MIG Update – January 8, 2024

Undisputed Psychological Diagnosis Prevails

Welcome to the first MIG Monday issue of 2024! This week, an undisputed psychological diagnosis rendered by the applicant’s assessor finds the Tribunal making its determination in the absence of any competing medical evidence.

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Factor: Undisputed Psychological Diagnosis

In Elbahja v. Wawanesa Mutual Insurance Company (21-011095), Aicha Elbahja was involved in an automobile accident on January 12, 2019, and sought IRB and removal from the MIG.

Elbahja submitted they ought to be removed from the MIG due to pre-existing conditions to her wrist, elbow, back, neck, shoulders, and headaches which were aggravated by this accident; she sustained cognitive/neurological injuries; she had chronic pain and she had TMJ. She submitted various records from her family physician Dr. Shadwa Salib in support of her claim.

Elbahja also submitted a s25 report by Dr. Leon Steiner dated November 10, 2019 who diagnosed Elbahja with generalized anxiety disorder with panic attacks, adjustment disorder with mixed anxiety and depressed mood, and specific phobia- situational phobia., seeking removal from the MIG on this basis as well.

Wawanesa took the position that Elbahja did not provide any evidence to prove that her pre-existing conditions were exacerbated by this accident. The emotional distress was not causally related to the subject accident, but more likely to the experience of potentially suffering a stroke, a self report she made to Dr. Steiner. Furthermore, Elbahja never reported any psychological symptoms from this accident to her family physician or section 44 assessors, Dr. Jacqueline Auguste, or Dr. Jamsheed Desai.

The Tribunal found:

  • The November 10, 2019 report of Psychologist Dr. Steiner, who diagnosed Elbahja with an adjustment disorder with mixed anxiety and depressed mood; and specific phobia- situational phobia was based on psychological testing and behavioural presentation and sufficient evidence to establish removal from the MIG.
  • Whereas, Wawaaness did not provide evidence that rebutted the psychological testing conducted or the diagnosis made by Dr. Steiner.
  • Elbahja reference to Raja-Mohamad v. The Personal Insurance Company (“Raja-Mohamad”) was persuasive. “In Raja-Mohamad, the applicant was diagnosed with psychological impairments by a section 25 assessor and the respondent argued that the report should be given little weight as there was no other corroborating medical evidence to support his subjective reports to the assessor. I agree with the Tribunal that absent a contrary medical opinion; my job is not to scrutinize the diagnosis made by medical professionals within their expertise but to weigh the evidence presented.”
  • The fact that Elbahja did not complain to her family physician or IE assessors about her psychological symptoms did not mean that a medical professional could not conduct an appropriate assessment and make a proper diagnosis.
  • Having found that Elbahja was removed from the MIG on the psychological diagnosis they did not need to consider whether her pre-existing injuries, cognitive/neurological injuries, chronic pain, and alleged TMJ will remove her from the MIG.

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