic pain as a physical diagnosis is outside her scope of expertise.
• Despite pain complaints mentioned in the treatment forms between March 2019 to April 2020 beyond April 2020 there is no evidence that Jing Lin sought any kind of treatment for pain-related injuries. This was also corroborated by Dr. Sun’s records.
• Due to the lack of objective medical evidence Jing Lin failed to meet her burden on establishing chronic pain.
• On the psychological impairment Jing Lin did meet her burden. Certas had addressed the pre-screening interview and CNRs of Dr. Sun in their submissions but did not not address Dr. McDowell’s Psychological Report in any way.
  
• Jing Lin accurately pointed out that Certas not only did not order its own examination but did not acknowledge Dr. McDowell’s Psychological Report and diagnosis.
• Whether an oversight or omission, Certas inaccurately claims that Jing Lin solely relies on the pres-screening interview and the CNR’s of Dr. Sun to establish her psychological impairment.

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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