MIG Update – May 16, 2022

Vacationing Doesn’t Disentitle Applicant from Claiming AB

This week a MIG escape case where the Tribunal found that amongst the ‘constellation’ of injuries the pre-existing psychological issues that were ongoing and exacerbated by the accident were sufficient to warrant removal from the MIG.

On the two issues raised by the insurer one being the failure to produce an earlier AB file, which may have put causation into question. The Tribunal found the medical evidence supported a good level of functional recovery as such the insurer had minimal prejudice by not not having the prior AB file.

On the second issue, the Tribunal acknowledged but dismissed the insurer’s concerns over the Applicant being able to take a 6 week vacation. Stating, “To put it simply, vacationing does not disentitle the Applicant from claiming accident benefits. Likewise, vacationing does not undo the injuries she sustained as a result of the subject accident”.

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Factor: Pre-Existing Psychological Injury

In Ullah v. Co-operators (20-003923), Ullah was injured in an accident on October 13, 2018. Ullah’s vehicle was struck on the right rear side while making a lane change on the 400 series highway.

Ullah sought removal from the MIG on the basis of pre-existing back pain that prevented her from recovering from her neck and back strains, which developed into chronic pain. As well as having sustained an adjustment disorder with mixed anxiety and depressed mood as a result of the accident. Further, that these injuries disable her from completing her essential tasks as an esthetician.

Co-operators sought dismissal of the application on Ullah’s failure to produce or demonstrate best efforts to produce the accident benefit file from her 2009 accident. Arguing that they had been prejudiced because Ullah had withheld relevant information needed to properly adjust her claim.

Co-operators’ position was that Ullah had sustained a minor injury and did not produce compelling evidence to the contrary. On the IRB, she didn’t prove she was disabled from completing the essential tasks of her job as an esthetician and she didn’t disclose her post accident income.

The Tribunal found:

  • The 2009 AB file was not required, as the relief sought was disproportionate to the minimal prejudice to Co-operators . Ullah’s medical records reflected she returned to work following the 2009 accident in 2013 and she had resumed seeing her original family doctor Dr. Lodhen, in June 2018. Dr. Lodhen’s CNRs attribute her ongoing pain to the 2018 accident.
  • Ullah’s intermittent back pain prior to the subject accident did not preclude her from reaching maximal recovery but ‘likely had an impact on her ability to recover.
  • Ullah’s history of depression recorded in her medical records and referral to counseling carried on following the accident. Further, her psych symptoms as documented by her family doctor were exacerbated by pain.
  • Upon referral from Dr. Lodhen to Dr. M-R Sadehi, psychologist diagnosed Ullah with Adjustment Disorder with Mixed Anxiety and Depressed Mood as well as Post-Traumatic Stress Disorder, Vehicular Phobia, and Somatic Symptom Disorder.
  • Ullah’s persistent pain was severe enough to warrant a consultation with Dr. S. Azimzadeh, chronic pain specialist, on December 4, 2020, who diagnosed Ullah with myofascial pain, mechanical low back pain, and degenerative disc disease recommending nerve blocks injections, pharmacological intervention and physical treatment.
  • Despite removal from the MIG on the basis of a ‘constellation’ of injuries and pre-existing psych, the December 23, 2019, Treatment Plan for a chronic pain assessment was not reasonable and necessary. Ullah’s ongoing pain complaints were not supported by the clinical findings in both the IE report of Dr. Zabieliauskas’s of August 27, 2019 and Dr. Azimzadeh’s December 4, 2020 report that revealed Ullah had full range of motion, with some neck pain on rotation and some low back pain on flexion and extension. Dr. Loden recorded pain complaints but not that Ullah was impaired by the pain.

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