MIG Update – October 30, 2023

Which MVA Exacerbated Injuries?

This week, a MIG hold case where the Tribunal considered an Applicant’s well documented pre-existing arthritic condition of the spine and the causal connection of worsening symptoms following two mva’s that occurred eleven months apart.

inHEALTH MEDIATION EVENT
(December 4-8, 2023)

Limited Availability – Resolve your high-risk AB cases now!

inHEALTH Mediation expedites the resolution of your high-risk CAT, IRB and Tolling Agreement cases.

Gather some tough cases that you want to resolve and let’s get the parties talking. You can reserve multiple time slots or even a full day. Learn more…

Book Now >

Factor: Pre-Existing Injury

In Ong v. The Co-operators, 2023 ONLAT (20-009917), Ong was involved in a motor accident on May 29, 2018 seeking removal from the MIG on the basis of pre-existing injuries, chronic pain and psych. Ong relied on the records of Dr. Wong, physiatrist, Dr. Nhan, family doctor documenting low back pain dating back to 2005 with subsequent MRI’s that documented L3/L4 wedge compression fracture, stenosis and nerve root injury, referral to a neurosurgeon for numbness in his legs in 2015 and bi-lateral osteo-arthritis related knee pain ongoing since 2017. Contending as well that COPD, a respiratory condition, would prevent recovery if kept within the MIG.

In addition Ong relies on Dr. Bui’s Functional Abilities Evaluation conducted on August 2, 2019, and the reports of Dr. Hein Ta, anesthesiologist in November 2019 and Ms. Amber Williams, social worker, December 2019.

Complicating matters further Ong had a subsequent car accident in April 2019 wherein his physiatrist, Dr. Wong’s records reflect Ong complained of pain in neck, back and both knees, with worsening low back pain. The issues in dispute related only to the May 2018 MVA.

The Co-operators disagreed that the subject accident caused any injuries beyond the MIG acknowledging the documented history, by Dr. Wong, Dr. Nhan and Dr. Bui. As well, contending that any psychological complaints are not sufficient to remove him from the MIG nor that he had accident-related chronic pain.

The Tribunal found:

• Dr. Wong’s records do not support Ong’s position regarding accident related injuries. The key document was an entry in Dr. Wong’s records dated September 5, 2019 wherein Ong reported “the patient complained of pain located in the neck, back and both knees after a motor vehicle accident in April 2019 … He was the driver of a vehicle that was rear ended by another vehicle. He had no fractures, but noticed pain involving the lower back has become much worse after the motor vehicle accident.”
• “Dr. Wong’s report opines that the applicant’s pre-existing arthritis of the spine and knees are degenerative but were aggravated by this new motor vehicle accident [emphasis added]. Dr. Wong’s recommendations for treatment are consistent with the treatment regimen he had been prescribing for the applicant since 2014, including prescriptions for pain, inflammation, and physiotherapy.”
• In the September 2019 record, Dr. Wong did not opine on Ong’s prospects of maximal recovery but, rather the only mention of a back injury is that it was pre-existing that would make it more difficult to heal but does not specify which accident. Therefore it was reasonable to assume that it was by the ‘new motor vehicle accident’.
• The record of Dr. Wong in the spring of 2020 regarding the neck pain complaint radiating down the arm and a resulting MRI revealed multiple degenerative changes. Dr. Wong opined that the current pain was due to degenerative changes, but also from the motor vehicle accident but does not specify which accident.
• The absence of any reference to the April 2019 MVA undermines the reliability of any causal statements contained in Ms. Williams and Dr. Ta’s assessments with respect to both the psychological and chronic pain complaints thus, little weight was afforded to them.

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?