Volume. 9 Issue. 18 – June 4, 2025
MIG Escape Justifies CAT Assessments
This week the Tribunal considers a case wherein the parties had markedly disparate views as to the severity of injuries sustained. While the Respondent maintained that the Applicant ought to remain in the MIG, the Applicant contended that her injuries were sufficiently severe so as to justify securing CAT assessments.
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MIG or CAT – As a result of injuries sustained in a December 2020 MVA, the Applicant Oliveira in 22-008987 v Aviva, sought removal from the MIG in addition to an OT assessment, access to an MRI and SPECT Scan, as well as approval for CAT assessments. It was the position of The Personal however that Oliveira had sustained soft tissue minor injuries only and therefore refused to consider Oliveira as being out of the MIG, in need of the services sought, nor entitled to pursue a CAT designation by way of the intended assessments.
MIG Removal
Oliveira submitted that she ought to be removed from the MIG for five reasons including the fact that she has hearing loss in her left ear and tinnitus. She argued that hearing loss and tinnitus do not fall within the MIG and relied upon the CNRs of Dr. Leung, and the s. 44 neurology assessment report of Dr. Ranalli, to support these diagnoses. Personal provided no submissions on whether Oliveira could remain in the MIG when she sustained hearing loss in her left ear. Rather, it summarized the report of Dr. Ranalli, which noted that Oliveira had sustained traumatic transient sensorineural hearing impairment on the left side, and that she was recovering from the resultant loss of hearing.
The Tribunal referenced a CNR entry December 14, 2020 in which Dr. Leung diagnosed Oliveira with left hearing loss after concussive noise exposure. This was accompanied by a hearing test report, also confirming that Oliveira had sustained mild sensorineural hearing loss in the left ear. Further, the IE of Dr. Ranalli concluded that Oliveira sustained traumatic transient sensorineural hearing impairment on the left side, but he did not opine that this was a soft tissue injury. Rather, Dr. Ranalli concluded that Oliveira’s “injuries can be described as a minor injury, however he provided no rationale on how hearing loss in the left ear would fall in the MIG definition.”
The fact that Dr. Ranalli opined that Oliveira was recovering from her hearing loss was “immaterial to the issue of whether hearing loss is within the definition of the MIG or not. There is no requirement under s. 3(1) for the applicant to be continuously impaired from an impairment, instead the issue is whether the applicant’s impairment fell within the definition of minor injury or not.” Accordingly, the Tribunal found that the diagnosis captured above warranted Oliveira being removed from the MIG.
OT Assessment
Oliveira sought an assessment that would serve to determine what accident-related restrictions Oliveira has related to her daily activities, and to provide assistance in order for her to return to these activities. She relied upon a screening assessment completed by the OT in question. The OT had concluded that Oliveira’s impairments were affecting her ability to carry out her tasks of employment and activities of normal living. The Personal countered that Oliveira had returned to work and returned to all activities of daily living. It further argued that the screening assessment should be given little weight because it is based on self-reporting and that no medical documentation was reviewed.
The Tribunal however found that the opinion of the OT was “supported by the bulk of the evidence before me, and I have no reason to doubt the applicant’s self-reporting.” In addition, Oliveira had consistently reported in her affidavit evidence, cross examination, and the s. 25 reports of Drs. Karmy, Miller, and Mr. Walton that she has functional limitations with her recreational activities, and heavier housekeeping tasks. Accordingly, it was found reasonable to investigate how these limitations can be treated through OT services. Further, “where the applicant has consistently reported limitations with her employment, housekeeping tasks, and recreational activities…I find that it is reasonable and necessary for an OT assessment to be conducted to investigate how these limitations can be treated through OT services.”
Numerous Issues with IE Assessors
For numerous reasons, the Tribunal found that the reports of Drs. Boynton and Azizli had limited evidentiary value. It was found that Dr. Boynton provided a limited rationale on how she concluded that Oliveira was independent in her activities of daily and noted that she is independent but there is no indication of how the conclusion arose. Further, Dr. Azizli concluded that Oliveira had returned to all activities of daily living, including returning to gainful employment, yet she had reported that she has not returned to snowboarding since the accident, was terminated as an Early Childhood Educator Assistant following this accident, and that she had pain in her current occupation. In addition, given that there had been no AEDs (Acknowledgement of Expert Duty) filed for the reports of Dr. Boynton and Dr. Ranalli, the Tribunal afforded limited weight to Dr. Boynton and Dr. Ranalli’s reports on this basis as well.
OCF-18 for an MRI and SPECT Scan
It was the position of Olveira that an “MRI and SPECT scan were required to rule out brain pathology, examine disruption of the anatomy due to injury and to examine the disruption of brain function. She further argues that the use of SPECT as a secondary tool to confirm the diagnosis, assess the functionality of the brain, and assist with future care is consistent with Wabie v. Wilson”. For their part, The Personal relied upon the opinions of their assessors, Dr. Levitan who opined that “SPECT scan results were suspicious”, and Dr. Ranalli, who “opined that SPECT scan technology is unreliable in the setting of a mild traumatic brain injury.”
