MIG Update – May 9, 2022

Weighing the Evidence Absent A Contrary Medical Opinion

This week in a MIG escape case the Tribunal ruled on the Applicant’s evidence alone as the assessments and diagnosis presented went uncontroverted by the insurer by way of their own medical evidence.

The Tribunal also clarified their role in weighing evidence presented rather than to scrutinize the medical opinion provided by the medical professionals within their expertise. What are the inherent risks for an insurer in not securing evidence by way of a s44 IE (s).


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Factor: Weighing Evidence Absent a Contrary Medical Opinion

In Raja-Mohamad v The Personal Insurance Company (20-005623), Raja-Mohamad was injured in an accident on December 12, 2018 and sought removal from the MIG based on ongoing physical issues, chronic pain syndrome and a psychological diagnosis.

Raja-Mohamad received various physical therapies from June 2019 to March 2020 totaling approximately $5000, plus he incurred the cost of two assessments. In November 2019, he was diagnosed with adjustment disorder with mixed anxiety and depression as a result of the accident and 12 treatment sessions were recommended. A chronic pain assessment followed in December 2020 with a diagnosis of chronic mechanical neck pain, upper back pain, lower back pain, and bilateral knee pain. Raja-Mohamad was also diagnosed with chronic pain syndrome and sleep disorder and a mutli-disciplainary program was recommended.

The Personal had rejected the plans on the basis that they were not reasonable and necessary, that Raja-Mohamad had returned to work following the accident and that his physical injuries were minor. Further that no weight should be given to the chronic pain and psychological diagnosis as there was no other corroborating medical evidence to support Raja-Mohamad’s subjective reports to the assessors.

The Personal advanced two decisions in support of their position that were not considered here owing to the fact that in the two referenced cases, “the adjudicators had two opposing assessments, one produced by the applicant and the other produced by the respondent. Again, in those decisions, the adjudicator weighed the evidence, which included opposing assessments, and gave less weight to the applicants’ evidence. Whereas, in this case, “I do not have opposing assessments” .

Having considered both parties positions, the Tribunal prefaced their determination with “the main legal question in this hearing is should I give less weight to an expert report, without having any contrary opinions, on the basis that the applicant did not complain of psychological issues or significant ongoing pain complaints to any other of his treating practitioners? The short answer is no.”

The Tribunal held:

  • The job of the adjudicator “is to weigh all the evidence presented and determine on a balance of probabilities whether the applicant has met his onus to prove entitlement to benefits”.
  • Raja-Mohamad’s medical evidence is the most recent presented in this case and there was evidence that his assessors had reviewed the medical history, and completed an assessment in order to make their diagnosis.
  • Scrutinizing the medical opinions of experts within their field was not the role of adjudicators at the Tribunal, rather they are to weigh the evidence presented. “ The mere fact that the applicant did not complain to other treating practitioners about his impairments from the accident, in my opinion, does not mean he was not suffering from other conditions or impairments”.
  • In the absence of any contrary medical evidence the treatment plans for physical therapy presented were found reasonable and necessary to address Raja-Mohamad’s documented complaints found in his treatment providers records.
  • Likewise, the chronic pain and psychological assessments are reasonable and necessary “because they were the very examinations that diagnosed the applicant with chronic pain syndrome and a psychological condition”

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.

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