In 2019, Ms. Marcelo was injured in a motor vehicle accident and applied for accident benefits from the insurer. Among several conditions justifying removal from the MIG, Ms. Marcelo claimed to have sustained a concussion as a result of the accident.
It is now well established that concussions, if established, fall outside the MIG. However, in order to be removed from the MIG, the claimant must typically present evidence that demonstrates that, as a result of the accident, they suffered a concussion or post-concussive syndrome. Such evidence may include ongoing complaints, imaging, or a referral to a specialist.
Prior Cases
In Dawkins v BelairDirect Insurance Company, the claimant relied on one clinical note from the family physician that noted “head injury” and a diagnosis of concussion made by a chiropractor. However, a CT scan completed at the hospital on the date of the accident found no abnormalities. The adjudicator did not find the medical record to be sufficient evidence of a concussion, noting that it was not clear on what basis a concussion was diagnosed and the normal CT scan.
In Aus v Unifund, the possibility of a mild concussion was noted in the initial post-accident medical records; however, a CT scan done two days post-accident were normal. There were no other records that referenced a concussion diagnosis and the insurer obtained a s. 44 neurology report which confirmed no concussion. As such, the claimant was unsuccessful in escaping the MIG.
In other decisions, that LAT has also given minimal weight to concussion complaints that are not corroborated by diagnostic imaging contemporaneous to the date of the accident and / or ongoing concussion-related complaints. However, in the decision of Jolicoeur v RBC Insurance, an adjudicator removed the claimant from the MIG solely due to the notation of “head injury” in the hospital records from the day of the accident.
The LAT has affirmed that a claimant must provide medical evidence from a qualified, medical practitioner that supports a diagnosis of a concussion. In Hughes v Intact, the adjudicator noted that the most insightful medical information would be a diagnosis with an explanation from a neurologist. However, the LAT has also affirmed that a neurologist diagnosis is not required and will accept a diagnosis from a qualified medical provider (a family doctor / general practitioner).
Marcelo Decision
In Ms. Marcelo’s case, she pointed to several factors within the medical record to support a concussion diagnosis. In particular, she submitted that a CT head scan performed on the date of the accident revealed a cerebral contusion which was evidence of a concussion. Additionally, she referenced medical literature which referenced contusions as forms of traumatic brain injury.
Adjudicator Iannazzo concluded that Ms. Marcelo had not proven on a balance of probabilities that she sustained a concussion. He noted that the “minor injury” definition under s.3(1) of the SABS expressly includes “contusion”. The word contusion is not limited within the SABS and, as such, includes all types of contusions, including a brain contusion, within the meaning of minor injury.
Consistent with the body of concussion / head injury jurisprudence summarized above, the adjudicator reviewed the available medical evidence but concluded that a concussion was not corroborated. The hospital and family doctor records did not contain a formal diagnosis of concussion. An OCF-18 prepared by a psychologist was not compelling evidence of concussive symptoms given that it was outside of the scope of a psychologist to diagnose a head injury. Further, a letter solicited from a neurology clinic over three years post-accident was not persuasive given the neurologist did not assess the claimant and did not explain the rationale for their findings.
Take Home
Overall, this case reminds us that the burden to establish MIG removal rests on the claimant to bring forward compelling medical evidence to prove an injury that falls outside the definition of “minor injury”. The legal test to establish a concussion requires a claimant to provide medical evidence from a qualified medical provider that proves a diagnosis on a balance of probabilities.
The balance of case law from the LAT demonstrates that this requires documentation supporting a diagnosis of concussion or concussion symptoms from a physician, or perhaps another medical provider with a qualified neurological specialization. Further, review of the case law supports that LAT adjudicators assigned higher weight to medical evidence contemporaneous to the injuries sustained. Furthermore, while radiographic findings may be persuasive in supporting a concussion diagnosis, these findings are not in themselves evidence sufficient to establish a diagnosis.
Insurers should be encouraged to pursue medical documentation if there are concerns of a concussion or head injury in the context of an accident benefits claim. S. 33 requests are useful tools in allowing insurers to obtain the contemporaneous medical records necessary to adjust claims potentially involving concussions.
Insurers understandably may wish to obtain their own medical opinions on the feasibility of a concussion diagnosis via s.44 assessments. However, remain mindful that the burden of proof does not shift from the claimant to prove that they sustained a concussion. Insurers should be cautioned not to arrange s.44 assessments prematurely absent the contemporaneous medical records and pre-accident medical records (if there are concerns regarding pre-existing issues). Instead, insurers should utilize their s.33 information gathering powers early on in the claim and later determine whether s.44 assessments are warranted based on the information received.
See Marcelo v The Personal Insurance Company, 2024 CanLII 118797 (ON LAT), <https://canlii.ca/t/k85k2>.
1See HS v Aviva Insurance Canada, 2019 CanLII 83893 (ON LAT), online: <https://canlii.ca/t/j2b93>, at para. 21; and Castro v Allstate Insurance, 2023 CanLII 101080 (ON LAT), online: <https://canlii.ca/t/k0xbq>, at para. 21.
2See Ji v Economical Insurance Company, 2024 CanLII 13083 (ON LAT), online: <https://canlii.ca/t/k1xz6>, at para 17; and Vegh v Unifund Assurance Company, 2024 CanLII 6506 (ON LAT), online: <https://canlii.ca/t/k2lk9>, at paras 10-15.
3Dawkins v BelairDirect Insurance Company, 2024 CanLII 81222 (ON LAT), online: <https://canlii.ca/t/k6jgj>, at paras 22-27.
4Aus v Unifund, 2024 CanLII 69882 (ON LAT), online: <https://canlii.ca/t/k60zk>, paras 30-35.
5See Berat v Economical Insurance, 2023 CanLII 72609 (ON LAT), online: <https://canlii.ca/t/jzks4>, at paras 11-12; and Brown v Co-operators General Insurance Company, 2024 CanLII 54026 (ON LAT), online: <https://canlii.ca/t/k57qf>, at paras 12-13.
6Jolicoeur v RBC Insurance, 2020 CanLII 103478 (ON LAT), online: <https://canlii.ca/t/jccg4>, para 7.
7Hughes v Intact Insurance Company, 2022 CanLII 53743 (ON LAT), online: <https://canlii.ca/t/jpwn7>, at paras 120-127.
8Gavey v Wawanesa Insurance, 2024 CanLII 77430 (ON LAT), online: <https://canlii.ca/t/k6cgz>, at para 24.
