Canadian Underwriter

Court upholds minor injury guideline on shoulder tears

March 7, 2022   by David Gambrill

Anatomy of Shoulder , rotator cuff tear, Shoulder pain. 3d illustration

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Partial shoulder tears are “minor injuries” under Ontario’s Minor Injury Guidelines (MIG), which cap accident benefits for drivers suffering minor injuries at $3,500, the License Appeal Tribunal (LAT) has confirmed.

Mohd’Ismail Patel, a delivery truck driver, was injured in an automobile accident on June 22, 2018, and sought accident benefits from his insurer, Security National. Patel argued his injuries were not minor, and he therefore shouldn’t be subject to the MIG cap.

Patel claimed four different reasons why his injuries were not minor:

  • His three different partial shoulder tears were not “minor.”
  • He suffered a psychiatric disorder because of his accident.
  • He had a pre-existing condition — lower back pain — that the incident exacerbated.
  • He had chronic pain.

Siding with the insurer, the LAT rejected all four of the driver’s arguments.

First, LAT found muscle tears are included in MIG’s definition of minor injuries under the category of a “strain.”

Second, in a medical pre-screening report, psychologist Dr. Zhu-hui Li provisionally diagnosed Patel with a “somatic symptom disorder with predominant pain: moderate; specific phobia, situational: vehicular; and an adjustment disorder with mixed anxiety and depressed mood,” as the tribunal decision noted.

“Dr. Li’s diagnosis of a specific phobia, situation: vehicular is conflicting with [Patel] reporting that he resumed driving as a delivery truck driver for his employment at regular hours as of Jan. 14, 2019,” the LAT’s Mar. 3 decision said. What’s more, no drugs were prescribed for the anxiety and depressed mood, the tribunal added.

As for the pre-existing condition, Patel did not submit any evidence showing that maximal recovery would not be possible under the limit set by the MIG.

“[Patel] relied upon a Jan. 20, 2021 letter from Dr. Jamal, which stated that [Patel’s] pre-existing condition of recurrent mechanical low back pain was ‘likely an aggravating factor in his recovery from the injuries sustained in the motor vehicle accident of Jun[e] 22, 2018,’” the LAT decision said.

“This letter, however, is silent on whether the applicant would be prevented from achieving maximum medical recovery within the MIG limits, which is the test to meet for removal from the MIG based on a pre-existing condition.”

Chronic pain only meets one of six threshold indicators of reduced physical functionality, the tribunal observed. At least three threshold indicators have to be achieved to be taken out of the MIG. And even Patel’s one threshold indictor resolved after time.

“It is clear that [Patel] continued to report ongoing pain and was diagnosed with chronic mechanical low back pain by Dr. Jamal on Nov. 1, 2018,” the LAT noted. “Dr. Jamal’s [medical assessments], however, noted that the applicant’s lower back pain had resolved as of Jan. 9, 2019, which coincides with [Patel’s] return to work on Jan. 14, 2019 on light duties (but at regular hours).

“On June 10, 2019, [Patel] had returned to full work duties with no restrictions to his ‘physically demanding job as a delivery truck driver.’”


Feature photo courtesy of Bhadramani