MIG Update – September 19, 2022

Impairments Not Injuries Key to MIG Considerations

This week, the Tribunal provides an academic exercise applying the MI definition in deciding MIG cases. You will find this exercise instructive when assessing your risk position in MIG matters.

“The sum of the medical and rehabilitation benefits payable in respect of an insured person who sustains an impairment that is predominantly a minor injury shall not exceed $3,500…” It is clear from the use of the qualifying word “predominantly” that s. 18(1) does not treat the definition of minor injury as a checklist, i.e. the test is not if the injury is not on the list, then the limit does not apply. In the face of a diagnosis not caught by the minor injury definition, the Tribunal must embark on an analysis to determine how the unlisted condition impairs function and the extent to which the impairment predominates. Even if I accept that Ms. Mkuhamamba has a chronic pain condition and a psychological condition, I may still find her subject to the limit if these conditions do not significantly impair her function.”

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Factor: Impairments Not Injuries Key to MIG Considerations

In Mkuhamamba v MVACF (19-009921), Leila Mkuhamamba was involved in a motor vehicle accident on November 15, 2017. She claimed that she suffers from a psychological impairment and chronic pain, and should not be subject to the MIG. She sought payment for treatment and assessment as well as Attendant Care Benefits and NEB.

Mkuhamamba submitted that Dr. Shaul in February 7, 2019 diagnosed her with “an Adjustment Disorder with Mixed Anxiety and Depressed Mood and Specific Phobia (traveling in a vehicle),” and noted that she “has continued to experience difficulties with her overall functioning since the accident.”

The Fund’s IE assessor Dr. Shafik Daramshi diagnosed whiplash associated disorder, Grade 1, lumbosacral musculoligamentous strain, left knee contusion and right foot plantar fasciitis similar to the injuries listed on Mkuhmamba’s Disaiblity Certificate. Further they argued the pain that Mkuhamamba is suffering is a clinically associated sequela of her soft tissue injuries and does not fall outside the definition of minor injury nor do her mild depressive symptoms that were not impacting function.

The Tribunal found:

• Entitlement to benefits under the Schedule focusses not on the injury a person sustained but on how that injury impairs the ability to function. This is clear in s. 14, the general section mandating that insurers must pay benefits, where it states: “Except as otherwise provided in this Regulation, an insurer is liable to pay the following benefits to or on behalf of an insured person who sustains an impairment as a result of an accident.” Impairment is defined in s. 3(1) of the Schedule as “a loss or abnormality of a psychological, physiological or anatomical structure or function.” Faced with this focus, Ms. Mkuhamamba must demonstrate that she has sustained impairments.
• The physical injuries listed by both Mkuhamamba’s Disability Certificate and the Fund’s assessor fell squarely within the Minor Injury definition.
• No convincing evidence that Mkuhamamba is suffering from any functional impairments.
• Dr. McCutcheon, psychologist, who assessed Mkuhmamba for the Fund, in a report of June 14, 2018 diagnosed mild depressive and anxious symptomology as a result of the accident that were subclinical and not incapacitating. Again following review of the medical records in August 2018 Dr. McCutcheon confirmed her subclinical findings and that the mild psychological symptoms were not limiting function.
• Dr. Shaul does relate that Mkuhamamba is functioning at a lower level and Mkuhamamba related to Dr. McCutcheon that she was substantially self-sufficient.
• The extensive counseling records from Women’s College Hospital are largely supportive of Dr. McCutcheon’s findings. The records show that just before and just after Dr. Shaul’s assessment Mkuhamamba’s mood improved from 7.5 out of 10 to 8 out of 10. “More significantly, the focus of her psychological complaints relates to a childhood incident and the accident is only mentioned once with no psychological impact.”.
• “The notes record no clinically significant psychological condition, and no clinically significant anxiety disorders on July 4, 2018, which is contemporaneous with Dr. McCutcheon’s report. Entries on November 28, 2018 and January 16, 2019 note no significant depressive symptoms. The Vice-Chair found that the Applicant didn’t suffer any significant psychological impairment as a result of the accident.
• The records from Women’s College Hospital indicate that Mkuhmamba was “carrying a course load at U of T, living in shared housing with roommates where she was responsible for her own care; she spent four days in New York City in 2018; she successfully completed a course in Swahili including a written and oral exam, and received an A+ on the reading test; and she was volunteering at the Hospital for Sick Children”.

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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