MIG Update – August 28, 2023

Knee Injury from MVA Caused Slip and Fall & ACL Tear?

This week in a MIG hold case, causation was the central issue to be determined by the Tribunal where an applicant sustained a right knee sprain as a result of the car accident then subsequently an ACL tear following a slip and fall on ice. The Applicant advanced an opinion that the ‘weak leg’ resulting in the slip and fall was interrelated to the accident.

LAT Update – What Difference Did A Year Make?

The LAT released Performance Stats up to mid-year 7 which is current through to the end of September 2022. Together with the LAT’s last update we can now provide a comparison of year over year, with projections through to the end of year 7 in this annual update. What difference did a year make?

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Factor: Causation

In Kothiya v. The Co-operators General Insurance Company (21-005414), Brijen Kothiya was in an accident on August 30, 2019 and suffered a right-knee injury that he advances contributed to a tear of his right anterior cruciate ligament (“ACL”) that took place when he slipped and fell on ice 4 months later on December 23, 2019. Kothiya submitted this injury necessitated removal from the MIG as a tear doesn’t come under the minor injury definition. He further submitted he suffered a psychological injury.

Kothiya relied on X-Rays report of his right knee and CT Scans of his lumbar, thoracic taken on August 31, 2019; a Disability Certificate by Dr. James Wawrow, chiropractor, who listed lumbar and thoracic strain and a MCL sprain of the right knee. Dr. Wawrow provided 4 treatments in November 2019 documenting worsening right knee complaints. A foreign student with no OHIP coverage, he utilized the services of a walk-in clinic where he received a prescription for Naproxen and a requisition for an MRI.

The central issue here was that of causation. Kothiya relied on a note dated May 2020 from his surgeon Dr. Shah who performed the ACL repair surgery. Dr. Shah wrote that an injury suffered in the initial accident caused a “weak leg” that led to the re-injury in the December 2019 fall, leading directly to the ACL injury.

The Co-operators citing the ‘but for’ test argued that but for the slip and fall on ice, Kothiya would not have suffered the right-knee ACL tear causing him to require surgery and to suffer subsequent impairments necessitating treatment outside of the MIG. Further that the Kothiya’s psychological complaints have not been corroborated by medical records.

The Co-operators position was further supported by the IE report November 2020 of Dr. Alfonse Marchie, physiatrist, who opined that Kothiya’s accident-related impairments ‘relate to soft tissue injuries to his right knee (which was further exacerbated from his fall which occurred after the MVA), shoulders, and back regions’.

The Tribunal held:

• The X-Rays of the right knee and the CT scans of the thoracic and lumbar spine taken August 31, 2019 were both unremarkable. The injuries listed on the OCF 3 were soft tissue injuries.
• The evidence predominantly shows that Kothiya’s right knee was not injured beyond soft tissue sprains/strain as a result of the accident nor that the right knee was worsening in the 4 months between the two incidents.
• Neither the MRI nor any other medical diagnostics had been conducted before the slip and fall on the ice.
• The MRI report from Pennsylvania, where the fall occurred, dated January 6, 2020 noted “History: Fell on ice, sprain[ed] right knee,” with no comment about a prior accident.
• Dr. Shah’s note supporting a direct link between the subject accident and the fall on ice/ACL tear was largely speculative and questionable. Further, Dr. Shah wrote in his note that the December 2019 incident was a fall “on stairs.” “This inconsistency makes me further doubt the accuracy of Dr. Shah’s conclusions, given that all other evidence indicates that this fall took place on ice.”
• “I accept that the applicant’s right knee was injured in the subject accident, the later slip and fall on ice broke the chain of causation”.

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.

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