Print

 

  MIG Update – December 11, 2022



Chronic Pain Diagnosis In Absence of Physical Exam?

This week, a MIG hold case where the Tribunal considered a chronic pain opinion that was rendered by the Applicant’s assessor based solely upon a virtual assessment.



Training 25th Anniversary Special!

Secure your seat for inHEALTH’s 2024 Winter Virtual Training Sessions. In celebration of inHEALTH’s 25th year receive 25% off all courses until December 31, 2023. 

  • BI Fundamentals: January 29th – February 2nd, 2024
  • SABS Expedited: February 26th – March 1st, 2024

*Eligible Participants receive 9 Substantive – CPD hours upon course completion

Course details & register here +



Factor: Chronic Pain

In Keshk v. Pembridge Insurance Company (21-014623), Rasha Keshk was involved in an automobile accident on December 9, 2020 and as a result suffered injuries that developed into chronic pain and PTSD. She was seeking entitlement to physiotherapy and an orthopedic assessment.

Keshk relied on the records and reports of physiotherapist, Mr. Diodati; psychologist, Dr. Brunshaw, the CNR’s of Dr. Gordon, her family doctor, and the virtual ortho assessment of Dr. Darrell Ogilvie-Harris dated May 30, 2022 who opined Keshk met 4 of the 6 criteria of the AMA Guides for chronic pain syndrome requiring physical and mental health treatment.

The report of Dr. Brunshaw was served approximately 15 days after the production deadline and was excluded on the grounds it was prejudicial to Pembridge not having time to review or obtain a competing opinion thus Keshk was not permitted to rely on it.

Pembridge argued that Keskh’s injuries were soft tissue in nature and relied on the opinion of their IE assessor Dr. Safir in a report dated March 2022. Also relying on CNRs of Dr. Gordon who indicated Keskh suffers from degenerative disc disease and bone spurs, unrelated to the accident and only documents a concern about PTSD however did not make any referrals.





The Tribunal held:

  • On the claim of psychological injuries, Keshk physiotherapist documented in the OCF 3, “nervousness when driving” and driving anxiety which was not reflected in Dr. Gordon’s note.
  • Dr. Gordon’s note regarding PTSD was not a diagnosis but, rather a comment, wondering if Keshk suffered from the condition. Further Dr. Gordon did not make a referral to a psychiatrist, prescribe treatment of medication nor did the records reflect any follow up.
  • “I also reviewed the assessment of Dr. Ogilvie-Harris and agree that the doctor found that the applicant fulfilled the AMA Guides criteria for chronic pain syndrome. However, upon review of the report itself, I am unsure of how the doctor found that the applicant had developed secondary physical deconditioning without physically assessing the applicant. It appears that the doctor simply accepted the applicant’s subjective reports that she is no longer able to exercise and is regularly tired due to pain. However, her deconditioning was not explored.”
  • Keshk reported to Dr. Ogilvie-Harris that she was still able to work, perform most of her chores and do some socialization, albeit in pain.
  • “I preferred Dr. Safir’s findings, as they were obtained via physical assessment, and accounted for the applicant’s physical abilities. Though I understand that due to the pandemic, Dr. Ogilvie-Harris needed to conduct his assessment virtually, it is difficult to accept findings that require physical examination without the ability to do so”.


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?

 

Archive of LAT Updates

October 30, 2024: Court Remits “Unsafe” Decision Back for Rehearing

CAT, Divisional Court

October 28, 2024: IE Fails to Explain Lack of Diagnosis

MIG

October 23, 2024: Loose Lid Unexpected "Accident"

Definition Accident

October 21, 2024: Dental Work Required Not Caused by MVA

MIG

October 7, 2024: Continuity of Complaints Confirm Chronic Pain

MIG

October 2, 2024: All Items in Dispute Deemed Incurred

Treatment Plans

September 30, 2024: Ignoring Medical Evidence Proves Award Worthy

MIG

September 25, 2024: Credibility Issues Abound with IE Assessor

IE

September 23, 2024: Reliance on Symptom Magnification Test Proves Fatal

MIG

September 16, 2024: Self Reporting Accepted for Psych MIG Escape

MIG

September 9, 2024: Diagnosis Alone Falls Short in Chronic Pain Case

MIG

September 4, 2024: CAT Finding Upheld on Reconsideration

CAT, Reconsiderations

August 28, 2024: Staged MVA Results in $93K Repayment Order

Definition Accident, Evidence

August 26, 2024: What Exactly Constitutes “Compelling” Evidence?

