May 6, 2013

Accident Benefits Update – Minor Injury Guideline

ACCIDENT BENEFITS UPDATE

 For the week of May 6 to May 10, 2013

Minor Injury Guideline

Scarlett v. Belair Insurance Company Inc.; March 26, 2013; FSCO A12-001079; Arbitrator J. Wilson

MVC: September 18, 2010. Insurer early on took the position that the insured’s injuries fell under the Minor Injury Guideline, November 2011 (MIG), which provides limited accident benefits in the case of a minor injury. A minor injury includes sprains, strains, whiplash injures and whiplash associated disorders. The insured maintained that he was not precluded from claiming housekeeping, attendant care, and medical and rehabilitation expenses beyond the $3500 limit despite his injuries falling within the MIG. Arbitrator Wilson agreed.

Analysis:

Arbitrator Wilson found that section 14 under the Schedule obliges the insurer to make payments of medical and rehabilitation benefits, barring certain exceptions. Arbitrator Wilson held that once an insured has satisfied the burden of proving that he or she is an “insured” and has suffered an impairment as a result of an accident, the burden then shifts to the insurer to prove that the insured falls under a specified exception, for example the MIG, that would justify non-payment either in part or in full.

The MIG states that the impairment does not come within the MIG if:

…the 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 from achieving maximal recovery from the minor injury if he or she is subject to the $3,500…

Arbitrator Wilson found that the MIG is a non-binding interpretative aid in deciding specifically whether the insured comes within the MIG. The insured and his or her medical practitioners must provide “compelling evidence”, which was interpreted to mean credible and convincing evidence, to take an insured out of the MIG, particularly if a pre-existing condition will prevent the insured from achieving maximum recovery under the MIG.

Because of the early stage of the claim when the MIG is applied, the determination must be an interim one that is open to review as more information becomes available. Insurers should not be performing a “cookie-cutter” application of an expense limit in every case where there is a soft tissue injury present, which is contrary to the spirit of the accident benefits system or policy of getting treatment to those in need early in the claims process.

Implications:

The application of the MIG is the exception, not the rule. Treatment providers should provide convincing evidence that the insured, despite having injuries under the MIG, will not reach maximum recovery if subject to the MIG limit of $3,500. It is then the insurer’s burden to prove that the insured is subject to the MIG. We must remind the insurers that the applicability of the MIG past that initial determination is theirs to prove. Insureds who have suffered injury should not be required to climb mountains to obtain treatment they need to recover.

Accessing Arbitration Decisions

If you would like to read the arbitration decisions for yourself, they can be found athttp://www.fsco.ca/english/insurance/auto/drs/decisions/default.asp. Please contact FSCO at 1-800-517-2332 ext. 7202 to obtain a password to gain access to the site.

If you have questions or comments about this post, contact info@md-lawyers.ca