MIG Update – July 5, 2021

Retrospective Recovery Analysis Results in MIG Escape

This week we report on a MIG escape decision that was largely predicated on the finding that the Applicant would not have achieved a 75% level of improvement had they not incurred the disputed treatment beyond the MIG limit. In the absence of a specific finding on whether the Applicant suffers from chronic pain with functional impairment, is this a new rationale for MIG escape?

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Factor: Improvements From Treatment Grounds for MIG Escape?

In Orellana v. Waterloo (20-000415), a July 2017 loss, Orellana submitted that she suffered neck, shoulder, back and tailbone pain as a result of the accident which requires treatment beyond the MIG limit. She sought entitlement to three Treatment Plans for physiotherapy dated between January and March 2018, in excess of $13,000. Interestingly, the decision did not indicate whether Orellana specifically sought removal from the MIG on the basis of chronic pain. Likewise, the Tribunal did not address whether Orellana had any pre-existing condition that would remove her from the MIG.

The Respondent submitted that the medical evidence shows that Orellana made significant improvements from her accident-related injuries as early as 2018, further supported by the fact that she returned to both of her pre-accident jobs on a full time basis in February 2018.

‘MIG escape’ – The Tribunal’s findings:

  • Orellana’s “post-accident physical injuries and her documented improvement indicate that the treatment she has received and incurred supports that treatment beyond the MIG limit is warranted”
  • The records of Orellana’s family doctor and treating chiropractor document the pain complaints and improvements from treatment received over the period from October 2017 to March 2018
  • While the family doctor approved Orellana’s return to work in February 2018 and noted that her symptomatology had improved to about 75%, the doctor recommended ongoing treatment
  • Based on the medical evidence, the Tribunal was persuaded that Orellana’s “physical injuries and subsequent pain complaints are consistent enough to require treatment outside of the MIG limit”

While the Tribunal noted in its conclusion that Orellana’s injuries are not minor in nature, it is not apparent that the Tribunal referenced same in its analysis throughout the decision, nor did it specify what aspect of the injury was non minor.

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