MIG Update – May 10, 2021

MIG Overturned – New Chronic Pain Definition?

In this edition of MIG Monday, we examine a MIG escape that was overturned on reconsideration. The Tribunal was found to have made errors of law or fact in determining that the Applicant suffered from chronic pain and psychological impairment. Can the Tribunal consider a chronic pain definition not put forward by the parties?

Factor: Error of Fact or Law

In the original decision of R.N. v Aviva (18-009117), the Tribunal held that R.N.’s injuries fell outside of the MIG on the basis of chronic pain and accompanying psychological impairment. The Tribunal adopted a definition of chronic pain by the “Canadian Institute of Pain and Disability” as pain that “persists after three months”.

The Respondent sought reconsideration, submitting that the Tribunal considered evidence that was not put before it by the parties, including the definition of chronic pain attributed to the “Canadian Institute of Pain and Disability”, an entity that does not exist or is obscure.

The Tribunal’s MIG finding was overturned upon reconsideration by a different adjudicator, who held the Tribunal erred in law and fact when determining that R.N. suffered from chronic pain and psychological impairment.

Chronic Pain

• “It is not for the adjudicator to consider and rely on material other than that put forward by the parties. It is not for the adjudicator to introduce a new issue or put forward a new source of information about chronic pain not put forward by the parties.”
  
• It is R.N.’s burden to establish his case. Introducing a new source of information deprived the parties, the Respondent in particular, of the right to know the case to be met and to make submissions.
• Removal from the MIG based on chronic pain was not articulated by either party and R.N. put forward no evidence of any chronic pain disorder or chronic pain syndrome

Psychological Injuries

• The Tribunal erred by relying on two conflicting medical opinions to support a finding of psychological impairment when it referred to the s.25 report as “refreshingly modest”
• The error was compounded when the Tribunal found that R.N. suffered psychological impairment when this finding is in fact contrary to the evidence of the family doctor and the IE assessor. Neither diagnosed psychological impairment.
• The burden of proof for R.N. in order to establish psychological impairment sufficient to remove him from the MIG is based upon the standard of a balance of probabilities, notwithstanding “refreshingly modest” contrary evidence.

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