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Siskinds Partner Emily Foreman assesses and explains the first arbitration decision relating to the new  Minor Injuries Guideline that has been released by the Financial Services Commission of Ontario.   Emily explains what the MIG is, how it classifies injured persons and the benefits they receive as well as the impact of the recent FSCO decision, Scarlett v. Belair Insurance Company Inc.In September 2010, the Minor Injuries Guideline 2011[1] (“MIG”) was introduced to the accident benefits regime in Ontario.  The MIG restricts accident benefits available to those who sustain injuries which fall within the MIG’s definition of “minor injury”.  For example, people who have injuries which fall within the MIG have access to a maximum of $3,500.00 for medical and rehabilitation benefits under their automobile policy.  Those who have injuries which do not fall within the MIG have access to a maximum of $50,000.00 for medical and rehabilitation benefits.

The MIG defines “minor injury” as:

A sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. This term is to be interpreted to apply where a person sustains any one or more of these injuries.

Impairments do not fall within the MIG where:

An insured person’s impairment is predominantly a minor injury but, based on compelling evidence provided by his or her health practitioner, the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximal recovery from the minor injury if he or she is subject to the $3,500 limit referred to in section 18(1) of the SABS, or is limited to the goods and services authorized under this Guideline.

The existence of any pre-existing condition will not automatically exclude a person’s impairment from this Guideline. The MIG states:

Only in extremely limited instances where compelling evidence provided by a health practitioner satisfactorily demonstrates that a pre-existing condition will prevent a person from achieving maximal recovery from the minor injury for the reasons described above is the person’s impairment to be determined not to come within this Guideline.
 

Since the Guideline took effect, there have been many cases where injured people disagree with their classification in the MIG.  Thousands of disputes involving the MIG issue are being mediated through the Financial Services Commission of Ontario. 

On March 26, 2013, the Financial Services Commission of Ontario released what is believed to be the first decision on the MIG issue, in Scarlett v. Belair Insurance Company Inc.[2]

In Scarlett, the applicant was injured in a motor vehicle collision on September 18, 2010.  The insurer took the position from an early stage that the applicant Mr. Scarlett’s injuries placed him in the MIG.  Mr. Scarlett asserted that in light of pre-existing conditions and psychological disabilities arising from the accident, he should be out of the MIG. In support of his case, the applicant relied on medical reports from a dental surgeon, an orthopaedic surgeon and a psychologist.

Arbitrator J. Wilson found that Mr. Scarlett was able to claim housekeeping benefits, attendant care benefits and medication and rehabilitation expenses beyond the $3,500 MIG limits.  Arbitrator Wilson conducts an extensive analysis of the Guideline.  He finds that the MIG does not create an extra evidentiary burden for an insured person with respect to the production of compelling medical evidence.  He finds that the MIG is advisory in nature, despite its incorporation into the Statutory Accident Benefits Schedule.  He outlines the critical elements of the Guideline as follows:

  • Persons who suffer minor injuries (as defined) should be treated appropriately, with early, quick and limited intervention to assist in recovery.
  • The decision to treat an insured either within the MIG or not should be made on the basis of credible medical evidence, and not on speculation.
  • Even those persons who otherwise might be within the MIG can be treated outside of the Guideline if there is credible medical evidence that a pre-existing condition will prevent the insured person from achieving maximal recovery from the minor injury.

Arbitrator Wilson finds that it would make no sense to allow the Insurer to veto access to accident benefits on the basis of a single medical report, in the face of credible evidence to the contrary.  This would go against the spirit of the accident benefits legislation and the stated purpose of the Guideline.

He also finds that the determination as to whether the MIG is appropriate in a given claim:

…must be an interim one, and one that is open to review as more information becomes available. 

…Each case merits an open-minded assessment, and an acceptance that some injuries can be complex, even when
there are soft tissue injuries present amongst the constellation of injuries arising from the accident.

It is important to know that if you are injured in a motor vehicle accident and placed in the MIG, this may or may not be appropriate.  A comprehensive review of your medical history and accident related injuries can assist in determining if the MIG classification is, in fact, suitable.  Each person should be assessed on an individual basis.

Emily Foreman is a Partner at Siskinds, LLP.  She practices exclusively in the area of personal injury litigation.  If you have questions about your legal rights please contact Emily Foreman at emily.foreman@siskinds.com, or call 519.660.7822 for a free consultation.


[1] Statutory Accident Benefits Schedule – Effective September 1, 2010, Ontario Regulation 34/10, as amended.
[2] F.S.C.O. A12-001079.

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