MIG Update – November 21, 2022
$43K Worth of Submissions Denied Despite Confirming MIG Escape
This week a MIG escape, based on the Tribunal’s finding of exacerbated pre-accident depression and anxiety and a diagnosis of PTSD that were not minor injuries. The Tribunal, though, took issue with the over $43,000 in treatment which included about $12,000 psychological services, assessments and devices.
The Applicant’s submissions were absent as to how the submissions were ‘reasonable and necessary’. While some of the other items listed in the dispute did not have OCF 18’s submitted. The Tribunal quoted their own precedent case in dealing with the matter.
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Factor: Submission with No Evidence
In Ferguson v. The Co-operators (20-005234), Rockell Ferguson was involved in an automobile accident on May 24, 2019 who at the time had been on a medical leave from work since May 26, 2018 and had not returned post accident.
She had pre-existing conditions of depression, anxiety, chronic back pain, osteoarthritis of the neck and lumbar spine, mild scoliosis, spinal canal stenosis, and fibromyalgia. She reported an increase in depressive and anxious symptomatology since the accident.
Ferguson relied on 17 OCF 18’s listed in the dispute for treatment, cost of examinations and devices totalling over $43,000 to advance that her accident related injuries could not be treated within the MIG.
She further relied on the psychological assessment report of Dr. Harinder Mrahar, Clinical Psychologist, dated May 24, 2019 who indicated an exacerbation of the pre-existing depression and anxiety and diagnoses of PTSD and major depressive disorder.
Co-operators, relied on the IE report provided by Dr. Robert Hines, Psychiatrist, dated January 2, 2020 who concluded Ferguson “functioned well during the assessment” and demonstrated “no objective evidence of her subjectively reported symptoms” other when she was “mildly, briefly tearful”.
The Tribunal held:
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- The psychological impairments were noted as far back as February 2011 in the family doctors records. As well, the 38 post accident (August 2019 to February 2020) counseling session records demonstrated a pattern of reporting post-accident anxiety , fear, frustration and triggering thoughts as result of the accent.
- Both psychological assessments tendered, identified an exacerbation of pre-accident depression and anxiety with Dr. Mrahar specific diagnoses of PTSD and major depressive disorder.
- Dr. Mrahar conducted five objective psychometric tests resulting in a DSM-V diagnosis of post-traumatic stress disorder (“PTSD”), and major depressive disorder (recurrent severe without psychotic symptoms) Whereas, Dr. Hines did not complete any objective psychometric testing as part of his assessment which critically weakened the reliability of his report.
- Ferguson “has provided no submissions regarding how the various OCF-18s involving treatment and assessments are reasonable and necessary. Despite not having submissions, and after my review of the documents, I am not persuaded the applicant has met her onus pursuant to the Schedule”.
- In some of the items listed in dispute OCF 18’s were not provided at all.
- “A similar issue was addressed in the reconsideration decision of J.R. v. Certas Home and Insurance Company. Where the Executive Chair highlighted the obligation of the Tribunal to ask parties to submit information that it believes a party meant to rely upon as evidence in a hearing. The Executive Chair stated”:
Just as an insurer reviews a complete OCF-18 in order to properly decide whether to fund the insured’s request, the Tribunal generally requires the same document in order to properly understand both the insured’s request and the insurer’s response. Put simply, the Tribunal cannot fairly adjudicate an application in most cases without a complete copy of the very document giving rise to the parties’ dispute [my emphasis added].
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.
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