Minor Injury Guideline Appeal: A Big Step Back for People Injured in Car Accidents
In a big win for insurers and a big loss for people involved in Ontario car accidents, the FSCO decision of Scarlett and Belair, FSCO A12-001079 (Arbitrator Wilson), has been overturned and a new hearing is to be held into the applicability of the MIG to an insured who developed psychological, chronic pain and TMJ (temporomandicular joint) issues some time after her MVA (and whether the insurer has an ongoing duty to re-assess the insured as to the MIG’s applicability) Belair and Scarlett, FSCO Appeal Order P13-00014 (Director Evans).
As background, starting in 2010, Ontario introduced the Minor Injury Guideline (“MIG”) system in Accident Benefits (“AB”), which completely changed the landscape of AB insurance benefits recovery for most people in Ontario. For more background on the MIG, you can find our previous blogs here.
The MIG limits AB benefits for medical and rehabilitation benefits to $3500. If you need / request med / rehab benefits after you have reached this $3500 limit, your insurer is not obligated to, and will not, provide you with anymore med / rehab benefits.**
This Scarlett and Belair appeal is a significant decision for all practitioners in personal injury. Some points to note:
• It was held that Arbitrator Wilson did not address whey the insured’s development of chronic pain, depressive symptoms and TMJ were separate and distinct from soft tissue injuries;
• The proper test to be applied was whether the insured’s impairment was predominantly a minor injury;
• The burden of proof is always on the insured to prove that s/he fits within the scope of coverage;
• The Arbitrator applied an incorrect definition to the term “compelling evidence” when evaluating whether the insured fell outside of MIG;
• The MIG is not advisory but is, instead, incorporated into the SABS (statutory accident benefits schedule) by reference; and
• it was found that Arbitrator Wilson added some caselaw to the original decision that was not presented by counsel at the hearing and that the inability of counsel to respond to those cases was procedurally unfair.
We will monitor for the new hearing’s decision and keep you advised.
** This then generally becomes a strategic issue for personal injury lawyers, as if your injured client can hold on financially, any further medical treatment that is recommended – i.e. further chiropractic, physiotherapy, massage therapy and/or acupuncture, for example – can be tracked and the cost incurred can be claimed in your tort lawsuit arising from the car accident (i.e. against the other driver/car that hit you).
If you are hurt in a car accident and your injuries are nowhere remedied after receiving treatment under the MIG regime, then if you have an experienced personal injury lawyer representing you, you might be able to turn this difficult situation in your favour in your lawsuit.
Gregory Chang
Toronto Personal Injury and Insurance Lawyer