MIG Update – May 6, 2024

Potential Causation Does Not Support MIG Escape

The MIG case this week has the Tribunal considering whether a chronic low back complaint with MRI findings of an annular tear were caused by the subject accident.

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Factor: Causation

In Kang v. Intact Insurance (22-002457), Lisa Kang was involved in a motor vehicle accident on January 5, 2020 and sought entitlement to two Treatment Plans for physiotherapy services beyond the MIG limits on the basis that she sustained chronic low back pain as a result of the accident.

Kang relied on the CNRs of her family doctor, Dr. Kim, who observed a significantly limited range of motion in her lower back and right leg three days after the accident, and an MRI taken in November 2021 which revealed annular bulging and a broad-based right lateral annular tear at the L5-S1. Kang submitted she continued to complain of low back pain until the date of the MRI.

Intact on the other hand argued that although Kang consulted Dr. Kim numerous times after the accident she did not mention low back pain until nineteen months after the accident. They also relied on the insurer’s examinations by Dr. Greg Gelman, physician, dated September 9, 2020 and May 18, 2022 along with his review of the MRI findings and his conclusions that it was unclear whether the annular tear was caused by the accident.

The Tribunal found:

• • • The family doctor’s notes show that no complaints of back pain were made between January 8, 2020 and August 6, 2021. The first post-accident complaint of back pain after the accident occurred on August 6, 2021 which was inconsistent with Kang’s submission of reported and ongoing low back complaint.
    • Dr. Gelman first examined Kang on September 9, 2020 for an IE. She reported low back pain, and that this pain had increased in the previous month. Having found she had full range of motion in both flexion and extension when examining the low back, despite Kang’s complaint of discomfort, his diagnosis was that of soft tissue injuries, contusions and abrasions.
    • The MRI, dated November 12, 2021, reveals L5-S1 spondylosis and “a right annular tear and disc protrusion without exiting nerve impingement.”
    • Dr. Gelman in a subsequent IE on May 18, 2022 after conducting another physical examination and reviewing the MRI “concluded that the evolution of the applicant’s symptoms and the timing of the MRI make it difficult to connect the MRI results with the accident.”
    • There was no clear nexus between this tear and the accident. Kang did not report ongoing back pain after the accident to her family doctor. She told Dr. Gelman that her back pain suddenly increased in August, 2020, but this was seven months after the accident. “It is possible that this injury was caused by the accident, but the mere possibility of causation is not enough to meet the “balance of probabilities” evidentiary threshold”.

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