Canada: Arbitration Decision Provides Guidance For Application Of Minor Injury Guideline

Last Updated: January 15 2014
Article by Marc A. Flisfeder

In 2010, the Minor Injury Guideline ("MIG") was added to Ontario's Statutory Accident Benefits Schedule.  Section 3(1) of the Schedule defines a "minor injury" as "one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury." Section 18(1) of the Schedule limits to $3,500 the total amount of medical and rehabilitation benefits payable by an insurance company to an injured person who has suffered "predominantly minor injuries" as a result of an accident.

Belair v. Scarlett is the first arbitration decision which interprets the application of the MIG. Mr. Scarlett was in a car accident and suffered soft tissue injuries, sprains, and lacerations, as well as depressive symptoms, chronic pain, and temporomandibular joint disorder ("TMJ"). The arbitrator accepted that Mr. Scarlett's psychological condition, chronic pain, and TMJ were separate and distinct from the minor injuries and were not sequelae thereof, meaning that Mr. Scarlett's injuries did not fit the definition of minor injuries in the Schedule and Mr. Scarlett was not subject to the $3,500 cap on medical and rehabilitation benefits.  On appeal, the decision of the arbitrator was sent back for a new hearing.

The appeal decision provides useful guidance in relation to the following three questions: (1) whether the MIG is binding or advisory in nature; (2) who has the evidentiary burden to establish that an injury is minor in nature; and (3) when a non-minor injury sustained in an accident will be considered separate and distinct from the minor injuries also sustained in the accident, and not sequelae to them. 

On appeal, the Director's Delegate held that the MIG is not merely advisory but binding on accident benefits decision-makers. This means that such a decision-maker is not free to depart from the MIG scheme unless the departure is itself authorized by the MIG.  Further, the Insurance Act was recently amended to state explicitly that guidelines such as the MIG are binding (s.283 (2.1)). The combined effect of Belair v. Scarlett and the new s.283 (2.1) appears to be that unless an insured meets the statutory requirements which would take the insured out of the MIG, a decision-maker, even in the most compelling of cases, cannot award more than $3,500 in medical and rehabilitation benefits.

The Director's Delegate also held that it is the insured person who must demonstrate that his or her injuries are more than minor in order to be entitled to higher degree of coverage. Placing the burden of proof on the insured makes it more difficult for him or her to obtain coverage beyond the $3,500 cap.

Finally, the Director's Delegate provided some guidance in relation to when an injury will be considered a sequelae or consequence of a minor injury.  In relation to the first requirement, the Director's Delegate held that the $3,500 limit will not be set aside only because some of the injuries are not minor. Rather, the $3,500 cap will only be set aside if the injuries are not "predominantly" minor.  While the Director's Delegate did not define the word "predominantly," it seems clear that the wording will make it more difficult for an insured to fall outside the MIG.  

Overall, it appears that the appeal decision in Belair v. Scarlett will make it more difficult for accident victims who have suffered mostly "minor" injuries, as defined by the MIG, to obtain compensation for medical and rehabilitative expenses in excess of $3,500.

www.lernerspersonalinjury.ca

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