MIG Update – December 4, 2022

No Adverse Inference Drawn Despite Lack of pre MVA CNRs

This week, a MIG escape case on the basis of chronic pain. The Tribunal, as a preliminary issue, was asked to draw an adverse inference on the basis that the Applicant did not provide the pre-accident CNR’s. However, the Tribunal found that the post accident records that were provided established the accident related diagnosis of chronic pain.

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Factor: Chronic Pain

In Singh v. Intact Insurance Company (21-006216), Harmandeep Singh was involved in a motor vehicle accident on May 13, 2018. He claimed that he should not be subject to the MIG due to chronic pain, psychological impairment and post concussion syndrome and he sought entitlement to massage therapy, physiotherapy, a psychological assessment, and an attendant care assessment.

Singh relied on the records and reports of family physician, Dr. Saini; chronic pain specialist, Dr. Kostovic; and Neupath Centre for Pain, in support of his claim. He did not provide any pre-accident clinical notes and records from any doctors, hospitals, or clinics. However, he did produce an OHIP summary date range from June 15, 2015 to October 15, 2021.

Intact on the other hand submitted that Singh does not suffer pain that rises to the level of chronic pain. Singh did not submit any expert reports that opine on the applicability of the MIG and or whether any of the OCF-18’s were reasonable and necessary. Intact relied on the IE reports of general practitioners, Dr. Tu, August 23, 2019, and Dr. Belfon August 11, 2022 as well as psychologist, Dr. Nikkhou September 18, 2019 in support of its position.

Intact asked the Tribunal to draw an adverse inference against Singh as he failed to provide any pre-accident records as these records would likely show that Singh had physical and psychological issues that pre-date the accident. In support of their position Intact relied on the authority Shaikh v. Economical Insurance Company (20-009837).

The Tribunal held:

• There was no adverse inference as the subsequent records from the family doctor, Dr. Saini and chronic pain specialist, Dr. Kostovic diagnosed chronic pain as a result of the subject accident. Further that the pre-existing psychiatric assessment from December 2016 was not related to the accident in question.
• “I further find the authority of Shaikh to be unpersuasive. In Shaikh, virtually all of the applicant’s current complaints were pre-existing as demonstrated by the family physician records and the Tribunal was unable to differentiate between the applicant’s pre-existing and accident-related impairments. Further, in Shaikh, the records that were produced by the applicant’s family physician following the accident showed that the applicant’s pain and depression were improving. As such, the Tribunal drew an adverse inference from the applicant’s failure to produce further family doctor records and concluded that they would have shown steady improvement. In this matter, Dr. Saini and Dr. Kostovic’s records clearly indicate that the applicant has sustained impairments from this accident which have not improved.”
• Dr. Saini’s records demonstrate that Singh consistently reported lower back pain complaints from January 11, 2019 to August 10, 2021, and was prescribed Vimovo to manage sleep disturbance. His ongoing pain and distress required nerve block and trigger point injections in March 2022.
• Dr. Kostovic (OHIP chronic pain specialist, referred to by Singh’s family doctor due to ongoing low back complaint) saw Singh on February 17, 2022 and diagnosed chronic lower back pain with suspected radiculopathy which was most likely caused by the accident.
  Despite some minor inconsistencies regarding his return to work, Singh worked 30-60 hours a week in June 2020 (as a truck driver), and as of August 11, 2022, he was working reduced hours of 30 hours per week. This was consistent with his self-reporting to Dr. Saini, Dr. Ming-Wai Tu and Dr. Kostovic.
  
• Dr. Belfon in August 2022 opined that Singh suffered with uncomplicated soft tissue injuries yet he noted that Singh’s prognosis was guarded for a return to his pre-accident baseline. These conclusions conflict with medical records from the same time frame.
• Singh demonstrated on a balance of probabilities that he suffers from chronic pain with a functional impairment that is sufficient to remove him from the MIG. Therefore, the further claims of depression and post concussion syndrome were not addressed. All of the treatment plans save for the Attendant Care Assessment were found reasonable and necessary thus, payable plus interest.

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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