Torn ligaments, rotator cuffs are ‘serious’ injuries under tort, even if ‘minor’ under reforms: trial lawyer

Ontario’s auto insurance reforms are barely a month old and already trial lawyers have tipped their hand that they might try to achieve through tort what they will no longer receive from the province’s no-fault benefit scheme.
Ontario’s new, interim Minor Injury Guideline (MIG) places a $3,500 limit on benefits payments for ‘minor injuries,’ which include sprains. The MIG defines a sprain as “an injury to one or more tendons or ligaments or to one or more of each, including a partial but not a complete tear.”
Speaking as a panelist at the National Insurance Conference of Canada (NICC), trial lawyer John McLeish, senior partner at McLeish Orlando LLP, said tort law viewed partially torn anterior cruciate ligaments (ACL) or torn rotator cuffs as ‘serious’ and not ‘minor’ injuries.
He told hundreds of insurance industry representatives at the conference that under certain circumstances, he would consider representing a client in a tort action for ACL injuries or torn rotator cuffs should they fall within the MIG, and hence under the $3,500 cap.
“In tort, those [injuries] are anything but minor,” said McLeish. “In tort, if that occurred to, say, a construction worker who needed a stable knee or who needed a stable, strong shoulder, that guy meets the threshold [for a ‘serious and permanent impairment’]. That guy could have economic losses in the hundreds of thousands of dollars…
“That guy is going to have a viable tort case if he is stuck under the minor injury guideline.”