Is a “Concussion” really a “Minor Injury”?

If you sustain a concussion in a motor vehicle collision, is the injury considered to be “minor” and capped to $7,500 for pain and suffering?

It is important to first look at how legislation now defines a “minor injury.” For motor vehicle collisions which occurred on or after April 28, 2010 the general damages cap now only applies to sprains, strains and certain types of whiplash. Whether a concussion is a sprain, strain or whiplash-associated disorder (WAD) has not been addressed by our courts.

In one case in Alberta (McLean v. Parmar [2015] A.J. No. 214, 2015 ABQB 62) the claimant sustained multiple injuries including a mild concussion that caused fatigue, headaches and concentration problems for six months. The Court found that the concussion injury (along with a TMJ disorder, depression, PTSD and chronic pain lasting 2.5 years) was not considered to be a “minor injury.” Alberta has similar legislation to Nova Scotia. Unfortunately, there was no proper analysis or direct finding of whether a concussion injury did not come within the meaning of a sprain, strain or whiplash-associated disorder injury.

A “concussion”, by definition, involves an injury to the brain, which is made up of billions of nerve cells (neurons), nerve fibres as well as blood vessels. A “strain” is defined in the “minor injury” legislation as an injury to a tendon or ligament. A “sprain” is defined in the “minor injury” legislation as an injury to a muscle. There are no muscles, ligaments or tendons in the brain so those would not classify a concussion injury as being “minor”.

Could a concussion be considered part of a whiplash-associated disorder?  Concussions are often associated with whiplash injuries and this can cause some confusion. Alan Robinson of NHL.com discussed how the injury suffered by Cole Harbour NHL superstar Sidney Crosby brought attention to the connection between a soft tissue injury and concussions. He suffered for many months of persistent concussion symptoms and was ultimately found to be suffering from cervical spine (C1-2) joint swelling caused by a cervical spine soft tissue injury. His situation demonstrates the connection between whiplash-associated disorder injuries and concussions that is often (but not always) seen.

Many people injured in motor vehicle collisions seek medical care and treatment for similar symptoms and injuries. Injured people in motor vehicle collisions are often diagnosed as suffering from whiplash. Whiplash actually describes how an injury happens to someone when their vehicle is rear-ended. More specifically, whiplash describes how the occupants of the vehicle are accelerated forward and backward. It is the neck movement that leads to the injury and potential concussion. In addition to soft tissue injuries to the cervical spine, the brain can also be injured and bruised by the acceleration-deceleration motion causing the brain to move and strike the skull. This results in damage to the neurons which make up the brain. A concussion is a mild form of traumatic brain injury which will normally resolve, but can in some cases cause persistent and permanent deficits.

A “whiplash associated disorder injury” is not specifically defined in the “minor injury” legislation. However, we learned via Dynamic Chiropractic that this term comes from the 1995 Quebec Task Force study into whiplash injuries, which dealt with cervical spine acceleration-deceleration injuries and treatment protocols for cervical spine injuries. The normal definition of whiplash is an injury to the neck (not the brain). As an example, the Ontario legislation provides a specific definition of “whiplash injury” as an injury to the neck following sudden acceleration-deceleration force. The Nova Scotia legislation does not contain a similar definition, but the Treatment Protocol regulation must be followed in making determination of whether an injury is a sprain, strain or WAD injury (grade I or II only). The regulation references the “International Classification of Diseases” (Canada version) and specific references in the section on whiplash injuries are to spinal pain complaints (cervical, thoracic, lumbar) and no neurological signs of injury. There is no reference to brain injury or concussion injury and most likely our Courts will conclude that a concussion injury is NOT a minor injury and is not a strain, sprain or WAD injury.

As can be seen from then above, the topic of concussions is a complicated one and injured claimants need legal advice to deal with these issues and to ensure they receive proper compensation for their concussion injuries.

David S.R. Parker is a Partner that practices in the area of Personal Injury Law. If you have questions connect with David by phone (902) 460-3447 or email dparker@boyneclarke.ca.