A very recent decision from the Civil Resolution Tribunal in BC reviews whether a shoulder injury sustained by the Applicant is deemed to be a “minor injury.” The CRT was asked to review and rely on the Sparrowhawk v. Zapoltinsky, 2012 ABQB 34 for determining whether an injury results in a “serious impairment” under Alberta’s minor injury scheme, which is similar to BC’s. In assessing this injury, the CRT did not adopt the analysis in Sparrowhawk and concluded that the shoulder injury met the criteria to establish a “serious impairment.”
EVIDENCE AND ANALYSIS
The experts retained in this case were:
In assessing whether an injury is minor, the Civil Resolution Tribunal “CRT” will want to see evidence about the impact of the injuries on a party’s life and work.
The CRT did not rely on the summary of other practitioners’ clinical records noted in the Physiatry reports as that is double hearsay as it contains descriptions of what the Applicant told those practitioners.
A comment of the CRT that is notable : “it would be far preferable for injured parties to provide direct evidence about their injuries.”
- The Applicant is 37 years old
- There were no relevant pre-existing injuries
- Noted sharp pain in left chest and shoulder
- numbness in left fingers, hand
- back pain
- pain in shoulder worse with movement
- pain when raising arms above shoulder level
- pain worse since the accident.
- worked full-time as a self-employed contractor
- 50 hours a week
- construction work included heavy lifting and using construction equipment.
After the accident, the Applicant was unable to perform any construction duties and had to hire others to do the physical work. Hours reduced to 40 per week.
- full range of motion in both shoulders, but with discomfort on his left side.
- External and internal rotation was “full and strong”.
- Parts of his left shoulder area were tender on palpitation.
- soft tissue injuries to the left shoulder
- soft tissue injuries to the left shoulder blade, and left collarbone
- left rotator cuff injury
- chronic pain.
- more likely will never fully recover.
- likely will have some discomfort for the foreseeable future.
- Final prognosis on left shoulder injury was not provided
- Referral to an orthopaedic surgeon was made.
Functional Capacity Evaluation
The purpose of an FCE is to measure a person’s functional ability to perform certain tasks, such as work, homemaking, and recreational activities.
- The Applicant had functional mobility
- Had discomfort with shoulder-level and overhead actions.
- Reported left shoulder fatigued over the course of testing such that he needed accommodation.
- Occupation: worked on all aspects of building and renovation business, including leavy lifting, demolition, delivering material, rebuilding, installing floors and drywall, framing walls, and building decks.
- Post accident, stopped performing most construction duties.
- Physical work was minor, such as site preparations, shopping for and delivering building material, measuring, and helping with finishing touches.
- Concluded that the Applicant was unable to perform all his former duties as a contractor.
- Concluded that Applicant should avoid all heavy lifting and carrying activities and limit any overhead lifting to 10 pounds.
- Job duties were modified by hiring more subcontractors and delegating tasks.
- Applicant remained incapable of returning to his previous duties.
Is the left shoulder injury minor?
One should be aware of the legal test set out in the IVA and MIR, which as described above includes several specific criteria.
If it is minor, has it resulted in a serious impairment?
- “failure to provide meaningful analysis to prove that the injuries are not minor” is determinative. CRT disagreed.
- CRT states the question of whether the injuries are minor ultimately comes down to what the evidence establishes.
- The 2 reports noted above must be reviewed
- Does the evidence support the allegation that the left shoulder injury is not minor?
- the left shoulder injury is presumptively a minor injury because it is a sprain, strain, and/or a pain syndrome.
- failed to provide any evidence that his inability to perform work tasks was caused by the accident.
- causation is beyond the expertise of an occupational therapist.
- left shoulder injury led to an impairment lasting more than 12 months.
CRT’s finding of fact
- expert report clearly establishes that the accident caused the left shoulder injury.
Is the left shoulder injury a “serious impairment”.
Respondent relies on Sparrowhawk v. Zapoltinsky, 2012 ABQB 34, an Alberta court decision that sets out a framework for determining whether an injury results in a “serious impairment” under Alberta’s minor injury scheme, which is similar to BC’s. I find it unnecessary to explicitly adopt the approach in Sparrowhawk because the court essentially restates Alberta’s 3-part statutory test as a set of 5 questions, without adding any analysis that I consider relevant to this dispute.
