MIG Update – February 26, 2024

Unchallenged Virtual Chronic Pain Assessment Accepted

This week, a MIG escape where the Tribunal considered the chronic pain diagnosis that was rendered by a Tribunal acknowledged expert following a virtual assessment. Despite not having completed a physical examination nor review of available medical records, this evidence was unchallenged by competing medical experts.

Factor: Virtual Assessment

In Nguyen v. Travelers Insurance (21-001431), Hoang Son Nguyen, was a passenger in a vehicle involved in a mva January 22, 2019 when struck perpendicularly by a transport truck in icy conditions on a busy rural highway. He sustained lacerations and complained of shoulder and neck pain which he claims developed into chronic pain syndrome and psychological injuries as a result of the accident. In addition to a claim for IRB he sought entitlement to treatment and assessments in excess of $14,000.

In support of his claim he relied on Dr. Karmy’s report of November 2020, who confirmed a diagnosis of chronic pain syndrome as a result of the accident. Relying as well on Dr. Brunshaw’s November 2020, psychological report.

Travelers relied on 3 IE reports. First, Dr. D. Simon (IE) assessment and report dated August 17, 2020, which concluded Nguyen sustained technically minor injuries but has grossly under-rehabilitated his injuries with passive care. As well, he likely has some underlying pre-existing conditions that could preclude treatment within the MIG.

Dr. Bansal October 2021 concluded that Nguyen exhibited no valid signs of musculoskeletal, orthopaedic, or neurological injury. Dr. Frey’s psychological IE reports July 28, 2020 and July 23, 2021 concluded Nguyen was feigning or exaggerating his psychological disorder for unknown reasons.

Travelers took the position that Nguyen was a poor historian and had credibility issues referencing their assessor’s observation. They refuted Dr. Karmy’s opinion as it was based on a virtual assessment, with no physical examination nor review of medical records. Further Nguyen’s visits to his family Dr. were infrequent and contrary to typical chronic pain cases.

The Tribunal held:

    • Although Travelers points regarding Dr. Karmy’s November 2020 report are valid, there was “no compelling opinion that upsets Dr. Karmy’s report”.
    • “Dr. Simon’s reassessment and report, dated July 23, 2021, concluded that the Applicant’s clinical presentation appeared most attributable to the development of a chronic pain syndrome and psycho-emotional distress. He deferred the diagnosis of a chronic pain disorder to “an appropriate clinician”.
    • Based upon the review of the medical records, Dr. Karmy is that “appropriate clinician”. His practice is in the field of chronic pain and he has been accepted by the Tribunal as an expert in chronic pain.
    • The Traveler’s references to Nguyen’s behavior as observed by the IE assessors were isolated and their reliance on Dr. Bansal’s report was insufficient to upset Dr. Simon and Dr. Karmy’s opinions.
    • Dr. Bansal is not an authority on chronic pain and as such his findings do not outweigh those of Dr. Karmy. Dr. Bansal also did not comment on the findings of Dr. Simon, who 3 months prior concluded that Nguyen’s clinical presentation most likely attributable to the development of a chronic pain syndrome and psycho-emotional distress.
    • The infrequent visits to the GP were explained due to Covid restrictions. Taken altogether, Dr. Karmy’s report and findings to be the prevailing opinion over that of Dr. Bansal’s.

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