The Tribunal found that “the SPECT scan was not used as a secondary tool as proposed by the applicant because there was no diagnosis of a traumatic brain injury until August 16, 2021, which is after the testing was completed. A SPECT scan was completed on June 10, 2021, yet there was no diagnosis of a traumatic brain injury until Dr. Ranalli’s report, which was two months after the scan was completed.” Further, in the SPECT scan summary, Dr. Yin-Hui Siow, used the results of the SPECT scan to diagnose Oliveira with anxiety disorders and depression in addition to the findings of a traumatic brain injury. It was noted that the Court in Wabie had found that “the Court has previously determined that the use of a SPECT scan to differentiate a traumatic brain injury from anxiety disorders and depression is novel and unreliable.”
Despite having placed reduced weight on Dr. Ranalli’s report because no AED was filed, his evidence was nonetheless preferred over the evidence of Dr. Melanie Castre, physician, as Dr. Ranalli’s opinion was also collaborated by the evidence of Dr. Levitan, the applicant’s treating neurologist. Further, both Dr. Levitan and Dr. Ranalli because both are neurologists have more knowledge over the reliability of the SPECT scan than Dr. Castre, who is a physician. Personal also failed to provide specific submissions on why the MRI of the brain is reasonable and necessary, where a previous CT scan was normal. Finally, the Tribunal agreed with The Personal that the testing sought was available through OHIP and, therefore, not payable under s. 47(2) of the Schedule, as MRIs are covered through OHIP.
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CAT Assessments
Oliveira sought entitlement to the CAT assessments to explore whether she is catastrophically impaired and further argued that the assessments are required to determine whether the 55% Whole Person Impairment (“WPI”) test or the mental/behavioural impairments in any of the four spheres of functioning meet the catastrophic impairment threshold. In contrast, the Personal argued that Oliveira sustained soft tissue injuries from the subject accident and is classified under the MIG. The Tribunal considered each assessment sought, finding all to be reasonable.
There was entitlement to both an otorhinolaryngology report and neurological assessment, in light of the confirmed traumatic brain injury, with headaches, light sensitivity, and visual aura which affect her self-employment because she is not working as many hours as she could if the impairment had not occurred. The psychiatric assessment was warranted given that psychological complaints are documented in the CNRs of Dr. Grieg. There was reference as well to the diagnosis of an adjustment disorder with anxiety, found consistent with the complaints of psychological symptoms and a further diagnosis of anxiety post- MVA. Therefore, the assessment was warranted in order to investigate whether the psychological impairments result in a CAT impairment in either criterion seven or eight. Orthopaedic and OT assessments were also approved based upon the medical evidence, and Oliveira was therefore entitled to $16,272.00 for completion of the CAT assessments sought.
Award
Finally, the Tribunal found that Oliveira was entitled to an award in the amount of 25% for the OCF-18s for an OT assessment and the catastrophic impairment assessments. The Tribunal accepted Oliveira’s contention that The Persona failed to consider the records of Dr. Leung and its own s. 44 assessor, Dr. Ranalli, which supported that the applicant sustained hearing loss in her left ear which is not a minor injury. Indeed, in an adjuster’s log note dated April 29, 2021, the adjuster noted that the applicant’s injury level was MIG, but under a subheading called “Escaped” noted “No- need medicals regarding hearing loss for consideration.”
The Personal argued that its denials were based on the medical evidence and the s. 44 reports. This however, failed to account for the fact that Dr. Leung’s CNRs supported Oliveira having sustained hearing loss in her left ear, that, as acknowledged by The Personal, would facilitate Oliviera being removed from the MIG. Accordingly, “I find that the respondent ignored the medical evidence before it and has not provided an explanation on why. The respondent has an obligation to review the medical documents before it and adjust its claim fairly. In ignoring the medical evidence, the respondent did not fulfil its obligation and unreasonably withheld benefits to the applicant.
I also find that the respondent acted unreasonably when it kept the applicant in the MIG based on the conclusion of s. 44 assessor, Dr. Ranalli because it simply followed the assessor’s opinion without question despite hearing loss and a traumatic brain injury not being a minor injury under the Schedule. The respondent has provided no explanation on why it accepted Dr. Ranalli’s conclusion that a traumatic transient sensorineural hearing impairment is a minor injury, when it clearly does not fall within the definition of a minor injury.”
The Tribunal found that the failure to consider Oliviera’s hearing loss or traumatic brain injury when determining her status under the MIG provided a monetary advantage to The Personal, and that “(t)he conduct of ignoring medical evidence and relying on s. 44 assessors’ opinion without question or consideration should be deterred.” Concluding, the Tribunal determined that Oliviera was entitled to a 25% award of the improperly denied items in dispute.
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