MIG Update – September 30, 2024
Ignoring Medical Evidence Proves Award Worthy
This week a MIG escape wherein the Tribunal considered the medical evidence found in the Applicants family doctor records that include a psychological diagnosis. More specifically the Respondent’s failure to acknowledge the Applicant’s psychological condition contained in the said records.
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Factor: Medical Records
In Chen v. Economical Insurance Company, 2024 (21-010745)Jing Min Chen was involved in a motor vehicle accident on September 9, 2020, and sought entitlement to IRBs as well as three Treatment Plans for physiotherapy, chiropractic treatment, and psychological assessment totaling $6,540.75 and removal from the MIG on the basis of psychological impairment and chronic pain. Our case review focuses on the MIG escape evidence and award commentary by the Tribunal.
Chen relied on an October 2020 clinical note by his family doctor, Dr. Li, that diagnosed him with physical injuries as well as complex PTSD and recommended psychological support, prescribed Cymbalta and Zopiclone and also referred him for a psychological assessment for PTSD and insomnia. Chen further relied on the November 2020 pre-screening report of psychologist Dr. McDowall, that indicated Chen suffered from nightmares, racing thoughts, sleep difficulties, headaches, difficulties with concentration and memory, anxiety in a vehicle, and a lack of energy. Dr. McDowall recommended a full psychological assessment battery, and found that Chen’s injuries should not fall under the MIG, given his ongoing pain and psychological impairments.
Economical argued Chen did not suffer from a psychological impairment and noted that he did not report any psychological impairments or issues to its IE assessors, GP Dr. Platnick or kinesiologist Mr. Hartog. It submitted that very little weight should be afforded to Dr. McDowall’s pre-screen, as she did not complete any clinical or validity testing, and did not provide any DSM-5 diagnosis (provisional or otherwise). argued that Dr. McDowall’s November 2020 OCF-18 for a psychological assessment was never submitted and therefore the pre-screen report should be “summarily dismissed” pursuant to s.38(2) and s.38(3) of the Schedule.
The Tribunal found:
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- The pre-screen report of Dr. McDowall should not be excluded for the sole reason that the OCF-18 was not properly submitted through HCAI. It still formed part of the evidentiary record, as it provided information related to Chen’s psychological condition at the time it was created.
- Chen sustained a psychological impairment warranting removal from the MIG based on his family physician Dr. Li’s diagnosis of PTSD. Chen was prescribed medication for his psychological conditions, referred for a psychological assessment, and recommended psychological support. This was further corroborated by Dr. McDowall’s pre-screen report.
- The IE reports of Dr. Platnick and Mr. Hartog made no mention or indication that Chen’s psychological condition was assessed at all. There was no discussion with respect to sleep, anxiety, or PTSD, despite the assessors having reviewed Dr. Li’s CNRs up to February 2021.
- The OCF-18 for a psychological assessment in the amount of $2,200.00, was never submitted to the Respondent through HCAI, and was therefore not payable pursuant to s.38(2). The first page indicated that it had been sent to Intact Insurance, rather than the Respondent. Chen did not provide an explanation or reply submissions on this issue.
- Chen was entitled to $225.63, which was the outstanding balance for the chiropractic Treatment Plan dated December 2020 which was denied due to MIG limits being reached. Around the time the treatment plan was submitted, Dr. Li indicated that Chen was suffering from shoulder pain and episodic lower back pain, and he recommended physiotherapy.
- “In this case, not considering the applicant’s documented psychological condition when determining his status under the MIG provided a monetary advantage to the respondent. The conduct of ignoring medical evidence should be deterred. Without further information, I cannot comment on the applicant’s vulnerability or harm directed at him. I do not believe that the respondent’s behaviour attracts the full 50% maximum award allowable under O. Reg. 664. The only benefit that I have found the applicant is owed is $225.63 for chiropractic services. I find that $75.00 is an appropriate quantum for the award, plus interest pursuant to O. Reg. 664.”
- The pre-screen report of Dr. McDowall should not be excluded for the sole reason that the OCF-18 was not properly submitted through HCAI. It still formed part of the evidentiary record, as it provided information related to Chen’s psychological condition at the time it was created.
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