MIG Update – May 3, 2021

Do You Always Need the LAT?

Relying on outcome information to inform your risk on MIGs and to assist in reaching agreements has become a more common form of analysis for those making decisions about AB disputes.

In this edition of MIG Monday, we examine two challenges where the LAT adjudication turned on largely unrebutted medical evidence reasonably available to the parties in order to decide whether or not to proceed with LAT adjudication. Could the parties have reached an agreement without the LAT?

Factor: Reaching Agreement Without the LAT

In Pottayya v Unica (19-013326), Pottayya sought removal from the MIG on the basis of psychological injuries, chronic pain and post-concussion. The Respondent submitted that Pottayya’s evidence is vague and unconvincing.

‘MIG escape’ – The Tribunal’s finding:

  • Pottayya’s family doctor diagnosed post-concussion 3 months post-accident, which is consistent with Pottayya’s contemporaneous reporting to his psychologist
  • The Respondent provided no evidence that testing is needed in order for a treating physician to diagnose a concussion
  • Psychological injuries were also established, reported as early as days following the accident, rather than seven months post-accident as the Respondent argued
  • There were consistent psychological complaints to the family doctor, physiotherapist and s.25 psychologist over a 10-month period post-accident

In Estafanos v Wawanesa (20-000127), an August 2017 loss, Estafanos sought removal from the MIG on the basis of a pre-existing right ankle condition and a psychological injury from the accident. The Respondent maintained that Estafanos does not have a psychological injury from the accident. It further relied on a September 2018 IE that Estafanos sustained a right ankle strain, falling within the MIG.

‘MIG hold’ – The Tribunal’s finding:

  • Although Estafanos fractured his right ankle in 2009, there is no post-accident evidence that his right ankle injury was anything other than soft tissue in nature as a result of the accident, or that his ankle fracture was exacerbated
  • Estafanos’ orthopaedic surgeon reviewed a CT scan in May 2019 but did not attribute any part of Estafanos’ ankle condition to the accident
  • Considering the totality of the evidence, the Tribunal found no compelling evidence of a pre-existing right ankle condition that will prevent Estafanos from achieving maximal recovery if treated within the MIG
  • S.25 psychologist opined in January 2018 that Estafanos has not sustained any diagnosable psychological impairment

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