MIG Update – November 14, 2022

MIG Escape on Pre -Existing Injuries Must Describe How

This week a MIG hold case, where the Applicant had a well documented history of depression and chronic pain and was not working at the time of the accident recovery from unrelated surgery.

The Tribunal acknowledged the pre-existing conditions however, found that the Applicant’s health providers did not include ‘how’ the pre-existing conditions would impact the recovery if held to the MIG.The ‘how’ was a key component previously determined as part of the 3-pronged pre-existing conditions test by the Tribunal.

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Factor: MIG Escape on Pre -Existing Injuries Must Describe How

In Testa v TD Insurance (20-006447), Fabio Testa involved in an accident on June 11, 2019 sought removal from the MIG because of his pre-existing conditions. Before the accident, he was diagnosed with depression, hypertension, dyslipidemia, chronic neck discomfort, cervical spinal osteoarthritis and headaches by his family doctors. At the time of the accident he was not working due to recovering from unrelated surgery, another barrier to his recovery.

TD Insurance on the other hand had taken the position that neither of Testa’s family doctors’ commented on his pre-existing neck issues and pain and its impact on Testa’s recovery. On the issue of chronic pain, again neither of Testa’s doctors commented on the level of pain or its impact on his function. On the psychological claim, Testa’s s25 assessment contradicted the findings of his family doctor.

The Tribunal found:

• Neither of the family physicians commented on the Applicant’s pre-existing neck issues and pain and its impact on his recovery. Nor that the recovery from surgery was a barrier.
• The doctor’s notes did not say “if or how” the pre-existing issues would impact Testa’s recovery or prevent him from reaching maximum medical recovery if confined to the MIG.
  
• Dr. Mejule strongly contradicts the findings of Testa’s psychological assessment report by Dr. Lindal. “I would have expected Dr. Lindal’s observations to have been supported by contemporaneous evidence from the applicant’s family doctor or psychiatric treatment provider, which was not the case”.
  
• Testa also failed to address these inconsistencies, nor why he was reporting feeling well and trying to wean off his psychological medication.
  
• With respect to chronic pain, it was surprising that neither of Testa’s family doctors discussed his “pain” in relation to his “function” nor suggested that Testa’s pain required a referral to a specialist.
  
• “Though the applicant’s paramedical providers did comment on the applicant’s pain in general, these comments did not fully address or probe the applicant’s limitations, pain levels, or in light of his pain with objective testing or other methodologies.”
  

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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