MIG Update – February 3, 2025



Age Related Recovery Impact Speculative

This week’s MIG case, an escape, where the Tribunal considers whether a diagnosis of a full thickness tear of the right shoulder was a preexisting condition or rather was caused by the subject accident.

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In Devittoris v. Aviva Insurance Canada (23-010620), Garazio Devittoris was involved in an accident on May 28, 2021, and sought entitlement to IRBs from November 5, 2021, ongoing and to a psychological Treatment Plan. He submitted he should be removed from the MIG based on a partial tear of his right shoulder and that his age of 72 was a pre-existing condition that precluded maximum recovery under the MIG. Our review here deals with the MIG claim.

Devittoris relied on the April 2023 ultrasound that demonstrated he had a partial thickness tear of his right shoulder with degenerative changes at the joint and evidence of bicep tendinopathy and tenosynovitis. He submitted that his neck, back and shoulder pain precluded him from completing the essential tasks of a chef and restaurant manager. He submitted his job duties included managing, taking orders, taking care of employees, purchasing food and liquor, and cooking.

Aviva disagrees that the right shoulder injury is a result of the accident and also submits that a partial thickness tear is a minor injury.



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The Tribunal found:

    • There was no medical attention at the scene however Devittoris went to walk-in clinic later that day with complaints of neck and back pain, nausea, vision issues, and headaches. He was referred for x-rays, prescribed an anti-inflammatory and referred to physiotherapy.
    • On May 31, 2021 Devittoris followed up with his family doctor, Dr. L. DiNardo and reported that his neck pain was better and that the pain was mostly related to neck rotation. No other issues were recorded during this visit.
    • According to the records from Full Function, he complained of left shoulder pain and bilateral arm and leg pain.
    • The ultrasound on his right shoulder dated April 21, 2023 concluded that Devittoris had a partial thickness tear of the right shoulder with degenerative changes at the joint and evidence of bicep tendinopathy and tenosynovitis.
    • “I find that I need not consider the cause of the Applicant’s partial thickness tear in his right shoulder because a partial thickness tear is a minor injury as stated in the MIG. Section 3 of the Schedule defines “Minor Injury Guideline (“MIG”)” as follows:
    • (a) that is issued by the Chief Executive Officer under subsection 268.3 (1.1) of the Act and published in The Ontario Gazette, and
    • (b) that establishes a treatment framework in respect of one or more minor injuries; (“Directive sur les blessures légères”)
    • The partial tear of Devittori’s right shoulder was a “sprain” pursuant to Superintendent’s Guideline No. 01/14.
    • The effect of Devittori’s age on his recovery was speculative and not supported by any medical professional. “Having reviewed the ultrasound report, walk-in clinic CNRs, Dr. DiNardo’s CNRs, Full Function’s CNRs, and the IE reports and paper reviews, none of the professionals in those records indicate that the Applicant’s age factors into his recovery”.

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 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 !

 

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