MIG Update – November 27, 2023

Confirmed High Bar to Escape MIG on Pre-Existing

This week, we review a case that highlights the high bar in escaping the MIG on the basis of pre-existing conditions. The Tribunal considered documented pre-existing conditions that failed, given the lack of medical evidence, specifically a health practitioner opining that these conditions would prevent recovery if held to the MIG.

This prompted us to have a look back on a Tribunal case that highlighted the ‘Three-Prong Pre-Existing Injury test. In Hartman-Stolk v. Co-operators General Insurance Company, (20-002758) the Tribunal referenced the 3 considerations:

i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and
ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.
iii. Demonstrate how this pre-existing injury will prevent maximal recovery from the minor injury if subjected to the limits of the MIG.

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Factor: Confirmed High Bar to Escape MIG on Pre-Existing

In Wrezel v. Belair Insurance Company (21-004405), Agnieszka Wrezel, involved in a motor vehicle accident on April 28, 2018 claimed she should be removed from the MIG on the basis of pre-existing impairments, psychological impairment and chronic pain. She sought entitlement to 3 assessments and assistive devices.

Wrezel submitted that she sustained aggravation of injuries from a prior mva 13 years prior, pre-accident right sided weakness and right shoulder pain, which led to the development of chronic pain in her right shoulder. She argued she had 2 cortisone injections in her right shoulder that did not alleviate the pain, she consistently reported pain to her doctor and that she met most of the criteria in the AMA Guides.

Wrezel submitted her psychological injury arose following an IE assessment which caused her to relive the accident leading to PTSD symptoms. She relied on an entry in her family doctor, Dr. Saad entry February 12, 2019 that documented her complaints and prescribed medication for her panic symptoms, and recommended counseling.

Belair argued that the right-sided weakness and pain related to a suspected stroke (cerebrovascular accident), in 2015 which lasted 3-4 minutes was resolved prior to the subject accident. Further, Wrezel didn’t lead evidence that this condition would prevent her from achieving maximal recovery under the MIG. They also relied on the IE reports of Dr’s Mula and Sandhu on this subject, and the IE’s of Dr. Mandel and Dr. Saghatoleslami confirmed the lack of a psych diagnosis.

The Tribunal found:

• • Although Wrezel had a documented pre-existing (cerebrovascular incident and gene mutation), she had not provided sufficient evidence from a treating medical practitioner that these conditions would prevent recovery if held to the MIG.
  • Both IE assessors Dr. Sandhu and Dr. Mula considered Wretzel’s genetic/cardiac medical condition and opined that it would not have any effect on her recovery within the MIG.
  • Wretzel’s own affidavit indicated she had fully recovered from the prior accident, cerebral vascular incident, nor did she have any psychological or physical injuries leading up to the subject accident.
  • The February 12, 2019 CNR entry of Dr. Saad did not indicate a diagnosis, although counseling was suggested counseling, Dr. Saad prescribed a short-term session of lorazepam and suggested that they check in, in 1-2 months for progress. There was no mention of the psychological injury in subsequent visits nor did Wrezel request a refill.
  • Both IE assessors Dr. Mandel and Dr. Saghatoleslami concluded that Wrezel did not meet the DSM-V diagnostic criteria for any mental health illness and that she did not suffer from a psychological impairment.
  • Dr. Saad did indicate reports of right shoulder pain in the year post accident, however they did not continue after the 2019 cortisone injection. X-rays, ultrasounds and MRIs of the shoulder and neck did not indicate any serious impairments. There was no other evidence led until almost 3 years later when Wrezel reported right shoulder pain to her new family doctor Dr. Sfranciog in April 2022. Wrezel did not refer to any further entries by her new family doctor.
  • Wrezel did not meet the criteria in the AMA Guides, she returned to work following the subject accident and remained at work until December 2020 when she went on maternity leave returning to her job in November 2022. There was no dependence on medication, no dependence on health practitioners.

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.

Inform your position & present persuasive arguments. Include an Outcome Analysis Report (OAR) in your case evaluation complete with For/Against cases. Need an OAR?