MIG Update – September 11, 2023

MIG Determined Absent Applicants Written Submissions

This week a MIG hold case, where the applicant submitted only a document brief without written submissions to justify or provide reasons as to why they should be entitled to any of the benefits in dispute. Can a hearing go forward in the absence of the applicant’s written submissions where an applicant has the burden to prove their case?

LAT Update – What Difference Did A Year Make?

The LAT released Performance Stats up to mid-year 7 which is current through to the end of September 2022. Together with the LAT’s last update we can now provide a comparison of year over year, with projections through to the end of year 7 in this annual update. What difference did a year make?

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Factor: MIG Determined Absent Applicants Written Submissions

In Appiah v. BelairDirect (20-015122), Sennas Appiah was involved in a motor vehicle accident on January 16, 2019. He claimed that he should not be subject to the MIG, and sought entitlement to NEBs, about $10,000 in physiotherapy; and psychological and chronic pain assessments.

Appiah relied on the records and reports of family physician, Dr. Cohen; the reports in November 2020 from the social worker, Mr. Arasabalan; psychologist, Dr. Lindal; and chronic pain assessor, Dr. Louis, in support of his claim.

Belair relied on the IE reports dated March and April of 2019 from Dr. Silver; Dr. Tu; psychologist, Dr. Nikkhou; and occupational therapist, Ms. Maddix, in support of its position.

On the procedural matter following the June 2021 case conference, the Tribunal ordered a 3 day videoconference hearing. In August 2022 Appiah by motion sought to change the hearing format to written. Belair consented and the motion was granted in October 2022. A hearing date was scheduled for April 6, 2023, with written submissions due 30 days before on March 7, 2023.

On March 23, 2023, almost 3 weeks after the submissions and evidence were due, Appiah filed a document brief without any written submissions addressing any of the issues in dispute.

The Tribunal found:

• There was no explanation offered by Appiah for the breach of the motion order with the submission date of March 6.
• Appiah did not provide a further motion to amend the order or leave for the late filing.
• Belair provided a thorough submission on the substantive merits of the issues in dispute.
• Rather than dismiss the matter, it would consider same on the available evidence and submissions.
  
• There were no CNRs from the family physician Dr. Cohen or any other treating physician that mentioned any mental health complaints since the accident. There was no indication that Mr. Arasabalan and Dr. Lindal conducted any validity testing, or reviewed any medical documents; and their findings appeared to be based on Appiah’s self-reports.
• Both s. 25 assessments were conducted well after (November 2020) Belairs IEs (April 2019), yet neither s.25 report referred to the IE reports or their findings. As well, neither s.25 report contradicted the findings of the IE assessors, both of whom directly addressed whether Appiah’s injuries fall within the MIG. As a result, less weight was given to Appiah’s s.25 reports.

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?