MIG Update – January 29, 2024
Concussion Despite No Head Injury?
This week’s MIG escape discussion is on a concussion case that was discussed in part in our LAT inFORMER issue released January 3, 2024 “Significant & Competing Price of Non-Compliance for Both Parties” reviewing the non-compliance issues involved. Our review today focuses on the Tribunal’s consideration of the evidence and merits to determine the MIG.
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Factor: Evidence
In Thanh Du v. Economical Insurance Company (21-015816), Vinh Thanh Du was involved in an automobile accident on February 14, 2020 and sought physio and massage therapy services beyond the MIG limits.
There was no dispute that Thanh Du sustained soft tissue injuries. Nor that a diagnosis of concussion or post concussion syndrome takes an insured person out of the MIG. The point of contention is whether or not Thanh Du had provided sufficient evidence of a concussion or post concussion syndrome diagnosis.
Thanh Du relied on the Credit Valley Hospital Emergency records that showed he was released with the diagnosis of head injury/concussion. Dr. Donskoy’s OCF-3 disability certificate dated April 13, 2020 listed concussion and referral to a neurologist. As well as the report and diagnosis of his neurologist, Dr. Viachislav Prigozhikh, dated November 11, 2020 of chronic headache that developed after the accident, concussion and post-concussion syndrome.
Economical on the other hand submitted that Thanh Du had not provided sufficient evidence of concussion or post-concussion syndrome. They relied upon a comment in the hospital records from Thanh Du indicating “no head injury”.
Economical further suggested that a diagnosis of concussion without a review of the property damage file and the MVA report should have no weight, relying upon Du’s statement that he was going 5 KM/hour at impact and could not have sustained a concussion because his vehicle was travelling too slow to have sustained an injury. Also Dr. Donskoy and Dr. Prigozhikh’s diagnoses are based on subjective symptoms and their opinions did not include a review of the hospital records or any other documentation related to the accident.
The Tribunal held:
- The comment of “no head injury” appeared under the subjective assessment portion of the hospital records following Thanh Du’s description that his head was jerked which was not a diagnosis but rather his description. The hospital discharge of head injury/concussion diagnosis of the attending physician, were preferred over Thanh Du’s subjective comment.
- The neurologist, Dr. Prigozhikh report was not based on subjective symptom reporting; it also included the June 7, 2020 CT scan and a physical assessment.
- If Economical “suspected that the Delta V (change in velocity) forces in the applicant’s vehicle were not strong enough to cause a concussion, I would have expected it would have arranged for a biomechanical expert to conduct a paper review or a biomechanical IE assessment shortly after receiving the OCF-3 April 2020”. Given that Economical “did not see fit to request an IE when it might have been reasonable to do so, I am unable to accept that little weight should be given to Thanh Du’s doctors’ diagnoses.’
- There was sufficient force to result in multiple impacts such that Thanh Du’s vehicle was rendered a total loss, and that there was no evidence that Du’s neurologist Dr. Viachislav Prigozhikh “had training in biomechanics such that having the MVA report or the property damage file would have affected his diagnosis.”
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?