Beyond the MIG: Establishing a Pre-Existing Condition Under Section 18(2) of the SABS

Ms. Asieduaa was involved in a motor vehicle accident on February 6, 2022 and sought removal from the Minor Injury Guideline (“MIG”) on the basis of pre-existing lupus and chronic pain, pursuant to section 18(2) of the Statutory Accident Benefits Schedule (“SABS”). She also sought funding for other physical and psychological Treatment Plans. In her Decision, Adjudicator Sidibé held that the Applicant’s pre-existing lupus prevented her from achieving maximum medical recovery should she be confined to the monetary limits of the Minor Injury Guideline.

As above, the Applicant’s medical file revealed a history of lupus and chronic pain symptoms, as documented in her clinical notes and records from her family physician and two different rheumatologists. From 2017 until approximately 2022, the Applicant had been receiving treatment for her lupus. Moreover, the Applicant’s family physician documented an increase in attendance following the subject accident with consistent complaints of pain in her neck, shoulders, and back. On August 22, 2023, the Applicant’s section 25 assessor, Dr. Grigory Karmy, diagnosed the Applicant with chronic pain syndrome and opined that should she be subject to the $3,500.00 Minor Injury Guideline limit, she would be prevented from achieving maximum medical recovery. On March 8, 2024, the Applicant’s treating rheumatologist, Dr. Zhang, diagnosed the Applicant with fibromyalgia.

Adjudicator Sidibé criticized the report of section 44 assessor, Dr. Pankaj Bansal, who did not account for the Applicant’s subsequent diagnoses of chronic pain syndrome or fibromyalgia, nor his failure to consider the Applicant’s ongoing symptoms. Adjudicator Sidibé gave greater weight to Dr. Karmy’s report because it was a “comprehensive” analysis of the full progression of the Applicant’s condition. Of note, as discussed by Vice-Chair Mazerolle in the Reconsideration Decision in this matter, the Applicant had filed a complaint to the College of Physicians and Surgeons of Ontario (CPSO) regarding Dr. Bansal’s assessment. The CPSO found that “Dr. Bansal should have acted in a timelier fashion” in documenting the Applicant’s pre-existing health conditions, but failed to so in his initial reports.

Although the Applicant’s family physician’s clinical notes were “illegible”, said physician provided a medical letter outlining the Applicant’s symptoms, which included her pre-accident lupus diagnosis. Adjudicator Sidibé also relied on the clinical notes and records of the Applicant’s treatment clinic, which identified barriers to recovery on various Treatment Plans due to her “high pre-existing conditions”.

On the balance of probabilities, Adjudicator Sidibé found that the Applicant had satisfied her burden of proving a pre-existing condition that would prevent maximum recovery if limited to $3,500 in medical and rehabilitation benefits, pursuant to section 18(2).

This case, and Adjudicator Sidibé’s analysis within, is helpful in providing guidance for counsel and parties involved in LAT proceedings where the Applicant has a noteworthy pre-existing health history. To succeed, one must ensure:

1. That there is “compelling” documented evidence from a health practitioner before the subject accident establishing that the Applicant had a pre-existing medical condition;
2. That said pre-existing medical condition, if limited to medical and rehabilitation limits of $3,500.00, would prevent the insured person from achieving maximal recovery; and
3. That the connection between the existence of the pre-existing injury and the Applicant’s need for funding above and beyond $3,500.00 in order to achieve maximum medical recovery is articulated and argued, in detail.

Ms. Asieduaa’s consistent post-accident reports to multiple medical providers of pain exacerbation supported the analysis required under section 18(2). On the contrary, Dr. Bansal offered no analysis as to how the Applicant’s pre-accident medical history affected her post-accident recovery and functional limitations, especially in consideration of her pre-accident diagnosis of lupus. The Applicant’s ongoing pain complaints supported the need for ongoing therapy, a conclusion with which the Tribunal agreed.