MIG Update – November 8, 2021

Psych Diagnoses Confirmed But Not MVA Related…

This week, causation and the application of the ‘but for’ test is highlighted in determining that an Applicant’s present psychological diagnoses and ongoing symptoms are not related to the subject accident. Moreover, the Tribunal outlines what evidence would have allowed for a better understanding of the Applicant’s position.

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Factor: Symptoms vs Diagnosis

MIG Hold: In Chen v. Co-Operators Gen. Ins. Co. (20-002216), a February 27, 2019 accident Chen suffered from right shoulder pain, neck pain and poor sleep that has resulted in chronic pain. Primarily though she contends that her psychological impairments, identified as depression, anxiety and fear and which led to a diagnosis by Dr. Cook of Major Depressive Disorder and Chronic Pain, warrants removal from the MIG.

Co-Operators submits that Chen’s psychological treatment predates the accident for non-accident stressors and further relies on the s. 44 reports of Dr. Aldridge and Dr. Hines to support its determination that her accident-related impairments are treatable within the MIG.

In order to meet her burden Chen needed to establish that ‘but for’ the accident she would not have sustained her psychological injuries. This is where she failed.

The Tribunal held:

• There is no dispute that Chen has struggled and perhaps continues to struggle with her mental health because of significant life stressors.
• Despite having the benefit of reply submissions, Chen offered no insight or explanation to rebut Co-Operators’ assertions that a significant majority of her mental health struggles are unrelated to a motor vehicle accident.
• The Tribunal would have benefitted from a more thorough explanation of how Chen’s psychological impairments were caused by the subject accident and not as a result of other referenced accidents.
• While Chen has received considerable counselling for her fear, anxiety and depression, she has not demonstrated how these symptoms, and Dr. Cook’s diagnosis, are related to this specific accident.
• The IE assessor Dr. Hines opined that Chen “does not have any accident-related mental health impairments” because the medical evidence illuminates many other more prominent stressors.

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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