MIG Update – June 20, 2022

30% Award Despite Late Disclosure of Psych Symptoms

This week, a MIG escape where an Applicant was diagnosed with psychological injury some 18 months post accident. The insurer was unsuccessful in arguing causation on the basis that there were no psychological complaints to the family doctor following the accident. Ultimately this positioning lead to an award of 30%, as they had failed to continually adjust the claim.

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Factor: No Competing Medical Evidence

In Padua v. Co-operators General Insurance Company (20-005450), Eilane Padua was injured in an accident on March 24, 2018 when her vehicle was struck along the front side by a truck.

Padua’s family doctor, Dr. Tejan diagnosed her with mild cervical and lumbar sprains and prescribed pain medication and massage therapy. She received treatment from April to July 2018 and stopped on her own, prior to exhausting her funding under the MIG.

In June 2020, Padua submitted a report by Dr. J. Brunshaw, psychologist, and H. Ilios, psychotherapist with a diagnosis of an Adjustment Disorder with Mixed Anxiety and Depressed Mood, noting that Padua suffered from Specific Phobia as a driver, passenger, and pedestrian.

The late disclosure of psychological symptoms and the complete lack of psychological complaints immediately following the accident resulted in the Co-operators questioning causation of Padua’s alleged psychological injuries.

Dr. Tejani’s CNRs did document that Padua complained of depression symptoms and asked for a referral to a psychologist on April 20, 2017. However, Padua had denied having experienced any physical or psychological symptomology prior to the accident in her clinical interview with Brunshaw/Ilios.

The Tribunal held:

  • The assessment in the Brunshaw/Ilios report never included a review of Dr. Tejani’s CNRS but, when presented with the information during testimony Dr. Brunshaw concluded that the only change in her diagnosis would be that Padua’s condition would not be solely attributed to the subject accident and, instead, be considered an exacerbation of her pre-existing psychological symptoms.
  • Padua’s failure to clearly report her pre-accident health status does not invalidate the conclusions in the Brunshaw/Ilios report.
  • On the balance of probabilities that Padua sustained a psychological injury, or in the alternative, an exacerbation of pre-existing psychological injuries.
  • The Co-operators never commissioned a psychological Insurer’s Examination, (“IE”), leaving the conclusions in the Brunshaw/Ilios report uncontested.
  • Padua’s late production of medical records and that she sought treatment and assessments some 18 months after the accident without incurring treatment didn’t discharge The Co-operators ‘obligation to adjust the claim on an ongoing basis’.
  • The Co-operators ‘exhibited stubborn and inflexible behaviour when it refused to remove the Applicant from the MIG or seek an IE, in light of Dr. Brunshaw’s report’ An award of 30% was granted in recognition of The Co-operators shortcomings, while at the same time acknowledging the untimely productions of medical records.

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