In the March 27, 2013 decision of Scarlett v. Belair Insurance , Arbitrator John Wilson essentially confirmed the common sense inference that the minor injury guideline (“MIG”) is meant for people who have sustained minor injuries.
This may not sound like much of a land-mark decision or much reason to write anything at all. The reason that it is, is because insurers have been trying to force many square pegs (people with more serious personal injury) into the round holes of the MIG. There have been a number of interpretations and policies that have been adopted by insurers that have expanded the use of the minor injury guideline beyond what it was arguably intended to do. Scarlett v. Belair is the first known reported decision that interprets the minor injury guideline .
For those who don’t know, the MIG is a treatment guideline that is found within the statutory accident benefit system (the system that governs no-fault benefits for car accident victims). The MIG restricts a injured person’s treatment to a total of $3,500 (broken down into blocks) and restricts their ability to claim for other benefits. If someone is outside of the MIG (if their injuries are more significant) then they are entitled to up to $50,000 in benefits for treatment, as well as other benefits, including attendant care.
One of the important points made in this decision is that it is the insurer’s burden to prove that the insured’s claim is restricted to the MIG (not the other way around as the insurer argued). The arbitrator found that the claimant’s TMJ, chronic pain diagnosis, and psychological impairments were separate and distinct from the soft tissue injuries and that the totality of the injuries fell outside of the minor injury guideline .
Many injury claimants often complain that they were being lumped into a particular category just because they had no fractures. Indeed, I had one car accident client near Oshawa with a head injury who was being regularly followed by a treating neuro-psychologist and educational support aide who was put in the MIG and was only removed as we approached arbitration.
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The arbitrator in the Scarlett case, made it clear that insurers cannot simply lump people into one category, and explicitly stated as follows:
“ What it [the MIG] is not is the cookie cutter application of an expense limit in every case where there is a soft tissue injury present. Such does not respond to the spirit of the accident benefits system or the policy enunciated in the Guideline of getting treatment to those in need early in the claims process. While it is quite possible that the majority of claimants can be accommodated within the MIG , averages are misleading when applied to individual cases. Each case merits an open-minded assessment, and an acceptance that some injuries can be complex even where there are soft tissue injuries present amongst the constellation of injuries arising from an accident ”.
This decision is apparently being appealed by the insurer. There will certainly be further decisions that will consider the provision further. The hope is that the decision will make it clear to the insurers that the minor injury guideline should be reserved for those people with minor injuries. Where the problems are more significant (either initially or if they become worse over time) an insurer must review and respond to that and fairly consider their insured’s needs. Most of the personal injury law cases that I handle are in York Region (Vaughan, Richmond Hill, Newmarket), the GTA or in Durham (Oshawa, Whitby, Ajax) and claimants are typically fair and most interested in getting back to as much as they can do. For these types of claimants, this is a good and important decision