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  MIG Update – December 2, 2024

GP Questionnaire Does Not Trigger MIG Escape on Pre Existing

This week, a MIG hold case where the Tribunal considered a claim of pre-existing conditions and diagnosis of chronic pain where the Applicant, in addition to the records, relied on a questionnaire that was completed by the family doctor to address the MIG injuries. Where did the answers in the questionnaire fall short on the evidence?

Factor: Evidence

In Jaafar v. Co-operators General Insurance Company (22-010680), Sobhi Jaafar was involved in a motor vehicle accident on March 16, 2022 and sought entitlement to two OCF-18s for chiropractic treatment totaling $4,992.01. He further contended that he should not be held within the MIG due to a pre-existing right shoulder injury, as well as multiple morbidities including diabetes and heart disease as well as chronic pain.

Jaafar relied on the OCF-3 and CNRs of family physician, Dr. Nijmeh, that made numerous references to his complaints of shoulder pain between May 2019 and the date of the accident. More specifically, an entry March 27, 2022 that his pre-existing right shoulder pain had worsened since the accident. A July 2023 questionnaire completed by Dr. Nijmeh indicates a diagnosis of chronic pain and that the pre-existing right shoulder injury would prevent him from achieving maximal medical recovery within the MIG. The July 2023 report of physiatrist, Dr. Chen, who Jaafar submits corroborates Dr. Nijmeh’s findings. Lastly he relied on the CNRs of the treatment clinic, which indicated that he received treatment to his right shoulder until the end of May 2022.

Co-operators did not dispute that Jaafar had pre-existing conditions, however argued that there was no evidence that Jaafar’s pre-existing conditions would prevent recovery if limited to the MIG funding. Further that Jaafar’s injuries were not consistent with the diagnosis of chronic pain with a functional impairment as set out in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th ed. (“AMA Guides”).

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The Tribunal found:

• • Dr. Nijmeh’s CNRs, 4 days prior to the accident on March 12, 2022, did note Jaafar’s complaint of worsening shoulder pain, diagnosed with rotator cuff tendinitis and suggested physiotherapy, ice, and pain gel. On March 27, 2022, eleven days after the accident, the notes reflect complaint of right shoulder pain which had worsened since the accident; “however, no additional diagnosis was made, no medical intervention was made in the form of diagnostic imaging, and the suggested treatment of pain medication and physiotherapy remained the same as pre-accident.”
  • Dr. Nijmeh’s records noted during subsequent visits, there were minimal references to shoulder pain, and by November 29, 2022, Dr. Nijmeh’s CNR makes the same objective finding with respect to Jaafar’s right shoulder injury as a pre-accident CNR dated October 16, 2021. Dr. Nijmeh did not address whether Jaafar pre-existing injury would preclude him from maximal recovery within the confines of the MIG.
  • “The applicant further relies upon a July 12, 2023 questionnaire provided by applicant’s counsel to Dr. Nijmeh, in which he indicated that the applicant’s pre-existing right shoulder injury would prevent the applicant from achieving maximal medical recovery. I am not persuaded by this questionnaire. The answers provided by Dr. Nijmeh are very brief, are not supported by reference to his contemporaneous CNRs, and do not provide any explanation on how the determination was reached. In my view, without providing any details, a mere affirmative statement to a question posed by counsel does not rise to the level of compelling medical evidence as required by s. 18(2) of the Schedule. As such, I find that this questionnaire is insufficient to demonstrate that the applicant should be removed from the MIG.”
  • The CNR’s of NTR (treatment clinic) indicate treatment of the right shoulder for a period of 8 weeks following the accident then, stopped for a period of 4 months with no further explanation in the submissions.
  • Jaafar did not meet at least 3 of the 6 chronic pain criteria set by the AMA Guides. There was no evidence that he used prescription drugs beyond the recommended duration and that he was currently dependent on health care providers. He reported that he has had some assistance from his wife and daughter with cleaning, but the extent of this assistance was not provided. There was no evidence of secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain. His claim that he was unable to return to his previous job as a general labourer and limited in his ability to actively search for jobs was not supported by the OCF-3, which indicated that he was not working at the time of the accident and had not worked for at least 26 weeks of the previous 52 weeks preceding the accident.
  • There was also no mention of any psychological complaints in Dr. Nijmeh’s CNRs. Although the Applicant may have reported symptoms of anxiety to Dr. Chen, the CNRs of Dr. Nijmeh was more persuasive.

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