MIG

August 21, 2024: Extreme Impairment Confirmed in CAT Decision

CAT

August 19, 2024: Post Concussive Syndrome Diagnosed in Telephone Interview

MIG

August 14, 2024: Reconsideration Varies Decision Regarding “Accident”

Definition Accident, Divisional Court

August 12, 2024: Adverse Inference Considered in MIG Determination

MIG

August 7, 2024: Re-Training Not A Viable Option - Post 104 IRB Confirmed

IRB

July 31, 2024: Applicants Allowed to Proceed to Hearing Despite Alleged Non – Compliance

Insurer’s Examinations, Procedure

July 29, 2024: No Specific Reference to Evidence Precludes MIG Escape

MIG

July 24, 2024: When is a Spouse Not a “Spouse”?

Death Benefit

July 22, 2024: No Evidence Tendered to Rebut Concussion Diagnosis

MIG

July 17, 2024: 196K Grievance Award Factored into IRB Calculation

IRB

July 15, 2024: Chronic Pain Diagnosis Does Not Warrant MIG Escape

MIG

July 10, 2024: Court Allows Applicant to Submit Judicial Review After the Fact

Divisional Court

July 8, 2024: MIG Escape Despite Unrelated Psych Issues

MIG

July 3, 2024:Application Premature On Benefits Claimed in Excess of Limits

Award, CAT, Jurisdiction

June 26, 2024: Multiple Wilful Misrepresentations Claimed but Only One Established

IRB

June 24, 2024: Chronic Pain Diagnosis 4 Years Later Uncontroverted

MIG

June 19, 2024: Court Sets Aside Tribunal Decision and Makes Decision that Ought to Have Been Made

Definition Accident, Divisional Court

June 17, 2024: Cause of ‘Remote’ Finger Fracture Questioned

MIG

June 10, 2024: Reliability on IE Opinions Challenged

MIG

June 5, 2024: IE 'Highly Intrusive' - Not Acceptable Reason For Failure To Attend

Insurer's Examinations

June 3, 2024: MVA Necessary Cause of Subluxation of Shoulder Joint

MIG

May 29, 2024: Practicing Lawyer Seeks CAT Determination

CAT

May 27, 2024: Differing Opinions on Right Knee Injury Causation

MIG

May 22, 2024: Four Marked Impairments CAT and Post 104 IRB Confirmed

CAT, IRB

May 15, 2024: Court Confirms Three Breaches of Procedural Fairness by Tribunal

Div Court

May 13, 2024: Little Weight Given to Illegible Doctor's Notes

MIG

May 8, 2024: Reasonable Perception of Bias Involving Former Adjudicator Requires Rehearing

Reconsideration

May 6, 2024: Potential Causation Does Not Support MIG Escape

MIG

May 1, 2024: Tribunal Varies Three Decisions on Reconsideration

Reconsideration, Treatment Plans

April 29, 2024: Credibility of Assessment Favored Over Psych Validity Testing

MIG

April 24, 2024: Wilful Misrepresentation Abounds on IRB Repayments

IRB

April 22, 2024: Records Alone Do Not Warrant MIG Removal on Pre-Existing

MIG

April 15, 2024: Demands of Child-birth Pre-Existing Condition?

MIG

April 10, 2024: Court Upholds Tribunal Decision That a MIG Removal is a Complete MIG Removal

Divisional Court, MIG

April 8, 2024: Psychiatric Diagnosis Prevails over Psychological Opinion

MIG

April 3, 2024: Court Sends Matter Back to Tribunal Concerning “Accident”

Definition Accident, Divisional Court

April 1, 2024: Ortho Opinion Prevails on Origins of a Fracture

MIG

March 27, 2024: Supreme Court Takes Issue with Tribunal, Divisional Court & Court of Appeal

Limitation Period, Reconsideration, Supreme Court

March 25, 2024: Expert’s Conclusory Statement Insufficient on Pre-existing Condition

MIG

March 20, 2024: Non-Compliance by Both Parties Impacts IRB and Medical Claims

IRB

March 18, 2024: No Weight Afforded to Handwritten Illegible CNR’s

MIG

March 13, 2024: Denials Deficient and Pain Relief Validates Treatment Plans

Treatment Plans

March 11, 2024: “Radicular Irritation” & MRI Findings Not MVA Related

MIG

March 6, 2024: Tribunal Upholds Decision Excluding Improperly Secured IEs From the Evidence

Evidence, IE, Reconsideration

March 4, 2024: Concussion and Chronic Pain Diagnoses Require Expertise

MIG

February 28, 2024: Prior Health Concerns Complicate Claim for CAT

CAT

February 26, 2024: Unchallenged Virtual Chronic Pain Assessment Accepted

MIG

February 21, 2024: Consent by Parties for Adjournment Not Determinative

Adjournment, Procedure

February 14, 2024: Tribunal Does Not Accept the CAT Findings of Either Party

CAT

February 12, 2024: MIG Escape on Concussion Diagnosis Despite Resolution of Symptoms

MIG