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On July 7, 2015, the Financial Services Commission of Ontario released a decision in Arruda v. Western Assurance,1 providing some additional analysis of the Minor Injuries Guideline (“MIG”).

The Applicant Ms. Arruda sustained soft tissue and psychological injuries in a motor vehicle accident on May 5, 2012. The Insurer placed Ms. Shapiro in the MIG. This issue, among others, was the subject of the arbitration.

This decision again confirms that the onus of establishing that an injury falls outside of the MIG, rests with the injured person.

Arbitrator Shapiro finds the following evidence in this particular case insufficient to remove Ms. Arruda from the MIG:

  • Reported pre-existing back pain caused by an epidural administered during the birth of her daughter, 2 weeks prior to the accident, and
  • Treatment plans and assessments submitted during the first 5 months post-accident, which characterized her injury within the realm of “a common soft-tissue injury”.

Approximately 20 months post-accident, Ms. Arruda attended an assessment with Orthopaedic Specialist Dr. C. West. At that time, he found that her pain had become ­chronic. Arbitrator Shapiro relies on this new medical diagnosis to ultimately find that Ms. Arruda’s injuries are no longer in the MIG.

Arbitrator Shapiro also restates the well-established principle that an insurer has an ongoing duty to assess and reassess a claim as new information become available2.

At this time, it is not known whether either party will appeal the decision.

1 (FSCO A13-003926, July 7, 2015)

2 Cowans and Motors Insurance Company (FSCO A09-003237, October 15, 2010)

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