October 6, 2015

Rise up, Rise up, Rise up out of the MIG – motor vehicle collision accident benefits news

Arruda v. Western Assurance Company, FSCO A13-003926, Arbitrator Jeffrey Shapiro, July 7, 2015

 

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Daniel Macdonald

Ever feel trapped in the MIG? Well a new diagnosis might work to get you out.

The applicant, Jessica Arruda, was injured in a motor vehicle crash on May 5, 2012. Following the car crash she had complaints of back and shoulder pain. She was treated under the Minor Injury Guidelines (MIG) over the following months until the MIG limit was exhausted. Assessment and treatment plans were then submitted for an in-home assessment, physiotherapy and a psychological assessment.

Ms. Arruda’s insurer, Western Assurance Company (“Western”), denied the treatment plans as being beyond the limits of the MIG and sought Independent Examinations of Ms. Arruda. Batteries of IEs were conducted in December 2012 and January 2013. The IEs found Ms. Arruda to have sustained soft tissue injuries and minor psychological ‘difficulties’. Based on this the denials were maintained.

In February 2014 Ms. Arruda was assessed by Dr. Michael West who opined that she had Chronic Pain Syndrome. Western did not respond to Dr. West’s report.

Following unsuccessful mediation, Ms. Arruda bought an application to arbitrate various issues regarding her accident benefits. One issue was whether Ms. Arruda’s injuries fall outside of the MIG.

Analysis

Ms. Arruda had the burden of proof to show that her injuries fall outside the Minor Injury Guidelines, and thus are not subject to the MIG cap of $3,500.

The Statutory Accident Benefits Schedule defines a minor injury to mean one or more of a sprain, strain, whiplash disorder, contusion, abrasion, laceration or subluxion and includes any clinically associated sequalae to such an injury.

The Arbitrator found that by all accounts Ms. Arruda’s injury presented as a soft-tissue injury for the first seven months when she sought treatment under the MIG and when disputed treatment plans were submitted. However, Dr. West’s report in February 2014 changed the landscape. His report was uncontroverted evidence that as of February 2014, Ms. Arruda had a new diagnosis of Chronic Pain Syndrome, which the Arbitrator held to be an injury that falls outside of the MIG.

The various IE reports obtained by Western in December 2012 and January 2013 could not be used by Western to argue that Ms. Arruda’s injuries remained in the MIG as these IEs had occurred a year prior and did not opine that Ms. Arruda was fully healed or even pain-free. An Insurer has an ongoing duty to assess and reassess a claim as new information is available. Western failed to do this when they received Dr. West’s report.

Based on the new and uncontroverted diagnosis of Dr. West, Ms. Arruda’s injuries were found to fall outside of the MIG. However, as her injuries were within the MIG at the time of the disputed treatment plans, the various treatment plans were denied. The door was left open for new treatment plans to be submitted.

Implications for chronic pain sufferers following car accidents and crashes

This is an important decision underscoring the importance of the technical wording of exclusions. The SABs is a statute, not the common law. While the common law is a bit “fuzzy” when it comes to definitions, statutes and regulations, like the SABs, are not. If your injury does not meet the definition of “minor injury” in the SABs, then it isn’t a minor injury and is outside the MIG.

This decision also highlights that injuries are not static and may change overtime. These changes may bring someone outside of a restrictive definition and increase the potential benefits available. Reassessment to capture these changes is important.

 

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