Print

 

  MIG Update – January 23, 2023



Formal Diagnosis of Chronic Pain Syndrome Not Required

In this week’s MIG case, Tribunal precedent factored into the determination that the applicant’s persistent complaint of ‘pain’ covering over 4 years was not “predominantly” a minor injury. Specifically, that a formal diagnosis of chronic pain syndrome from an expert is not required if the chronic pain exists beyond a period of 3 to 6 months.


 

Advance your best case with an Outcome Analysis Report – Request an OAR through live chat!

Request OAR



Factor: Formal Diagnosis of Chronic Pain Syndrome Not Required

In Zeledon v. Aviva (20-006269), was involved in an automobile accident on September 29, 2015, She claimed that she suffered from chronic neck and back pain and should not be subject to the MIG. Zeledon sought entitlement to chiropractic and physiotherapy treatment from September 2015 to February 2020.

In support of her claim Zeledon submitted various records from her treating chiropractor, family doctor and referrals to orthopedic and pain specialists. Further that pain, not resolving within the expected time of recovery for a minor injury, amounts to an impairment that is not predominantly minor, relying on the FSCO decision Arruda v. Western (A13-003926) and BU v. Aviva (16-000143).

Aviva relied on a physiatry IE report of Dr. F. Ismail November 2015 who opined Zeledon’s injuries could be treated within the MIG.

Aviva further submitted that Zeledon failed to evidence that her chronic pain resulted in a functional impairment as set out in 17-004847 v Aviva. Also that meeting the Chronic Pain Syndrome diagnostic criteria under the 6th edition of the AMA Guides is a requirement to be removed from the MIG.





The Tribunal found:

  • Zeledon’s consistent reporting of low back pain for over 4 years that interfered with her ability to walk and work (resigned from her employment due to chronic pain) established sufficient functional impairment that her injury is not predominantly minor.
  • Consistent with 17-002907 v. Aviva and CG v. The Guarantee Company of North America (17-007300), “that a formal diagnosis of Chronic Pain Syndrome is not required to remove an applicant from the MIG, provided that chronic pain is present beyond three to six months post-accident. This decision disposes of the respondent’s submission that a formal diagnosis of Chronic Pain Syndrome from a recognized expert is necessary for removal from the MIG.”
  • Aviva provided “little evidence, past the three-to-six-month post-accident, to counter the Applicant’s self-reports of chronic pain and her family physician’s confirmation of neck and lower back pain continuing for more than four years.” Aviva’s only IE was conducted 5 weeks after the accident.
  • That Zeledon’s injuries as a result of the accident reached a level of pain that she didn’t have before. She had multiple visits with treating physicians that established “a pattern of persistent intermittent back and neck pain.”


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

May 28, 2025: CRA Records not Necessarily Determinative Absent Corroborating Documentation

IRB

May 26, 2025: Insomnia a Pre-Existing Condition

MIG

May 16, 2025: First Year of Self Employment Results in $Nil IRB Despite Demonstrated Earnings

IRB

May 12, 2025: Res Judicata Not Waived For New MIG Hearing

MIG

April 30, 2025: Tribunal Confirms Four Class 4 Marked Impairments

CAT

April 28, 2025: MIG Not Conceded Despite Approved CAT Assessments

MIG

April 23, 2025: Court Reverses Tribunal’s Unreasonable Adjournment Refusal

Adjournment, CAT, Divisional Court

April 21, 2025: MIG Escape on Fractured Tooth 15 Months Later

MIG

April 16, 2025: Deficient Notice Renders NEB Payable

NEB

April 14, 2025: MIG Valid Medical Reason

MIG

April 9, 2025: Bus Travelling Over Elevated Manhole Cover Satisfies “Collision”

Definition Accident

April 7, 2025: Four OCF 18’s Payable Despite MIG Hold

MIG

March 26, 2025: Post 104 IRB Ongoing for Non-CAT

CAT, IRB

March 24, 2025: 30% Award for Failure to Review CNRs Overturned on Reconsideration

MIG

March 19, 2025: Yes to CAT, No to Post 104 IRB

CAT, IRB

March 17, 2025: Imaging Report Alone Insufficient to Establish Causation

MIG

March 12, 2025: Tribunal Rules Again on Matter Referred Back by the Court

Definition Accident, Divisional Court

March 10, 2025: Res Judicata Waived on New Evidence

MIG

March 5, 2025: No Criterion 8 CAT as Physical Pain the Limiting Factor

CAT

March 3, 2025: Cause of Shoulder Tear Degenerative or MVA Related?

MIG

February 26, 2025: NEB Payable to 104 Week Mark Due to Technical Breaches

NEB

February 24, 2025: Doctor Not Required to Provide Diagnosis

MIG

February 19, 2025: Court Sets Aside Tribunal S.32 Notice Decision

Breaking News, Div Court, Limitation Period

February 12, 2025: Post 104 IRB Despite Employment & No CAT As Only Two Marked Impairments

CAT, IRB

February 10, 2025: GP Evidence Preferred over IE Regarding Concussion

MIG

February 5, 2025: No Election Required Despite Endorsement of IRB & NEB

Procedure, SABS

January 27, 2025: CNR’s + Imaging Determinative of Complete Shoulder Tear

MIG

January 22, 2025: Court of Appeal Upholds Divisional Court Decision

Divisional Court, NEB, Reconsideration

January 20, 2025: GP’s Diagnosis of “Head Injury” Prevails

MIG

January 15, 2025: Tribunal Accepts Neither Expert in Awarding Pre But Not Post 104 IRB

IRB

January 13, 2025: A Brain Contusion is Not Enough for a Concussion Diagnosis

MIG

January 9, 2025: Court Awards $69K in Costs for Apparent Miscarriage of Justice

Divisional Court,Costs

January 6, 2025: Corroborative Evidence Not Necessarily Required in Psych Diagnoses

MIG

December 18, 2024: Applicant Successful in CAT Case Where Respondent’s Expert Unavailable

CAT

December 16, 2024: Applicants Lose on Flawed Interpretation of the Schedule

MIG

December 11, 2024: Court Sends Paraplegic Matter Back to Tribunal re “Accident”

Definition Accident, Divisional Court, Reconsiderations

December 9, 2024: Pre-Existing Conditions MIG Escapes?

MIG

December 4, 2024: Court Remits $770K Award Worthy Matter Back to Tribunal

Award, Divisional Court, IRB

December 2, 2024: GP Questionnaire Does Not Trigger MIG Escape on Pre Existing

MIG

November 27, 2024: Court Remits $200K Award Worthy Matters Back to Tribunal

Award, Divisional Court, IRB

November 25, 2024: Pre-Screen Not Psychological Diagnosis

MIG

November 20, 2024: IE Not Reasonable or Necessary – No to CAT & IRB

CAT, IRB, Procedure

November 18, 2024: No Evidence Pre-Existing Conditions Prevent MMR

MIG

November 13, 2024: Applicant’s Explanation for Delayed Application Found Reasonable

Procedure

November 11, 2024: GP Concussion Diagnosis Accepted as Legitimate

MIG

November 6, 2024: Court Remits “Unsafe” Decision Back for Rehearing

CAT

November 4, 2024: Submissions Do Not = Evidence

MIG