MIG Update – September 12, 2022
Knee Injury Found to be Non Minor
In this week’s MIG case, all parties agreed that the injury suffered by the Applicant was chondrosis of the right knee. Where they differed was whether this was a minor injury and whether it was caused by the accident in question. The Tribunal finds that the cartilage injury is a non-minor injury. The question of causation was predicated on medical evidence.
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Factor: Knee Injury Non Minor
In Panos v. Federated Insurance Company of Canada (21-003371), Christopher Panos claimed that he sustained a serious knee injury in an April 2018 accident and should not be subject to the MIG. Panos started to complain of right knee pain right after the accident and was subsequently diagnosed with Chondrosis of the right knee.
Federated argues “that the chondrosis is a minor injury because it falls within the definition of “sprain” in s. 3 of the Schedule. It relies on M.C. v Wawanesa Mutual Insurance Company CanLII 12783 (ON LAT), in which the Tribunal found that the applicant’s knee injuries—including cartilage deterioration—did not remove her from the MIG.”
The Tribunal found:
- Chondrosis in Panos’ right knee was caused by the accident.
- Chondrosis does not fall within the injuries listed in the definition of minor injury as cartilage is a different kind of tissue from tendons or ligaments with a different physiological function.
- That M.C. v Wawanesa Mutual Insurance Company was distinguishable as cartilage deterioration was one of several alleged knee injuries that the Tribunal found was not caused by the accident. Further, this case does not stand for the general proposition that injuries to cartilage are minor injuries.
- Panos started complaining of right knee pain immediately after the accident and this was documented in his medical evidence.
- Federated does not explain why, if the accident did not cause Panos’ right knee injury, he began to experience pain in his right knee immediately after the accident, nor had they identified any potential cause of the chondrosis other than the accident.
- The opinion of the IE physiatrist, Dr. Oshidari that Panos only sustained a knee contusion was proven incorrect by the August 6, 2020 MRI, which identified chondrosis.
- A second IE assessor Dr. Rabinovitch, conclusion that the chondrosis didn’t affect Panos’ functionality was also incorrect. Panos consistently reported to all assessors, including Dr. Rabinovitch, that he’d reduced his work hours, and was limited to less strenuous tasks in his restaurant; and he was no longer able to ski or scuba dive, or perform outdoor maintenance such as snow shoveling.
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