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  MIG Update – November 18, 2024

No Evidence Pre-Existing Conditions Prevent MMR

This week, a MIG hold case where the Tribunal considered the Applicant’s claim of a pre-existing MCL tear and psychological injury once again affirming that MIG escapes on the basis of pre-exiting conditions is a high bar. ‘The test is whether the pre-existing condition would prevent maximal medical recovery and the applicant has not addressed that.”

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Factor: Pre-Existing Condition

In Singh v. Certas Direct Insurance (22-010050) Harjinder Singh was involved in a motor vehicle accident on April 17, 2020 and sought entitlement to two Treatment Plans for chiropractic services and psychological assessment. He claimed he should be removed from the MIG on the basis of pre-existing MCL tear to his left knee and psychological impairment and chronic pain as a result of the accident.

Singh relied on the CNRs of his family physician, Dr. Bunn in support of his claims of pre-existing psychological complaints. Further, he received physiotherapy prior to the subject accident for his left knee condition. He submitted that his ongoing pain resulted in an inability to return to his pre-accident activities of running, playing hockey, and going to the gym. He also argued that his injuries have had a significant impact on all facets of his normal life including physical, emotional and cognitive spheres. He relied on the OCF-3 of chiropractor Dr Jessa dated June 2021 which diagnosed him with “other chronic pain, and the February 2022 OCF-18s which indicated that he was psychologically impaired, noted sleep problems, thoughts of accident, problems with memory/concentration, and driving/passenger anxiety.

Certas argued that Singh failed to provide evidence that he had a pre-existing physical or psychological condition that would prevent him from achieving maximal medical recovery within the MIG, as there was no diagnostic imaging to substantiate that he suffered an MCL tear, and the diagnosis was not mentioned in any medical records. Dr. Bunn’s records did not mention psychological impairment and the only mention was found in the OCF 18 of Dr. Jessa, who was not qualified to make this diagnosis. Further, it argued that Singh did not meet the criteria for chronic pain by the AMA Guides, nor was he diagnosed with chronic pain by a qualified medical practitioner. They argued that Singh did not experience functional limitations, relying on the OCF-1 dated April 2020, which indicated that he did not miss any work, and the report of cardiologist Dr. Tjandrawidjaj dated February 2022, which indicated that he played hockey “regularly without difficulty”.

The Tribunal found:

• • “Aside from noting the existence of pre-existing conditions in his submissions, the applicant has not directed me to any evidence that either of these conditions would preclude him from achieving maximal medical recovery if he was kept within the MIG limits. While the applicant argues that these pre-existing conditions were exacerbated, this is not the test. The test is whether the pre-existing condition would prevent maximal medical recovery and the applicant has not addressed that.”
  • In review of Dr. Bunn’s records Singh saw his family doctor on two occasions on December 12, 2018 and January 8, 2019 with psychological complaints and there were no additional records documenting ongoing psychological complaints after that. This was insufficient evidence to show that these complaints would prevent recovery if held to the MIG.
  • There were no records to support a diagnosis of a MCL tear to his left knee prior to the subject accident. The ER records from Headwaters Health Care Centre dated March 2, 2020, notes “painful LT knee” and the x-ray found “no fracture, subluxation or dislocation. Alignment is anatomic. Soft tissues are unremarkable. No joint effusion”.
  • There were no records provided to confirm Singh received physiotherapy for the left knee condition prior to the accident from the treating physiotherapy clinic. The left knee MRI taken after the accident in July 2020 revealed “some chondromalacia on the femoral component”. However, Dr. Bunn makes no mention about a prognosis or any limitations based on the MRI results and makes no mention of the accident.This was insufficient evidence to show a finding of a pre-existing left knee condition that would prevent recovery if held to the MIG.
  • Although the OCF-3 by chiropractor Dr. Jess dated June 2021, indicated that Singh suffered from chronic pain, the CNR’s of the treatment clinic provided no evidence of functional impairments. In fact, in the report of cardiologist Dr. Tjandrawidjaj dated February 2022, Singh indicated that he played hockey “regularly without difficulty” and the OCF-1 dated April 2020 demonstrated that his accident-related injuries did not prevent him from working as a distribution manager.
  • The first mention of psychological complaints was almost two years after the accident, in a February 2022 OCF-18 by chiropractor Dr. Jessa, who is not qualified to diagnose or treat psychological conditions. Singh did not complain of psychological impairments to his family Dr. Bunn or any other health practitioner.

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