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  MIG Update – November 14, 2022



MIG Escape on Pre -Existing Injuries Must Describe How

This week a MIG hold case, where the Applicant had a well documented history of depression and chronic pain and was not working at the time of the accident recovery from unrelated surgery.

The Tribunal acknowledged the pre-existing conditions however, found that the Applicant’s health providers did not include ‘how’ the pre-existing conditions would impact the recovery if held to the MIG.The ‘how’ was a key component previously determined as part of the 3-pronged pre-existing conditions test by the Tribunal.


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Factor: MIG Escape on Pre -Existing Injuries Must Describe How

In Testa v TD Insurance (20-006447), Fabio Testa involved in an accident on June 11, 2019 sought removal from the MIG because of his pre-existing conditions. Before the accident, he was diagnosed with depression, hypertension, dyslipidemia, chronic neck discomfort, cervical spinal osteoarthritis and headaches by his family doctors. At the time of the accident he was not working due to recovering from unrelated surgery, another barrier to his recovery.

TD Insurance on the other hand had taken the position that neither of Testa’s family doctors’ commented on his pre-existing neck issues and pain and its impact on Testa’s recovery. On the issue of chronic pain, again neither of Testa’s doctors commented on the level of pain or its impact on his function. On the psychological claim, Testa’s s25 assessment contradicted the findings of his family doctor.





The Tribunal found:

  • Neither of the family physicians commented on the Applicant’s pre-existing neck issues and pain and its impact on his recovery. Nor that the recovery from surgery was a barrier.
  • The doctor’s notes did not say “if or how” the pre-existing issues would impact Testa’s recovery or prevent him from reaching maximum medical recovery if confined to the MIG.
  • Dr. Mejule strongly contradicts the findings of Testa’s psychological assessment report by Dr. Lindal. “I would have expected Dr. Lindal’s observations to have been supported by contemporaneous evidence from the applicant’s family doctor or psychiatric treatment provider, which was not the case”.
  • Testa also failed to address these inconsistencies, nor why he was reporting feeling well and trying to wean off his psychological medication.
  • With respect to chronic pain, it was surprising that neither of Testa’s family doctors discussed his “pain” in relation to his “function” nor suggested that Testa’s pain required a referral to a specialist.
  • “Though the applicant’s paramedical providers did comment on the applicant’s pain in general, these comments did not fully address or probe the applicant’s limitations, pain levels, or in light of his pain with objective testing or other methodologies.”


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

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

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

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

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

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

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

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

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

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

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February 26, 2024: Unchallenged Virtual Chronic Pain Assessment Accepted

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

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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

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February 7, 2024: Financial Hardship Not A Defense for Repayment Responsibility

IRB

February 5, 2024: CT Scan of Wrist Fracture Contradicts Medical Opinion

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January 29, 2024: Concussion Despite No Head Injury?

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January 24, 2024: One Assessment Process Produces Two Discrete Reports

CAT, Productions

January 22, 2024: Defective Notices Do Not Trigger Limitation

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January 17, 2024: Election Not Required, LAT Act Invoked & Limits Exhausted?

Award, Limitation Period

January 15, 2024: Chronic Pain Diagnosis Contradicted by Self-Reports

MIG

January 10, 2024: NEB Reinstated After Six Years Generates Award

Award, NEB

January 8, 2024: Undisputed Psychological Diagnosis Prevails

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January 3, 2024: Significant & Competing Price of Non-Compliance for Both Parties

Non-Compliance

December 20, 2023 (Throwback Edition): Statutory Relief Within Tribunal’s Jurisdiction

Jurisdiction

December 18, 2023: ‘Incident’ of Viewing Video Not Use and Operation

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December 13, 2023 (Throwback Edition): Employed Applicant Remains Entitled to Post 104 IRB

IRB

December 11, 2023: Chronic Pain Diagnosis In Absence of Physical Exam?

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December 6, 2023: Four Marked Impairments for 2010 MVA

CAT

December 4, 2023: No Adverse Inference Drawn Despite Lack of pre MVA CNRs

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November 29, 2023 (THROWBACK EDITION): 18 Month Delayed Notice Reasonable, However 7 Month Delay is Not

Limitation Period

November 27, 2023: Confirmed High Bar to Escape MIG on Pre-Existing

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November 22, 2023: Multiple IEs Excluded From Evidence

IE, Evidence

November 20, 2023: Radiculopathy Complaint Requires a Diagnosis

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November 15, 2023: Court Applies Tomec & CAT Decision Varied

CAT, Limitation Period

November 13, 2023: Insurer Expert Conclusion Inconsistent with Findings

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November 8, 2023: Maximum Award in Excess of $60K on CAT Case

CAT

November 6, 2023: Medical Evidence Overrides Legal Referrals

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November 1, 2023: Eighteen Month Delayed Notice Reasonable However Seven Month Delay is Not

Limitation Period

October 30, 2023: Which MVA Exacerbated Injuries?

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October 25, 2023: Application Seeking CAT Determination an Abuse of Process

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October 23, 2023: Functional Disability Despite 50 Hour Work Week

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October 18, 2023: Statutory Relief Renders Equitable Remedy Moot

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October 16, 2023: Injuries Not Static - MIG Determined Again

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October 11, 2023: CERB is Income However Not “Gross Employment Income”

IRB

October 4, 2023: Employed Applicant Remains Entitled to Post 104 IRB

IRB

October 2, 2023: ‘IE’ Does Not Establish Causation

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September 27, 2023: Post June 1 CAT Criterion 8 Satisfied

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September 25, 2023: Chronic Pain Distinct from Recurring Pain

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September 20, 2023: Expert Opinion Not Required for IRB Entitlement

IRB

September 18, 2023: Inconsistency Argument Not Accepted

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September 13, 2023: IRB Payment Delayed Four Years – 20% Award

Award, IRB

September 11, 2023: MIG Determined Absent Applicants Written Submissions

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August 30, 2023: Pain Determinative in Successful Post June 1 CAT Case

CAT

August 28, 2023: Knee Injury from MVA Caused Slip and Fall & ACL Tear?

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August 23, 2023: WSIB Placement Qualifies for IRB

IRB

August 21, 2023: Absence of Applicant’s Medicals A Difference Maker

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