[Special Edition] Volume. 5 Issue. 20 – May 18, 2021
In the latest installment of MIG Monday, we featured two cases in which the Tribunal found that the Applicant had failed to meet the burden of proving the injuries sustained were not properly within the MIG. As a result, the Tribunal opted not to address the submissions brought forward by the Insurer.
In the case featured in this special edition of the LAT inFORMER, this approach was not followed. Conversely, despite the Applicant’s medical evidence failing to establish causation, the Tribunal found that the evidence in the IE reports in fact established the required causation to essentially make her case.
LAT Establishes Causation Case for Applicant
Tribunal Makes Your case? – In MacPhail v Aviva (20-000825), a 2012 accident, MacPhail was seeking a 2019 OCF-18 for further chiropractic therapy. Causation was at issue in this matter, regarding ongoing low back and hip pain being directly as a result of the accident. The Tribunal found that the records from MacPhail’s treating and consulting physicians “do little to support this finding”. Further, the records of her treating therapists do not reference the accident as a cause of the ongoing pain. However, in this matter the analysis did not end here.
The Tribunal found that it was “the reports of the respondent’s own Section 44 assessors that provide evidence linking the accident to the applicant’s persistent low back and pelvic pain.” Both assessors “offer opinions on the cause of the applicant’s sacroiliac or low back and hip pain that are persuasive considering the medical record as a whole.” Further, MacPhail’s GP cited the goal of ongoing therapy was to address pain “due to her arthritis”. However, “as far as [GP]’s notes speak to causation, I prefer the opinion of [IE assessor] that arthritis was a contributing cause, but not the sole cause, of the applicant’s impairment.”
Despite this rendering, the IE assessor ultimately opined that further chiropractic therapy would not assist MacPhail. This conclusion though was “at odds with his findings”, and at odds with evidence of the benefits derived from said treatment historically. The plan was awarded, the Tribunal noting as well that the IE assessor gave no reasons for suggesting the Applicant’s condition had plateaued.
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