This blog post will focus on a common consequence of motor vehicle accidents: Concussions. For more information on the categories and their criteria, please see our Introductory Blog.
This series of blogs focus on the Minor Injury Guideline (MIG) vs. Non-Catastrophic Impairment (NCAT) demarcation and gives an overview of the types of injuries that the License Appeal Tribunal (LAT) recognizes as not being a “minor injury” as defined by the Statutory Accident Benefits Schedule. The personal injury lawyers at Littlejohn Barristers have significant experience representing clients suffering from concussions and their symptoms. If you have been in an accident or have been denied disability benefits and suffer from these ailments, contact our Barrie office at 705-725-7355 to see if we can help.
CATEGORIZING HEAD INJURIES?
A concussion is a ‘mild’ traumatic head injury caused by a bump or blow to the skull, which temporarily affects normal neurological functioning. They also occur during whiplash injuries as a result of rapid acceleration-decelerations of the head. The negative effects of concussions can manifest itself in several debilitating symptoms that may begin immediately after the injury or later on. These symptoms may be physical or cognitive and could include headaches or confusion, dizziness or imbalance, loss of consciousness (LOC), memory loss, sensory disturbances (i.e. sight, hearing, etc.), sleep issues, and mood changes.
Though many systems are used by the medical community to classify concussions, there is little agreement as to which is definitive. Despite technical classifications, neurologists emphasize that although some concussions are less serious than others, there is no such thing as a minor concussion. The effects of a concussion vary by the person, with the symptoms worsening in terms of severity or permanence depending on the individual’s concussive histories. Additionally, the fact that closed head injury lacks physical tissue damage, such as scrapes or bruises on the head, does not necessarily diminish the injury’s severity.
A subsequent negative consequence of concussions is Post-Concussion Syndrome (“PCS”), which is the persistence of concussion symptoms beyond the usual healing time of 14-30 days. These symptoms often impair the person’s ability to continue their usual physical, professional, and social lives without adjustment. In addition to symptom management, patients with PCS often need to restructure their lives to avoid activities and situations that cause symptoms to worsen. The incidence of PCS varies, but most studies report that PCS is a relatively common complication of concussion recovery, with about 15% of individuals who have a single concussion develop persistent symptoms. If the person has a history of concussions, then the risk for PCS increases substantially.
LEGAL RESPONSES TO CONCUSSIONS AND THE MIG
The MIG establishes a framework for the treatment of minor injuries. A “minor injury” is defined in subsection s. 3(1) of the SABS as: “… one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
Statutory Accident Benefits Schedule [O. Reg. 34/10], s. 3(1).
When it comes to brain trauma, the LAT classifies a concussion with post-concussive symptoms as a predominately non-minor injury. According to HS v. Aviva Insurance Canada, 2019 CanLII 83893 (ON LAT), “a concussion and post-concussive syndrome not defined in the Schedule as minor injuries and, therefore, do not fall within the MIG.” In HS, the adjudicator applied a two-part test. The applicant must have both:
Suffered the concussion as a result of the accident (i.e. hit her head); and
Suffer from post-concussive symptoms as a result of the accident (i.e. dizziness, sleep disturbances, headaches).
The LAT supplements this general statement with a helpful list of evidentiary requirements that are required to prove PCS. In 18-000655 v. Echelon General Insurance Company, 2018 CanLII 132557 (ON LAT), the applicant claimed that he suffered a concussion with post-concussive symptoms. The LAT agreed and found the following facts determinative under part (2) of the test:
Suffered the concussion as a result of the accident (i.e. hit her head); and
Suffer from post-concussive symptoms as a result of the accident (i.e. dizziness, sleep disturbances, headaches).
Applicant presents evidence that demonstrates that they suffer from PCS;
There was no suggestion of another factor causing the PCS;
The insurer’s report did not contradict the applicant’s expert report describing the PCS; and
Evidence of the applicant enjoying leisure activities did not suggest, without evidence to the contrary, that the Applicant does not suffer from PCS.
SUMMARY
Establishing a concussion with PCS on the evidentiary record effectively discharges an individual from the MIG. If this injury is alleged, the LAT considers whether the individual is in the MIG or is NCAT as a question of fact that must be proven by evidence under part (2) of the test (i.e. expert reports, medical records, treatment records etc.).
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