MIG Update – November 15, 2021

Virtual Assessment Does Not Hold up to Scrutiny

The reality of COVID on the ability to secure an appropriate assessment is the subject for this week’s edition. Do assessments conducted virtually lose something in translation? – The LAT scrutinizes the information provided in a virtual assessment where there is no physical examination of the applicant to make a determination regarding chronic pain.

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Factor: Virtual Assessment

MIG Hold: In Rasaratnam v Allstate (20-006161), a November 2020 accident, Rasaratnam contended that diagnostic imaging taken before the subject accident showed changes in his c-spine, in addition to developing chronic pain as a result of the accident. Therefore he ought to be taken out of the MIG. In this regard, he relies on a November 2020 Chronic Pain assessment by Dr. Dima Rozen.

The Tribunal prefaced the review of Dr. Rozen’s report with this remark “while I can only infer from the timing of the assessment that the COVID-19 pandemic may have placed constraints on the assessment format, the quality of the assessment is compromised when an assessor is unable to conduct a clinical assessment in person.”

Additionally, the Tribunal found:

• “The assessment relies heavily on Rasaratnam’s self reported symptoms, reports that are merely presumed truthful rather than assessed for validity or consistency with objective medical evidence.”
• The records reviewed by Dr. Rozen were the same as those before the LAT that established only minor soft tissue injuries caused by the accident.
  
• They were unable to rely on Dr. Rozen’s conclusions as the records do not support the assessor’s conclusions of severe chronic impairment. Specifically, that “it is unlikely [the applicant] will ever return to his pre-accident level of function” and that without continued therapy, the applicant “may progress toward serious medical distress”. These were not supported by Dr. Rozen’s own interview and the objective medical evidence.
• Regarding pre-existing, Rasaratnam failed to submit medical evidence to show how the pre-existing findings would hamper recovery under the MIG – this was a critical omission.
• On a balance of probabilities the pain experienced by Rasaratnam following the accident was found to be the clinically associated sequelae of his minor injury.
• Since Rasaratnam failed to discharge his evidentiary onus there was no need to engage with Allstate’s section 44 evidence.

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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