MIG Update – June 3, 2024
MVA Necessary Cause of Subluxation of Shoulder Joint
A MIG hold case reviewed this week involves a subluxation of the left sternoclavicular joint with instability which the Tribunal determined the subject accident to be the necessary cause. Having dealt with the causation as the first prong of the analysis the Tribunal considered the impact of the injury on the Applicants function to make the MIG determination.
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Factor: Causation
In Byrne v. Aviva (21-010164), Lisamarie Byrne, was involved in a motor vehicle accident on January 28, 2017, and sought entitlement to a chronic pain assessment and removal from the MIG as she suffers from ongoing left arm and shoulder pain that is chronic.
Byrne submitted that as a result of the accident the left arm and shoulder pain was caused by an injury to her left sternoclavicular joint. She argued that she developed degenerative subluxation of the sternoclavicular joint, which caused pain and limited her day-to-day activities. Byrne argued that these injuries were substantiated in the records and reports of orthopedic surgeon, Dr. Hall; as well as diagnostic imaging reports between October 2017 to October 2018. In December 2021, Dr. Hall diagnosed Byrne with a chronic condition and painful, permanent disability to her left sternoclavicular joint.
Aviva submitted that Byrne’s left shoulder pain complaints were due to degenerative changes and not the accident; and that the diagnosis of intermittent left sternoclavicular subluxation was within the definition of a “minor injury.” They relied on the March 2021 report of IE physiatrist Dr. Heitzner.
“As the respondent raised a causation issue with respect to the applicant’s left shoulder pain, I will be addressing this first. The test to determine causation is the “but for” test, one that provides that causation is a factual determination made on a balance of probabilities. The applicant must show that she would not have suffered the injuries “but for” the accident. The cause meeting that test need not be the major cause or sufficient in itself to have caused the injuries at issue. The injuries do not need to be “the cause” of the accident, but at least “a necessary cause” (see: Sabadash v. State Farm et al., 2019 ONSC 1121)”.
The Tribunal found:
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- Byrne established on a balance of probability that the accident was the necessary cause of the subluxation of the left sternoclavicular joint and instability.
- Dr. Hall in his report April 26 2023 opined that when he assessed Byrne on December 19, 2019, he found her pain to be consistent with a degenerative subluxation of the sternoclavicular joint. However, his records from December 2019 and 2021 noted the impact was to the left side of the vehicle and that Byrne had a left sternoclavicular joint injury which occurred during the accident. As such, Byrne had produced a medical opinion that links the subject accident and her impairment.
- Aviva’s submissions concede that Byrne sustained subluxation of the sternoclavicular joint and instability from the accident. Their IE assessor Dr. Heitzner diagnosed Byrne with intermittent left sternoclavicular subluxation which assists Byrne’s position.
- Byrne’s reliance on Dr. Hall’s diagnosis alone was not sufficient to remove her from the MIG as she did not provide persuasive evidence to demonstrate her chronic condition has had an impact on her function. She did not specify which activities were affected nor refer to evidence to support her position that her ADL’s were affected. The opinion of Dr. Hall also didn’t specify which activities were limited.
- The evidence provided by Bryne in her self-reporting to both Dr. Hall and Dr. Heitzner did not assist her in establishing the impact of the shoulder injury on her functions. She is working and taking care of two children at home and was a caregiver to her elderly parents. She managed her self hygiene and shared the household tasks with her husband.
- Byrne did not satisfy 3 of the 6 criteria for chronic pain found under the AMA Guides.
If you Have Read This Far…Our MIG Monday series discusses the multitude of factors to consider when evaluating a risk position on MIG cases. The Tribunal has ruled on the MIG in 24% of the decisions so far. Each case is nuanced, but with similar factors.
Inform your position & present persuasive arguments. Include an Outcome Analysis Report (OAR) in your case evaluation complete with For/Against cases. Need an OAR?
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