MIG Update – January 13, 2025
A Brain Contusion is Not Enough for a Concussion Diagnosis
This week, a MIG hold case where the Tribunal considered the Applicant’s evidence that a diagnosis of a cerebral contusion represents intracranial pathology which together indicate a traumatic brain injury as a result of the subject accident.
With 1700+ MIG decisions determined by the LAT so far… we provide research support that gives you answers.
Virtual Training – New – Upcoming Sessions!
Secure your seat for inHEALTH’s 2025 Winter Virtual Training session!
- BI Fundamentals: January 20th – 24th, 2025
- SABS Expedited: February 10th – 14th, 2025
*Eligible Participants receive 9 Substantive – CPD hours upon course completion
Course details & register here +
In Marcelo v. The Personal Insurance Company (22-009313), Flordeliza Marcelo was involved in a motor vehicle accident on August 29, 2019 and sought entitlement to three Treatment Plans for physiotherapy, neuropsychological assessment, and a chronic pain assessment. She claimed that she should not be held within the MIG due to a concussion, chronic pain, and a pre-existing impairment that prevented her from achieving maximal recovery.
With respect to the concussion/brain injury Marcelo submitted that family physician Dr. El-Kateb, diagnosed a concussion. She relied on the Ambulance Call Report, which stated that she lost consciousness, had no memory of the accident, and complained of pain to her forehead, left side of her neck and right knee. Relying on the definitions in two medical dictionaries and a reference to an excerpt from a medical article, Marcelo submitted that a brain contusion diagnosed by the ER physician, Dr. Yeung, is a serious form of traumatic brain injury. Further, in her affidavit, her daughter stated that she observed cognitive changes in her mother after the accident.
Marcelo relied on psychologist Dr. Davidson’s July 2022 OCF-18 for a neuropsychology assessment, as well as a November 2022 letter from Dr. L. Becker and Dr. H. Becker, which stated that the left frontal cerebral contusion “represents intracranial pathology as a result of the accident” and that she “sustained a traumatic brain injury as a result of the accident.”
The Personal argued that Marcelo suffered soft tissue issues that disappeared within three months of the accident. It submitted that there was never a formal diagnosis of a concussion by any of her treating physicians, and she was never referred to a specialist for head-related complaints. Further that the medical literature referred to by Marcelo was irrelevant, and an attempt at diagnosing a brain injury that her family doctor never did. It submitted that the OCF-18 by Dr. Davidson was not evidence and that as a psychologist, she was not qualified to diagnose a brain injury. The letter from Doctors Becker should be given no weight as it is not supported by the medical records and is not objective medical evidence since the clinic they work for will benefit financially from providing services to Marcelo beyond the MIG. Lastly, Marcelo’s daughter’s affidavit should be given no weight since she is not a doctor and the affidavit is not objective medical evidence.
The Tribunal found:
-
- “Firstly, a “minor injury” as defined in section 3(1) expressly includes a “contusion”. The word “contusion” is not limited in the Schedule. In other words, a contusion includes all types of contusions, including a brain contusion. The CT scan showed, and Dr. Leung opined that there was a cerebral contusion. Accordingly, I find that the applicant’s cerebral contusion is a “contusion” within the meaning of “minor injury”.
- The family physician Dr. El-Katab did not diagnose Marcelo with a concussion and nor did the Ambulance Call Report state that she lost consciousness in the accident. Rather, the CNRs indicated that Marcelo told Dr. El-Katab that she was diagnosed with a concussion. Nor was there evidence that someone else had diagnosed her with a concussion.
- After September 2019 (approximately three weeks post accident) Marcelo did not report any further head-related issues to Dr. El-Kateb despite seeing her on a regular basis.
- The notes of both physiotherapist Ms. Sookmangal, and RMT Ms. Villarosa did not support the finding of a concussion or concussion symptoms, only a report of pain to the cervical spine which improved over time.
- The November 2022 letter from Drs. Becker was not persuasive, since their diagnosis of a traumatic brain injury was made more than three years after the accident, and they never examined Marcelo. Their opinion was based on a review of a “medical brief.” However, there was no explanation of what was in the medical brief, and they did not explain why their diagnosis should be preferred over Dr. Leung’s finding of a cerebral contusion.
- The affidavit of Marcelo’s daughter was dated nearly four years after the accident and the noted observations were very brief and general.
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 33% 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. Get an OAR!