The test for serious impairment under the MIR
- expert reports do not identify any restrictions to suggest that the Applicant was substantially unable to perform his activities of daily living.
- There is also no suggestion that the Applicant was enrolled in a training or education program.
- The pre-injury role involved a considerable amount of heavy labour.
- Evidence identified heavy physical labour was involved
- the FCE clearly establishes that the Applicant can only do a small amount of what he used to on a jobsite.
- The left shoulder injury substantially impaired his ability to perform the essential tasks of his regular employment at the time of the accident.
- The Respondent states the Applicant was able to continue with his work functions with accommodation, namely by moving from a mixed role to an almost entirely administrative and supervisory role.
- CRT disagreed.
- Stated the heavy labour could not be reasonably accommodated.
- The left shoulder injury frustrated his chosen career path and forced him onto a very different path.
- This is substantial even though he has been able to move into a less physically demanding role within the same industry.
The CRT states the following:
As set out above, a serious impairment must also be ongoing and not expected to significantly improve.
- the evidence clearly establishes that the shoulder injury is ongoing.
- there is a possibility of a future surgery, which introduced some uncertainty.
- There is no evidence from an orthopaedic surgeon, but Applicant is waitlisted for a shoulder surgery.
Conclusion of the CRT
On balance, I find that the evidence establishes that significant improvement is unlikely. I find that Dr. says that the longer soft tissue injuries linger, the more likely they are to linger further. He further notes that they are typically expected to resolve within months. By then, Mr. M was 3 years post-accident with no improvement in his left shoulder. I find that the obvious inference from that evidence is that Mr. M is past the point where significant improvement is likely.
In summary, I find that Mr. M has established that his left shoulder soft tissue injury is not a minor injury under the IVA.
Read Case Law Here: Ampabeng v. Madden, 2023 BCCRT 826 (CanLII)
- Under section 4 of the Minor Injury Regulation (MIR), the party alleging that an injury is not minor bears the burden of proof. So, even though he is the respondent in this dispute, Mr. M must prove on a balance of probabilities that his injuries are not minor.
- As mentioned above, the parties were in a motor vehicle accident on June 5, 2019, In Maple Ridge, BC. Mr. M started a BC Supreme Court action for damages in December 2019. Mr. M says that he suffered injuries in the accident. I note here that Mr. M’s submissions repeatedly refer to his right shoulder, but I find this was likely a typo since the medical evidence all points to an ongoing left shoulder injury and no right shoulder injury.
- Section 101 of the IVA and the MIR together provide a detailed definition of a minor injury. Section 101 of the IVA describes a minor injury, in part, as a physical injury, including a chronic injury, that does not result in a “serious impairment” and is one of a list of prescribed injuries. Relevant to this dispute, the list of prescribed injuries under section 101 of the IVA and section 2 of the MIR includes sprains (ligament injuries that are not total tears), strains (muscle injuries that are not total tears), and pain syndromes.
- 13.Section 101 of the IVA says, in part, that a “serious impairment” is a physical impairment that lasts more than 12 months and meets certain criteria, which are set out in section 3 of the MIR. Under section 3, an impairment must meet 3 criteria to be considered serious:
- It must render the injured person substantially unable to perform (i) the essential tasks of their regular employment, (ii) their training or education program, or (iii) their activities of daily living. For (i) and (ii), the impairment must exist despite reasonable efforts to accommodate the impairment.
- It must be primarily caused by the accident and ongoing since the accident.
- It must not be expected to improve substantially.
- Section 5 of the MIR says that if a person suffers more than one injury, each injury must be diagnosed separately as to whether it is minor or not. The medical evidence discussed below refers to several physical and mental injuries, some of which have some ongoing component. While his brief submissions are not explicit, I find that the only injury Mr. M asserts is not minor is to his left shoulder. I say this because this is the only injury he mentions in his submissions. I find that if Mr. M considered his other injuries to be not minor, he would have said so, especially given he bears the burden of proof. I find this is sufficient to conclude that all of Mr. M’s injuries other than the left shoulder injury are not minor under the IVA.[i]
- I note that my conclusion is supported by the medical evidence. I find it unnecessary to discuss the evidence about the other injuries in any detail. I find that nothing in either expert report before me indicates that any of Mr. M’s non-left shoulder injuries have resulted in a “serious impairment”, as that term is defined above.
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