ICBC Loses “Minor Injury” Fight In Case Involving Chronic Shoulder Injury
Reasons for judgement were recently published by BC’s Civil Resolution Tribunal shaping the case law as to what is, and what is not, a “minor injury” for crashes that happened during the ‘minor injury’ era.
In the recent case (Ampabeng v. Madden) the parties were involved in a collision. The respondent suffered chronic soft tissue injuries and a shoulder injury. He worked a heavy physical job and the injuries caused him to shift to more administrative duties as his injuries largely disabled him from heavy physical labour. The injuries were also not expected to get better. Despite their serious nature ICBC still argued they were ‘minor’. (to little surprise as the label ‘minor’ was political trickery with the law drafted to catch many serious injuries including chronic pain and even some brain injuries).
The CRT found that these injuries were not minor and met the definitions of ‘serious impairment’ in the workplace. In allowing the respondent to take the case back to BC Supreme Court to have his damages fairly and fully assessed the CRT provided the following reasons:
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:
a. 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.
b. It must be primarily caused by the accident and ongoing since the accident.
c. It must not be expected to improve substantially.
24. Dr. Krassioukov diagnosed Mr. Madden with soft tissue injuries to the left shoulder, left shoulder blade, and left collarbone, and the development of a left rotator cuff injury. He also diagnosed Mr. Madden with chronic pain.
25. Dr. Krassioukov’s prognosis of these injuries was guarded. He noted that the longer a person suffers from pain, the more likely it is that the person will never fully recover. He said Mr. Madden would likely have some discomfort for the foreseeable future. However, he declined to provide a final prognosis on Mr. Madden’s left shoulder injury given a possible referral to an orthopaedic surgeon.
37. Turning to the test for serious impairment under the MIR, I find that neither expert report identifies any restrictions to suggest that Mr. Madden was substantially unable to perform his activities of daily living. There is also no suggestion that Mr. Madden was enrolled in a training or education program.
38. This leaves Mr. Madden’s work. Mr. Ampabeng argues that neither expert report sets out what Mr. Madden’s pre-injury work tasks were. I find this submission inaccurate. I find that both reports explain that Mr. Madden’s pre-injury role involved a considerable amount of heavy labour. The FCE, in particular, sets out in detail the heavy physical labour Mr. Madden used to do. I also find that the FCE clearly establishes that he can only do a small amount of what he used to on a jobsite. I find that Mr. Madden’s left shoulder injury substantially impaired his ability to perform the essential tasks of his regular employment at the time of the accident.
39. Mr. Ampabeng argues that Mr. Madden 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. I disagree. I find that Mr. Madden’s former physical duties generally involved heavy labour that could not be reasonably accommodated. I find that Mr. Madden’s left shoulder injury frustrated his chosen career path and forced him onto a very different path. He used to perform around 25 hours of heavy labour a week, and now he performs none. In short, I find that I find that this is substantial even though he has been able to move into a less physically demanding role within the same industry.
40. As set out above, a serious impairment must also be ongoing and not expected to significantly improve. Mr. Ampabeng does not specifically dispute either of these points. I find that the evidence clearly establishes that Mr. Madden’s shoulder injury is ongoing. The evidence is somewhat more equivocal about prognosis because Dr. Krassioukov accounted for the possibility of a future surgery, which introduced some uncertainty. There is no evidence from an orthopaedic surgeon. Mr. Madden only says in reply that he is waitlisted for a shoulder surgery.
41. On balance, I find that the evidence establishes that significant improvement is unlikely. I find that Dr. Krassioukov 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. Madden was 3 years post-accident with no improvement in his left shoulder. I find that the obvious inference from that evidence is that Mr. Madden is past the point where significant improvement is likely.