MIG Update – September 26, 2022

Are You Required to Produce An Expert Report – Unfunded or Not? 

As it relates to expert reports the SABS is clear in that ultimately it is the insurer that decides how many experts are secured by virtue of:

1. S.44 (1) The insurer can conduct insurer’s examination, with health providers of their choosing ‘but not more often than is reasonably necessary’
   S. 25 (3) reasonable fees incurred by a health practitioner by or on behalf of an insured person shall be paid when the insurer ‘Approves’, or are ‘Deemed’ approved by the regulation or are ‘Determined’ payable by the insurer upon resolution of a dispute.

This week, an interesting issue arose on the MIG front wherein the Tribunal gave less weight to the Applicant’s evidence in the absence of a section 25 expert report. As well with the same conclusion on a treatment case. Is the Applicant required to produce an expert report – unfunded or not?

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Factor: S.25 Expert Reports

In Singh v. Wawanesa Mutual Insurance Company (20-003519), Jaskaran Singh was involved in a motor vehicle accident on April 30, 2016. She claimed that the injuries she suffered in the accident were not minor, and she should not be subject to the MIG. She sought entitlement to an August 19, 2019 physiotherapy Treatment Plan in the amount of $2,160.54.

The Tribunal held:

• “Neither party has submitted expert medical reports to bolster their submissions. The applicant relies solely on the clinical notes and records of her physicians and treatment providers.”
• Singh did not make any submissions, or provide any evidence, related to non-minor injuries.
• Singh sporadically reported pain to family physicians seven times between May 2016 and January 2021, and none in 2019; and there was a significant gap in the treatment records for the entire year of 2018, with no explanation.
• Although there were references to a ‘longstanding’ history of back pain, no pre-accident clinical notes and records, no any other evidence to substantiate any claim of a pre-existing impairment that would prevent maximal recovery if subjected to the MIG limits.
• “Given these key weaknesses in the evidence, I cannot otherwise conclude that the applicant’s impairments are not minor injuries treatable outside of the MIG.”

Similarly in Ngai v. The Co-operators General Insurance Company (20-008103), Ngai relied on two Disability Certificates, CNRs of the family physician and X-rays.

The Cooperators relied on the IE Report of physiatrist Dr. R. Zabieliauskas, who concluded that Ngai suffered soft tissue injuries or strains as a result of the accident that should have healed in the ensuing two to three months, and certainly within six months post-accident, and there was no ongoing physical impairment or physical disability attributable to the accident.

On the physical injuries the Tribunal held:

• “Dr. Zabieliauskas was the only medical professional that provided an assessment report with regard to the applicant’s alleged physical impairments.’ placing significant weight upon his conclusions.”
• “Although not otherwise required, the applicant has not provided any s. 25 Assessment Reports regarding his alleged physical impairments…”
• “Given the strength of Dr. Zabieliauskas’ report, the lack of a responding s. 25 report, and the sporadic reporting of accident-related pain to Dr. Li, I cannot otherwise conclude that the applicant’s physical impairments were caused by the accident…”

In Zhang v. Aviva General Insurance ( 20-008187), Zhang relied on the CNRs from her treatment providers to support her position that she suffered from ongoing physical impairments as a result of the subject accident.

The Tribunal held:

• That the treatment plan alone is not compelling evidence in support of the proposed treatment. There must be compelling contemporaneous evidence in support of the treatment plan.
• “Aside from the records of her treatment providers, the applicant does not rely on any s. 25 assessments related to her physical impairments.”
• Preference for the opinion of Dr. Oshidari as he was the only medical professional who provided opinion directly with regard to the Treatment Plan at issue.

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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