MIG Update – March 28, 2022

Failing to Give Weight to GP Creates LAT Risk

Over the past few weeks more and more LAT decisions involving psych MIG escapes with the same evidentiary fact pattern have emerged. This week we review two such cases.

In both cases, the Tribunal gave weight to the family doctor findings based on:

1. History with the Applicant
2. Diagnostic capabilities

These findings did not obviate the insurer’s right to be critical of the evidence. In one of the cases though, the applicant’s evidence went uncontroverted.

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Factor: Family Doctors Records

In Landoy v. Wawanesa Mutual Insurance Company (20-005845), Rhoda Landoy was injured in a December 1, 2017 accident and the Tribunal in preferring Ladoy’s evidence determined her psychological injuries did not come under the MIG, finding:

• Dr. Atwal, Ladoy’s family doctor, saw her two days after the accident and diagnosed strains to multiple body parts, anxiety, and depression and was referred for mental health therapy.
• Ladoy’s psychological impairments are due to the accident and are not sequelae, as advanced by Wawanesa. Ladoy saw Dr. Atwal throughout the month following the accident who attributed the anxiety to driving and feelings of being depressed, continuing to address same in further visits with improvement.
• Dr. Rubenstein, psychologist, IE dated February 7, 2018 opined Ladoy did not meet diagnostic criteria under DSM-5. At the time Ladoy was still reporting driving anxiety.
• Dr. Rubenstein did not have Dr. Atwal’s records, which may have impacted his opinion given Ladoy was diagnosed with psychological impairment within a few days following the accident.
• “If at any point the applicant is diagnosed, by a doctor capable of making that specific diagnosis, of an injury that is not within the MIG, then it warrants removal.”

In McNeil v. Intact Insurance Company (20-004983), Nicolette McNeil injured in an accident on March 5, 2019 claimed that she sustained psychological injuries whereas Intact advanced that McNeil did not produce any compelling evidence to remove her from the MIG.

The Tribunal in preferring McNeil’s evidence determined her injuries did not come under the MIG, finding:

• McNeil’s family doctor, Dr. Ramraj diagnosed post mva depression in October 2019, with multiple referral records to Lakeridge Health with reference to depression found within the records referencing “6 months of low mood/energy, decreased motivation”.
• On August 20, 2020, Dr. Ramraj made a referral to Dr. Ojlegbe. In completing the Lakeridge Health Outpatient Mental Health Referral the reason for the referral was listed as “Depression/Anxiety post MVA”.
• On September 17, 2020, Dr. Ramraj referred McNeil for a psychiatric assessment for ‘depression’. The clinical features were marked as pronounced and/or resistant depression and inability to cope with life stressors.
  
• At the hearing, October 2021, Dr. Ramraj testified that “I still think she is depressed and there are a lot of psychosocial stressors like not working, not being able to provide for family.” She opined that the applicant needs more physiotherapy and psychotherapy.
• The respondent has failed to objectively refute the applicant’s medical evidence failing to medically assess McNeil pursuant to section 44.
• Dr. Ramra diagnosis of depression is with merit and is uncontested. As a family physician “is able to diagnose psychological conditions. She is familiar with the applicant’s history and conditions”

If you Have Read This Far…

Our MIG Monday series discusses the multitude of factors to consider when evaluating a risk position on MIG cases. The Tribunal has ruled on the MIG in 24% of the decisions so far. Each case is nuanced, but with similar factors.

Inform your position & present persuasive arguments. Include an Outcome Analysis Report (OAR) in your case evaluation complete with For/Against cases. Need an OAR?