MIG Update – February 12, 2024

MIG Escape on Concussion Diagnosis Despite Resolution of Symptoms

In the concussion case reviewed this week the Tribunal considered two aspects. First, the question of whether the Applicant sustained a concussion and/or post concussion symptoms to warrant removal from the MIG. Second, even if there was a finding of a concussion, the symptoms had resolved completely.

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Factor: Concussion

In Mohammed v. Economical Insurance Company (21-011586), Tamim Mohammed was involved in a motor vehicle accident on July 8, 2020 asserting that his injuries, including a concussion and post-concussion symptoms, warranted removal from the MIG.

To support his claim, Mohammed relied on the records of his family doctor, Dr. Abdulkarim, who noted Mohammed reporting that he struck his head in the accident and the resulting symptoms spanning from the day after the accident into 2021. He also relied on the evidence from Dr. Kevin Smith, an anesthesiologist, who acknowledged the possibility of a concussion resulting from the accident. As well as the OCF 3 where the physiotherapist had listed amongst the injuries, ‘concussion’.

Economical argued that Dr. Abdulkarim did not refer him to a neurologist or conduct testing for head trauma and that Mohammed was never formally diagnosed with a concussion. They cited various Tribunal decisions regarding concussion diagnosis to support their position. Moreover if Mohammed did sustain a concussion as a result of the accident any related symptoms had long since resolved.

Economical also relied on the IE report of Dr. Tilak Mendis, neurologist, dated July 27, 2021 as he found that the evidence was inconclusive regarding Mohammed sustaining a concussion.

Mohammed also cited Han v. Wawanesa Mutual Insurance Company (21-014475) to counter Economical’s possible argument that he should be excluded from the MIG as more than three years had passed since the accident and he no longer requires treatment.

The Tribunal found:

• • Although it conceded some of Economical’s arguments, it did not agree that Dr. Abdulkarim did not diagnose Mohammed with a concussion, nor that he took “no action,” as asserted in the respondent’s submissions.
    
  • Dr. Abdulkarim performed a PERRLA assessment, which can be utilized to determine possible head trauma such as concussions, and found Mohammed was sensitive to light.
  • Dr. Mendis did acknowledge that it was possible that Mohammed may have suffered a mild concussion which was associated with a head strike and mild alteration in his level of awareness.
  • Dr. Mendis’ conclusion did support the GP’s records and notation where Mohammed reported experiencing headache, sensitivity to light and sound which are typically associated with head trauma such as concussion and post-concussion syndrome.
  • “Further, I find the applicant’s reference to Han v. Wawanesa applicable here and agree with the reasoning in that Tribunal preliminary decision. As with Han, I also find that an insurer cannot escape its obligations under the Schedule by delaying action such as a MIG determination until an applicant has recuperated to a point when the determination could be argued to no longer matter. The approach suggested by Economical—centering on claims that the applicant’s injuries, including his concussion symptoms, had “resolved completely” as of November 4, 2021 because no treatment was sought beyond that date—would undermine the consumer protection basis of the Schedule. To paraphrase Han, the issue is not whether Economical has to honour its obligations now, but whether the insurer should have honoured its obligations in the past, even if the denial made at that time was in good faith.
    

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