MIG Update – May 17, 2021
LAT Expedites MIG Decisions – New Trend?
This week we explore two ‘MIG hold’ cases decided by different adjudicators where the insurer’s evidence was not considered. In each case, the LAT determined from the Applicant’s submissions that the Applicants failed to meet their burden of proof, ending their analysis.
Is this expedited approach an emerging trend by the LAT? Would this approach potentially risk missing key information from the Respondent’s evidence that may support the Applicant’s case?
Factor: Applicant’s Evidentiary Burden
In Sopkic v Aviva (20-003460), Sopkic relied on the CNRs of her family physician including two notations in the month following the accident where she was diagnosed with muscle strain and ongoing pain. Diagnostic imaging of the cervical and lumbar spine revealed minor degenerative changes.
‘MIG hold’ – The Tribunal held:
- Sopkic’s submissions on the OCF-18 lacks any analysis to support how the treatment is reasonable and necessary to address her alleged injuries
- Sopkic “appears to rely on her submissions, which are not evidence” and did not put forth a reply to rebut the Respondent’s position
- As Sopkic failed to meet her evidentiary burden, the Tribunal did not find it necessary to address the Respondent’s argument
Similarly, in Siow v Allstate (20-004763), the Tribunal also held that Siow failed in his evidentiary burden. In addition to the CNRs of his family doctors, Siow also relied on a psychological pre-screen conducted two months post-accident.
‘MIG hold’ – The Tribunal’s finding:
- Siow has “tendered little in the way of medical evidence” in support of his claim
- The first post-accident visit to the family doctor was over four months post-accident and the few visits thereafter show soft tissue injuries
- The pre-screen lacks “evidentiary weight”, as it was not based upon review of Siow’s medical records and relied solely on Siow’s self-reporting
- With Siow failing to discharge his evidentiary onus, the Tribunal again did not need to consider any of the Respondent’s argument/evidence
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