MIG Update – December 11, 2022

Chronic Pain Diagnosis In Absence of Physical Exam?

This week, a MIG hold case where the Tribunal considered a chronic pain opinion that was rendered by the Applicant’s assessor based solely upon a virtual assessment.

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Factor: Chronic Pain

In Keshk v. Pembridge Insurance Company (21-014623), Rasha Keshk was involved in an automobile accident on December 9, 2020 and as a result suffered injuries that developed into chronic pain and PTSD. She was seeking entitlement to physiotherapy and an orthopedic assessment.

Keshk relied on the records and reports of physiotherapist, Mr. Diodati; psychologist, Dr. Brunshaw, the CNR’s of Dr. Gordon, her family doctor, and the virtual ortho assessment of Dr. Darrell Ogilvie-Harris dated May 30, 2022 who opined Keshk met 4 of the 6 criteria of the AMA Guides for chronic pain syndrome requiring physical and mental health treatment.

The report of Dr. Brunshaw was served approximately 15 days after the production deadline and was excluded on the grounds it was prejudicial to Pembridge not having time to review or obtain a competing opinion thus Keshk was not permitted to rely on it.

Pembridge argued that Keskh’s injuries were soft tissue in nature and relied on the opinion of their IE assessor Dr. Safir in a report dated March 2022. Also relying on CNRs of Dr. Gordon who indicated Keskh suffers from degenerative disc disease and bone spurs, unrelated to the accident and only documents a concern about PTSD however did not make any referrals.

The Tribunal held:

• On the claim of psychological injuries, Keshk physiotherapist documented in the OCF 3, “nervousness when driving” and driving anxiety which was not reflected in Dr. Gordon’s note.
• Dr. Gordon’s note regarding PTSD was not a diagnosis but, rather a comment, wondering if Keshk suffered from the condition. Further Dr. Gordon did not make a referral to a psychiatrist, prescribe treatment of medication nor did the records reflect any follow up.
• “I also reviewed the assessment of Dr. Ogilvie-Harris and agree that the doctor found that the applicant fulfilled the AMA Guides criteria for chronic pain syndrome. However, upon review of the report itself, I am unsure of how the doctor found that the applicant had developed secondary physical deconditioning without physically assessing the applicant. It appears that the doctor simply accepted the applicant’s subjective reports that she is no longer able to exercise and is regularly tired due to pain. However, her deconditioning was not explored.”
• Keshk reported to Dr. Ogilvie-Harris that she was still able to work, perform most of her chores and do some socialization, albeit in pain.
  
• “I preferred Dr. Safir’s findings, as they were obtained via physical assessment, and accounted for the applicant’s physical abilities. Though I understand that due to the pandemic, Dr. Ogilvie-Harris needed to conduct his assessment virtually, it is difficult to accept findings that require physical examination without the ability to do so”.

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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