MIG Update – November 1, 2021

Loss of Function Sets the Bar for MIG Escape

In this week’s edition we review a MIG hold where a significant pre-existing crush foot injury was found not to impact recovery from neck and back injuries suffered in the car accident. The said neck and back injuries resulted in a multitude of concussion, psychological, chronic pain and radiculopathy symptoms. However, without a diagnosis and impact on function can you escape the MIG?

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Factor: Symptoms vs Diagnosis

Loss of Function Sets the Bar for MIG Escape – In Podlovics v Aviva (19-010770), Podlovics suffered neck and back injuries in a July 2017 mva. She had a pre-existing work-related crush foot injury with permanent restrictions that had resulted in a job change from GO bus driver to attendant. Her last GP visit prior to the subject accident in May 2017 noted she was unable to walk more than 100 meters, unable to drive more than 15 minutes and she continued to take Percocet.

Relying on her GP, chiropractor and chronic pain specialist, Podlovics, advanced that her right foot pain was exacerbated resulting in a gait derangement that caused a ripple effect that made her back and neck pain worse. Further, concussion symptoms resulting from her neck injury, psychological injuries, chronic pain, radiculopathy that caused periodic tingling in her hands and pain down her leg were such that she could not reach maximal medical recovery within the MIG.

The Tribunal held:

• The testimony of Dr. Loritz regarding his October 2018 IE report and conclusion were compelling in that Podlovics pre-accident foot condition would not affect her ability to complete treatment for her neck and back within the MIG.
  
• Podlovics evidence established she complained of headaches, nausea, blurred vision, dizziness, loss of balance, light and noise sensitivity, memory and concentration difficulties following the MVA all symptoms of a concussion but, she was never diagnosed as such.
• Podlovics experts endorsed significant symptoms of depression and anxiety and that she was noted as frustrated by the limiting function due to pain yet no qualified practitioner diagnosed her with psychological injuries.
• None of the required criteria as set out in MNM v. Aviva where the Tribunal identified and accepted six criteria against which a claim of chronic pain should be assessed as per the American Medical Association Guides to the Evaluation of Permanent Impairment none of th6th Edition (“AMA Guides”), were in evidence in this case.
• In order for a diagnosis of radiculopathy to take an applicant out of the MIG, there must be an associated impact on their functioning. In this case, none of the Podlovics experts have provided an adequate clinical rationale making this connection.

Related MIG Monday Issues:

AMA Guides – To Use or Not to Use?
MIG Monday – Concussion

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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