MIG Update – March 3, 2025
Cause of Shoulder Tear Degenerative or MVA Related?
This week, a MIG escape on the diagnosis of a shoulder full thickness tear wherein the Tribunal considered the ‘but for’ test in determining if the subject accident was the cause of the injury.
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In LaGuerre v. TD General Insurance Company (22-012945), Jean-Claude LaGuerre was involved in a motor vehicle accident on November 29, 2019, and sought entitlement to the three Treatment Plans for physiotherapy, a chronic pain assessment, and an orthopaedic assessment totalling $7,162.20.
LaGuerre submitted that his injuries, including a full-thickness rotator cuff tear confirmed on a MRI November 2020 and subsequent surgery, were non-minor, caused by the subject accident and warranted removal from the MIG. He relied on medical reports from his family physician, Dr. Boyd, and an orthopedic surgeon, Dr. Rajiv Prihar, who documented his ongoing left shoulder pain, MRI findings, and the need for surgical intervention.
TD argued that LaGuerre provided little medical evidence to support any ongoing medical issues or a need for further treatment from accident-related injuries that would warrant removal from the MIG. It relied on the October 2020 IE report from physiatrist, Dr. Mohammed Abdul Khan, and the July 2021 report of orthopedic surgeon, Dr. Jamie Rusen, who opined that LaGuerre’s condition was more likely due to degenerative changes rather than the accident.
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On the issue of causation the Tribunal found:
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- LeGuerre consistently reported left shoulder pain to his family doctor, Dr. Boyd post-accident, and that Dr. Boyd wrote letters on November 16, 2021, and April 1, 2022, stating that LeGuerre’s left shoulder pain began immediately following the accident and as such “the pain was clearly triggered by the MVA.” There was no evidence of any intervening act between the date of accident and the discovery of the injury nor were there any pre-accident complaints.
- A September 2020 telephone consultation with orthopaedic surgeon Dr. Prihar, a referral made by his family doctor, noted reported pain and weakness in the left shoulder since the accident and a referral for MRI was made to rule out any underlying rotator cuff pathology.
- The MRI, dated November 29, 2020, revealed a small rim rent tear and delamination of the infraspinatus tendon, severe tendinosis of the biceps tendon with a tear of the long head of the biceps tendon, moderate degenerative changes in the glenohumeral joint, and moderate to severe degenerative changes in the AC joint.
- LeGuerre opted for a surgery rather than conservative management and underwent a shoulder arthroplasty and rotator cuff repair in April 2021.
- The October 2020 IE report of physiatrist Dr. Mohammed Abdul Khan did not comment or opine on the MRI dated November 29, 2020, that revealed the full-thickness tear, nor the left shoulder surgery, as both occurred after this physiatry assessment as such did not provide any compelling evidence on causation regarding LeGuerre’s left shoulder injury.
- “Moreover, I am not persuaded that the s. 44 orthopaedic surgeon report of Dr. Rusen, dated July 14, 2021, accurately reflects the applicant’s medical history or speaks to whether the applicant’s injuries would have occurred but for the accident. Dr. Rusen, in his orthopaedic report dated July 14, 2021, and addendum reports dated October 18, 2021, April 26, 2022, and September 16, 2022, opined that the left shoulder impairment is primarily related to non-accident degenerative conditions as opposed to any accident-related orthopaedic impairment. However, despite Dr. Rusen noting that the applicant denied any pre-accident complaints of left shoulder pain, Dr. Rusen does not comment on the lack of left-shoulder related complaints prior to the accident in the applicant’s medical record. Moreover, Dr. Rusen opines that “it is more probable than not that these findings are not directly attributable to the subject accident and are of a pre-existing degenerative etiology” despite the lack of pre-accident evidence to support this conclusion. Accordingly, I am more persuaded by the applicant’s family practitioners CNRs, given that they provide a more comprehensive picture of the applicant’s pre-and post-accident medical condition.”
- As such on a balance of probabilities, as per Sabadash v. State Farm et al., “but for” the accident LeGuerre would not have suffered from the left shoulder impairment of a full thickness tear and subsequent surgical intervention.
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.
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