MIG Update – June 28, 2021

Escaping the MIG 3 Years Post-Accident

This week we report on two cases where the Applicants advanced their MIG escape case 3 years after the accident, one failed while the other was successful. This review takes you through the prevailing evidence and the weight placed on it by the adjudicator. In both cases, the credibility of the evidence was called into question.

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Factor: Credibility of Diagnosis

In Williams v. Economical (20-001757), a December 2017 loss, Williams relied on two reports dated January 2020 and October 2020, both confirming a chronic pain diagnosis. The Respondent pointed to the dearth of accident-related pain complaints to his family physician, his return to a physical job within three weeks of the accident and a December 2018 IE report which found myofascial strain injuries treatable within the MIG.

‘MIG hold’ – The Tribunal’s findings:

• The reports relied upon by Williams were authored over two years and nearly three years post-accident respectively, raising concerns regarding causation.
• Dr. Bare’s diagnosis of “anxiety, pain avoidance and adjustment disorder” in January 2020 was “not only beyond the scope of his practice as a chiropractor, but unsupported by the medical evidence he purportedly reviewed”
• Dr. Brooks’ chronic pain syndrome diagnosis was similarly detached from the medical evidence; the credibility of his diagnosis was further called into question, as the physical examination was conducted from six feet away due to Covid-19 protocols, so Williams’ movements were simply observed as he pointed to his areas of pain
  
• No contemporaneous accident-related pain complaints in the CNRs of the family physician, with last note being in November 2018
  

In Chen v. Allstate (20-001098), a September 2017 loss, Chen incurred the disputed psychological assessment in January 2021, about one month prior to the disclosure deadline for this hearing. She was diagnosed with an Adjustment Disorder with Mixed Anxiety and Depressed Mood and features of Somatic Pain. Despite the Respondent’s s.33 request, Chen provided no family physician or specialist records, nor an OHIP summary, and has yet to produce them to-date.

The Respondent scheduled an IE in April 2021 that was later rescheduled to May. However, it was not completed for undisclosed reasons. The Respondent characterized Chen’s actions as a strategic attempt to deny it an opportunity to conduct an IE.

‘MIG escape’ – The Tribunal’s findings:

• While the diagnosis by Chen’s psychologist was not supported by a medical file review or any of the other evidence in the file, it remains uncontested as the Respondent submitted no evidence to the contrary
• “The Respondent is a sophisticated party to this dispute and is aware of the procedural rules and the options available to it. The Respondent could have moved to have the hearing adjourned to a later date, enabling it to conduct and complete the IE, but it did not.”
  
• The Respondent could also have suspended Chen’s benefits if certain documents are not produced

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