MIG Update – November 30, 2020

Factor: MIG Medical or Legal Opinion?

An assessor, either for the Respondent or the Applicant, may be overstepping their scope of expertise when they give an opinion about the MIG and the applicability of the MIG cap. In this week’s MIG Monday, the Tribunal clarifies the difference between a medical opinion versus a legal one.

In 19-001009 v Aviva, a case that involved multiple issues, the Tribunal found a psychologist’s opinion regarding the MIG was outside the scope of his expertise. While the opinion provided a prognosis and diagnosis, it went further to include other comments that are legal in nature about the costs of treatment and whether the Applicant should be in the MIG.

The Tribunal ruled:

• Reliance on the psychological portion of expert report (such as the diagnosis/prognosis) was reasonable
  

• However, it is not reasonable to place equal reliance on the IE comments about the MIG conclusion

• “Comments about the MIG are legal or mixed psychological/legal conclusions, which are not [the assessor]s expertise…”

• While the insurer might consider the comments, they are decisions for the insurer to make

• Once the IE made a provisional diagnosis and even recommended a further assessment, the Respondent should not have accepted the “erroneous legal conclusion” that the Applicant is in the MIG

• The assessor also included comments regarding the MIG cap which includes physical treatment and other expenses not in the doctor’s expertise or of which he may not be aware

Need research assistance? Request your Outcome Analysis Reports (OAR). Or message us on Live Chat!