First FSCO Decision on the Minor Injury Guideline

Matthew Dugas,
Partner

October 2103

By Matthew Dugas

A recent FSCO decision has found that a claimant is not precluded from claiming housekeeping, attendant care as well as medical and rehabilitation expenses beyond the $3,500 limit within the Minor Injury Guideline. In Lenworth Scarlett and Belair Insurance Company Inc. (FSCO A12-001079), Mr. Scarlett was a passenger in a vehicle involved in a motor vehicle accident and applied for statutory accident benefits. His disability certificate indicated that he sustained various sprains and strains to the joints and ligaments of the lumbar and cervical spine as well as headaches and acute stress reaction.

Subsequently, Mr. Scarlett's various treating physicians reported that he suffered from severe depression, post traumatic stress disorder, TMJ problems, chronic pain as well as predisposition to having a poor prognosis for recovery. As a result, he argued that his claim falls outside the boundaries of MIG and he should be permitted to access the entirety of the standard benefits contained in his insurance policy.

Belair communicated its view to Mr. Scarlett that they felt that he fell within the MIG early on. However, Belair did seek out independent experts to validate its opinion. Belair's experts opined that Mr. Scarlett sustained soft tissue injuries and found that the injuries fell within the MIG. In addition, a psychologist concluded that Mr. Scarlett's symptoms did not meet the criteria for any psychological diagnosis.

Arbitrator John Wilson notes, "Mr. Scarlett's attempts to claim certain benefits from Belair were being rebuffed because Belair took the position that he was within the MIG... even when Mr. Scarlett provided further evidence of complicating features of his claim that in his mind took it outside of the MIG framework, he was met with the same response."¹

However, with respect to the Minor Injury Guideline itself, Arbitrator Wilson notes, "while the Guideline concedes that some impairments do not come within the Guideline, it appears to set a high bar for any exceptions to what is seen as the rule in a situation where "it is intended and expected that the vast majority of pre-existing conditions" will not be seen as an exception." Upon reading the Guideline, there appears to be a burden on an insured to demonstrate that there is "compelling evidence" that the impairment is not a minor impairment, that a pre-existing condition will prevent a person from achieving maximal recovery or that the insured fits into one of the "extremely limited instances" where it is appropriate to treat outside the MIG.²

Arbitrator Wilson concludes that "compelling evidence" is an exhortation to medical practitioners and other stakeholders to provide credible, or convincing evidence if they wish to ensure that an insured is to be treated as being outside the MIG.³

Arbitrator Wilson reviews the legislation and construction of the Guideline within the Statutory Accident Benefits Schedule. He concludes that it remains the Insurer's burden to prove any exception to or limitation of coverage on the civil balance of probabilities. He states that Belair has not met its burden of showing that Mr. Scarlett's claim is restricted to the parameters of the Minor Injury Guideline.⁴

A minor injury is defined by the Guideline as follows: Minor injury means a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration, or subluxation and any clinically associated sequelae.

Arbitrator Wilson notes that there is no doubt that Mr. Scarlett suffered soft tissue injuries, however it is not clear whether he suffered from any other conditions that were not soft tissue in nature. Based on his review of the evidence, Arbitrator Wilson found that the TMJ, the chronic pain diagnosis and the psychological impairments are separate and distinct from the soft tissue injuries, and are supported by credible evidence.

Arbitrator Wilson concludes with the following: "The insurer is... mandated to make an early determination of an insured's entitlement to treatment beyond the MIG.... What it 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 either 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." ⁵

This decision was released on March 26, 2013, and now has been stayed pending appeal by the insurer. As a result this is an ever-changing area of interpretation. Insurers should use this case to help to guide them with their interpretation of the MIG, but it is not the definitive and last answer on the subject.

Analysis

As this key decision is in the process of being appealed, and the appeal will represent an important precedent, the following points represent some issues that could be raised about this decision on appeal:

• Arbitrator Wilson discusses the "compelling evidence" requirement in the MIG, finding that it does not shift the burden to the claimant to establish that should not be treated in the MIG and does not create an extra evidentiary burden. Part of the analysis for this is that the MIG is a guideline and non-binding interpretative aid. However, the "compelling evidence" requirement is also found in section 18(2) of the SABS, which is a binding regulation.

• Arbitrator Wilson used section 233 to negate the claimant's statement given to an examiner in an insurer examination that he did not want or need psychological treatment. Psychological issues are usually a key factor in a claimant being excluded from the MIG. Section 233 of the Insurance Act prevents an insurer from relying on any statement by an insured unless the statement is contained or embodied in the written and signed application for benefits. However, this is a problematic interpretation and novel of section 233. A reasoned interpretation of that provision suggests that it applies to insurers completely denying claims based on misrepresentations made on an application when originally applying for an insurance policy. It could be argued that Arbitrator Wilson's logic, if extended, could prevent an insurer from relying on any insurer examinations (at least to the extent that verbal histories or reports are required from the claimant) or an Examinations Under Oath, which would clearly be an unintended and undesirable result.

• Arbitrator Wilson's decision does not incorporate the "predominantly" requirement in the MIG (i.e. that a person falls within the MIG if their injuries are predominantly minor injuries). The requirement occurs both in the non-binding guideline and the binding SABS. Arbitrator Wilson finds that he has "significant other problems" apart from his minor injuries and that the "totality" of his injuries bring him out of the MIG. It could be argued that Arbitrator Wilson ignored this aspect of the definition, or unjustifiably changed the analysis to whether the "totality" of a person's injuries exempts them from the MIG.

• Arbitrator Wilson used the French language version of the MIG to interpret what is meant by "compelling" evidence (that a claimant cannot effectively be treated in the MIG because of a preexisting condition) in establishing an exemption from the MIG. The French version of the MIG uses a word that translates to convincing, and Arbitrator Wilson ultimately concluded that only "credible" evidence was needed. However, the French version of the SABS (which unlike the MIG, is a binding regulation), uses a word that translates into either "probative" or "convincing". It is problematic that he used the French version of the MIG, where the French version of the SABS would be more applicable. There is also difficulty with his conclusion that the French version of the MIG encouraged rather than required compelling evidence. This is because it appears that this language in the French MIG relates only to encouraging that an OCF-18 treatment plan provides some information about relevant preexisting conditions, as opposed to indicating what medical evidence is needed to ultimately exempt a person from the MIG.

¹ Page 6, par 2.
² Page 7, par 2.
³ Page 10-11, par 6.
⁴ Page 13, par 4.
⁵ Page 16, par 2-3.

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