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  MIG Update – January 19, 2026

Adverse Inference for Illegible Records

This week’s review examines a MIG hold in which the Applicant relied on handwritten and largely illegible clinical notes and records. In its decision, the Tribunal applied the principle from Lévesque v. Comeau, a ruling that has significant implications for the standard of medical evidence. Lévesque affirms the rule of adverse inference, which requires the Tribunal to presume that evidence not clearly produced, despite being within a party’s control, would have adversely affected their case.

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In Guan v. Co-operators General Insurance Company (24-005987), Michelle Jiayin Guan was involved in an accident on June 17, 2023 and sought entitlement to two Treatment Plans for physiotherapy services and psychological assessment submitting she should be removed from the MIG as she suffered from psychological impairments and ongoing pain as a result of the accident.

Guan relied on the CNRs of family physician Dr. Tse dated August 2023, which noted her complaints of pain in her lower back and neck and recommended physiotherapy that was commenced in September 2023. The family doctor also noted in a February 2024 record a referral for psychiatric assessment because of anxiety and depression. The essence of her argument is that because Co-operators did not conduct any IEs to challenge the reasonableness or necessity of the proposed treatments that she should be removed from the MIG to obtain funding to continue treatment.

Co-operators submitted that Guan provided hand-written CNRs of Dr. Tse from her visits in June 2023, three days post-accident, and again in July and August 2023, and that these were not legible. As a result, it could not identify any diagnoses or medical recommendations after the accident from these CNRs. It argued that only Guan could bring favourable evidence of the need for treatment to support her claim, and that she had failed to do so citing the principle in Lévesque v. Comeau.

It further noted that the transcribed CNRs from February 2024, did not mention pain, physical impairments or psychological impairments as a result of the accident rather, Dr. Tse linked her depression to her mother’s recent death, a strained relationship with her stepfather, and an unsupportive spouse. Furthermore, failure to pursue the OHIP funded psychiatric referral for nearly two years undermined the seriousness of her complaint.

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The Tribunal found:

• • “I find that the non-transcribed CNRs of the applicant’s visits with Dr. Tse, from June 20, 2023 to August 15, 2023, are not legible. Absent any legible information on these visits, I can only infer, according to the principle in Lévesque, that the applicant did not find them helpful to her case. I find, also, that there is no mention of pain or physical impairments in the CNRs of February 7, 2024.”
    
  • While Guan reported symptoms such as anxiety, depression, and insomnia, she failed to prove they were caused by the automobile accident. Dr. Tse’s notes indicated that her psychological distress was linked to unrelated life stressors, including the recent death of her mother, a strained relationship with her stepfather, and an unsupportive spouse.
  • The psychologist’s report by Dr. Gabidulina was given little weight because it was based on subjective self-reporting and failed to investigate or account for the significant external life stressors.
    
  • With respect to Co-operators not conducting any IE’s, the “Schedule does not obligate an insurer to conduct IEs, and that the burden of proof remains with the applicant to demonstrate entitlement to benefits on a balance of probabilities.”
    

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